Archive for category: PhD Theses

Combination Rather than Dichotomy: A New Framework for Understanding Party Autonomy in Contracts

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Gilles Cuniberti
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Philippine Blajan, who is a professor at the University of Versailles Saint Quentin, has published La combinaison des autonomies en droit international privé des contrats. Étude des interactions entre le choix de juridiction et le choix de loi (The Combination of Party Autonomies in the Private International Law of Contracts. A study of the interactions between Choice of Jurisdiction and Choice of Law) with the Éditions de l’Institut de Recherche Juridique de la Sorbonne. The book is based on the doctoral thesis of the author, who received the prize of the Comité français de droit international privé in 2022. The author has provided the following extended summary of her work.

Institut de recherche juridique de la Sorbonne | Labo - IRJSIn civil law systems, private international law traditionally approaches the autonomy of parties to international contracts through a familiar summa divisio: on one side, the choice of law; on the other, the choice of jurisdiction (state or arbitral). This conceptual divide structures both the teaching of the subject and its technical rules, especially in European instruments such as Rome I and Brussels I bis, which regulate these freedoms separately.

Yet it fails to reflect an increasingly obvious reality: parties to a contract rarely think in such abstract channels and rigid compartments. Instead, they either strategically combine these tools along with their substantive freedom to shape contractual rights and obligations and to pursue coherent regulatory objectives (the delicate matter of the choice of arbitration and its seat is an eloquent illustration), or unfortunately fail to do so, for lack of awareness of their interactions and potential.

Therefore, the ambition of the book is to offer a conceptual renewal of party autonomy by building a bridge between conflict of laws, conflict of jurisdictions (including arbitration), and substantive contract law. It brings together choice of law (autonomie conflictuelle à objet législatif), choice of forum (autonomie conflictuelle à objet juridictionnel), and contractual freedom (liberté contractuelle or autonomie substantielle), integrates these freedoms in a triangular architecture, and shows that party autonomy is inherently combinatory. Other than theoretical, its practical aim is to better understand the notion, regime and scope of party autonomy in international contracts. The book therefore challenges the traditional dichotomy and proposes a general theory of party autonomy in private international law of contracts based on a combinatory model that accounts for these interactions, shows their “pros and cons” from the parties’ perspective, and provides criteria for regulating them.

I.- Reassessing the Limits of the Dichotomy

The first part of the thesis diagnoses the shortcomings of the classical dichotomy between jurisdiction and choice of law, as well as between autonomy in PIL matters and substantive freedom. It shows that this division, though useful pedagogically, does not correspond to the complex normative reality of international contracting. Two blind spots are identified in this apparently neat separation: internormativity between arbitral and state legal orders and the interdependence between conflictual and substantive autonomies.

A) Internormativity between Arbitral and State Legal Orders

Arbitration is often portrayed as a space of expansive party autonomy; even as a laboratory for “contract without law” (contrat sans loi). Yet such representation oversimplifies the profound and constant circulation of norms between arbitral and state orders. The arbitral order remains significantly permeable to state normativity: parties frequently designate state law to govern their dispute; arbitrators routinely rely on conflict-of-laws methods; and mandatory rules or international public policy may override the chosen law. Even when parties rely on non-state norms such as the lex mercatoria, the reasoning of arbitrators is permeated by state-derived principles.

Conversely, state courts exhibit a form of openness towards non-state or composite normative arrangements. They enforce incorporation clauses (including stabilisation clauses), dépeçage, and other contractual techniques that allow parties to craft highly customised regimes. The risk of turning a blind eye to the interactions between choices of law and jurisdiction is to unintentionally grant parties substantive autonomy of an integral nature, i.e. an almost complete liberation from state law, which would lead to contrats sans loi and to disorder. Contrary to intuition, such risk arises more acutely before state courts than in arbitration, where the normative structure, paradoxically, proves less permeable to strategies aiming at evading state law.

B) Interdependence between Conflictual and Substantive Autonomies

The thesis also shows that choice of forum is never merely procedural. The designated court carries many conflictual and substantive consequences. Selecting a court determines the choice-of-law rule (party autonomy or not) and therefore the applicability (or not) of the chosen law (state or non-state law) and its substantive provisions. Moreover, it determines the relevance and reach of mandatory rules (of the lex fori, the lex contractus and foreign laws with proximity to the contract). Therefore, the choice of court indirectly, yet very significantly, shapes the contract’s substantive regime. This justifies, in the author’s opinion, a strengthened regime for violations of forum-selection clauses, when such violations are motivated by an intent to circumvent the binding force and equilibrium of the main contract, e.g. forum shopping designed to trigger a more favourable law and to avoid mandatory obligations (contractual or legal), or procedural delays. Sanctions may include anti-suit injunctions, damages, and swift declination of jurisdiction by non-chosen courts.

This dynamic also leads to a new analysis of the “neutral judge”: a forum chosen not for geographical or legal proximity but precisely for its lack of it. It appears that this choice can be explained by practical or political reasons, but also by substantial ones: much like arbitration, its appeal lies in the flexibility it offers for constructing a tailored substantive regime. Indeed, judicial “neutrality” entails lack of “interest” of the state in regulating the contracts, and therefore affords parties more freedom to construct a bespoke substantive regime, clear of the interference of the forum’s international mandatory provisions.

Symmetrically, the choice of law influences the effectiveness of forum agreements: some courts consider that the lex contractus governs the substantive validity of jurisdiction clauses; when some others (notably English courts) are sensitive to the proximity between forum and law selected (e. g., choice of English law enhances the likeliness of English jurisdiction, the local courts considering that they are the proper forum or forum conveniens for applying their own law).

Briefly presented, these observations reveal that the dichotomy between law and forum can be misleading: it occults their interactions and that parties may use their combination to shape, optimise, or constrain their substantive autonomy. The dichotomy obscures this reality; the combinatory model clarifies it.

II.- Towards a Combinatory Model of Party Autonomy

Building on this diagnosis, in the second part, the thesis develops the theory of combination of choice of law and choice of court as a distinct legal category. A combination is defined as the conscious articulation of a choice of law and a choice of jurisdiction that jointly configure the conflictual regime of the contract and determine the scope of the parties’ substantive freedom.

