dr. anatol dutta, m. jur. (oxford) ([email protected]) max planck institute for comparative and...

Dr. Anatol Dutta, M. Jur. (Oxford)([email protected])

Max Planck Institute for Comparative and International Private Law Hamburg

Two examples of recent developments in European private international law: Contracts of

carriage and environmental damages

The three main issues of private international law

Jurisdiction

Applicable law

Enforcement

International level

European level

National level

Sources of private international law

Programme

I. Introduction: The Europeanisation of private international law

II. Example I: Contracts of carriage

III. Example II: Environmental damages

Introduction: The Europeanisation of private

international law

International levelHague Conference on Private International Law (since 1893: 45 Conventions,

www.hcch.net)

European levelEuropean Union (notably: Commission, Parliament and Council)

National levelMember State legislators (recent examples: Slovenia [1999], Lithuania [2001],

Estonia [2002], Belgium [2004] and Bulgaria [2005])

The main legislative players in Europe

Introduction: The Europeanisation of private international lawIntroduction: The Europeanisation of private international lawIntroduction: The Europeanisation of private international law

Until 1998: no EU competence

But Art. 293 EC: “Member States shall, so far as is necessary, enter into negotiations with each other with a view to

securing for the benefit of their nationals […] the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts

or tribunals and of arbitration awards.”

Example: Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial

matters 1968

Additionally: Rome Convention on the Law Applicable to Contractual Obligations 1980

EU Competence

Introduction: The Europeanisation of private international law

EU Competence since Amsterdam and LisbonArticle 81(1) and (2) TFEU

“(1) The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

(2) For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; […]”


Article 81(3) TFEU

“(3) Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.”


EU Competence since Amsterdam and Lisbon

Existing and future instruments

Jurisdiction Applicable law

Enforcement

Brussels I Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

Rome I Regulation No 593/2008 on the law applicable to contractual obligations

Rome II Regulation No 864/2007 on the law applicable to non-contractual obligations


Existing and future examples

Jurisdiction Applicable law

Enforcement

Regulation No 1346/2000 on insolvency proceedings

Brussels IIbis Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility

Maintenance Regulation (EC) No. 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligation

Planned Rome III Regulation on applicable law in divorce matters (Proposal, COM(2006) 399 final)

Planned Matrimonial Property Regulation on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition (Green Paper, COM(2006) 400 final)

Planned Succession Regulation on succession and wills and a European Certificate for Inheritance (Proposal, COM(2009) 154 final)


Safeguarding a uniform interpretation Article 267 TFEU

“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.”


Factors of success?

Europeanisation of Pr. Int‘l Law

Disadvantages of the Conventions:

Long and cumbersome negotiations and need for compromises between the Contracting States;

Long ratification periods: The Contracting States can decide whether they ratify a convention;

Reform of a convention practically impossible;

No guarantee for uniform interpretation because the national courts of the Contracting States decide;

Structural deficits in the Hague Conference:

Member States could not speak for their own, because of the competences of the EU, even in relation to third states (see ECJ Lugano Opinion no 1/2003); but the EU was not a Member of the Hague Conference.

However, since 2006: EU is a member of the Hague Conference, see Council Decision No 2006/719 on the accession of the Community to the Hague Conference on Private International Law.

Introduction: The Europeanisation of private international lawIntroduction: The Europeanisation of private international law

Factors of success? Disadvantages of national private international law:

No harmonisation of private international law.

But: Harmonisation of private international law is very important because is creates at least a harmony of decisions: If all courts apply the same conflict rules, then to every case the same law is applied irrespectively of the forum; no incentive for forum shopping.

Advantages of European law:

Quick legislative procedure based on an institutional framework;

No ratifications necessary;

Quick reform of existing instruments;

Jurisdiction of the ECJ in order to secure uniform interpretation.


Example I: Contracts of carriage

Issues of private international law

Jurisdiction

Applicable law

Enforcement


Article II of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958

“(1) Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. […]

(3) The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, at the request of one of the parties, refers the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”

Contractual obligations

JurisdictionIf arbitration clause?

Introduction: The Europeanisation of private international lawIntroduction: The Europeanisation of private international lawJurisdiction

Example I: Contracts of carriage Example I: Contracts of carriage

The Brussels I Regulation - Generalia

Autonomous interpretation The Regulation cannot not be interpreted by reference to the internal law of one of the Member States concerned. Rather the Regulation – as all other European Regulations in private international law – has to be interpreted autonomously (ECJ 8.11.2005 – Case C-443/03 (Leffler) E.C.R. 2005, I-9611, para. 45).Autonomous interpretation means that the Regulation has to be interpreted

–– in the light of its wording, its origins, its objectives and its scheme (ECJ 3.5.2007 – Case C-386/05 (Color Drack), E.C.R. 2007, I-3699 paras. 17 et seq.)

–– as well as by reference to the general principles which stem from the corpus of the national legal systems (ECJ 14.10.1976 – Case 29/76 (Eurocontrol), E.C.R. 1976, 1541, para. 3).

Principle of actor sequitur forum rei In interpreting the Regulation the primacy of the domiciliary jurisdiction in Article 2 Brussels I should always be supposed and exceptions should be interpreted restrictively.

