Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 4/2024: Abstracts

The newest difficulty of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) options the next articles:

Erik  Jayme †

T. Lutzi: Unilateralism as a structural precept of the Digital Single Market?

Whereas the physique of devices by means of which the European legislator goals to create a Digital Single Market retains rising, it stays unusually devoid of multilateral conflicts guidelines. As an alternative, directives on this space often include no conflict-of-laws provisions in any respect, whereas rules restrict themselves to a unilateral definition of their territorial scope of software. Because the devices don’t regulate the issues falling into their materials scope of software conclusively, although, they proceed to depend on, and work together with, nationwide programs of personal legislation. The prevailing, basic conflict-of-laws guidelines don’t coordinate between these programs satisfactorily. With the intention to realise a real Digital Single Market with uniform requirements of legal responsibility, particular common conflicts guidelines thus appear indispensable

L. Theimer: The final arrow within the English courts’ quiver? ‘Quasi-anti-suit injunctions’ and damages for breach of unique selection of courtroom agreements

This text analyses the final occasion of failed integration of English frequent legislation devices into the jurisdictional system of the Brussels regime. In its resolution in Charles Taylor Adjusting, the ECJ held that selections granting provisional damages for bringing proceedings in one other Member State, the place the subject material of these proceedings is roofed by a settlement settlement and the courtroom earlier than which proceedings had been introduced doesn’t have jurisdiction on the idea of an unique selection of courtroom settlement, are opposite to public coverage underneath Artwork 34 (no 1) and Artwork 45(1) Brussels I Regulation. Extra particularly, they violate the precept of mutual belief by reviewing the jurisdiction of a courtroom of one other Member State and interfering with its jurisdiction. Such selections additionally undermine entry to justice for individuals towards whom they’re issued. By and enormous, the choice deserves approval because it unmasks the English selections as “quasi-anti-suit injunctions” that are incompatible with the Brussels Regulation, identical to their “actual” siblings, anti-suit injunctions. The ECJ’s evaluation is, nonetheless, not in all respects compelling, significantly with regard to the purpose of reviewing one other courtroom’s jurisdiction. Furthermore, the Courtroom’s and the Advocate Normal’s reluctance to have interaction with the English view on the problem is regrettable. In conclusion, the ECJ’s resolution could effectively – by way of EU legislation – have damaged the final arrow within the English courts’ quiver. It’s unlikely, nonetheless, that English courts can be overly perturbed by this, contemplating that, following Brexit, their arsenal is now not constrained by EU legislation.

W. Hau: The required cross-border implication in Article 25 Brussels I Regulation: prerequisite for software or measure towards abuse?

It has lengthy been debated whether or not two events domiciled in the identical Member State can agree on the jurisdiction of the courts of one other Member State pursuant to Artwork. 25 Brussels Ibis Regulation if, aside from this settlement, the information of the case don’t have any different cross-border implications. The ECJ has now convincingly answered this query within the affirmative. This ruling gives a chance to take a more in-depth have a look at the perform of the requirement of a world ingredient within the context of Artwork. 25 Brussels Ibis Regulation and a few questionable arguments which might be derived from different authorized devices.

A. Hemler: The “shopper jurisdiction of the joinder of events” within the Brussels Ia Regulation and the comparability between the legislation relevant to shopper contracts and different contracts within the Rome I Regulation

Within the instances Membership La Costa and Diamond Resorts, Spanish courts referred numerous inquiries to the ECJ on timeshare contracts between customers and companies residing within the UK regarding the proper to make use of vacation lodging in Spain. In Membership La Costa, the ECJ primarily mentioned whether or not the buyer jurisdiction of Artwork 18(1) Brussels Ia Regulation permits an motion in entrance of Spanish courts towards the buyer’s contractual accomplice if the latter just isn’t established in Spain and if the co-defendant, who is simply related to the buyer through an ancillary contractual relationship, has a registered workplace in Spain. In each proceedings, the query additionally arose as as to if the legislation relevant underneath the overall guidelines of Artwork 3, 4 Rome I Regulation will be utilized as an alternative of the legislation relevant underneath Artwork 6 Rome I Regulation if the previous is extra beneficial to the buyer within the particular case. The ECJ answered each questions within the unfavorable and with considerably generalised reasoning. Each selections will be endorsed above all as a result of each Worldwide Civil Procedural Legislation and the Conflicts of Legal guidelines realise shopper safety by means of summary guidelines on the entry to home courts or the relevant legislation, which implies that, in precept, selecting essentially the most beneficial discussion board or authorized end in every particular person case just isn’t a legitimate choice.