Acknowledged as a category containing two families – homogenous and heterogenous, the combination can benefit from an adjusted legal framework.

A) Homogeneous and Heterogeneous Combinations

The thesis constructs a typology of combinations, distinguishing two forms.

On one hand, homogeneous combinations are characterized by law and forum designated within the same normative order (e.g., French court + French law; English court + English law; arbitral tribunal + lex mercatoria). Such combinations enhance coherence and predictability, approximating an internal contract even where international. They offer optimal legal stability while maintaining necessary distinctions between domestic and international settings.

On the other hand, in heterogeneous combinations, law and forum originate from distinct normative orders (e.g., English court + Swiss law; arbitral tribunal + state law; asymmetric jurisdiction clauses combined with dépeçage). These combinations embrace internationality, the contractual engineering it offers, and generate flexible, custom made (but possibly overly complex or unenforceable) composite regimes. Here, the contract becomes even more “internationalised” through its multi-sourced normativity.

Both types of combinations are legitimate, but raise different regulatory concerns, especially when they risk producing (quasi)integral substantive autonomy.

B) A Conflictual Public Order Framework for Regulating Combinations

The thesis then proposes criteria for regulating combinations, through a concept or “conflictual public order” (ordre public conflictuel) focusing on instances where contractual autonomy must be curtailed to protect overriding mandatory rules, the coherence of the international legal order, loyalty in international proceedings and the integrity of private international rules, which offer legitimate freedom, indispensable predictability, but certainly do not aim at, nor serve the purpose of, enabling parties to evade every legal framework altogether.

In direct proceedings, especially before the French courts, the thesis advocates several measures. Firstly, targeted exceptions to the Monster Cable doctrine (Cass. civ. 1re, 22 octobre 2008, n°07-15.823 :  « la clause attributive de juridiction contenue dans ce contrat visait tout litige né du contrat, et devait en conséquence, être mise en oeuvre, des dispositions impératives constitutives de lois de police fussent-elles applicables au fond du litige », i.e., a forum selection clause in favour of foreign courts must be applied even where an overriding mandatory rule of the forum seized is applicable to the dispute), allowing French courts to set aside a foreign forum clause when not only its effect, but its main purpose, is to neutralise a French overriding mandatory rule with legitimate international reach, or when the clause (especially if asymmetrical) creates a significant imbalance (déséquilibre significatif) between the rights and obligations of the parties.

Secondly, protection of foreign overriding mandatory rules, where their claim to application is legitimate. Here, the thesis argues for setting aside choice-of-law clauses that defeat such rules.

Thirdly, clearer legal limits on dépeçage, which can resemble functional attempts to escape state law altogether.

Fourthly, and more generally, recourse to the notion of “conflictual public order/policy” (ordre public conflictuel), used to police abusive combinations and maintain the boundary between conflictual autonomy and integral substantive autonomy.

In indirect proceedings (exequatur), the thesis argues for a more robust control of foreign judgments rendered in violation of a forum or an arbitration clause. The same enhanced control is advocated for foreign judgments and arbitral awards rendered in disregard of overriding mandatory rules (whether French or foreign), and a renewed role for the doctrines of fraud, abuse of right, and international public policy, here again understood in a “conflictual” sense, i.e. to prevent misuse of party autonomy as afforded by private international law rules.

Conclusion: A Renewed Theory for a Renewed Practice

The book aims to provide both a strong theoretical and a useful practical contribution to private international law of contract. Theoretically, it reframes party autonomy as a plural phenomenon structured around three distinct yet interrelated freedoms: choice of substantive rights and obligations, choice of law, choice of forum. Practically, it offers a regulatory model, anchored in traditional conflict-of-laws tools, but adapted to contemporary challenges, that could equip courts to address contemporary challenges such as strategic combinations of law and forum, the evasion of legitimate mandatory rules, and the pursuit of quasi-total contractual self-regulation.

Because the will of the parties transcends the methodological grids of conflicts law, courts and legislators should acknowledge this phenomenon and respond by regulating this combinatory logic more effectively. Even though the road ahead seems long considering recent case law (e.g. CJEU, 7 Sept. 2023, C-590/21; Cass. civ. 1re, 15 June 2022, n° 20-23.115; Cass. Civ. 1re, 2 April 2025, n°23-12.384), one can hope that in time, this renewed presentation of party autonomy in private international law of contract might inspire new and better-suited solutions, preserving – in the manner of a tightrope walker – both party autonomy, legal authority and the integrity of the private international law rules of contracts.

Economic Sanctions in Swedish Private International Law

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The Editors of the EAPIL blog
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On 8 November 2024 Gunnar Bramstång will publicly defend his doctoral thesis on economic sanctions in private international law at Lund University in Sweden. The thesis, written in Swedish, is titled Ekonomiska sanktioner i svensk internationell privat– och processrätt (Economic Sanctions in Swedish Private International Law) and is available in its entirety here.

The English abstract of the thesis reads as follows:

This thesis deals with private international law issues related to the treatment of economic sanctions in international commercial contract disputes in Swedish courts. The dissertation consists of 10 chapters. The first chapter is an introduction. Chapter 10 contains a summary.

In Chapter 2, the author examines what economic sanctions are, and in chapter 3, economic sanctions are classified as belonging to public law. This gives rise to specific problems in the field of private international law, especially when the sanctions belong to foreign law and not to the lex fori. As far as Swedish private international law is concerned, attitudes towards foreign public law have been expressed in the principle of isolation (isolationsprincipen).

In Chapters 4–6, the author primarily considers whether commercial disputes involving economic sanctions fall within the framework of the Brussels I Regulation and the Lugano Convention. The author examines the extensive case law of the CJEU on the interpretation of civil and commercial matters, which determines the material scope of the instruments. Disputes between commercial parties involving economic sanctions should, in general, be classified as civil and commercial matters. When the same disputes fall outside of the Brussels/Lugano-instruments Swedish courts determine their jurisdiction according to Swedish private international law.