Jurisdiction


Article 1 (1) Brussels I Regulation No. 44/2001 [Scope]

“This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.”

A. Scope of Brussels I

Jurisdiction


ECJ case 29/76 (Eurocontrol) [1976] ECR 1541

“4 […] ALTHOUGH CERTAIN JUDGMENTS GIVEN IN ACTIONS BETWEEN A PUBLIC AUTHORITY AND A PERSON GOVERNED BY PRIVATE LAW MAY FALL WITHIN THE AREA OF APPLICATION OF THE CONVENTION, THIS IS NOT SO WHERE THE PUBLIC AUTHORITY ACTS IN THE EXERCISE OF ITS POWERS.

SUCH IS THE CASE IN A DISPUTE WHICH , LIKE THAT BETWEEN THE PARTIES TO THE MAIN ACTION , CONCERNS THE RECOVERY OF CHARGES PAYABLE BY A PERSON GOVERNED BY PRIVATE LAW TO A NATIONAL OR INTERNATIONAL BODY GOVERNED BY PUBLIC LAW FOR THE USE OF EQUIPMENT AND SERVICES PROVIDED BY SUCH BODY, IN PARTICULAR WHERE SUCH USE IS OBLIGATORY AND EXCLUSIVE .

THIS APPLIES IN PARTICULAR WHERE THE RATE OF CHARGES , THE METHODS OF CALCULATION AND THE PROCEDURES FOR COLLECTION ARE FIXED UNILATERALLY IN RELATION TO THE USERS, AS IS THE POSITION IN THE PRESENT CASE WHERE THE BODY IN QUESTION UNILATERALLY FIXED THE PLACE OF PERFORMANCE OF THE OBLIGATION AT ITS REGISTERED OFFICE AND SELECTED THE NATIONAL COURTS WITH JURISDICTION TO ADJUDICATE UPON THE PERFORMANCE OF THE OBLIGATION.”

Jurisdiction



“The Regulation shall not apply to: (a) the status or legal capacity of natural persons, rights

in property arising out of a matrimonial relationship, wills and succession;

(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

(c) social security;(d) arbitration.”


Jurisdiction


I. Exclusive jurisdiction (Article 22)

II. Jurisdiction by appearance (Article 24)

Jurisdiction under the Brussels I Regulation

Jurisdiction


Article 24 Brussels I Regulation No. 44/2001 [Jurisdiction by appearance]

[…] a court of a Member State before which a defendant enters an appearance shall have jurisdiction.

This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.

Jurisdiction




III. Special mandatory rules on insurance (Articles 8 et seq.), consumer (Articles 15 et seq.) and employment contracts (Articles 18 et seq.)

IV. Jurisdiction agreement (Article 23)

Jurisdiction



Article 23 (1) Brussels I Regulation No. 44/2001 [Jurisdiction agreement]

“(1) If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

(a) in writing or evidenced in writing; or(b) in a form which accords with practices which the parties have

established between themselves; or(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and

which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or

commerce concerned. […]”

Jurisdiction


Article 23 (1) Brussels I Regulation No. 44/2001 [Jurisdiction agreement]

“(1) If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

(a) in writing or evidenced in writing; or(b) in a form which accords with practices which the parties have

established between themselves; or(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and

which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or

commerce concerned. […]”

ECJ case C-387/98 (Coreck Maritime) [2000] ECR I-9337

“23. It is sufficient to note […] that, in so far as the jurisdiction clause incorporated in a bill of lading is valid under Article 17 of the Convention [= Art. 23 of the Regulation] as between the shipper and the carrier, it can be pleaded against the third party holding the bill of lading so long as, under the relevant national law, the holder of the bill of lading succeeds to the shipper’s rights and obligations […].

24. It follows that the question whether a party not privy to the original contract against whom a jurisdiction clause is relied on has succeeded to the rights and obligations of one of the original parties must be determined according to the applicable national law.

25. If he did, there is no need to ascertain whether he accepted the jurisdiction clause in the original contract. In such circumstances, acquisition of the bill of lading could not confer upon the third party more rights than those attaching to the shipper under it. The third party holding the bill of lading thus becomes vested with all the rights, and at the same time becomes subject to all the obligations, mentioned in the bill of lading, including those relating to the agreement on jurisdiction […].

26. On the other hand, if, under the applicable national law, the party not privy to the original contract did not succeed to the rights and obligations of one of the original parties, the court seised must ascertain, having regard to the requirements laid down in the first paragraph of Article 17 of the Convention [= Art. 23 of the Regulation], whether he actually accepted the jurisdiction clause relied on against him.”

Jurisdiction






V. General jurisdiction (Article 2 [1])

Jurisdiction



Article 2 (1) Brussels I Regulation No. 44/2001 [General jurisdiction]

“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”

Jurisdiction


Article 60 (1) Brussels I Regulation No. 44/2001 [Definition]

“(1) For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:

(a) statutory seat, or(b) central administration, or(c) principal place of business.”

