Samenvatting - Private International Law

PRIVATE INTERNATIONAL LAW
Inhoudsopgave
DEEL 1: Introduction........................................................................................................... 4
What is PIL?..................................................................................................................... 4
Sources............................................................................................................................ 6
Questions PIL deals with.................................................................................................. 7
Examples from the media................................................................................................ 7
DEEL 2: Conflict of Laws in the EU jurisdiction..................................................................11
Introduction................................................................................................................... 11
Forum shopping............................................................................................................. 11
Procedural issues........................................................................................................... 12
Legal basis for EU PIL..................................................................................................... 12
History of PIL.................................................................................................................. 14
History of Lungano convention, Brussels convention, Brussels regulation (2001, 2012)
...................................................................................................................................... 16
Article 220 EEC........................................................................................................... 16
Brussels Convention................................................................................................... 16
Brussel I (2001).......................................................................................................... 17
Brussels Ia (2012)....................................................................................................... 17
Lugano convention..................................................................................................... 18
General principles.......................................................................................................... 20
MUTUAL TRUST........................................................................................................... 20
INTERNATIONAL ELEMENT..........................................................................................22
Scope of application – Article 1......................................................................................24
Civil and commercial matters.....................................................................................24
exclusion - article 1(2) Regulation..............................................................................33
Scope of application – matrix......................................................................................... 39
Domicile – article 62 and 63.......................................................................................40
Exclusive jurisdiction – article 24................................................................................40
Jurisdiction by appearance – Article 26.......................................................................53
Protected categories - art. 10-23................................................................................54
Choice of court agreements – art. 25..........................................................................64
General jurisdiction – article 4....................................................................................74
Special jurisdiction – art. 7-9.......................................................................................74
Residual jurisdiction – Article 6.................................................................................102
Articles 29-34........................................................................................................... 103
Provisional or protective measures – Article 35........................................................113

, Recognition and enforcement in ANother MS (art. 36-60)........................................115
DEEL 3: Conflicts of law in the EU applicable law............................................................118
Recap of the tree steps in PIL......................................................................................119
Introduction................................................................................................................. 119
History......................................................................................................................... 120
Rome I – ‘Contractual’ obligations............................................................................120
Rome II – ‘Non contractual’ obligations.....................................................................120
Preliminary remarks..................................................................................................... 120
Main principles............................................................................................................. 121
Rome I...................................................................................................................... 122
Rome II..................................................................................................................... 122
Application................................................................................................................... 122
Exclusion of renvoi................................................................................................... 122
Universal application................................................................................................ 122
Temporal application................................................................................................122
Territorial application...............................................................................................124
Material application.................................................................................................. 124
Relationship with other conventions............................................................................127
Applicable law.............................................................................................................. 127
not matrix per se...................................................................................................... 128
Rome I...................................................................................................................... 128
ROME II..................................................................................................................... 140
DEEL 4: Business human rights litigation and PIL...........................................................145
Who is hiding?............................................................................................................. 145
What?....................................................................................................................... 146
High profile examples with PIL elements..................................................................146
Why do we sue them in Europe and /or ‘Global North’?...............................................147
Some core terminology................................................................................................148
SPVs (Special Purpose Vehicles) & the Corporate Veil..............................................148
Duty of care of the mother corporation towards its daughter(s)...............................149
Duty of care towards third parties (Business & Human Rights)................................149
CS3D........................................................................................................................ 151
Jurisdiction of the EU.................................................................................................... 153
How easy is it for a claimant?...................................................................................153
UK adjudicatory jurisdiction over non-EU co-defendant............................................155
APPLICABLE LAW......................................................................................................... 158
Notes........................................................................................................................ 159
US: Alien Tort Statute............................................................................................... 159

