IPRax: Issue 1 of 2024

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal.

G. Cuniberti, Time limitations affecting foreign judgments

The issue of time limitations affecting foreign judgments is addressed in remarkably different ways in comparative private international law. The primary reason is that enforcing States define the subject matter of limitations differently: they can focus on the foreign judgment itself, but also on the obligation vindicated before the foreign court, the exequatur judgment, or an autonomous obligation arising out of the foreign judgment in the forum. Additional layers of complexity are that rules of limitation can be characterised either as procedural or substantive in nature, and that foreign judgments losing enforceability should not be enforced. The question should therefore be asked whether this diversity is an impediment to the free circulation of judgments within the European Union, which should be remedied by some form of harmonisation.

J. Hoffmann, Jurisdiction of German courts for collective action against third country defendants

Collective action under the new German VDuG (Law on the Enforcement of Consumer Rights) allows the collective enforcement of similar claims of consumers. Such actions are not only relevant regarding domestic German defendants or those located within the EU but may also be of practical importance regarding third country defendants. This article discusses under which circumstances German courts have jurisdiction for such collective actions. It argues that the exclusive jurisdiction clause in § 3 VDuG does not preclude the application of the general jurisdiction rules of German law. Specific rules apply regarding claims stemming from violations of data protection law.

P.G. Picht and C. Kopp, Choice of law under the Rome I and Rome II regulations: current case law issues

The article deals with current choice of law issues in the practical application of the Rome I and Rome II Regulations. Despite the fact that the relevant provisions have been in existence for some time now, they still raise important and intricate questions. On the basis of recent German case law, the article examines three of these issues in more detail, namely (1) choice of law through litigation behaviour, (2) the exceptional admissibility of a choice of law in bilateral competition law infringement matters, and (3) the validity of choice of law clauses in general terms and conditions.

A. Schulz, Gender self-determination in Private International Law – Towards a new article 7a EGBGB

In August 2023 the German government proposed a draft bill for a “Gender Self-Determination Act” which will allow transgender, intersex and non-binary persons to change their legal gender by means of a simple self-declaration. While some of the details of the future Self-Determination Act are still being debated, less attention has been paid to the fact that the draft bill also contains a proposal for a conflict of laws rule which will determine the law applicable to a person’s gender in cross-border settings. According to Article 7a (1) Draft Introductory Act to the German Civil Code, a person’s gender will generally be governed by the law of the state of which the person is a national. However, according to Article 7a (2) Draft Introductory Act to the German Civil Code, a person residing in Germany may, for the purpose of changing their gender, choose German law. This article aims to take a first look at this draft conflict of laws rule and to illustrate some of the pending questions regarding the new rule.

J. Oster, Jurisdiction clauses in general terms and conditions in digital commerce

In its ruling of 24.11.2022 (Tilman SA ./. Unilever Supply Chain Company AG), the CJEU had to decide on the validity of a jurisdiction clause that was included in general terms and conditions to which the contract referred by the inclusion of a hypertext link. The Court held this to be in accordance with Article 23 para. 1 and 2 of the Lugano II Convention, even though the party against whom that clause operates had not been formally asked to accept those general terms and conditions by ticking a box on that website. The Court thus expanded its case-law on the inclusion of jurisdiction clauses in electronic contracts. The decision has a significant impact on the interpretation of Article 25 para. 1 and 2 Brussels Ia Regulation, which has the same meaning as Article 23 para. 1 and 2 of the Lugano II Convention.

M. Lieberknecht, Enforcement proceedings concerning frozen assets under the EU’s economic sanctions regime

In its Bank Sepah decision, the ECJ offers guidance on an issue of increasing importance: the legal status of frozen assets owned or controlled by persons on the EU’s sanction lists. Specifically, the ECJ weighs in on the fate of frozen assets in the context of enforcement proceedings. The Court adopts an extensive reading of the concept of freezing, which does not only rule out the recovery of assets for the benefit of the creditor but also bars mere protective measures such as seizure, which do not affect ownership rights in the asset. Considering the purpose of freezing orders, this extensive reading is not convincing. The Court’s second dictum, on the other hand, is all the more cogent. It states that the legal effects of a freezing order on enforcement proceedings are not affected by whether or not the creditor’s claim is related to the subject matter of the sanctions in question.

W. Hau, Having two bites at the same cherry? – On the recognizability of a preclusion based on the duty to concentrate claims in one lawsuit

Following an English lawsuit, the winning employee brings further proceedings in France with additional claims against his former employer. This strategy would not be permissible under either English or French procedural law. Nevertheless, the CJEU holds that the preclusive effect of the English decision is not to be recognized in France under the Brussels I Regulation (still applicable in the case). The opposing view expressed here is that only public policy permits refusal of recognition of such a preclusive effect of a foreign judgment.

P. Huber and L. Bernard, Objections to the claim itself and parallel (enforcement) proceedings in the European Union

What impact does it have, if an objection to the claim itself is raised in different member states of the European Union in order to stop one or several enforcement proceedings? This question arose in an Austrian proceeding. The OGH solely dealt with the question of jurisdiction for the Austrian enforcement proceeding. The case, however, raises further issues regarding the coordination of parallel proceedings which are discussed in this article.

E. Jayme and C.F. Nordmeier, Family and the law of torts – Private International Law and Legal Comparison – Conference of the German-Lusitanian Jurists’ Association, September 15th and 16th 2023, Heidelberg