Jurisdiction







VI. Special jurisdictions (Article 5 & 6)

Jurisdiction



Article 5 (1) Brussels I Regulation No. 44/2001 [Special jurisdiction]

“A person domiciled in a Member State may, in another Member State, be sued:(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

–– in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

–– in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,(c) if subparagraph (b) does not apply then subparagraph (a) applies;”

Jurisdiction


ECJ case 26/91 (Handte) [1992] ECR I-3967

“It follows that the phrase ‘matters relating to a contract’, as used in Article 5(1) of the Convention, is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another.”

Jurisdiction



“A person domiciled in a Member State may, in another Member State, be sued:(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;(b) for the […]


JurisdictionArticle 5 (1) Brussels I Regulation No. 44/2001 [Special jurisdiction]

“A person domiciled in a Member State may, in another Member State, be sued:(1) […] (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be […] –– in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided […]


Contracts of carriage as service contracts? → Contracts for the carriage of passengers and goods are service contracts; the carriage has to be characterised as a “provision of service”. → See notably ECJ 9 July 2009 Case C-204/08 (Rehder v. Air Baltic) where the court applied Art. 5(1)(b) Brussels I to a contract for the carriage of passengers by air.

Place where the service was or should have been provided? However, it is a quite intricate question, where the carrier provides the service for purposes of Art. 5(1)(b) Brussels I, especially in cross-border carriages.→ Where is the place of performance?

–– Place of departure/receipt?–– Place of destination/delivery?–– All places in between?

→ The ECJ held in Case C-204/08 (Rehder v. Air Baltic) that the claimant has the choice (para.44) between the place of departure and the place of arrival–– The ECJ argued: “The only places which have a direct link to those services, provided in performance of obligations linked to the subject-matter of the contract, are those of the departure and arrival of the aircraft, since the words ‘places of departure and arrival’ must be understood as agreed in the contract of carriage in question, made with one sole airline which is the operating carrier” (para. 41).

I. Exclusive Jurisdiction (Article 22)






VII. No lis alibi pendens (Article 27)

Jurisdiction



Article 27 Brussels I Regulation No. 44/2001 [No lis alibi pendens]

“(1) Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

(2) Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”

Jurisdiction









Jurisdiction


Example I: Contracts of carriage Example I: Contracts of carriage Jurisdiction



Jurisdiction

Applicable law

Enforcement


I. Scope (Article 1)

II. Free choice of law (Article 3)

III. Applicable law in absence of a choice of law (Article 4)

IV. Special rules for certain contracts (Articles 5, 6, 7 and 8)

V. Special rules for certain issues (Articles 11, 13–17)

VI. Scope of the applicable law (Articles 10, 12, 18)

VII. General limitations on the applicable law (Articles 3[4], 3[5], 9 and 21)

Rome I Regulation – Outline

Applicable law


Applicable law


(1) To the extent that the law applicable to a contract for the carriage of goods has not been chosen in accordance with Article 3, the law applicable shall be the law of the country of habitual residence of the carrier, provided that the place of receipt or the place of delivery or the habitual residence of the consignor is also situated in that country. If those requirements are not met, the law of the country where the place of delivery as agreed by the parties is situated shall apply.

(2) To the extent that the law applicable to a contract for the carriage of passengers has not been chosen by the parties in accordance with the second subparagraph, the law applicable shall be the law of the country where the passenger has his habitual residence, provided that either the place of departure or the place of destination is situated in that country. If these requirements are not met, the law of the country where the carrier has his habitual residence shall apply.The parties may choose as the law applicable to a contract for the carriage of passengers in accordance with Article 3 only the law of the country where:

(a) the passenger has his habitual residence; or(b) the carrier has his habitual residence; or(c) the carrier has his place of central administration; or(d) the place of departure is situated; or(e) the place of destination is situated.

(3) Where it is clear from all the circumstances of the case that the contract, in the absence of a choice of law, is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply.

Article 5 Rome I Regulation [Contracts of carriage]

I. Scope of Article 5

II. Contracts for the carriage of passengers (Article 5[2])

III. Contracts for the carriage of goods (Article 5[1])

IV. Escape clause of Article 5(3)

Art. 5 Rome I – Overview

Applicable law


Scope of Article 5 Rome I

Applicable law


Substantive scope: Definition of “contracts of carriage” (I) –– Autonomous interpretation: The term “contract of carriage” in Article 5 Rome I cannot be defined by reference to the lex fori or national law, but has to be defined autonomously as a term of European law. → Recital 22 says that “single-voyage charter parties and other contracts the main purpose of which is the carriage of goods should be treated as contracts for the carriage of goods”. The same definition can also be used for contracts for the carriage of passengers. It does not matter whether the carriage shall be carried out air, road, railway or sea. –– The ECJ has stated in a recent case on the predecessor of Art. 5 Rome I in the Rome Convention (there: Art. 4[4]) that the term “contracts of carriage” has to be understood broadly (ECJ 6.10.2009, Case C-133/08 – Intercontainer, para. 34) → The case concerned the characterisation of a charter party; the ECJ held: “In a charter-party, the owner, who effects such a performance, undertakes as a matter of course to make a means of transport available to the charterer. However, it is conceivable that the owner’s obligations relate not merely to making available the means of transport but also to the carriage of goods proper. In such circumstances, the contract in question comes within the scope of [Art. 5] where its main purpose is the carriage of goods” (ECJ 6 Oct 2009, Case C-133/08 – Intercontainer, para. 35). –– Hence, one can conclude that contracts of carriage are all contracts where one party is obliged to carry goods or passengers from one place to the other.