, US vs. EU.................................................................................................................. 161
DIVESTMENT OPERATIONS TO AVOID LIABILITY...........................................................161
How do corporations manage these risks?...............................................................161
Regulators in the ‘Global South’ often sanction these divestments..........................162
DEEL 5: Climate justice litigation: Procedural issues and conflict of laws........................163
Introduction................................................................................................................. 163
Main types of claim...................................................................................................... 164
State v State claims.................................................................................................. 164
Claims in pure implementation of international environmental law..........................164
Duty of care.............................................................................................................. 164
Investor suits............................................................................................................ 165
Judicial review........................................................................................................... 165
Jurisdiction and enforcement.......................................................................................165
‘Public’ vs ‘private’ international law...........................................................................166
Public international law............................................................................................ 166
Private international law...........................................................................................167
The ‘international’ element required to trigger PIL......................................................167
Brussels Ia: Articles 33-34 BIa and CPR.......................................................................167
Articles 33-34 BIa..................................................................................................... 167
Civil Procedure Rules – CPR......................................................................................168
Applicable law – Article 7 Rome II................................................................................168
Summary..................................................................................................................... 171
DEEL 6: Insolvency regulation (EIR)................................................................................172
History and relation between BIa and the EIR..............................................................172
Universality.................................................................................................................. 174
Pigeon tailing (communicerende vaten)?.....................................................................176
EIR text..................................................................................................................... 176
Brussels Ia text......................................................................................................... 177
Report Jenard............................................................................................................ 177
EIR recitals................................................................................................................ 178
Consequential restructuring tourism............................................................................178
Scheme of arrangements.........................................................................................178
Vis attractiva concursus...............................................................................................181
Determination of COMI................................................................................................182
COMI?....................................................................................................................... 182
COMI Presumptions..................................................................................................182
COMI indications....................................................................................................... 183
Applicable law.............................................................................................................. 184

, A7(1)......................................................................................................................... 184
A7(2) x A16............................................................................................................... 184
Secondary procedures.................................................................................................186
Recognition and enforcement......................................................................................186




DEEL 1: INTRODUCTION

WHAT IS PIL?
Private international law = conflicts of law

- Conflicts of law idea: ‘economic exchange brings people into contact, it does not
bring them into agreement’  this is not a true reflection of the overall nature of

, the subject. PIL involves calm determination rather than strive.
- The notion ‘private international law’ = more neutral

Narrow view of PIL = the rules applied by domestic courts to determine which laws
apply to cases with an international factual matrix (applicable law).

The broader approach includes jurisdiction and enforcement: the rules determining
which court can hear the case and the rules determining the effect of a judgement in a
foreign country (recognition and enforcement).

In all 3 areas of PIL, there has been international harmonisation, with the European
example being the most advanced. However, there is no requirement of harmonisation
of PIL. PIL is and remains national law, even though harmonisation is possible.

Private international law . It concerns ‘private’ law and ‘international’ scenarios. The
‘international’ does not refer to the source of law but to the factual matrix: there has to
be an international element.
- PIL deals with issues arising in cross-border civil / commercial legal relationships
- Important differences with other branches of the law:

o Public international law = law that regulates the relationships between
States
 Private international law = deals with relationships between
individuals (private-law relationships)  ‘private’ in PIL + it is
designed to function primarily at the domestic level, in domestic
courts.
 Latest years there have been discussions to what degree public
international law should no longer be confined to relationships
between states: questions about IO’s, multinational corporations…
o International criminal law = from the moment you deal with criminals, PIL
falls away, except there might be a civil law element to a criminal law
proceeding
 Ex. somebody dies in a car accident in Slovenia, the Slovenian
authorities might prosecute the driver of the offending vehicle for
having broken criminal law (manslaughter) but there is also a civil
law claim against the defendant and the insurance company. It’s a
mix between international criminal procedure and a private
international law procedure.
o Civil procedure = all the rules that deal with the introduction, development
and finalization of a claim. They are not private international law rules but
they do often have an impact on jurisdictional choices: these rules can
determine why you might want to go to one court and not to the other.
 Ex. statutes of limitation = the amount of time that allows you to
bring a claim.
In short

- International  refers to the international element needed in the factual matrix
- Private  refers to the fact that the subject matter concerns private law issues.

