Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

PIL > theory > Flashcards

theory Flashcards

1
Q

Mutual trust

A

Gasser

Turner: Anti-suit injunctions are not favoured: These go against the
general idea of mutual trust

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

actor sequitur forum rei.

A

one sues in the MS of the defendant (with

exceptions!)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

One always needs an international element

A

C-281/02 Owusu
o C-327/10 Lindner
o C-296/20 Commerzbank: even more flexible interpretation for consumer
contracts
o Recent confirmation of flexibility in C-280/20, ZN v Generalno konsulstvona Republika Bulgaria v grad Valensia, Kralstvo Ispania [the Bulgarian
consulate]

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Scope of application – article 1

• What are “Civil and commercial matters” and what not

A

EUROCONTROL (and subsequently Steenbergen and Sonntag
• Article 1 should be given an autonomous meaning
• The kind of court which is involved is irrelevant
• A dispute between an individual and the state is NOT a civil and
commercial matter when the public body is exercising its public
powers
o When the public body is acting in a private capacity, the
case can be a civil and commercial matter (C645/11Sapir)

FAHNENBROCK (under the evidence Regulation and
therefore perhaps distinguishable): Government action
needs to have a ‘DIRECT AND IMMEDIATE EFFECT’ on the
legal relatiosnhip;. If there is some, even formal distance such as in the case at hand, the effect is not ‘direct and
immediate’&raquo_space; no acta iure imperii
• Note the Bundesgerichtshof eventually held inadmissibility on the basis of FSI foreign sovereign immunity: a challenge to the CJEU judgment

o Kuhn: CJEU seems to abandon its own Fahnenbrocktest and emphasises context

o Dinant Bar v Maitre DN: bifurcation possible.

o Supreme Site Services: back to Eurocontrol: neither
legal relationships nor basis and detailed rules of the
action show exercise of public powers

C-307/19 Obala v NLB: Bobek AG:
no unicorn: both
‘subject matter’ and legal relationship’ has been used –but preference for ‘legal relationships’ between the
parties (which is also the preference of the 2nd chamber
which includes president Lenaerts). Court seems to
agree

• Recent good illustration: SKAT v Solo Capital Partners
[2022] EWCA 234, reversing the High Court’s decision. A
Lugano case involving ‘Dicey Rule 3’:
o “English courts have no jurisdiction to entertain an action: (1) for the
enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State; or (2) founded upon an act of state“.
• Absence or not of fraud allegations was considered key.
»>Some scope for forum shopping by claim formulation• Consider relevance of the issue for ‘fork in the road’
decisions under ISDS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

scope of application art 1
“civil and commercial matters”:
EXCLUSIONS: Arbitration

A

Rich:
• In this case: the appointment by a regular court of an arbitrator
this exclusion does not only apply to the
ARBITRATION PROCEEDINGS THEMSELVES, but also to other
proceedings where the SUBJECT MATTER of the dispute’ is
arbitration

• West Tankers:
In this case an anti-suit injunction before an Italian court with arbitration proceedings in the UK
if however the procedure that relates to the arbitration does not have arbitration itself as subject, the matter does fall within the scope of the Regulation
• See now recital 12 of the Regulation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Scope of application – ratione personae

When can the Regulation apply?

A

1) When the defendant is domiciled in an EU Member Stateo When the defendant is not domiciled in the EU, article 6 lists instances where the Regulation still applies
2) When a court in the EU has exclusive jurisdiction on the
basis of article 24
3) When there is a valid choice of court agreement which
appoints a court in the EU
4) When the contract is a B2C (with activities directed at the EU) or an employment contract (with employee habitually employed in the EU)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

MATRIX MATRIX MATRIX

A
  1. Exclusive jurisdiction regardless of domicile: 24
  2. Jurisdiction by appearance: 26
  3. Protected categories: Insurance, consumer and employment contracts: 10-23
  4. Agreements on Jurisdiction: 25
  5. General jurisdiction, defendants domiciled in the MS: 4-5
  6. Special jurisdiction, defendants domiciled in another MS: 7-9
  7. Residual jurisdiction, defendants not domiciled in any MS: 6
  8. Loss of jurisdiction, lis alibi pendens & related actions: 29-34
  9. Applications for provisional or protective measures: 35
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Domicile – article 62 and 63