Applicable law


Substantive scope: Definition of “contracts of carriage” (II) → As a result the following contracts can be considered to be contracts of carriage in the sense of Art. 5 Rome I: voyage charter parties, time charter and multi-voyage or consecutive voyage charter contracts and freight contracts. → Not covered are, however, demise charter contracts (the hiring of a ship), because in such contracts the main purpose of the contract is merely to make available a means of transport. → Art. 5 Rome I is, however, not applicable to obligations arising from bills of lading

–– This follows in general from Art. 1(2)(d) Rome I, which says: “The following shall be excluded from the scope of this Regulation: […] obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent that the obligations under such other negotiable instruments arise out of their negotiable character”.

–– The fact that bills of lading are negotiable instruments in that sense is stressed by Recital 9 of the Rome I Regulation which clarifies: “Obligations under bills of exchange, cheques and promissory notes and other negotiable instruments should also cover bills of lading to the extent that the obligations under the bill of lading arise out of its negotiable character”.

–– The exclusion of bills of lading from the scope of the Rome I Regulation does, however, not exclude a contract of carriage which is evidenced by the bills of lading.


Applicable law


Personal scope: Definition of “carrier”Art. 5 applies only to contracts of a “carrier”. → Recital 22 defines the term carrier as referring “to the party to the contract who undertakes to carry the goods, whether or not he performs the carriage himself”.Hence, the personal scope of the provision is broader as one thinks on first sight. Covered are thus also contracts concluded by forwarders and agents. → According to Recital 22 the term consignor shall refer to the “any person who enters into a contract of carriage with the carrier”.


Applicable law


Precedence of uniform substantive law – first point of criticism Article 5 Rome I has a very limited scope. It does only apply as far as there are no uniform rules on contracts of carriage in international conventions or European law which enjoy precedence over the Rome I Regulation, cf. Article 23 and 25. Examples:

→ International conventions, Art. 25 Rome I, e.g. –– Convention on the Contract for the International Carriage of Passengers and Luggage by Road of 1973 (CVR Convention) –– Convention relating to the Carriage of Passengers and their Luggage by Sea of 1974 as amended in 1976 (Athens Convention)

–– Hague Rules of 1924 as amended by the Brussels Protocol of 1968 (the Hague-Visby Rules) –– UNIDROIT Convention on Contracts of Carriage of Goods Wholly or Partly by Sea of 2009

(Rotterdam Rules) –– Berne Convention concerning International Carriage by Rail of 1980 (COTIF Convention) –– Convention on the Contract for the International Carriage of Goods by Road of 1956 (CMR

Convention) –– Warsaw Convention for the Unification of Certain Rules relating to International Carriage

by Air of 1929 (Warsaw Convention) with Additional Protocols Nos. 1 and 2 of 1975 (Montreal Protocols) → European law, Art. 23 Rome I, e.g.

–– Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights

–– Regulation (EC) No 2027/97 on air carrier liability in the event of accidents –– Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations


Applicable law


Relation to Article 6 Rome I on consumer contractsOn first sight, rather unclear is the relationship between Article 5 and Article 6 on consumer contracts.Contracts of carriage can also be consumer contracts.In principle, Article 5 is a special provision for contracts of carriage and therefore takes precedence over Article 6.

–– General principle of Lex specialis derogat legi generali; –– See also the opening words to Article 6(1): “Without prejudice to Articles 5

and 7 […]” and Recital 32.

→ One exception: Package travel contracts which do not only consist of carriage services but also contain other elements (rent, sale and other services)

–– Package travel contracts are treated as consumer contracts and subject to Article 6, as Article 6(4)(b) Rome I clarifies, cf. also Directive 90/314/EEC on package travel, package holidays and package tours.

Contracts for the carriage of passengers

Applicable law


Definition of the term “carriage of passengers”?Article 5(2) contains the conflict rules for contracts on the carriage of passengers.Recital 22: Main purpose of the contract is decisive; hence also a contract which oblige the carrier to carry mainly the person but, additionally, also goods, e.g. luggage, is a contract for the carriage of passengers and not partly a contract for the carriage of goods.

The purpose of Article 5(2) is the protection of the passenger as the – presumably – weaker party. → See also Recital 32, which says: “Owing to the particular nature of contracts of carriage […] contracts, specific provisions should ensure an adequate level of protection of passengers […].” → However, unlike in Art. 6 the passengers do not need to be consumers.

–– Rather Art. 5(2) applies also to business trips.However, due to its character as a compromise, the protection awarded by Art. 5(2) is quite weak, as will be seen in a minute.


Applicable law


Freedom of choice of law, Art. 5(2) subpara. 2General provision in Article 3 applies, in principle. Hence a choice of law in a contract for the carriage of passengers must first meet the general conditions laid down in Art. 3 Rome I.