In Chapters 7–9, the author explores two different methods for dealing with sanctions when determining their effects on the contractual relationship. A first option is to classify the economic sanctions as internationally mandatory rules under Article 9 of the Rome I Regulation. The second option is to take the sanctions into account as facts when applying the lex contractus, e.g. as force majeure. The approach chosen depends on the origin of the economic sanctions and their connection to the dispute.

Erik Sinander (Stockholm University) will act as faculty opponent.

Private International Law and Conflicts of Worldviews

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The Editors of the EAPIL blog
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In this post, Sandrine Brachotte presents her doctoral work on private international law and so-called “conflicts of worldviews”, which she undertook at Sciences Po Law School (Paris), in English, under the supervision of Horatia Muir Watt. The PhD Dissertation, entitled ‘The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion’, offers an alternative theory of party autonomy, public policy and international jurisdiction that aims to be more inclusive of postcolonial claims at the global level.

Introduction

This doctoral work connects the discipline of private international law with an intellectual movement that has found its way into several branches of law but remains marginal in this discipline, that is decolonial theory (called “decolonial legal studies” when focused on law). To put it in a nutshell, this movement calls for an alternative production of knowledge that would follow non-Western sources and processes. It also asks for the re-empowerment of non-Western ways of living and seeing the world, which are here called “worldviews”. It does not only target postcolonial contexts but aspires to be embraced at the global level. There, it does not demand that Western productions of knowledge and worldviews be replaced by their non-Western equivalents but instead that the latter be recognised as equal to the former. Such pluralisation requires departing from the ‘modern episteme of universalism’ to endorse the paradigm of pluriversality, i.e., to acknowledge that ‘several worlds, and not only the Western world, have world visions that they aspire to be universal’.

In this regard, the dissertation seeks to contribute to the decolonisation of private international law by proposing an alternative theory of several paramount concepts of the field, to make them more inclusive of non-Western worldviews. To do so, as further explained below, the PhD dissertation starts from three Western court cases involving postcolonial claims brought before Western state courts, to show that the latter are poorly addressed under conventional legal reasoning. The reason thereof is that the said claims relate to worldviews that conflict with the worldviews underlying Western state law – hence the expression “conflict of worldviews”.  Then, the dissertation links these conflicts of worldviews to the most relevant pillars of Western private international law.

The Case Studies: Religious Arbitration, Sacred Land and Faith-Based Politics

The decolonial approach does not only involve substantive requirements (simplistically summarised above) but also methodological requirements, which are to enable the researcher to think outside of the conventional legal framework (that is considered as reflecting Western worldviews). Therefore, the dissertation starts from cases that do not especially involve questions of private international law. What matters is that they involve postcolonial claims that challenge state law’s worldviews because they reflect postcolonial ways of living and understanding the world. More concretely:

(i) Jivraj v. Hashwani ([2011] UKSC 40) (hereafter “Jivraj”) confronts state law with a religious form of arbitration, i.e. Ismaili arbitration, where the collective interests of the Ismaili community are central to the resolution of the dispute, in line with the religious ethos. This conception of arbitration contrasts with the legal, “secular”, conception of arbitration, which is to reflect the materialistic and individual interests of the parties. This disparity justifies distinct understandings, in Ismaili arbitration and in “secular” arbitration respectively, of the fact to choose arbitration – a question that was at the heart of the Jivraj case. In “secular” arbitration, an arbitration clause reflects a choice limited to the specific contract or business relationship concerned, which is to better serve the interests of the parties than court litigation (which is the “by default” dispute resolution process). Differently, an arbitration clause in favour of Ismaili arbitration corresponds to the normal way to proceed in intra-Ismaili disputes. It reflects the parties’ Ismaili ethos, which is to solve disputes to safeguard the peace in the Ismaili community.

(ii) Ktunaxa v. British Columbia (2017 SCC 54) (hereafter “Ktunaxa”) confronts state law with Indigenous ways of living, especially the notion of sacred land, which is based on a conception of the land as a living thing that is the source of Indigenous spirituality. This conception can hardly be recognised within legal categories, including freedom of religion, which the Ktunaxa (an Indigenous People in Canada) claimed was violated by a ski resort project to be built on land sacred to them. Indeed, freedom of religion, like other legal categories, is grounded on a material conception of land, according to which the claim of a relationship with the land must be grounded on sovereignty or on private ownership. As a result, freedom of religion can lead to protecting a religious belief or practice, but not a sacred land, unless the believers have ownership thereof. However, under Indigenous ways of living, the right to private property of sacred land is a non-sense, since the land is “God” (who they often call “Mother Earth”).

(iii) SMUG v. Scott Lively (254 F. Supp. 3d 262 (D. Mass. 2017); No. 17-1593 (1st Cir. 2018)) (hereafter “SMUG”) confronts state law with the American Evangelical “anti-gay” propaganda in Africa, which constitutes a form of faith-based politics that places African LGBTQIA+  people in an even more vulnerable position. Yet, this phenomenon cannot be considered under the principle of state territorial jurisdiction and the doctrine of international comity that ground international jurisdiction in the United States (US). These legal concepts rely on the assumption that states govern society, not transnational economic or religious actors. Yet, in the case at hand, an American Evangelical was sued before US courts by African LGBTQIA+ rights defenders, for its active participation in the prosecution of LGBTQIA+ people in Uganda. In this context, Ugandan law appeared instrumentalised by a transnational religious actor, since the defendant had initiated and supported the drafting of a legislative proposal reinforcing the criminalisation of activism in favour of LGBTQIA+ rights.

Lessons Learned to Decolonise Private International Law: Another Theory of Party Autonomy, Public Policy and International Jurisdiction

The PhD dissertation links the conflict of worldviews at play in the cases presented above to one pillar of private international law that they resonate with or directly concern. It further shows that the conventional theory of these paramount concepts cannot make sense of the postcolonial claims involved in the cases, because they, unsurprisingly, reflect Western worldviews. Then, alternative theory are proposed that would better include the non-Western worldviews concerned in the case studied. Hence, the following research findings are proposed:

(i) The notion of choice of arbitration at stake in Jivraj is linked to the notions of choice of court and choice of law. All these notions rely on the principle of party autonomy, which justifies a secular and individualistic understanding of choice of court or arbitration and choice of law, which fit secular worldviews but not Ismaili (and other religious) worldviews. Therefore, the PhD. dissertation proposes a more politically engaged understanding of party autonomy, understood as a form of self-determination, which would entail courts’ enquiry about the motivations underlying the court, arbitration and law choices made by the parties.

