Views
Polish Constitutional Court about to review the constitutionality of the jurisdictional immunity of a foreign State?
Written by Zuzanna Nowicka, lawyer at the Helsinki Foundation for Human Rights and lecturer at Department of Logic and Legal Argumentation at University of Warsaw
In the aftermath of the judgment of the ICJ of 2012 in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) that needs no presentation here (for details see, in particular, the post by Burkhard Hess), by its judgment of 2014, the Italian Constitutional Court recognized the duty of Italy to comply with the ICJ judgment of 2012 but subjected that duty to the “fundamental principle of judicial protection of fundamental rights” under Italian constitutional law (for a more detailed account of those developments see this post on EAPIL by Pietro Franzina and further references detailed there). In a nutshell, according to the Italian Constitutional Court, the fundamental human rights cannot be automatically and unconditionally sacrificed in each and every case in order to uphold the jurisdiction immunity of a foreign State allegedly responsible for serious international crimes.
Since then, the Italian courts have reasserted their jurisdiction in such cases, in some even going so far as to decide on the substance and award compensation from Germany. The saga continues, as Germany took Italy to the ICJ again in 2022 (for the status of the case pending before the ICJ see here). It even seems not to end there as it can be provocatively argued that this saga has its spin-off currently taking place before the Polish courts.
The Greek Supreme Court has decided: Relatives of persons killed in accidents are immediate victims
A groundbreaking judgment was rendered last October by the Greek Supreme Court. Relatives of two Greek crew members killed in Los Llanos Air Base, Spain, initiated proceedings before Athens courts for pain and suffering damages (solatium). Although the action was dismissed by the Athens court of first instance, and the latter decision was confirmed by the Athens court of appeal, the cassation was successful: The Supreme Court held that both the Brussels I bis Regulation and the Lugano Convention are establishing international jurisdiction in the country where the relatives of persons killed are domiciled, because they must be considered as direct victims.
THE FACTS
On 26 January 2015, an F-16D Fighting Falcon jet fighter of the Hellenic Air Force crashed into the flight line at Los Llanos Air Base in Albacete, Spain, killing 11 people: the two crew members and nine on the ground.
The relatives of the Greek crew members filed actions for pain and suffering damages before the Athens court of first instance against a US (manufacturer of the aircraft) and a Swiss (subsidiary of the manufacturer) company. The action was dismissed in 2019 for lack of international jurisdiction. The appeals lodged by the relatives before had the same luck: the Athens court of appeal confirmed in 2020 the first instance ruling. The relatives filed a cassation, which led to the judgment nr. 1658/5.10.2022 of the Supreme Court.
Standard (and burden) of proof for jurisdiction agreements
Courts are often required to determine the existence or validity of jurisdiction agreements. This can raise the question of the applicable standard of proof. In common law jurisdictions, the question is not free from controversy. In particular, Stephen Pitel has argued on this very blog that jurisdiction clauses should be assessed on the balance of probabilities, as opposed to the “good arguable case” standard that is commonly applied (see, in more detail, Stephen Pitel and Jonathan de Vries “The Standard of Proof for Jurisdiction Clauses” (2008) 46 Canadian Business Law Journal 66). That is because the court’s determination on this question will ordinarily be final – it will not be revisited at trial.
News
XVII Conference of the ASADIP: A More Intelligent and Less Artificial Private International Law
ASADIP: A More Intelligent and Less Artificial Private International Law
By Juan Ignacio Stampalija
The XVII Conference of the American Association of Private International Law (ASADIP) was held on September 25-27. Under the title ‘A More Intelligent and Less Artificial Private International Law,’ the main regional experts, as well as international guests, met at Universidad Austral of Argentina to discuss the main challenges of current private international law. Read more
English-language Master Program at Humboldt University Berlin
Humboldt University Berlin is launching an English-language LL.M. program!
The program will start in October 2025 and aims to attract graduates from all over the world with strong foundational knowledge in their respective legal system and at least one year of professional experience. Applications for the program will be possible from 1 to 31 March 2025.
More information is available on this flyer and online.
For any questions, please contact int.rewi@hu-berlin.de.
Book on PIL and Global Trends (in Croatian)
Following the conference held previously this year (reported here), the book on Private International Law and Global Trends (Medunarodno privatno pravo i globalni trendovi) has been published by the Croatian Academy of Sciences and Arts (Hrvatska akademija znanosti i umjetnosti, HAZU) within the series Modernisation of Law edited by the academic and professor Jaksa Barbic.
The book includes the following contributions (all in Croatian, while the titles are translated for the convenience of the readers of this blog):
Jaksa Barbic
Editorial
Ines Medic, University of Split, Faculty of Law
Challenges of globalization of private international law for national judiciary
Ivana Kunda, University of Rijeka, Faculty of Law
Have frontier digital technologies surpassed the boundaries of private international law?
Mirela Zupan, Assoc. Prof. Dr. Paula Poretti, Jura Golub, University of J. J. Strossmayer in Osijek, Faculty of Law
Foreign public documents in the digital age
Danijela Vrbljanac, University of Rijeka, Faculty of Law
Breach of personal data in private international law
Tena Hosko, University of Zagreb, Faculty of Law
Protection of workers in private international law
Dora Zgrabljic Rotar, University of Zagreb, Faculty of Law
The effect of the Hague Judgments Convention of 2019 on the recognition and enforcement of foreign court decisions in the Republic of Croatia
The book is presented at the HAZU official webisite, while it can be bought for a symbolic price at stores such as here.