Additionally, Article 5(2) subpara. 2 limits the freedom of choice by limiting the eligible laws. The parties of a contract for the carriage of passengers can only choose the law of a country in which – → the passenger has his habitual residence (Art. 5[2]2 lit. a) → the carrier has his habitual residence (Art. 5[2]2 lit. b) → the carrier has his place of central administration (Art. 5[2]2 lit. c) → the place of departure is situated (Art. 5[2]2 lit. d) → the place of destination is situated (Art. 5[2]2 lit. e).

Criticism of Article 5(2) subpara 2: → The carrier will always choose in its standard terms the law of his habitual residence. → Hence, Art. 5(2) subpara. 2 does not protect the passenger at all; the provision does therefore not serve its purpose. → Passengers as consumers would be better protected by Art. 6 with the limited choice of law in Art. 6(2).

Contracts for the carriage of passengersApplicable law


Applicable law in absence of a choice (I)General provision in Article 4:

→ According the general rules, probably Art. 4(1)(b) would apply, if one regards the contract for the carriage of passengers as a “service contract”. Otherwise the general rule in Art. 4(2) would apply.

–– Under both conflict rules (Art. 4[1][b] and 4[2] Rome I), the law of the carrier would govern the carriage contract.

→ However, Art. 5(2) subpara. 1 contains a special conflict rule in cases the parties have not chosen an applicable law: –– In principle, the law applicable to the contract shall be the law of the country where the passenger has his habitual residence, provided that either the place of departure or the place of destination is situated in that country, cf. Art. 5(2) subpara. 1 sentence 1.

–– The “passenger” (whose habitual residence is decisive) must not be a party to the contract of carriage; for instance business trips are not booked by the passenger (employee) but but by the employer. –– No definition of habitual residence in the Rome I Regulation. Only Art. 19 of the Rome I Regulation contains some clarifications. –– “Place of departure” and “place of destination” refers to the places

as defined in the contract which might not coincide with the places of the voyage as a whole, for example, if a train goes from Paris to Copenhagen via Hamburg and the passenger only buy a ticket from Paris to Hamburg, the place of destination for the carriage contract is Hamburg and not Copenhagen.


Applicable law


Applicable law in absence of a choice (II)

–– If the requirements of Art. 5(2) subpara. 1 sentence 1 are not met (because the place of departure or destination is not situated in the country where the passenger has his habitual residence), the law of the country where the carrier has his habitual residence shall apply, Art. 5(2) subpara. 1 sentence 2.

Criticism of Art. 5(2) subpara 1: → On first sight, the passenger is protected by Art. 5(2) subpara. 1 sentence 1

because his law applies if there is a connection of the contract to that law because the place of departure or destination is the country where the passenger habitually resides. –– However, it is very doubtful whether one can effectively protect the passenger by an objective conflict rule which allows – as here – a choice of law by the parties according to Art. 5(2) subpara. 2.

–– Again: The carrier can evade the law of the passenger by a simple choice of law clause in the standard terms → The protection of the passenger is incomplete: if the habitual residence of the passenger lies not at the place of departure or destination, the law of the carrier applies according to Art. 5(2) subpara. 1 sentence 2.

Contracts for the carriage of goods

Applicable law


Roots of Article 5(1)Unlike Art. 5(2), the special provision for the contracts for the carriage of goods in Art. 5(1) could also – at least in its first sentence – be found in the predecessor of the Rome I Regulation, the 1980 Rome Convention on the law applicable to contractual obligations. The Rome I Regulation is not intended to change the old rule, see Recital 22.

No limitations of the freedom of choice of lawArt. 5(1) does not limit the freedom of the parties to choose the law applicable to their contract for the carriage of goods granted by Art. 3 Rome I.The general limits of party autonomy apply, especially contained in Art. 3 (3) and (4), Art. 9 and Art. 22.


Applicable law


Applicable law in absence of a choice (I)Contracts for the carriage of goods often have no connection to the State where the carrier has his habitual residence. Therefore, the application of the general rules in Article 4(1)(b) or (2) would lead to unjust results, because the contract has often no connection at all to the country of the carrier.Art. 5(1) tries to solve that problem by two provisions:

(1) According to Art. 5(1) sentence 1, the law applicable to the carriage contract shall only be the law of the country of the habitual residence of the carrier (as under the general rules in Article 4[1][b] or [2] Rome I) if there is a connection of the carriage contract with that law because either the place of receipt (= loading) or the place of delivery (= discharge) or the habitual residence of the consignor is also situated in that country. → Problem: Is the actual or the contractually agreed place of receipt and place of delivery decisive?

Probably the contractually agreed place: –– Art. 4(4) of the Rome Convention, cf. also Recital 22 –– Also Art. 5(1) sentence 2, as will be seen in a minute, refers to the agreed

place of delivery. –– Otherwise the applicable law would change after the conclusion of the

contract.


Applicable law


Applicable law in absence of a choice (II)

(2) Otherwise, if there is no such connection to the law of the carrier, Art. 5(1) second sentence stipulates that the contract has its closest connection to the country where the goods shall be delivered: The law of the place of delivery (as agreed by the parties) shall apply. → That second rule is, in principle, justified because proceedings concerning damaged goods will often be started in the country where the goods where delivered to.