(ii) The claim at the origin of Ktunaxa consists of a demand for the protection of Indigenous sacred land, irrespective of property and sovereignty issues. This notably requires prioritising ecology and spirituality over these issues, which is generally not reflected in the current private-international-law rules. More broadly, the claim made in Ktunaxa is an example of the rising claim for the recognition of Indigenous ways of living at the global level, which asks for the inclusion of Indigenous perspectives in law in general, and not only via the granting of “special Indigenous rights”. In these regards, the Ktunaxa case calls for an alternative theory of the exception of public policy. This notion would then not be to safeguard the core values of the forum, but instead to prioritise the respect of “eco-spirituality” over national laws and judgments that would be contrary thereto, including those of the forum.

(iii) The issue brought before US courts in the SMUG case boils down to unbalanced power relations at play in a postcolonial context, which are grounded on the map of state jurisdictions. Especially, transnational actors like Global North-based religious missionaries and multinational corporations strategize around this map, while vulnerable postcolonial communities are submitted to it – a situation that human rights NGOs try to counterbalance, notably via transnational human rights litigation. In this context, the theory of international jurisdiction appears crucial, especially regarding the practice of forum shopping, which can be notably used both by illiberal or economically overpowerful transnational actors and by human rights NGOs conveying the voice of vulnerable postcolonial communities. This circumstance is however not part of the considerations that underly the usual regulation of international jurisdiction. In this respect, the PhD dissertation advocates for the adoption of a theory of international jurisdiction that would consider global welfare and intersectional discrimination, opening the door to a case-by-case approach to forum shopping that targets the political recognition of postcolonial states’ vulnerable communities.

Two New Doctoral Theses on Arbitral Jurisdiction at the Stockholm University

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Erik Sinander
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In the space of two weeks, two doctoral theses on arbitral jurisdiction will be publicly defended at the Stockholm University. First, on 21 November 2022, Fabricio Fortese defended a thesis titled Early Determination of Arbitral Jurisdiction – Balancing efficacy, efficiency, and legitimacy of arbitration. On 2 December 2022, Monica Seifert will defend a thesis on Arbitral Jurisdiction in Multi-Contract Relations ­­– A Comparative Study of Swedish, Swiss and English Law.

Fortese’s thesis examines the timing of judicial determination of jurisdictional disputes under Article 8 (1) of the UNCITRAL Model Law on International Commercial Arbitration and Article II (3) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The thesis argues that Article 8 of the Model Law does not require that national courts undertake either a limited (prima facie) or a full review of an arbitration agreement and objections to an arbitral tribunal’s jurisdiction. Fortese holds, as the main finding of his dissertation, that both approaches are permitted under the Model Law. The application of one or the other is “a matter of judgment (rather than opinion), based on the particularities of the case, and aiming to achieve the fair and efficient resolution of the jurisdictional and substantive dispute” (p. 282). Professor George A. Bermann of Columbia Law School acted as opponent at the public defense. A full abstract of the thesis can be read here.

The research question for Seifert’s thesis is whether an arbitration agreement contained in one contract can be considered to apply to disputes concerning other contracts between the same parties. For the analysis, the thesis focuses on the international arbitration prerequisites of (1) a defined legal relationship, (2) the scope of the arbitration agreement and (3) the identity of the matter in dispute. According to the abstract, “[t]he thesis concludes that the legal systems under analysis, despite their largely different procedural and contractual settings, have proven to be sensitive to the pressures of globalization and to the demand for more generous access to arbitration”. In the conclusions, Seifert stresses the importance of the seat of arbitration as it is the procedural law of this country that ultimately will determine arbitral jurisdiction (p. 285). Professor Giuditta Cordero-Moss of Oslo University will act as opponent at the public defense. A full abstract of the thesis can be read here.

PhD in EU Private International Law at University of Antwerp

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Elena Alina Ontanu
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The Law Faculty at University of Antwerp is offering a full-time doctoral scholarship in EU Private International Law with a focus on EU citizenship and its interaction with conflict of laws.

The chosen candidate is expected to:

  • work actively on the preparation and defence of a PhD thesis, written in English or in Dutch, on the topic of “Continuity of civil status for mobile citizens in a diverse European Union”. Within this framework, the candidate is expected to examine how EU law can ensure Union citizens’ status continuity while ensuring a right balance between freedom of movement, fundamental rights, and respect for the competences and national identities of the Member States. The innovative research will have to entail a full and systematically integrated analysis of both Union citizens’ rights and EU Member States’ rights and competences, and take into account the characteristics of the EU’s so-called “area of freedom, security and justice”. The research is expected to stretch beyond the analysis of the current EU Treaties and case law in order to examine the adoption of new legislation and/or possible amendments to the EU Treaties.
  • publish scientific articles related to the topic of the PhD project.
  • carry out a limited number of teaching and research support tasks for the University of Antwerp’s Faculty of Law and its research group Government and Law.

The research activities will be supervised by dr. Johan Meeusen

Profile requirements for the candidates:

  • holding a Master’s degree in Law. Students in the final year of their degree can also apply. This is a condition of admissibility.
  • outstanding academic results.
  • demonstrating excellent legal research and writing skills.
  • having a particular interest, and having obtained excellent study results in European Union law and Private International Law.
  • acting in accordance with the University of Antwerp’s Mission statement
  • research qualities that are in line with the faculty and university research policies.
  • showing attention to quality, integrity, creativity, and cooperation.
  • excellent language skills that permit high-level academic research in EU law and Private International Law. Apart from active and passive knowledge of English, the candidate has to have at least a passive knowledge of French and, preferably, of German as well as of other languages.