A

“Domicile” is a core term in this Regulation

• Article 62 = natural persons
o The national court applies its national law to establish
whether a party is domiciled in their territory

• Article 63 = business
o 3 possibilities
• Statutory seat
• Place of central administration
• Principal place of business
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Exclusive jurisdiction – article 24

general remarks

A

The goal of this provision is to protect the interests of the
Member States
• It is considered to be a common sense article: for example, the court where the immovable property is situated, is most closely connected to, and best placed to judge the case
• This articles trumps voluntary appearance and choice of
court agreements
• Despite its important overall goals, the rules of Article 24
need to be INTERPRETED RESTRICTIVELY

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Interpretative rules ECJ

A
  • autonomous interpretation
  • predictability
  • mutual trust
  • actor sequitur forum rei
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q 
Article 24(1)
Rights in rem and tenancies of immovable property: CASELAW
A

• Compare British South Africa Co v. Companhia de Moçambique 1893: actions relating to title in foreign land, the right to possession of foreign land, and trespass to foreign land non-justiciable in common law jurisdictions

• Christie v Foster [2019] : overturning the High Court,
the New Zealand Court of Appeal held that the Moçambiquerule does not have what it called reflexive effect: it does not require NZ courts to take cases involving NZ land

• Heslop v Heslop [2021] EWHC 2957 (Ch): not engaged in in personam claims related to a trust in foreign land

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Interpretation of art 24: Caselaw

A

Reichert; Gaillard; Webb v
Webb; Weber v Weber; Schmidt v
Schmidt, Komu v Komu…
• The object of the proceedings really has to be SUBJECT-MATTER identified in the Article

• Compare Land Oberösterreich
• Compare [2020] NZHC 2560 Lange v Lange: whether the New Zealand
property was “in issue”. Gault J: a judgment setting aside a fraudulent
disposition is not rendered unenforceable simply because the debt concerned
the sale of New Zealand land.

• For tenancies, both actions based on rights in rem and in
personam ( Lieber), but it does have to be a ‘tenancy’
(not: time-share (Klein) or whistles and bells contracts
( Hacker v Euro-Relais)
• Only for short-term non-professional lets: a narrowly defined
alternative of domicile of the tenant
• Rei sitae qualification to a large degree is subject to the
qualification under national law: see eg CJEU Weber v Weber

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Forum shopping under A24(1)?

A

• Claim formulation
• Does enforcement action impact qualification? See
Kokott AG in C-25/18 Kerr v Postnov(a), dodged by
the CJEU

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Jurisdiction by appearance – Article 26

2 caveats

A

defendant cannot submit voluntarily for art 24 cases

Protected categories may voluntarily appear (C-111/09
Vienna Insurance Group) however must be warned bythe judge that they do not have to (see now also A26(2).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Choice of court agreements – art. 25

general remarks

A

Agreements are disregarded in case of A24 exclusive jurisdiction and they are restricted in case of a protected category

• When they are valid, they are exclusive (unless parties
agree otherwise)
• Parties domiciled OUTSIDE of the EU can make a valid
choice for a court within the EU
• REFLEXIVE EFFECT: What if court is outside of EU -> does EU court have to respect this choice? see uncertainty in Coreck Maritime and Gothaer, now A33-34 and their recital

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Choice of court agreements - art. 25

consent by Report Jenard

A

Report Jenard: avoid excessive formality, yet ensure
consent is established ; consent to be bound by
choice of court must be clearly and precisely demonstrated (Lord Green in Kaifer Aislamientos [2019] EWCA Civ 10)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Renvoi

Simple renvoi

A

apply all laws of the state, including how the state itself would decide whether or not its court have jurisdiction & which laws they would reply

the laws of the state to which your own rules have referred, refer back to you

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Renvoi

Simple renvoi

A

apply all laws of the state, including how the state itself would decide whether or not its court have jurisdiction & which laws they would reply

the laws of the state to which your own rules have referred, refer back to you

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

general jurisdiction - art 4

A

actor sequitur forum rei

20
Q

Truman show

A

limitation in how far CoJ’s interpretation can be pushed

Hardly any unification in Private Law: cannot do that through backdoor via Private INt LAw

21
Q

Article 7’s special jurisdictional rules. In particular: forum
contractus (A7(1). Forum delicti (A7(2)

How to use art 7?