As already seen, the jurisdiction of that courts follows from Art. 5(1)(b) of the Brussels I Regulation. Often the law of the place of delivery will also be the law of the

consignor, especially, if the sales contract between the exporter and the importer contained a “E” or “F”-clause and the importer is the consignor.

This, however, does not apply if the importers are not the consignors, as in all sales contracts with “C” or “D”-clause, where the exporter is the consignor. → Problems, however, arise if there is more than on place of delivery.

Shall the contract then be governed by more that one laws? → A second problem concerns the fact that Art. 5(1) second sentence only speaks of “place of delivery as agreed by the parties”.

What happens if there if the parties have not agreed on a place of delivery at all but left that question to default rules of the governing

law?Probably, one should apply the law of the carrier in that case, based on Art. 4(1)(b) or (2).

General “escape clause”

Applicable law


Art. 5(3 applies to both contracts for the carriage of passengers and contracts for the carriage of goods, however, only in absence of a choice of law.

Art. 5(3) determines that if the contract of carriage “manifestly more closely connected” with a country other the country whose law would be applicable under Art. 5(1) and (2), the law of that other country applies.

–– Only in rare cases there will be a closer connection because already Art. 5(1) and (2) safeguard that the contract of carriage has a close connection to the applicable law.

The so-called “escape clause” is a general concept of European private international law and can also be found for other contracts in Art. 4(3) Rome I.



Jurisdiction

Applicable law

Enforcement


Article 38 (1) Brussels I Regulation No. 44/2001

“A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.”

Enforcement


Article 41 Brussels I Regulation No. 44/2001

“The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.”

Enforcement


Article 45 Brussels I Regulation No. 44/2001

“(1) The court with which an appeal is lodged […] shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.(2) Under no circumstances may the foreign judgment be reviewed as to its substance.”

Enforcement


For example: Article 34 Brussels I Regulation No. 44/2001

“(1) if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;(2) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so; […]”

Enforcement


Programme

I. Introduction: The Europeanisation of private international law

II. Example I: Contracts of carriage

III. Example II: Environmental damages

Example II: Environmental damages


Jurisdiction

Applicable law

Enforcement

Example II: Environmental damages Example II: Environmental damages Example II: Environmental damages


“This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.”

Jurisdiction



ECJ case 814/79 (Rüffer) [1980] ECR 3807

“8 […] WHILST […] AN ACTION BETWEEN A PUBLIC AUTHORITY AND A PERSON GOVERNED BY PRIVATE LAW MAY COME WITHIN THE AREA OF APPLICATION OF THE [REGULATION] THAT IS NOT THE CASE IF THE PUBLIC AUTHORITY IS ACTING IN THE EXERCISE OF ITS PUBLIC AUTHORITY POWERS .

9 SUCH A CASE IS AN ACTION FOR THE RECOVERY OF THE COSTS INVOLVED IN THE REMOVAL OF A WRECK IN A PUBLIC WATERWAY, ADMINISTERED BY THE STATE RESPONSIBLE IN PERFORMANCE OF AN INTERNATIONAL OBLIGATION AND ON THE BASIS OF PROVISIONS OF NATIONAL LAW WHICH , IN THE ADMINISTRATION OF THAT WATERWAY, CONFER ON IT THE STATUS OF PUBLIC AUTHORITY IN REGARD TO PRIVATE PERSONS .

11 THE GRANTING OF SUCH STATUS TO THE AGENT RESPONSIBLE FOR POLICING PUBLIC WATERWAYS , FOR THE PURPOSE OF REMOVING WRECKS LOCATED IN THOSE WATERWAYS, IS FURTHERMORE IN KEEPING WITH THE GENERAL PRINCIPLES WHICH STEM FROM THE CORPUS OF THE NATIONAL LEGAL SYSTEMS OF THE MEMBER STATES WHOSE PROVISIONS ON THE ADMINISTRATION OF PUBLIC WATERWAYS PRECISELY SHOW THAT THE AGENT ADMINISTERING THOSE WATERWAYS DOES SO, WHEN REMOVING WRECKS, IN THE EXERCISE OF PUBLIC AUTHORITY .”

Jurisdiction


ECJ case 343/04 (Land Oberösterreich) [2006] ECR I-4557

“22. Furthermore, it must be recalled that, under the first subparagraph of Article 1 of the Brussels [I Regulation], the [Regulation] is to apply, whatever court is seised, ‘in civil and commercial matters’ but ‘shall not extend, in particular, to revenue, customs or administrative matters’. It is clear from settled case-law that the concept of ‘civil and commercial matters’ must be regarded as an independent concept which must be interpreted by referring to the objectives and scheme of that [Regulation] and the general principles which stem from the corpus of the national legal systems. Therefore, in particular, the scope of the [Regulation] must be essentially determined either by reason of the legal relationships between the parties to the action or of the subject-matter of the action […].