Very often it can be very attractive to make a legal relationship international. The beauty
of PIL is that you can very often turn to various courts in various states to settle an issue
+ you can very often use the law of other states then the law of the state you are in at
that moment.

, - Ex. State where adoption by same sex couples is not allowed, then the couple
might want to find a way to make their relationship international so that they can
actually adopt.
- Same ratio for people of the same sex that want to marry, people who want to
change gender, escape the tax authorities…

PIL is an opportunity! It is a tool: a way in which you can get to a court that would be
attractive to you.

In Belgium we a Code of Private International Law which was adopted in 2004. Before
2004, the whole of Belgium’s PIL was based on 2 articles in the statutes and a whole
bunch of case law. In a lot of states today, we see that case law still plays a very
important role in PIL.

In the EU, there are a lot of regulations (never directives, regulations = directly
applicable) that harmonise the national rules on PIL. Those regulations are applied via a
wide range of case law.

SOURCES

Sources of private international law  patchwork, spaghetti bowl

- International level
o The Hague treaties from The Hague Conference on Private International
Law = an intergovernmental organisation that tries to harmonize the
approach of the community of states on issues of private international law
issues by using treaties.
o Remark: even if you are member, you do not have to accept every single
convention that comes out of it.
o Ex.
 Brussels Ia Regulation Rome I Regulation Rome II Regulation
Insolvency Regulation = our focus
 Brussels IIa Regulation, Rome III Regulation, Maintenance
Regulation,..
 Hague Treaties
 Lugano Convention 2007
 Hague Judgments Convention 2019
- Regional level
o EU Member state: point of reference will be European PIL  these rules will
take precedence over national law
o These EU-rules are sometimes influenced by international treaties,
particularly The Hague Treaties on PIL.
o Some of the conventions have an impact on EU rules, some of them don’t.
o Legal basis: art. 81 TFEU: (1) The Union shall develop judicial cooperation
in civil matters having cross-border implications, based on the principle of
mutual recognition of judgments... Such cooperation may include the
adoption of measures for the approximation of the laws and regulations of
the Member States. (the EU may adopt legislation on judicial cooperation)
- National level
o = residual PIL: issues that are not covered by EU-rules or other
international treaties signed by the State in question.
- Soft law

This multiplicity of sources makes PIL a bit messy.

,Belgium happily signs The Hague Conventions but rarely ratifies them. There are political
reasons: all the parliaments have to ratify the conventions. But in practice, Belgian courts
apply the rules of the PIL Act of 2004 using The Hague Conventions even when Belgium
hasn’t ratified them.

QUESTIONS PIL DEALS WITH

1) Which court can hear a case? (jurisdiction = forum); ‘competence’ not so good a
term
2) Which law applies? (applicable law = lex causae ≈ conflict of laws ≈ governing
law ≈ proper law)
3) What is the effect of a judgment in a foreign country? (recognition and
enforcement) ; ‘execution’
a. How can you, once you have a judgement from a court that has accepted
jurisdiction, make sure that the judgement can be recognized and enforced
in other jurisdictions?

Gleichlauf = the circumstance in which the court with jurisdiction (forum) applies ‘his
own laws’ to the dispute  concurrence between the jurisdiction and the law applicable.

- ex. Belgian court has jurisdiction and it applies Belgian law to the case
- in many PIL scenario’s, there is no gleichlauf. So you can step into a very local
court, on a very ordinary weekday a judge in the commercial code will be applying
English contract law, a family judge will be applying Algerian family law…

In an international context, you will need a certain amount of cooperation between
jurisdictions. Cooperation: evidence, service of documents, witness statements etc