A
  • ! Identify one particular court in a MS.

* Apply and /and: always A7 PLUS A4.

22
Q

Article 7’s special jurisdictional rules. In particular: forum
contractus (A7(1). Forum delicti (A7(2

! PIL employs its own characterisation

A

o The CJEU pushes an autonomous interpretation as much as it can.
However it necessarily bumps into the limits of how far it can push a
harmonised interpretation of private law in private international law
instruments&raquo_space;> The Truman Show

o Qualification in PIL loses its impact once the judge has decided on
jurisdiction and applicable law. Once the judge starts applying substantive
law, what PIL labelled a ‘contract’, the lex causae (the substantive
applicable law) may well decide there was no such contract.

o A(7)1 ‘does not require the conclusion of a contract’: it applies even when
the existence of a contract is in dispute between the parties (Effer
23
Q

wide definition of ‘contract: caselaw

A

Handte

Feniks

Reitbauer

Flightright

(Libuse Kralova)

24
Q
  1. in matters relating to a contract, in the courts for the

place of performance of the obligation in question;

A

Case 14/76 De Bloos:
• at 13: ‘for the purposes of determining the place of performance..the obligation
to be taken into account is that which corresponds to the contractual right on
which the plaintiff’s action is based’;
• at 17: in case of actions for payment of compensation by way of
damages,…national courts..ascertain whether, under the law applicable to the
contract,…

Case 12/76 Tessili v Dunlop: same day as De Bloos:
• at 13: ‘[national court] must determine in accordance with its own rules of
conflict of laws what is the law applicable to the legal relationship in question and define in accordance with that law the place of performance of the contractual
obligation in question’;
• I.e. ‘Looking over the fence’ or ‘conflicts method’.

25
Q

Summary of looking over the fence

A

simple contract: art 7 (1) (b)

  • sale of good: delivery place
  • provision of service: place of service
  • agreed on specific place of performance

= passe-partout

non-simple contract: mixture of services and goods
= LOOK OVER THE FENCE : Rome I reg
- DeBloos
- Tazili & Dunlop

(in 1970: not yet harmonized so judge to use their own rules on applicable law for contract)

art 4 Rome I Reg : locked in applicable law for sale of goods & provision of services and a few more

whole bunch of contracts outside of these
art 4.2 Rome I
= law of country where the party required to effect the characteristic performance of the contract has his habitual residence

1) which is the characteristic performance according to judge’s national law intuition
2) which party does this
3) what is his habitual residence -> APPLICABLE LAW

THE APPLICABLE LAW GOES BACK TO 1) AND DECIDES WHICH IS THE CHARACTERISTIC PERFORMANCE / PLACE OF PERFORMANCE

26
Q

the new A7(1) presumptions

A

lock-in a place of performance, which does have to
correspond to the actual place of performance. Otherwise
it would circumvent A25 (C-106/95 MSG

27
Q

• How about reference to INCOTERMS?

A
28
Q

Article 7(2): Forum delicti

A
  • Case 21/76 Bier: introduces the Handlungsort (locus delicti commissi) /Erfolgort (locus damni) distinction
  • Result: Ripple effect
29
Q

Article 7(2): Forum delicti

CoJ pulls back on its approach

A
30
Q

What is required for the guillotine rule of A29 to apply

A

144/86 Gubisch Maschinenfabrik and C-406/92 The Tatry: EN version
mentions ‘same cause of action and same parties’ only. NL et al versions
make clear that what is required, is

o 1. ID of parties
o 2. ID of ‘object’ or ‘subject matter’: the end the action has in view (often
flips side of the same coin); and
o 3. ID of cause of action: meaning (1) the facts and (2) the rule of law relied on in the action, as identified by the claimant