The Faculty of Law is offering:

  • a doctoral scholarship for a period of two years. Following a positive evaluation, the scholarship can be renewed once for another two-year period.
  • starting date is 1 October 2022 or as soon as possible thereafter.
  • the monthly scholarship amount is calculated according to the scholarship amounts for doctoral scholarship holders on the pay scales for Contract Research Staff (Dutch: Bijzonder Academisch Personeel, BAP).
  • ecocheques, Internet-connectivity allowance and a bicycle allowance or a full reimbursement of public transport costs for commuting.
  • to work at the UAntwerp City Campus, in a dynamic and stimulating working environment, in the research group Government and Law.

How to apply:

  • You can apply for this vacancy through the University of Antwerp’s online job application platform up to and including 8 August 2022 (CET). Applications submitted after this deadline or not containing all requested documents, will be declared inadmissible. Together with the complete the online application form you will have to include the following documents, in English:
    • motivation letter;
    • CV;
    • a detailed account of your study results;
    • a document of maximum 2 pages explaining the research approach and methodology that you consider the most appropriate for the successful and timely completion of this research project.

A preselection will be made from amongst the submitted applications. The preselected candidates will be informed of their selection at the latest on Thursday 25 August 2022 . The interviews of preselected candidates will take place, on campus or online, on Tuesday 30 August 2022.

For any questions about the online application form, check the frequently asked questions or send an email to jobs@uantwerpen.be. If you have any questions about the job itself, please contact dr. Johan Meeusen.

More information on the academic environment and scientific research at the University of Antwerp is available here. More information about working at the University of Antwerp is available here.

EU Choice of Law Rules: Which Status Before National Courts?

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The Editors of the EAPIL blog
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In this post, Marylou Françoise presents her doctoral work on the role of courts in choice of law from an EU law perspective (‘L’office du juge en conflit de lois : Étude en droit de l’Union européenne’). This is a important issue for all EU PIL experts and obviously a recurring topic in France (see here, here, here and here).

Introduction

This work raises a topical issue at the crossroad of private international law, EU law, and civil procedure. It aims at rethinking the national procedural system of EU Member States to accommodate more efficiently European choice-of-law rules. The status of EU choice-of-law rules before national courts can legitimately be questioned in the light of the objectives pursued by these rules.

The Functional Nature of the EU Choice of Law Rules

EU choice-of-law rules are part of a specific policy of the European Union based on Article 81 of the Treaty on the Functioning of the European Union. According to this provision, the EU has the competence to develop judicial cooperation in civil matters having cross-border implications. The main goals are to encourage accessibility to justice for European citizens, to offer a predictable justice based on clear articulation of national provisions and to achieve international harmony of solutions. In this context, the European regulations applicable to conflict-of-laws are adopted to ensure that the same national law is designated irrespective of the national court hearing the case. Thus, EU choice-of-law rules have a functional nature. To achieve their goal, they need to be applied uniformly. Yet, there is no common procedural framework along with the European regulations in conflict-of-laws matter. Their uniform application depends on various national procedural provisions of the Member States.

The National Heterogeneity of Procedural Rules in Conflict-of-laws

According to the Latin maxim forum regit processum, the procedural status of choice-of-law rules depends on the national law of the court hearing the case. Several studies, including the study conducting by the Swiss institute of comparative law, have shown the diversity of national procedural provisions. The French system is particularly complex because it requires that courts distinguish between rights according to their availability (i.e. whether the parties may dispose of their rights). On 26 may 2021, the French supreme court for private and criminal matters added a new criterion that requires to apply ex officio EU choice-of-law rules when they are mandatory. For the first time (to the best of our knowledge), a national court made a distinction between conflict-of-law rules according to their European origin. If this ruling has to be welcomed according the EU principles of primacy and effectiveness to which the French court referred, the regime of the conflict-of-laws rules becomes more complex : only the choice-of -law rules which do not allow a derogation shall be applied ex officio. Yet, the vast majority of EU choice-of-law rules may be derogated from.

The French system reflects the complexity to define the procedural status of the European conflict-of-laws. More broadly, according to the national court hearing the case, the application of EU choice-of-law rules become unpredictable. The ex officio implementation of EU law directly depends on the competent court. This seems to be in complete contradiction with the purpose of EU choice-of-law rules. The unpredictable nature of the choice-of-law rule is strengthened by the lack of a European corrective mechanism.

The Lack of European Procedural Rules in Conflict-of-laws

The principle of procedural autonomy of EU Member States allows them to adopt procedural provisions to implement EU law. However, this principle is bounded by two conditions : equivalence and effectiveness ( see the Comet and SpA San Giorgio cases). These requirements are generally used by the European Court of justice to limit the autonomy of Member States. Regarding the ex officio application of EU provisions, the Court provides for a flexible approach. In its Van Schijndel case, the Court of justice held

Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim.

In other words, national courts shall apply ex officio the European provision only if the parties ask for it. An exception is made for certain provisions in consumer law (see the Pannon case). The Court justifies this specific position by the public interest attached to European consumer provisions.

Against this background, the control of the procedural autonomy of the Members States led by the ECJ is not sufficient to establish an efficient system of conflict-of-laws. The intervention of the EU is clearly incomplete to pursue the goal of a European civil justice area. Therefore, how can EU choice-of-law rules achieve international harmony of solutions if there is no common provisions to support their application ? In this context, a new framework should be drawn up to ensure a uniform application of EU choice-of-law rules.

A Critical Thinking on a European Procedural Status of Choice of Law Rules

Firstly, it is necessary to analyse the EU acquis regarding the application of choice-of-law rules, in particular the overriding mandatory provisions, in cross-border situations and the parties’ freedom to choose the applicable law. The application of national mandatory rules is generally strictly controlled by the European Court of justice (see the Nikiforidis case). At the same time, the identification of EU mandatory provisions is confusing (see the Unamar and Da silva cases). Then, the possibility for the parties to choose the applicable law is widely accepted by European conflict of laws rules (in contractual and non-contractual matters) – except for articles 6-4 and 8 of the Rome II Regulation. EU choice-of-law rules become optional for both the parties and courts. Indeed, if the European provisions allow a derogation, they are not compulsory for the judge according to national procedural systems. These two examples illustrate that EU law is already influencing the national application of EU choice-of-law rules. However, this influence is incomplete and flawed. The procedural status of the European rule depends on the interpretation by national courts of the mandatory nature of a law or of the existence of a choice of law agreement by the parties.

