IPRax: Issue 3 of 2023
The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.
Th. Pfeiffer, Judicial Presumptions: Finding of Facts or Application of Law? The characterization of so-called factual presumptions in private international law
This article discusses whether so-called factual presumptions and prima facie-evidence rules qualify as substantive or procedural rules for choice of law purposes. Having analyzed typical situations such as rear-end collisions and the use of standard terms as well as provisions in the Rome I- and II-Regulation, differentiated solution is submitted: Factual presumptions and prima facie evidence are to be qualified procedurally, unless they are exceptionally based on a specific substantive rationale and not on fact related judicial experience.
D. Moura Vicente, The Role of the Brussels I-bis Regulation in European Private International Law and the Challenges Facing it
The 1968 Brussels Convention sought to promote mutual trust between Member States in jurisdictional matters by adopting uniform rules on judicial competence in civil and commercial matters, with a view to implementing a principle of automatic recognition of foreign judgments among them. Such rules could however be formulated only in respect of a limited number of subjects, which explains the Convention’s relatively narrow scope of application. Over the half century since the Brussels Convention’s conclusion, both its nature and that of the Regulations that succeeded it have changed substantially. From an instrument originally restricted to patrimonial matters, the Convention and its successor Regulations became the backbone of a system aimed at ensuring the free movement of judgments and judicial cooperation in a broad spectrum of matters. The Brussels I-bis Regulation has provided the conceptual foundations of the other instruments that integrate that system, which at times replicate its notions and rules or simply refer to it, thereby ensuring the system’s coherence. The Regulation has moreover had a modernising effect on the domestic legal systems of its Member States. The Regulation’s referential role in European Private International Law role nevertheless faces significant challenges arising inter alia from certain shortcomings of its substantive and subjective scope of application, as well as of the available heads of jurisdiction under its rules. It is submitted that these challenges, which this paper seeks to identify, call for a limited reform of the Regulation, the opportunity for which is provided by its review as foreseen in Article 79.
A. Dutta, Reform of German private international law for the names of persons
German private international law dedicates much (probably too much) attention to the names of persons. Based on earlier ideas for a European instrument on the law applicable to names and taking into account the current debate on German substantive law, the article argues for at least a unilateral reform of the current German conflict rules, in particular, for replacing nationality by habitual residence as the primary connecting factor and for a new approach to party autonomy.
T. Helms, German Private International Law and Co-Parenthood
German law of descent does not recognise co-parenthood between two women or two men. This article examines the conditions under which co-parenthood is nevertheless accepted in international cases on the basis of German Private International Law.
M. Pika, On the pathway to European arbitration law or to non-European seats?
In Prestige, the CJEU held that judgments confirming arbitral awards under sect. 66(2) English Arbitration Act 1996 are “decisions” for the purposes of Art. 45(1) lit. c Brussels Ibis-Regulation. In addition, the CJEU held that those judgments cannot prevent recognition of an irreconcilable, earlier judgment if the arbitral tribunal (i) disregarded the lis pendens principles of the Brussels Ibis-Regulation and/or (ii) unduly extended the arbitration agreement to third parties. This is the most significant restriction of the Brussels Ibis-Regulation’s carve-out of arbitration matters in Art. 1(2) lit. d ever since the West Tankers judgment.
T. Kindt, The Pechstein-Decision of the German Federal Constitutional Court
In a long-awaited decision on June 3, 2022, the German Federal Constitutional Court annulled the contested Pechstein-judgment of the German Federal Court of Justice from 2016 that had upheld the validity of an arbitration agreement between Germany’s most prominent speed skater and the International Skating Union (ISU) in favor of the Court of Arbitration for Sport (CAS) in Lausanne. The Constitutional Court holds that the Federal Court of Justice failed to attribute sufficient weight to the claimant’s right to a public hearing as part of her fundamental right of access to justice. Considering the imbalance of power in the contractual relationship between individual athletes and international sports federations, a resort to arbitration could only be accepted if the arbitral proceeding lives up to the minimum standards of constitutionally protected procedural safeguards. In the Constitutional Court’s view, this requirement had not been met by the applicable procedural rules of the CAS at the time, given that they did not provide individual athletes with the right to one-sidedly request a public hearing. This paper argues that the Constitutional Court’s decision, despite its laudable intentions, leaves more questions open than it answers (especially with regard to the question of impartiality and neutrality of the CAS), fails to take into account an important trait of the international arbitral system and will likely only be of limited importance for the further reform of sports arbitration.
