Views
The Tango Between Brussels Ibis Regulation and Rome I Regulation under the Beat of Package Travel Directive
Written by Zhen Chen, doctoral candidate at the University of Groningen, the Netherlands
The article titled ‘The Tango Between Art.17(3) Brussels Ibis and Art.6(4)(b) Rome I under the Beat of Package Travel Directive’ is published on Maastricht Journal of European and Comparative Law with open access, available at https://doi.org/10.1177%2F1023263X211048595
In the field of European private international law, Brussels Ibis Regulation and Rome I Regulation are dancing partners that work closely with different roles. When it comes to consumer protection, Brussels Ibis Regulation is the leader and Rome I Regulation is the follower, since special protective rules over consumer contracts were first introduced in Articles 13–15 Brussels Convention[1] and then followed by Article 5 Rome Convention.[2]
- Package travel in Article 17(3) Brussels Ibis and Article 6(4)(b) Rome I
Package travel tourists are explicitly protected as consumers under Article 6(4)(b) Rome I, but not under Article 17(3) Brussels Ibis since it does not expressly mention the term ‘package travel’. Instead, the term used in Article 17(3) Brussels Ibis is the same as that in Article 5(5) Rome Convention, which has been abandoned by its successor Article 6(4)(b) Rome I. Such discrepancy is widened with the replacement of Directive 90/314 by Directive 2015/2302 with the enlarged notion of package travel. This means that when Article 6(4)(b) Rome I Regulation is dancing under the beat of Directive 2015/2302, Article 17(3) Brussels Ibis Regulation is still dancing under the beat of Article 5(5) 1980 Rome Convention.
- A uniform concept of package travel under Directive 2015/2302
The CJEU clarified in the Pammer judgment that the concept ‘a contract which, for an inclusive price, provides for a combination of travel and accommodation’ in Article 15(3) Brussels I should be interpreted in line with Article 6(4)(b) Rome I by reference to Directive 90/314.[3] The CJEU did not follow the opinion of the Advocate General, according to which the concept prescribed in Article 15(3) Brussels I has to be interpreted in exactly the same way as the term ‘package’ enshrined in Article 2(1) Directive 90/314.[4] The court stated that the concept in Article 15(3) Brussels I is ‘close to’[5] the notion package in Directive 90/314. The wording ‘close to’, instead of ‘identical’ or ‘the same as’, indicates that the CJEU did not intend to interpret such two terms as having exactly the same meaning.
Since Article 15(3) Brussels I remains unchanged in its successor Article 17(3) Brussels Ibis, this article argues that Art.17(3) Brussels Ibis Regulation has been two steps behind Art.6(4)(b) Rome I when it comes to the protection of consumers in package travel contracts. In order to close the gap, a uniform concept of package travel should be given. It is suggested that Art.17(3) Brussels Ibis should adopt the concept of package travel provided in Directive 2015/2302.
- Deleting package travel contracts from the exception of transport contracts
Despite the adoption of a uniform concept, Article 17(3) Brussels Ibis and Article 6 Rome I only cover packages containing transport, as an exception of transport contracts. Packages not including transport do not fall under the exception of transport contracts. Since all package travel contracts should be protected as consumer contracts, regardless of containing transport or not, it is more logical to delete package travel contracts from the exception of transport contracts in Art.6(4)(b) Rome I as well as Art.17(3) Brussels Ibis and establish a separate provision to regulate package travel contracts.
To this end, Article 17(3) Brussels Ibis and Article 6(4)(b) Rome I can be simplified as ‘This Section/article shall not apply to a contract of transport/carriage’, whereas package travel contracts are expressly regulated as consumer contracts in a separate provision. In this regard, the framework in Article 5 Rome Convention is a better solution, according to which package travel contracts can be expressly included in Article 17 Brussels Ibis/Article 6 Rome I as follows:
Notwithstanding Article 17(3) Brussels Ibis/Article 6(4)(b) Rome I, this Section/article shall apply to a contract relating to package travel within the meaning of Council Directive 2015/2302/EU of 25 November 2015 on package travel and linked travel arrangements.
[1] The predecessor of Articles 17-19 Brussels Ibis Regulation.
[2] The predecessor of Article 6 Rome I Regulation.
[3] Joined cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof, ECLI:EU:C:2010:740, para. 43
[4] Joined cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof, ECLI:EU:C:2010:273, opinion of advocate general, para. 49.
[5] Case C-585/08 Pammer, ECLI:EU:C:2010:740, para. 36.
Chinese Court Enforces Singaporean Judgment based on De Jure Reciprocity
By Zheng Sophia Tang, Wuhan University Institute of International Law and Academy of International Law and Global Governance
Chinese courts recognize and enforce foreign civil and commercial judgments under two circumstances: the existence of treaty obligations and the existence of reciprocity. In the past, Chinese courts relied solely on de facto reciprocity to enforce foreign judgments, which requires evidence to prove the courts in the foreign country enforced Chinese judgments in previous cases. Some courts have adopted an even tougher approach and rejected enforcing foreign judgments even though one positive precedent exists in the foreign country, arguing one case is not enough to prove reciprocity. The application of de facto reciprocity causes difficulty to enforce foreign judgments in Chinese courts. It makes enforcement impossible if no application was made to the foreign court to enforce Chinese judgment in the past, and if the other country also adopts the de facto reciprocity. It also makes proving reciprocity difficulty, especially if the foreign country has no comprehensive case report system.
After China commenced the One-Belt-One-Road initiative, efforts were made to relax the threshold to prove reciprocity. The Supreme Court has proposed, in two OBOR opinions, that China should adopt a presumed reciprocity approach, which presumes reciprocity exists if the other country demonstrates intention to establish judicial cooperation with China and no negative precedence exists.[1] However, since these opinions are not legally binding, they are not enough to reverse court practice. Although more Chinese courts enforce foreign judgments after 2013, they still need the proof of one positive case in the foreign country.
20 July, 2021, Shanghai No 1 Intermediate Court decided to recognize and enforce the Singaporean monetary judgment.[2] Although de facto reciprocity already exists between China and Singapore and Chinese courts enforced Singaporean judgments based on de facto reciprocity in the past,[3] this case justifies the decision based on de jure reciprocity. The judgment states: “The reciprocal relationship exists between China and Singapore, because Chinese judgments can be recognized and enforced in Singapore under the same conditions. On the other hand, Singaporean High Court recognized and enforced Chinese judgments in the past, and precedents to recognize and enforce Singaporean judgments also exist in Chinese courts. It shows de facto reciprocal relationship also exists between China and Singapore.”
It is clear that this judgment discusses both de facto and de jure reciprocity. The court considers whether Chinese judgments may be recognized and enforced in Singapore as a matter of law. However, proving de jure reciprocity is not easy. Unless the foreign law completely prohibits enforcing foreign judgments in the absence of treaty obligations, most law will provide conditions for foreign judgments enforcement. The conditions would allow foreign judgments enforced in certain circumstances and not others. In other words, no law would say foreign judgments can be recognized in all circumstances. How to assess if these conditions are enough to make enforcement possible in law? What if the foreign law provides different conditions to enforce foreign judgments from Chinese law? What if the foreign law require de facto reciprocity and China has not yet enforced judgments from this country, rendering enforcement of Chinese judgments practically impossible in the foreign court?
The Shanghai court adopts the equivalent condition test. It takes the seat of Singaporean court and imagine what may happen if this application is a Chinese judgment seeking Singaporean enforcement. It concludes that as far as Singaporean court can enforce Chinese judgments under the same condition, de jure reciprocity exists. In other words, it applies the Singaporean standard to assess enforceability of this judgment. The problem is it may lead to the result that between two countries de jure reciprocity exits in some cases but not others. As reciprocity refers to the relationship between two countries, it should be a systematic status, and not variable according to the different fact of a case.
Another difficulty is that it is usually hard for Chinese courts to know exactly how judicial decision of a foreign court may be made, especially how judicial discretion is going to be exercised in a foreign country. The assessment of the potential enforceability of Chinese judgments in the foreign court in the same condition can only be based on black-letter law which may not be so precise to test de jure reciprocity. Of course, it is arguable that de jure reciprocity only needs a general possibility for a foreign court to enforce Chinese judgments, but not specific Chinese judgments are definitely enforceable in the foreign country. If so, the equivalent condition test is not appropriate to assess de jure reciprocity.
One may suggest the legal comparability test. It argues that de jure reciprocity depends on whether the foreign law provide legally comparable conditions for FJR as Chinese law. This suggestion is also problematic, because many countries’ law provide much lower threshold to enforce foreign law than Chinese law. For example, they do not require reciprocity as a pre-condition. These laws are not comparable to Chinese law, but it is hard to argue that Chinese judgments cannot be enforced in those countries as a matter of law.
The third suggestion is the no higher threshold test. It suggests that if the foreign law does not make it more difficult to enforce Chinese judgments, de jure reciprocity exists. However, what if the foreign law adopts de facto reciprocity like most Chinese courts do in practice? Can we argue the foreign law provide higher threashold because one Chinese court uses de jure reciprocity? Or we consider these two laws provide simialr threshold and treat de jure reciprocity exists, even though the foreign court actually cannot enforce Chinese judgments because Chinese courts did not enforce judgments from this country before?
Anyway, although the test for de jure reciprocity is not settled, the Shanghai judgment shows a laudable progress. This is the first case that de jure reciprocity has been applied in a Chinese court. It shows a serious attempt to deviate from de facto reciprocity. Of course, since de facto reciprocity also exists between China and Singapore, this judgment does not bring significant difference in result. It is curious to see whether the Chinese court will apply de jure reciprocity alone to enforce foreign judgments in the future, and whether any new tests for de jure reciprocity may be proposed in the future judgments.
[1] Several Opinions of the Supreme People’s Court Concerning Judicial Services and Protection Provided by People’s Courts for the Belt and Road Initiative], [2015] Fa Fa No. 9, para 6; The Opinions of the SPC Regarding the People’s Court’s Further Provision of Judicial Services and Guarantees for the Construction of the Belt and Road, Fa Fa [2019] 29, para 24.
[2] (2019) Hu 01 Xie Wai Ren No 22.
[3] Singaporean case, Giant Light Metal Technology (Kunshan) Co Ltd v Aksa Far East Pte ltd [2014] 2 SLR 545; Chinese case, Kolmar Group AG v. Jiangsu Textile Industry Import and Export Corporation, (2016) Su 01 Xie Wai Ren No 3.
The German Federal Court of Justice on the validity of a proxy marriage concluded in Mexico
Written by Greta Siegert, doctoral candidate at the University of Freiburg.
In a recent decision of 29 September 2021 – case XII ZB 309/21, the German Federal Court of Justice (BGH) once again confirmed the validity of proxy marriages concluded abroad under the condition that they met the formal requirements of the applicable foreign law.
The parties, a German woman and a male citizen of Syria, had concluded a proxy marriage in Baja California Sur (Mexico). At the time of the marriage, neither of them was present in Mexico nor had ever met their respective representatives. The declarations of proxy had been prepared by a German notary both in English and Spanish. When the couple applied for a marriage name declaration in Germany, the responsible registry office denied such an entry, invoking the marriage’s formal invalidity.
Reviewing this case, the German Federal Court ruled that there were no doubts regarding the marriage’s formal validity, hence holding it valid in absence of other issues of concern.
The judges followed the line of argument brought forward by the higher regional court of Jena (Oberlandesgericht Jena), stating that the formal aspects of the marriage in question were ruled by Art. 11(1) of the Introductory Act to the Civil Code (EGBGB). Art. 11(1) EGBGB provides that a legal transaction is formally valid if it either complies with the formal requirements of the law governing the legal relationship forming the subject matter of the legal act (so-called lex actus) or with the legal formalities of the state where the transaction takes place (so-called lex loci).
The German Federal Court confirmed that, in this case, the proxy was merely a question of the marriage’s formal validity: since the parties had already – prior to the creation of their declaration of proxy – made their decision about the marriage and their respective spouse, the proxy solely served as a matter of representation in making the declarations of intention.
However, the judges acknowledged that, in other cases, proxies may also affect the substantive aspects of a marriage. This would be the case if the representation affected the substance of the partners’ decision, i.e. if the future spouses had not decided about the marriage or their spouse themselves but had instead transferred the decision to their respective agent.