EXAMPLES FROM THE MEDIA

David Beckham and Victoria Beckham about forum shopping
- Facts: there was a woman who suggested that she had been sleeping with
Beckham on various occasions in various hotels in the United States. Beckham
could immediately show that this was complete nonsense because on the alleged
nights of the alleged affair, he could say “well actually I was playing 1000 miles
away in Miami” or something along those lines.
- International element
o David and Victoria Beckham were US residents with UK nationality
o Mother company of the US publisher was German
o The woman also had a European nationality
- Qualification? Libel and slander
o Where can he sue?
 There is a big difference between suing for libel in England and in
the US for public figures like Beckham.
 Libel law in the US is not a federal matter. Almost all states
though have a very strict test to establish libel against the
person who's in the public eye: if you are a public figure, you
not only have to show that what was said is a lie, but ALSO
that it was said with malicious intent, with the express
intention to harm you.
o US = defendant friendly
 English libel law is very claimant friendly: it is much easier as
a claimant to establish libel in an English court.
 In defamation cases, judges will typically apply their own laws to the

, case  Gleichlauf.
 The publisher was clever and only published this piece in the US.
Which of course we all know with the internet is a bit of a fallacy to
suggest that you only publish in one jurisdiction but nevertheless it
will limit your exposure.
 The Beckhams did not sue in England given that there was no
publication in England, no print publication, no electronic
publication, only on the US site. They sued in the US on the basis of
US libel law and lost because they could not establish malicious
intent.
 The Beckhams did win in a German court because they also sued
the German mother company, but with not an as big award as it
would have been in the US.

Forum shopping : technique whereby a litigant selects his forum to sue, on the basis of
suitability. You shop for the jurisdiction that you believe will be the most attractive to you.

Downside of forum shopping: An expensive libel suit which you initiate in a jurisdiction
that is claimant friendly might be enough to make someone shut up. The very threat of
saying to a journalist, researcher… : if you publish that in an article or in a blog post or if
you don't retract this, then I will be suing you in one of those places is what
- SLAPP = strategic lawsuit against public participation: a lawsuit brought with the
intention of intimidating and silencing a critical party.
- To protect freedom of speech, some jurisdictions have passed anti-SLAPP laws:
they try to discourage SLAPP’s

Johnny Depp and Amber Heard
- Facts: Heard published in the Washinton Post about her experiences as an abused
wife. She didn't mention Depp by name, but of course everyone knew that she
was talking about being abused by him.
- Depp sued the UK tabloids calling him a wife beater in English courts hoping that
the claimant-friendly laws in England would assist him. In the end, they didn’t.
- Depp is also suing in the US, more precisely in Virginia. This is interesting because
neither Depp nor Heard live or work in Virginia. Virginia is the ‘locus delicti
commissi’: printing presses and servers of the Washington Post, in which Ms Heard
made her allegedly defamatory statements, are located in Virginia. Depp could
have easily sued in California, but the reason he didn’t sue in California are so-
called Californian anti slap laws.
- The Depp legal team clearly knows this. They say: “we could easily sue Amber
Heard in a court in California, given that you are both domiciled there and that you
both work there. It would be a piece of cake to establish jurisdiction in California.
It's going to be a little bit more difficult to establish jurisdiction, especially against
Misses Heard, in Virginia. But we'll try and sue the newspapers, and then we'll ring
Heard into the procedural bath”.
o Anchor defendant mechanism : looking for one defendant against whom
you can easily establish jurisdiction, and then you bring into that forum
other defendants that are your real target.
- Why did Johnny Depp win even though there is this really high threshold? Because
of the jury
- Why did the UK judge came to another conclusion then the US judge? UK judge
focused on the facts, he wasn’t distracted by the show elements that were present
in the US.

,Kate Middleton’s privacy
- Facts: “Closer” is a French trashy magazine that published very intimate photos
of her taken with a massive zoom.
- Qualification: privacy
- Where to sue?
o The problem at the time is that the English law doesn’t have a suit for
invasion of privacy. It does now as a result of the ECHR. So they sued in
France instead
o Why? Gleichlauf: in this area of private law, judges will apply their own
laws: for an English judge that would mean applying English law but there
is no suit for invasion of privacy under common law. Kate Middleton would
have very easily established jurisdiction but when it comes to applicable
law there wouldn't have been much to apply. So she sues in France instead
and the French court indeed very quickly found that there had been an
invasion of privacy.
- Recognition and enforcement: in this case, the paparazzi was Italian, the
magazine was French but the photos were also all over the internet. So this brings
the question on how you might be able to force Google for instance to remove
information…