31
Q

when are you the same parties

when is it the same subject-matter

A

Where one dispute is about the enforcement of a contract,
and the other about the annulment of the contract, they do
have “the same subject matter”

• When you are claimant in one proceeding and defendant
in the other, you can be ‘same parties’

32
Q

What is required for the guillotine rule of A29 to apply is
same subject matter, same cause of action, same parties

what If one of the conditions is not met

A

A30 may apply: ‘related’ rather than ‘identical’ actions pending in different courts
(often as a result of A8(1); and no obligation to stay, more
flexibility.
• A31 introduces some exceptions, for example in case of
exclusive jurisdiction agreements: BIa has made the Italian torpedoes in this respect somewhat safe. (As in: no longer
effective).
• Article 32 explains when a court is deemed to be ‘seized’

33
Q

art 30 difference with art 29

A

judge has great flexibility with art 30:
even when conditions of art 30 are met : cases are indeed related
even when risk of irreconciable judgement

34
Q

different DNA of art 33-34 and DNA forum non conveniens

A

33-34: in essence about avoiding conflicting decisions

DNA of forum non conveniens: we shouldn’t deal with cases that belong elsewhere

35
Q

Lis alibi pendens

A

action involving the same cause of action and between the same parties’

36
Q

• A34(1) related action

A

action which is related to the action in the court of the third State’

37
Q

Provisional or protective measures – A35

what is it about

A

Provisional measures are always possible by the Court
which has substance matter jurisdiction
 All other courts may exercise their national CPR rules
on provisional measures even if they do not have
substance matter jurisdiction

38
Q

what are the 3 steps of PIL

A

1) Jurisdiction
- > Brussels I Regulation
2) Applicable law
- > Rome I and Rome II Regulations
3) Recognition and enforcement
- > Brussels I Regulation

39
Q

Main principles Rome I

A 
• Freedom of parties to choose
applicable law.
• High degree of predictability.
• Room for manoeuvre for the
court to correct the choice in
favour of the country with which
the contract is “most closely
connected”.
40
Q

Main principles

Rome II

A

Rome II
• A general rule with one general
exception and one escapeclause.
• Specific rules for specific kindsof torts. Extension to issueswhich at least in common laware not generally seen as torts:non-contractual’
• Respect for parties’ freedom tochoose the applicable law.

41
Q

Applicable law. No ‘matrix’ per se

Rome I

A 
• Basic principle: freedom of
choice (art. 3)
• Protected categories (art. 5-8)
• Applicable law in the absence of
choice (art. 4)
• Partial or complete override of
applicable law (which does not
apply to the protected
categories)
42
Q

Applicable law. No ‘matrix’ per se.

Rome II

A
  • General rule regarding torts: lexloci damni (art. 4)
  • Specific torts (art. 5-9)
  • Unjust enrichment, negotiorumgestio and culpa in contrahendo(art. 10-12)
  • Freedom of choice (art. 14)
  • Particular issues
43
Q

the ‘passerelle’ between BIa and Rome I

A

any EU court with jurisdiction under either BIa or as a result of residual PIL,will apply Rome I to the protected categories.

For employees and consumers, choice of law is in principleunlimited, with however a corrective role for the mandatory rulesof the law that would apply had no choice been made: law of thehabitual residence of the consumer (A6(1)) cq law of the countryof habitual employment of the employee (A8(2)).

44
Q

Applicable law Rome I: absence of choice
(art. 4)
Art. 4 requires the court to characterise the contract

A

Step [1] Check as to whether it fits within any of thecontracts described in art. 4.1.
• Step [2] In the negative, or if the contract falls within morethan one of these categories, the court applies thecharacteristic performance test. (art. 4.2)
• Step [3] The escape clause: both [1] and [2] may becorrected if there is a manifestly closer connection withanother State. (art 4.3)
• Step [4] If neither [1] nor [2] can be applied: law of theState with the closest connection. (art. 4.4)

45
Q

How do you know what mandatory law is?

A

How do you know what mandatory law is? : national lawdetermines, cq EU law. Either (rarely in EU law) becauseof a specific proviso in the law. More likely: travauxpréparatoires, with the national judge cq the CJEU as final
authority.

PIL (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions