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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
University of Geneva: Executive Training on Civil Aspects of International Child Protection (ICPT) – 2024-2025
The University of Geneva is organising the second edition of the Executive Training on Civil Aspects of International Child Protection (ICPT).
The University of Geneva’s ICPT, offered by the Children’s Rights Academy, is designed to:
- Explore innovative approaches to uphold the fundamental rights of children in transnational situations
- Learn best practices for supporting unaccompanied minors and displaced children seeking asylum
- Collaborate with experts from various fields to create holistic and effective child protection strategies
- Understand the dynamics of how different organisations and stakeholders can work together to protect children
Programme of the 2nd Round 2024 – 2025:
Module 1: Children’s Individual Rights in Transnational Parental Relationships
28 November 2024, 14:15 – 18:15
Module 2: International and Comparative Family Law
19 December 2024, 14:15 – 18:15
Module 3: Vulnerable Migration
27 February 2025, 14:15 – 18:15
Module 4: Practice of Child Protection Stakeholders: Inter-agency Co-operation in Context
10 April 2025, 14:15 – 18:15
This training programme is designed for a diverse audience, including child protection professionals, legislators and lawyers, researchers, students, international organisation staff members, and governmental authorities, among others.
For queries related to the content of the programme, please contact vito.bumbaca@unige.ch.
For more information, please visit the website. To register click here.
The e-mail address is cra-secretariat@unige.ch.
Conference on Rethinking Jurisdiction in Private International Law (1 & 2 August 2024 @ CUHK)
This information is kindly provided by Dr. King Fung (Dicky) Tsang, Associate Professor, the Chinese University of Hong Kong.
CUHK LAW will host an international conference on private international law from August 1, 2024, to August 2, 2024.
Theme
The theme of the conference is “Rethinking Jurisdiction in Private International Law.” Jurisdiction is a broad concept in private international law that includes legislative, judicial, and enforcement aspects. Over the past few years, there have been significant developments in the area of jurisdiction across various countries. These developments, while rooted in national law, have extensive cross-border impacts. Additionally, the HCCH Jurisdiction Project has engaged many countries in focusing on jurisdictional issues and seeking to harmonize jurisdictional conflicts. This conference offers a forum for academics and practitioners to rethink and exchange ideas on the evolving new features of “jurisdiction” in the context of private international law.
This conference is supported by Hitotsubashi University.
Speakers, Abstracts and Programme:
The lists of the speakers, abstracts and the programme can be found respectively here, here and here
Venue:
The Conference will be held at the Cheng Yu Tung Building (CYT) which is located in Sha Tin, Hong Kong.
Address:
LT1A, 1/F, Cheng Yu Tung Building (CYT), The Chinese University of Hong Kong (Map)
Transportation:
MTR: Get off at the University Station. CYT Building is just 1-minute walk away from Exit B.
Languages:
The first day will be conducted in English, while the second day will mainly be in Mandarin Chinese. Attendees are welcome to participate in sessions on both days.
Details and registration
Please visit the conference website for more details. If you would like to attend, kindly register here by 31 July 2024, 3:00 pm.
For enquiries, please contact CUHK LAW at law@cuhk.edu.hk.
FACULTY OF LAW
The Chinese University of Hong Kong | Shatin, NT, Hong Kong SAR, China
T: +852 3943 4399 | E: law@cuhk.edu.hk | W: https://www.law.cuhk.edu.hk
Revue Critique de droit international privé – issue 2024/1
Written by Hadrien Pauchard (assistant researcher at Sciences Po Law School)
The first issue of the Revue Critique de droit international privé of 2024 was released a few months ago. It contains 2 articles and several case notes. Once again, the doctrinal part has been made available in English on the editor’s website (for registered users and institutions).
The opening article is authored by Dr. Nicolas Nord (Université de Strasbourg) and tackles the crucial yet often overlooked issue of L’officier d’état civil et le droit étranger. Analyse critique et prospective d’une défaillance française (Civil registrars and foreign law. A critical and prospective analysis of a French failure). Its abstract reads as follows:
In international situations, French civil registrars may frequently be confronted with the application of foreign law. However, by virtue of the General Instruction on Civil Status and other administrative texts, they are under no obligation to establish the content of foreign law and can be satisfied with the sole elements reported by requesting private individuals. This solution certainly has the advantage of simplifying the task of civil registrars, who are not legal professionals. However, it leads to inconsistencies within the French legal system. The article therefore recommends reversing the principle and creating a duty for the French authority in this area. However, the burden should be lightened by facilitating access to the content of foreign law. Concrete proposals are put forward to this end, both internally and through international cooperation.
In the second article, Prof. David Sindres (Université d’Angers) addresses the complex question of the scope of jurisdiction clauses, through the critical discussion of recent case law on whether Le « destinataire réel » des marchandises peut-il se voir opposer la clause attributive de compétence convenue entre le chargeur et le transporteur maritime ? (Can the “actual addressee” of the goods be submitted to the jurisdiction clause agreed between the shipper and the maritime carrier?). The abstract reads as follows:
In two notable decisions, the French Cour de cassation has ruled that the case law of the Court of Justice Tilly Russ/Coreck Maritime is strictly confined to the third-party bearer of a bill of lading or sea waybill, and cannot be applied to the “actual addressee” of the goods. Thus, unlike the third party bearer, the “actual addressee” cannot be submitted to the clause agreed between the shipper and the maritime carrier and inserted in a bill of lading or a sea waybill, even if he has succeeded to the rights and obligations of the shipper under the applicable national law, or has given his consent to the clause under the conditions laid down in article 25 of the Brussels I bis regulation. The distinction thus made by the Cour de cassation with regard to the enforceability against third parties of jurisdiction clauses agreed between shippers and carriers cannot be easily justified. Indeed, it is in no way required by the Tilly Russ and Coreck Maritime rulings and is even difficult to reconcile with them. Furthermore, insofar as it may lead to the non-application of a jurisdiction clause to an actual addressee who has nevertheless consented to it under the conditions of article 25 of the Brussels I bis regulation, it fails to meet the requirements of this text.
The full table of contents is available here.
The second issue of 2024 has been released and will be presented shortly on this blog.
Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.