Since Mexican law – as the relevant lex loci – allows proxy marriages, the German Federal Court concluded that the marriage in question was formally valid. The court added that this result was compatible with German public policy (Art. 6 EGBGB). When drafting Art. 11(1) EGBGB more than 30 years ago, the German legislature recognized and accepted the possibility of marriages concluded abroad according to the rules of the respective lex loci. Though there were repeated calls for a revision of this legislation afterwards, especially regarding proxies in the context of forced marriages, the legislature held on to the lex loci principle. Against this backdrop, the German Federal Court found no evidence that the marriage in dispute violated fundamental principles of the German legal system.
News
Book and webinar Financing Collective Actions
Collective actions and the financing of complex mass damage cases have been among the most debated and controversial topics in civil justice in Europe over the past decade. It doesn’t need much explanation that oftentimes these complex cases involving a multiplicity of parties and events or consequences taking place in different countries trigger private international law questions, as for instance the ongoing evaluation of the Brussels I-bis Regulation evidences (see among others the 2023 Study in support of the evaluation; a 2021 Working Paper by Burkhard Hess; a 2022 report by BEUC on PIL and Cross-border Collective Redress). Another key issue is the funding of these inherently costly litigations. The Representative Action Directive, applicable since June 2023, and the European Parliament Resolution on Responsible private funding of litigation, adopted in 2022, have proliferated discussions on the funding of collective actions. With the entry into force of the Dutch collective damages procedure (WAMCA) in 2020, enabling compensatory actions, the Netherlands has re-confirmed its reputation as one of the frontrunners in having a well-developed framework for collective actions and settlements in Europe. High stake cases involving privacy, environmental law, human rights and consumer law have found their way to the courts and have benefitted from third party funding.
These developments have triggered the Dutch Research and Documentation Centre of the Ministry of Justice and Security to commission a Study on the need for a procedural fund for collective actions, published in 2023 (in Dutch). The book Financing Collective Actions in the Netherlands: Towards a Litigation Fund?, based on this study and including updates, has just been published (Eleven International Publishing 2024) and is available open access. The book is authored by Xandra Kramer (Erasmus University Rotterdam/Utrecht University), Ianika Tzankova (Tilburg University), Jos Hoevenaars (Erasmus University Rotterdam, researcher Vici team) and Karlijn van Doorn (Tilburg University). It discusses developments in Dutch collective actions from a regulatory perspective, including the implementation of the RAD, and contains a quantitative and qualitative analysis of cases that have been brought under the WAMCA. It then examines funding aspects of collective actions from a regulatory, empirical and comparative perspective. It delves into different funding modes, including market developments in third party litigation funding, and addresses the question of the necessity, feasibility, and design of a (revolving) litigation fund for collective actions.
The hardcover version of the book can be ordered from the publisher’s website, which also provides access to the free digital open access version through the publisher’s portal.
A launch event and webinar on ‘Financing Collective Actions: Current Debates in Europe and Beyond’ will take place on 3 July from 15-17.15 CET. Confirmed speakers include Jasminka Kalajdzic (University of Windsor) and Rachael Mulheron (Queen Mary University London). Registration for free here.
Virtual Workshop (in German) on June 4: Martin Gebauer on Substantive Law Impacts on Conflict of Laws Thinking
On Tuesday, June 4, 2024, the Hamburg Max Planck Institute will host its 45th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Martin Gebauer (Universität Tübingen) will speak, in German, about the topic
Substantive Law Impacts on Conflict of Laws Thinking
The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
Book launch and Workshop on Codification of Private International Law 31 May
On 31 May 2024, the Aberdeen Law School will be holding a book launch event in memory of the late Professor Jonathan Fitchen – a former Director of the Aberdeen Centre for Private International Law and a distinguished private international law scholar, who passed away after a brief illness on the 22nd of January 2021.
Also on 31 May 2024, the Aberdeen Centre for Private International Law will be holding the second workshop in a series of workshops organised under the auspices of an RSE-funded research project titled ‘Laying the Foundations for a Restatement of Scots Private International Law’.