EU choice-of-law rules must be applied consistently. They should have a uniform procedural status. The latter can depend neither on the substantive nature of the respective rights, nor on the national interpretation of the mandatory nature of the rule. EU choice-of-law rule must be mandatory for national courts. This solution may be seen as radical in particular since the freedom of the parties is a key component of civil procedure. It could also generate an increase of procedural costs because of the recurrent application of foreign laws. That is why this obligation to apply the choice of law rule ex officio should be limited. Party autonomy wit respect to the applicable law should be maintained but it should be exercised after the ex officio application of the choice of law rule by the court. This private choice must also be strictly framed by the choice-of-law rules themselves. The material scope of the procedural choice should comply with the individual choice allowed by the EU regulations and the procedural choice should be express. In other words, the EU choice-of-law rules should be applied automatically by the Court and parties should be informed of the potential application of foreign law.

This proposition can be loudly criticised according to the civilian procedural system. National courts cannot be a substitute for negligent litigants and several questions arise. How much litigation will cost ? How long it will last ? Are national courts well trained in European private international law ? Can they have an easy access to foreign law ?

At the same time, these arguments seem outdated. EU law is now part of national law in the Member State. The rise of international disputes requires full awareness of EU provisions and a close collaboration between EU judicial systems.

The uniform application of EU choice-of-law rules is the only way to achieve the objective of a European civil justice area. In this context, the PhD dissertation concludes by providing a proposal for a European regulation on a common procedural frame in choice of law. This proposal – based on Article 81-1 and Article 81-2 c), e) and f) of the Treaty on the functioning of the European Union – could be included into the existing regulations on choice of law. It could also appear in a future European code of private international law or in a regulation on procedural aspects of choice of law rules.

This proposal finally requires an inevitable adaptation in practice. Judicial practitioners, such as judges and lawyers, must be trained in European private international law. The ex officio application of EU conflict-of-law rule would be a revolution for many national procedural systems. But it seems to be a necessary evolution for the European judicial system.

New French Study on the Distinction between Conflicts and Substantive Justice

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Gilles Cuniberti
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Earlier this year, Charlotte Guillard defended her dissertation at the University of Paris II Panthéon-Assas on Conflict justice and material justice : pertinence and sustainability of the distinction. Study in private international family law (Justice matérielle et justice conflictuelle : pertinence et pérennité de la distinction en droit international privé).

The author has provided the following  summary in English:

The distinction between conflict of laws justice and substantive justice has its origin in an academic attempt to foster an idea that has proved crucial to the general theory of private international law. This idea builds on the intuition that private international relations need to be processed specifically by the law, which implies in turn a customized conception of justice, namely conflict of laws justice. In this perspective, conflict of laws justice aims at fulfilling the diverse interests at stake in a private international relation: the interests of the different parties involved and the interests of the domestic legal systems. In the context of conflict of laws, conflictual justice manifests itself methodologically through the classical (“savignian”) conflict of laws rule, a rule that purports to accommodate those interests, without taking into account the substantive aspects of the situation. As an exception, conflictual justice may give way to substantive considerations. In that case, another conception of justice, one that is substantive, takes precedence.

The methodological manifestations of substantive justice are varied. It is usually associated with tools that seek to defend or promote imperative values within each State’s legal order, such as the exception of public policy of the forum (“exception d’ordre public international”).

This articulation of the different conceptions of justice is usually presented as following a principle/exception organization, thus providing a framework for private international law. The borderland between the two conceptions of justice muddled, however, as a result of an evolution in the field of private international law.

The change in the field that is most striking lies with its materialization. Overriding mandatory rules, fundamental rights, as well as the development of conflict of laws rules that achieve substantive aims are obvious examples.

Increasingly, the diverse methods of regulation specific to this legal field have been seen to borrow routinely from both conceptions of justice, shaking the classical distinction.

This research explores the remaining pertinence of the framework provided by the distinction between conflict of laws justice and substantive justice, and the appropriateness of its conservation in the field of contemporary private international law.

The study was conducted within the scope of private international law relating to family and personal matters. It is indeed within this restricted field that the questions raised are most sensitive, owing to continuing legal particularisms and national specificities, a natural breeding ground for the materialization of PIL.

As an outcome, this study shows the many weaknesses in the classical representation of the distinction between the two conceptions of justice. The actual meaning of each conception remains elusive and their mutual articulation according to a principle/exception organization is no longer reflected in positive law. Further, this study purports to offer an articulation of the two conceptions of justice that would better serve current PIL.

In this perspective, it appeared necessary to shed two commonly accepted ideas which have unnecessarily confined PIL until now. The first one relates to the conception of conflictual justice as being neutral. The second one seeks to limit substantive justice to the internal conceptions of each legal order.

This study purports to redefine the distinction between the two conception of justice while still conceptualizing their articulation according to a principle/exception organization, in which the conflictual conception of justice features as principle. This private international law conception of justice should ideally result in the conciliation of the diverse interests at stake, in order to achieve international legal harmony (of solutions) with regards to private international relations.

Whenever such an outcome appears unachievable (or merely irrelevant), substantive justice shall step in to ensure that one interest prevails over the others, without any predetermined preference. There is something to gain in such a reconfiguration. Namely, it would allow for a more satisfying distribution of PIL methods between the two conceptions of justice. This would be particularly beneficial regarding fundamental rights, whose role remains a thorny methodological issue in PIL. The proposed reconfiguration could create an opportunity to see them not merely as an expression of substantive justice (in keeping with the majority view) but also in relation to the private international law conception of justice.

Through this reconceptualization, the distinction between the two conceptions of justice may aspire to be more than abstract academic construction. It indeed appears as a useful tool in the organization of the methodological pluralism in private international law. This can prove critical to help authorities dealing with PIL questions to better handle their task in choosing the right method and reaching the right solution.

Dr. Guillard presented her study in a conference in Paris in March 2021 which can be watched here (in French).