23. The national court, which is responsible for analysing such factors and determining, with reference to the case-law of the Court, whether the [Regulation] applies to a dispute such as the one before it, did not ask the Court about the interpretation of Article 1 […]. Having regard to that fact, and to the answer given below to the question referred, there is no need to give further consideration to the scope of that provision.”

Jurisdiction



Non-contractual obligations

Jurisdiction

B. Jurisdiction under Brussels I


Article 22 Brussels I Regulation No. 44/2001 [Exclusive jurisdiction]

“The following courts shall have exclusive jurisdiction, regardless of domicile:

(1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. […]”

Jurisdiction


ECJ case 343/04 (Land Oberösterreich) [2006] ECR I-4557

“34. An action for cessation of a nuisance, possibly preventive in nature, such as that at issue in the main proceedings, does not constitute a dispute having as its object rights in rem in immovable property […]. It is true that the basis of such an action is the interference with a right in rem in immovable property, but the real and immovable nature of that right is, in this context, of only marginal significance. As ČEZ and the Commission point out, the real and immovable nature of the right at issue does not have a decisive influence on the issues to be determined in the dispute in the main proceedings, which would not have been raised in substantially different terms if the right whose protection is sought against the alleged nuisance were of a different type, such as, for example, the right to physical integrity or a personal right. Just like the action at issue in the main proceedings, such actions essentially seek an order that the person causing the interference, actual or potential, to a right, for example by failing to comply with current generally recognised technological standards, put an end to it.

Jurisdiction






Jurisdiction



Article 11 (2) Brussels I Regulation No. 44/2001 [Direct action]

Jurisdiction


“Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.”







Jurisdiction



Article 2 (1) Brussels I Regulation No. 44/2001 [General jurisdiction]

Jurisdiction


“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”








Jurisdiction




“A person domiciled in a Member State may, in another Member State, be sued:

(3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;”

Jurisdiction



“A person domiciled in a Member State may, in another Member State, be sued: (3) in matters relating to tort, delict or

quasi-delict, in the courts for the place where the harmful event occurred or may occur;”

Jurisdiction

ECJ case 189/87 (Kalfelis) [1988] ECR 5565

“In order to ensure uniformity in all the Member States, it must be recognized that the concept of ‘matters relating to tort, delict and quasi-delict’ covers all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of Article 5 (1).”

ECJ case 21/76 (Bier) [1976] ECR 1735

“Liability in tort, delict or quasi-delict can only arise provided that a causal connection can be established between the damage and the event in which that damage originates.”



“A person domiciled in a Member State may, in another Member State, be sued:

(3) in matters relating to tort, delict or quasi- delict, in the courts for the

place where the harmful event occurred or may occur;”

Jurisdiction

ECJ case 21/76 (Bier) [1976] ECR 1735

“16 Liability in tort, delict or quasi-delict can only arise provided that a causal connection can be established between the damage and the event in which that damage originates.

17 Taking into account the close connexion between the component parts of every sort of liability, it does not appear appropriate to opt for one of the two connecting factors mentioned to the exclusion of the other, since each of them can, depending on the circumstances, be particularly helpful from the point of view of the evidence and of the conduct of the proceedings.[…]

19 Thus the meaning of the expression ‘where the harmful event occurred’ in Article 5(3) must be established in such a way as to acknowledge that the plaintiff has an option to commence proceedings either at the place where the damage occurred or the place of the event giving rise to it.”









Jurisdiction




Jurisdiction

Applicable law

Enforcement


I. Scope (Article 1)II. Free choice of law (Article 14)III. Applicable law in absence of a choice of law (Articles 4 to 12)

1. Torts/Delictsa) General Rule (Article 4)b) Product liability (Article 5)c) “Competition delicts” (Article 6)d) Environmental damages (Article 7)e) IP rights (Article 8)f) Industrial action (Article 9)

2. Unjust enrichment (Article 10)3. Negotiorum gestio (Article 11)4. Culpa in contrahendo (Article 12)

IV. Special rules for certain issues (Article 18 to 21)V. Scope of the applicable lawVI. General limitations on the applicable law

Rome II Regulation – Outline

Applicable law


“This Regulation shall apply, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters.

It shall not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (‘acta iure imperii’).”

Applicable law

Scope

Article 1 (1) Rome II Regulation


Applicable law

Scope of Rome II


Civil and commercial matter, Art. 1 Rome IIQuestion whether Art. 7 Rome II is applicable at all. → As already seen in connection with the jurisdictional rules of the Brussels I Regulation, environmental damages are often suffered or liquidated by the State (see the ECJ decisions in Rüffer and Land Oberösterreich).The same guidelines as to the Brussels I Regulation apply also to the Rome II Regulation. → Hence, if the State is entitled to damages acting in the exercise of public authority (and not a private person), Art. 7 Rome II does not apply. → Some authors argue that there should be a “green” interpretation of the concept of “civil and commercial matters” in the context of Art. 7 Rome II because environmental protection is one of the goals of the European Union

–– Art. 7 should cover all cases which fall in the scope of the Environmental Liability Directive No 2004/35, which determines in

particular the rights of the State in case of environmental damages.That view, however, would lead to the strange result that that Art. 1 (“civil and commercial matter”) would be interpreted broader with regard to Art. 7 than it is interpreted for the rest of the Rome II Regulation.