R. Geimer, Exclusive international Jurisdiction of Germany based on article 25 (1) Brussels I bis-Regulation without an additive prorogation of a local forum
A German Company registered in Mannheim and a Spanish Company registered in Barcelona had prorogated “the civil courts in Frankfurt, Germany” in a International Distributor Agreement (IDA). It was unclear, which Frankfurt was chosen: Frankfurt on the Main or Frankfurt on the Or? The Higher Regional Court of Frankfurt on the Main ruled that Frankfurt on the Main is the prorogated forum arguing as follows: The representatives on the Spanish Company came by plane over the airport Frankfurt on the Main to Mannheim for signing the International Distributor Agreement including the prorogation clause. They did not know anything about Frankfurt on the Or. Therefore also the representatives of the Spanish Company have nominated Frankfurt on the Main as the exclusively competent forum.
L. Hornkohl, Group Liability in EU Competition Law and International Jurisdiction
In Sumal, the ECJ for the first time applied the single economic entity doctrine in private enforcement of competition law towards corporate groups. According to the ECJ, a subsidiary is liable for the cartel violations of the parent company in descending order if the parent and subsidiary are linked by corresponding economic, organisational and legal relationships. Furthermore, the ECJ requires a connection between the economic activity of the subsidiary and the object of the parent’s infringement to transfer liability. The case law in Sumal has severe international and local jurisdictional consequences. Especially concerning EU-wide cartel agreements, the jurisprudence gives claimants the possibility to sue each legal entity belonging to a single economic entity jointly and severally and thus offers huge potential for forum shopping under the Brussels Ibis Regulation.
C. Mayer, (Supposed) Competing paternities in private international law
Time and again, German courts are confronted with cases in which, as a result of the alternative links in Art. 19 Para. 1 EGBGB, several legal systems are applicable to the parentage of a child. This can result in the child being assigned different legal fathers. The German Federal Court of Justice has already had several opportunities to comment on such conflicting paternity situations and to develop basic structures. Its decision to be discussed here regarding a postnatal acknowledgment of paternity, which competes with a presumption of paternity, fits seamlessly into this line of case law, but raises the interesting question as to where newborns have their habitual residence at the time of birth. The Higher Regional Court Brandenburg, on the other hand, had to clarify the more difficult constellation of whether a prenatal acknowledgment of paternity can take precedence over a presumption of parentage resulting from foreign law, although both become effective at the same time at birth.
D. Henrich, Recognition of private divorces
Private divorces are divorces not by judgment but by agreement of the parties. Art. 21 of the Brussels IIa-Regulation prescribes the automatic recognition of all Member States decisions without any procedure being required. Whether this includes the recognition of non-judicial divorces was unclear. The European Court of Justice decided, that whenever a Member State provides a special proceeding for the recognition of a private divorce, the recognition is a question of procedural law. Whenever a civil status officer of a Member State records the agreement of the parties about their divorce and the parties confirm that the procedure has been performed according to the regulations of the Member State, the record is a judgment in the sense of Art. 2 No. 4 of the Brussels IIa-Regulation. Object of the recognition is here not the decision of a court but a special procedure.
P. Scholz, Mandatory Family Protection in Succession and Ordre Public
In almost every jurisdiction today, rules on mandatory family protection qualify the principle of freedom of testation. However, not only the beneficiaries of such laws vary from country to country. Moreover, over time, different systems of mandatory protection have evolved – and they span from fixed shares in the testator’s estate (like in Austria, Germany, or France) to needs-based judicial awards for the testator’s next of kin (like in England or New Zealand). Under the choice of law regime of the EU Succession Regulation, courts in fixed-share systems will eventually have to decide whether the application of needs-based rules is incompatible with the forum’s public policy where such laws do not result in sufficient claims of the disinherited next of kin. On February 2, 2021, Austria’s Supreme Court positioned itself against such ideas. This stands in stark contrast to the decision of the Cologne Higher Regional Court issued just a few weeks afterwards, which the German High Court upheld with a questionable judgement of June 29, 2022.