French Conference on Individualism in Choice of Law Theory

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Gilles Cuniberti
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Elie Lenglart, a lecturer at the University Paris II Panthéon-Assas, gave an online conference on La théorie générale des conflits de lois à l’épreuve de l’individualisme (Individualism and General Choice of Law Theory) on 1 December 2020.

This is the topic of his doctoral thesis, which received the first prize of the French Committee of Private International Law earlier this year.

The English abstract of the work reads:

Individualism is one the characteristic features of modern legal theories. The emergence of individualism has so profoundly altered the meaning of the judicial phenomenon that it may be considered as the decisive factor in the evolution from a classical to a modern conception of the Law. This evolution is the product of a substantial mutation of our vision of the world, inextricably linked to a change of philosophical paradigm. The analysis of this evolution is essential not only to the understanding of the meaning of the Individualism doctrine but also to apprehend its main repercussions. International private Law has also been influenced by this evolution. The Conflict of Laws doctrine is necessarily based on a specific conception of the Law itself. Thus, the emergence of the individualistic approach of the Law undoubtedly has decisive consequences on this field: the methods used to solve conflicts of laws have evolved while the goals have been substantially altered. The Conflict of Laws doctrine is now structured toward the sole analysis of individual interests. This new feature is radically opposed to the balance that characterized the classical approach of Conflict of Laws. In order to reveal the extent of the implications of the Individualism on this field, a study of the concept within the Conflict of Laws doctrine is necessary.

The table of contents of the thesis is available here.

A video of the conference (in French) can be accessed here.

Equivalence in Private International Law

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Matthias Lehmann
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Tilman Imm has written a thesis on the mechanism of equivalence in Financial and Capital Markets Law (Der finanz- und kapitalmarktrechtliche Gleichwertigkeitsmechanismus – Zur Methode der Substitution in Theorie und Praxis).

The author has kindly provided the following summary:

The concept of equivalence or substituted compliance is of considerable importance in today’s financial and capital market law. This is a regulatory mechanism which, roughly speaking, works as follows: A rule provides for favourable legal consequences – such as the registration of a company for the provision of investment services – in the event that its object of regulation is already achieved in an equivalent manner by the regulations of another standard-setting body. Numerous implementations of this mechanism are to be found in the European Union’s regulations on third countries, which have recently gained considerable relevance against the backdrop of Brexit. So far, however, there has been a lack of clarity in practice and science about various aspects of equivalence.

This dissertation shows that the widespread equivalence rules are cases of legally provided substitution and demonstrates the practical consequences of this finding. For this purpose, first of all, the current state of knowledge in private international law regarding the instrument of substitution is examined. This includes the term, object and autonomy of substitution as well as its preconditions in order to define a conceptual understanding for the further course of the analysis. Especially the substitution requirement of equivalence is analysed more closely, which entails an examination of the criterion of functional equivalence and the occasional criticism of the requirement of equivalence.

The second part of the thesis turns to the equivalence mechanism in financial and capital market law. At the beginning, the so-called third country regime of European financial and capital market law is presented in an overview to illustrate to what extent and under which conditions third country companies can become active in this area of the internal market. This is followed by an analysis of the equivalence mechanism, which includes not only the history and functions of this regulatory technique, but also the determination of equivalence by the European Commission or national authorities. In this context, the main thesis of the treatise, namely that equivalence rules are cases of legally provided substitution, is reviewed and the widespread criticism of the mechanism is presented and acknowledged.

Finally, the third part of the dissertation features the exemption options for third-country companies within the framework of the German Securities Trading Act (Wertpapierhandelsgesetz – WpHG) to show how the equivalence mechanism works in practice and to what extent its potential can be limited by regulatory deficits, starting with an analysis of the equivalence of US law in terms of Section 46 WpHG. This is followed by an examination of Section 91 WpHG, which has recently been added to the WpHG, and includes a critical examination of the status quo with regard to the equivalence requirement of this provision.

Cross-Border Insurance Intermediaries in the Internal Market: International Supervisory and Private Law

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Matthias Lehmann
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A new monograph written in German deals with cross-border insurance brokerage in the Single Market (Christian Rüsing, Grenzüberschreitende Versicherungsvermittlung im Binnenmarkt, 2020). The monograph is aimed at practitioners, national and European supervisory authorities as well as academics dealing with private international law, its relationship to international supervisory law and insurance law.

This book complements studies on the single market in insurance, which the EU has strived to establish for decades. EU institutions have primarily facilitated cross-border business of insurers by implementing rules on international supervisory law in the Solvency II Directive and on private international law for insurance contracts in Article 7 of the Rome I Regulation. The study focuses on intermediaries, such as insurance brokers and agents.

While intermediaries play a vital role in the cross-border distribution of insurance products, clear conflict-of-law rules for insurance intermediation are missing. The Insurance Distribution Directive (IDD), which intends to promote cross-border activities of intermediaries, focuses on the harmonisation of the substantive law on insurance intermediation, apart from provisions on international administrative cooperation. Furthermore, it has not fully harmonised national laws. Insurance intermediaries providing services in other countries are therefore still required to be aware of the relevant national regulatory requirements and private laws they have to comply with.

International Supervisory Law

With regard to international supervisory law, the author analyses where intermediaries have to be registered and which regulatory requirements they have to meet when exercising activities in another member state by using freedom to provide services or the freedom of establishment. One of the key findings is that although the IDD is partly based on the country of origin principle, intermediaries must comply with stricter national provisions protecting general interests of the host member state, irrespective of whether they serve consumers or professionals as policyholders.

Applicable Rules of Private International Law

Concerning private international law, the author analyses the intermediaries’ relationships with customers and insurers. A comparative legal analysis reveals that these relationships are based on contract in some member states and on tort in others. Therefore, it is even unclear whether the Rome I or the Rome II Regulation has to be applied. The author calls for an autonomous interpretation of the regulations’ scope of application, which also solves the problem of concurring claims. He suggests that the Rome I Regulation must be applied irrespective of whether the intermediary is an agent or a broker.