Applicable law

The special conflict rule


“The law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred.”

Article 7 Rome II Regulation [Environmental damage]

Applicable lawThe special conflict rule



Article 7 Rome II Regulation [Environmental damage] Scope of Art. 7: Precedence of uniform substantive law

Also with regard to environmental damages there are a number of international conventions which contain uniform rules of substantive law dealing with the liability for environmental damages. → Some examples: –– Convention on civil liability for oil pollution of 1969 –– Convention on civil liability for bunker oil pollution damages of 2001 → Those Conventions take precedence over Art. 7 and the Rome II Regulation, cf. Art. 28(1) Rome II. → The law determined by Art. 7 Rome II remains, however, relevant

–– for all gaps in those Conventions and –– outside the scope of those Conventions, e.g. the for damages caused in non-Contracting States or on the high seas.




Article 7 Rome II Regulation [Environmental damage] Scope of Art. 7: Environmental damages → The term “environmental damage” is defined in Recital 24: “‘Environmental damage’ should be understood as meaning adverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms.” → A more detailed definition can be found in Art. 2 of the Enviromental Liability Directive which can be used for interpreting the term “environmental damage’ in Art. 7 Rome II. → However, not all environmental damages are covered by Art. 7. Excluded are, in particular, nuclear damages, as Art. 1(2)(f) of the Rome II Regulation clarifies: “The following shall be excluded from the scope of this Regulation: […] non-contractual obligations arising out of nuclear damage”.




Article 7 Rome II Regulation [Environmental damage] Scope of Art. 7: Damages sustained by persons or property as a result of environmental damages → That expression clarifies that – unlike the Environmental Liability Directive – Art. 7 Rome II also applies to claims for personal injury and property damages resulting from environmental damages. → Problem: Do claims based on “pure economic loss” caused by environmental damages fall within the scope of Art. 7 Rome II?

–– Example: Hotels or fishermen suffer economic loss from an oil spill.

–– Strictly speaking, such pure economic losses are not personal or property damages and, on first sight, are rather subject to the general conflict rule for torts in Art. 4 Rome II.

–– Nevertheless they should be within the scope of Art. 7 as otherwise damages caused by the same event would be subject to different conflict rules.




Article 7 Rome II Regulation [Environmental damage] Consequences of Art. 7: Application of the general rule → In principle, the general conflict rule for torts in Art. 4(1) Rome II applies also environmental damages.

–– Hence, the law of “the country in which the damage occurs” applies – “irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.”

→ Problem: Where does environmental damages occur?

Example: Oil spill which is caused in one

State but spreads to other States as well

Recital 24: Damages occurs in any place in which there is a “adverse change in a natural

resource” –– In case of economic loss the place

where the environmental damage occurs is decisive. → Art. 7 does not refer to Art. 4(2) and (3) Rome II.




Article 7 Rome II Regulation [Environmental damage] Consequences of Art. 7: Choice of the law of the country where the event giving rise to the damage occurred → Additionally, the claimant is favoured by Art. 7: The claimant can opt for the law of the country where the event giving rise to the damage occurred, i. e. the place where the defendant allegedly acted. → Art. 7 does not allow a dépeçage, a partial choice of law. → Problem: When does the claimant has to exercise the option of Art. 7?

–– Recital 25 leaves that question to the lex fori: “The question of when the person seeking compensation can make the choice of the law applicable should be determined in accordance with the law of the Member State in which the court is seised”.

–– In German law, the choice according to Art. 7 Rome II must be made before the end of the first hearing or the written pre-trial proceedings (Art. 46a of the Introductory Act to the German Civil Code).

“The parties may agree to submit non-contractual obligations to the law of their choice:

(a) by an agreement entered into after the event giving rise to the damage occurred; or(b) where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occurred.

The choice shall be expressed or demonstrated with reasonable certainty by the circumstances of the case and shall not prejudice the rights of third parties.

Applicable law

Free choice of law Article 14 (1) Rome II Regulation


“In assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and insofar as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability.”

Applicable law

Article 17 Rome II Regulation [Rules of safety and conduct]

Scope of the applicable law

Applicable law


“The person having suffered damage may bring his or her claim directly against the insurer of the person liable to provide compensation if the law applicable to the non-contractual obligation or the law applicable to the insurance contract so provides.”

Applicable law

Article 18 Rome II Regulation [Direct action against the insurer]


Direct action

“If a creditor has a claim against several debtors who are liable for the same claim, and one of the debtors has already satisfied the claim in whole or in part, the question of that debtor's right to demand compensation from the other debtors shall be governed by the law applicable to that debtor's non-contractual obligation towards the creditor.”

Applicable law

Article 20 Rome II Regulation [Multiple liability]

Multiple liability

Applicable law


Dr. Anatol Dutta, M. Jur. (Oxford)([email protected])

Max Planck Institute for Comparative and International Private Law Hamburg

Two examples of recent developments in European private international law: Contracts of

carriage and environmental damages

dr. anatol dutta, m. jur. (oxford) ([email protected]) max planck institute for comparative and...

Documents