Joseph Weiler
- Facts: Weiler is the editor of an online journal. One day the journal published a
critical book review by a German professor. It was about a book written by a
French- Israeli author.
o Book review = written by a German
o Book = French-Israeli author
o Editor of the journal = American
- The author of the book was offended by the review and sued in defamation. She
sues in France because there defamation is not only a civil law suit but also a
criminal offence (// Belgium). The advantage of it being a crime, is that you can file
a complaint with the investigation magistrate (juge d’instruction,
onderzoeksrechter). This magistrate is duty bound to investigate. All you have to
do then, is hook your civil claim onto the criminal proceeding. You don’t have to
prove anything, you let the magistrate carry all the investigation. If the person is
find guilty, then you can ask for your damages.

Insolvency
- Fascinating area of PIL : how it can be that corporations like Hema go to England
to use English courts and English insolvency laws to restructure = forum shopping.
o How can it be that a company with zero activity in England goes to England
to restructure?
- Sabena: difficulty with enforcing the judgement of a Brussels appeal judge in
Switzerland that said that SwissAir owned Sabena a large amount of money
o Reason: Lugano Convention.
- Umicore: Belgian company that used English laws to restructure.

Divorce tourism
- Very affluent couples getting a divorce often go to England
- Radmacher v Granatino: case in which the UK Supreme Court recognised
prenuptial agreements (= prior to getting married, you agree on the division of

, assets etc.) The Supreme court enforced the prenuptial agreement for the first
time in this case.
- It is always the same thing, ex-partners suing the other for financial reasons. Why
in England? because in England, divorce settlements are very generous for the
partner who gave up a career (for ex. looking after the children). Which is
something on the continent we don’t do enough.

Labour law
- Ryanair for a very long time resisted the application of local labour laws to local
employment: if you want to be a Ryanair Steward, then Ryanair will force you to
sign an employment contract where you will agree to a choice of court in favour of
the Irish court, and to choice of law in favour of Irish law. A lot of States dispute
this, because labour laws anywhere else are going to be much more in favour of
the employees than the Irish law. The same applies to pilots, except for pilots they
tend to be bound by a services agreement (rather than an employment contract.
And they will typically be bound to the jurisdiction of the courts of Jersey. This also
raises question concerning enforceability (see later.)

State of Oklahoma and the symbol of the Coran
- In November 2010, voters in Oklahoma approved a ballot measure to amend the
state constitution to ban sharia from state courts. The law was then updated to
include all foreign or religious laws: if the proposition had been adopted, it would
have meant that judges in Oklahoma would only be able to apply the laws of the
state of Oklahoma and US Federal law. In November 2010 a federal judge ruled
the law to be unconstitutional and blocked the state from putting it into effect.
- Question: to what degree should courts at all entertain suits which are brought by
non- inhabitants and if you do accept to entertain such cases, to what degree
should you apply any other law then your own law?

Gamers: clause in the General Terms and Conditions
- These GTC’s are very rarely consulted by those who agree to them. They often
contain a jurisdictional clause (choice of courts).
- Question: to what degree are these GTC’s enforceable? When can it be said that
you have actually agreed to these GTC’s?
GDPR
- How can you force Google to store your data on European servers? How can you
force them to not export data outside of the EU? How can you force Twitter to
remove tweets?

Enforcement of surrogacy agreements
- Issues of forum shopping in a family context
- Ex. California: one can contract for persons carrying your baby, how do you
enforce this in your own jurisdiction?

Environmental pollution, human rights…
- Question of the use of attractive courts and laws in cases where claimants are
victims of human rights abuse, of environmental pollution…

In public international law, agents of a State are considered immune for suits in ordinary
courts in other states.

Brexit: UK was bound by EU rules but this is no longer the case and this will have an