C. Uhlmann: The contract to enter right into a future contract in Non-public Worldwide Legislation and Worldwide Civil Litigation

In EXTÉRIA, the ECJ determined upon the query of whether or not a contract to enter right into a future contract regarding the long run conclusion of a franchise settlement, which gives for an obligation to pay a contractual penalty based mostly on non-performance of that contract to enter right into a future contract, is a service contract in accordance with Artwork. 7(1)(b) Brussels Ia-Regulation. The ECJ answered this query within the unfavorable on the grounds that the contract to enter right into a future contract doesn’t stipulate the efficiency of any constructive act or the cost of any remuneration; within the absence of any precise exercise carried out by the co-contractor, the cost of the contractual penalty might additionally not be characterised as remuneration. As an alternative, worldwide jurisdiction needs to be decided in accordance with Artwork. 7(1)(a) Brussels Ia-Regulation. The creator criticizes that the ECJ characterizes the contract to enter right into a future contract indifferent from the long run contract and customarily argues in favor of an ancillary characterization and a broad understanding of the supply of providers for the aim of Artwork. 7(1)(b) Brussels Ia-Regulation.

C. Rüsing: Switch of jurisdiction underneath Article 15 Brussels IIbis Regulation and Articles 12, 13 Brussels IIter Regulation in instances of kid abduction

In line with Artwork. 15 Brussels IIbis Regulation, a courtroom of a Member State could, underneath sure stipulations, switch its jurisdiction in custody proceedings to the courtroom of one other Member State. In TT ./. AK (C-87/22), the CJEU held that in instances of kid abduction, a courtroom with jurisdiction underneath Artwork. 10 Brussels IIbis Regulation may additionally switch jurisdiction to a courtroom of the state to which the kid has been kidnapped. The article welcomes this, however highlights issues that each courts should keep in mind in doing so. It additionally discusses adjustments underneath the Brussels IIter Regulation now in drive.

D. Looschelders: Time-preserving impact of a waiver of the succession earlier than the courts of the inheritor’s recurring residence

Whether or not a waiver of the succession earlier than a courtroom on the recurring residence of the inheritor competent underneath Article 13 of the EU Succession Regulation has time-preserving impact, even when the declaration of the inheritor just isn’t forwarded to the courtroom liable for settling the property inside the interval stipulated by the legislation relevant to the succession, has been controversial thus far. Within the current resolution, the ECJ has affirmed a deadline-preserving impact. The operative half and the grounds of the judgement counsel that the ECJ regards the query of earlier than which courtroom the waiver of the succession is to be declared as a matter of kind. The prevailing opinion in Germany, however, nonetheless categorises this query as a matter of substantive legislation; the jurisdiction of the courts on the recurring residence of the heirs is subsequently understood as a case of substitution ordered by legislation. Inside the scope of software of Article 13 EU Succession Regulation the divergent characterisation has no sensible significance. Nevertheless, totally different outcomes could come up if an inheritor in keeping with the legislation of his recurring residence doesn’t waive the succession earlier than a courtroom or if he declares the waiver of the succession earlier than a courtroom of a 3rd nation. In these instances, solely Article 28 EU Succession Regulation is relevant, however not Article 13 EU Succession Regulation. Because the ECJ has argued with the interplay between each provisions, a brand new referral to the ECJ could also be mandatory on this respect.

C. A. Kern/Okay. Bönold: Blocking impact of submitting an insolvency petition with courts in Member States and third international locations underneath the EU Insolvency Regulation and InsO

In its preliminary ruling of 24 March 2022 (Case C-723/20 – Galapagos BidCo. Sàrl ./. DE, Hauck Aufhäuser Fund Companies SA, Prime Capital SA), the ECJ confirmed that the submitting of an insolvency petition with a courtroom of a Member State triggers a bar to the jurisdiction of courts of different Member States. As a result of Brexit, the BGH, in its remaining resolution of 8 December 2022 (IX ZB 72/19), needed to apply German worldwide insolvency legislation, which it interpreted otherwise from the EU Insolvency Regulation.

H.-P. Mansel: In reminiscence of Erik Jayme

C. Kohler: Pointers on the popularity of a international authorized relationship in personal worldwide legislation – Convention of the European Group for Non-public Worldwide Legislation 2023, Milan, September 2023