Rome I Regulation

Applying the Rome I Regulation to the relationship between intermediaries and customers leads to further difficulties. On the one hand, it is unclear whether the conflicts rule for insurance contracts in Article 7 of the Rome I Regulation can be applied to intermediation services. On the other hand, it is also uncertain whether Articles 3, 4 and 6 of the Rome I Regulation are applicable without modification given that the IDD uses different connecting factors with regard to international supervisory law rules. The author argues that certain IDD “flexibility clauses” constitute special conflict-of-law rules in the sense of Article 23 of the Rome I Regulation and therefore partially supersede Articles 3, 4 and 6 of the same Regulation.

With regard to the relationship between intermediaries and insurers, the author analyses whether Article 4(3) of the Rome I Regulation can be used to apply the law governing the insurance contract or the relationship between intermediaries and customers. He stresses that the parties must be aware of the customs they have to comply with and of certain mechanisms protecting insurance agents, which might include mandatory provisions.

Conclusion

This is a complex area, and the author has to be complemented for having taken a broad perspective, which combines international supervisory law and private international law. The study concludes with an assessment of the extent to which the current state of the law promotes cross-border activities of intermediaries. Particular attention is paid to the importance and legal framework of digital insurance intermediaries, which are also dealt with separately in each chapter.

Third-Party Relationships and the Protection of Third Parties in the EU Regulations on the Property Regimes of Couples

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Matthias Lehmann
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The number of transnational couples continuously increases within the European Union. At the same time, there are still large differences between the national rules on matrimonial property regimes and on the property consequences of registered partnerships. These disparities do not only affect the property relations among such couples themselves, but also – and even more – third parties contracting with transnational couples.

Some jurisdictions provide, for instance, that contracts between one spouse and a third party are not legally effective without the consent of the other spouse, especially in case of real estate transactions. One example of such a rule is the notorious Article 215(3) of the French Code Civil.

Third parties can be surprised by such limitations because they may not be aware that the law of another jurisdiction applies. In many cases, third parties may not even know at all that their business partner belongs to a couple with a transnational background. There is thus a strong need for third party protection not only on the national level, but also in private international law.

In the future, these conflict-of-laws problems must be solved on the basis of the new Council Regulations (EU) 1103/2016 and 1104/2016, which became applicable in their entirety on 29 January 2019. The scope of the Regulations explicitly includes third-party relations. However, the Regulations only provide fragmentary rules on third party protection. A new book analyses these provisions, identifies open questions and submits proposals how the gaps in the Regulations could be filled (Stephan Gräf, Drittbeziehungen und Drittschutz in den Europäischen Güterrechtsverordnungen, Mohr Siebeck 2019).

As the title indicates, the book is written in German. It starts with a comparative analysis of the differences between the national rules on matrimonial property regimes focussing on third party effects. In a subsequent chapter, the author outlines the conflict of law rules of the Regulations and points out that the applicable law can hardly be foreseen by third parties.

On this basis, Stephan Gräf analyses the core provision of third-party protection in both Regulations, namely their respective Article 28 (protection of the good faith of third parties). Although the provision appears to be quite detailed, it is in fact merely fragmentary and partially inconsistent. For example, it does not mention the exact subject of the required good faith of the third party (the applicable law, the particular matrimonial regime within the applicable law or the particular legal effect of the applicable law?). The provision also does not clarify that it is restricted to contractual transactions.

The Regulations furthermore contain provisions for the protection of third-party rights in case of a change of the applicable law with retroactive effect. The wording of the provisions, however, is extremely short. Many questions are left to the interpretation by the courts. Stephan Gräf analyses the scope and the legal consequences of these provisions. He shows, for instance, that they also apply when the applicable law changes only with effect for the future.

The book furthermore deals with the highly controversial coordination between international property law (lex rei sitae rule) on the one hand and the international matrimonial law on the other hand. This matter also affects third parties contracting with married persons. The author argues for the primacy of the lex rei sitae in so far as immovable property is concerned. On this point, he disagrees with the Kubicka decision of the European Court of Justice, which deals with the relationship between the EU Succession Regulation and the lex rei sitae rule.

Additionally, the book addresses the Regulations’ rules on jurisdiction (Articles 4 et seq.). It focuses on the question whether these rules apply in disputes between married persons and third parties. Despite its relevance this question has rarely been discussed so far. The Regulations lack explicit provisions on this matter. Relying on the ECJ’s approach on Article 27 of the Brussels I Regulation (recast: Article 29), Stephan Gräf argues that Articles 4 et seq. of the Regulations govern where matrimonial property law is the “heart of the action”. In disputes with third parties, this is rarely the case, as matrimonial property law typically only becomes relevant on the level of preliminary questions.

Overall, this new book provides valuable insights on the relation of Regulations on matrimonial property regimes and on the property consequences of registered partnerships with the rights and obligations of third parties. Interestingly, the author not only addresses the protection of spouses, but also that of third parties that do not know about the family relation. The Regulations are still young, and is to be expected that this book will influence their interpretation and application in practice.

Richard on Default Judgments in the European Judicial Area

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Marion Ho-Dac
by

In October 2019, Vincent Richard defended a PhD thesis on default judgments in the European judicial area, written under the joint supervision of Gilles Cuniberti and Loïc Cadiet.

The abstract reads:

French judges regularly refuse to enforce foreign judgements rendered by default against a defendant who has not appeared. This finding is also true for other Member States, as many European regulations govern cross-border enforcement of decisions rendered in civil and commercial matters between Member States. The present study examines this problem in order to understand the obstacles to the circulation of default decisions and payment orders in Europe. When referring to the recognition of default judgments, it would be more accurate to refer to the recognition of decisions made as a result of default proceedings. It is indeed this (default) procedure, more than the judgment itself, which is examined by the exequatur judge to determine whether the foreign decision should be enforced. This study is therefore firstly devoted to default procedures and payment order procedures in French, English, Belgian and Luxembourgish laws. These procedures are analysed and compared in order to highlight their differences, be they conceptual or simply technical in nature. Once these discrepancies have been identified, this study turns to private international law in order to understand which elements of the default procedures are likely to hinder their circulation. The combination of these two perspectives makes it possible to envisage a gradual approximation of national default procedures in order to facilitate their potential circulation in the European area of freedom, security and justice.

The thesis, in French, is titled Le jugement par défaut dans l’espace judiciaire européen and can be accessed here.

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