Brussels Ibis Research Articles

Coordination of contractual and tort claims in the European law of jurisdiction

Under Article 7(1) and Article 7(2) Brussels I-bis Regulation of 2012, there is jurisdiction for contractual and tort claims. The delineation of these matters is not easy, particularly in cases where there is a concurrency of actions. The discussion is continuing even after the Wikingerhof judgment of the European Court of Justice of 24 November 2020. The present article discusses weaknesses associated with different concepts like duties and interests. The introduction of additional elements like the ‘indispensability’ of analysing the contract in cases of tort jurisdiction are difficult to apply and lead to new uncertainty. The admissibility of annex jurisdiction for contract and tort would alleviate the problem.

Prorogation by submission under art. 26 of Brussels Ibis Regulation and the protection of weaker parties

Section 7 of Chapter II of the Brussels Ibis Regulation deals with prorogation of juris-diction. The choice of jurisdiction can be made by a choice-of-court agreement or by a trust provision (Art. 25), or by submission to the court seized (Art. 26). The purpose of Art. 26 is, in part, common to the purpose of Art. 25: to respect freedom of choice. However, where one of the parties is a typically weaker party, it may be appropriate to limit freedom of choice or, as it is the case in Art. 26(2), to provide for a duty of information aimed at overcoming the information asymmetry between the parties. The present essay addresses the main interpretation and gap filling issues arising therefrom.

What to do With Cross-Border Environmental Pollution: Legislative Aspects

Abstract – Environmental torts and possibility of trans-border dispute settlement thereof has gained significant prominence in the recent years. Cases such as Urgenda foundation v the State of the Netherlends, Milieudefensie et al. v. Royal Dutch Shell plc., ClientEarth v. Enea, Neubauer et al. v. Germany demonstrate that environmental tort cases can be brought by stakeholders globally rather than relying on involvement of a relevant national responsible authority. EU climate policy of decreasing GHG emissions and the ambitious target of reaching climate neutrality by 2050 has resulted in a rapid development of environmental law. Thus, environmental regulation is becoming increasingly complex and possible breaches may cause serious legal consequences affecting everyone not just selected individuals or states. These developments could possibly lead to a necessity of a forum or rules where any natural person or an NGO could bring a claim against a state or multinational corporation which engages in illegal activities causing harm the environment on a global scale. Using litigation as a tool to empower society to stand against environmental wrongdoers may serve as a deterring factor to maintain order when it comes to environmental regulation. While such reasoning may seem farfetched and extreme, nevertheless it still raises a question of current regulation on determination of jurisdiction and the applicable law and whether it would be possible to benefit from developing these rules. By engaging in a systematic literature analysis identifying the relevant terms, the research shall explore the basic principles of private international law in relation to assigning jurisdiction and determining applicable law in claims concerning environmental torts. The research shall develop a methodology with the aim of covering and identifying a wider range of problems related to the determination of jurisdiction and application of law in cross-border environmental tort claims. Some of the main issues concern the determination of defendants in cases involving multinational corporations, multi-claimant cases, and the compensation of indirect damages. An exploration of material aspects in the developments of the current EU regulation and guidelines shall be analysed in conjunction with the aforementioned notion. The result of the study not only will reflect the specifics of the application of the Brussels Ibis Regulation and Rome II regulation in cross-border environmental torts, but also how the EU environmental regulation could potentially promote corporate responsibility and environmental protection. Thus, developing research on interaction between private international law and environmental law. Keywords - environmental tort, SEG emissions, jurisdiction, applicable law, cross-border pollution

The Reform of the Brussels Ibis Regulation - Academic Position Paper

The Reform of the Brussels Ibis Regulation - Academic Position Paper

Prorogation by Submission under Article 26 of Brussels Ibis Regulation and the Protection of Weaker Parties

Prorogation by Submission under Article 26 of Brussels Ibis Regulation and the Protection of Weaker Parties

The relationship between the Hague Judgement Convention, the Brussels Ibis Regulation and the agreement between Ukraine and the Republic of Lithuania on legal assistance

"The aim of this article is to analyse the correlation between the Hague Convention on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters (hereinafter – Convention, Hague Judgement Convention), Regulation No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (hereinafter – Brussels Ibis Regulation) and the Agreement between the Republic of Lithuania and Ukraine on legal assistance (hereinafter – Agreement). To achieve this goal, the first part of the article analyses historical models of regulation in the sphere of enforcement and recognition of foreign judgements. The second part of the article defines the scope of application of the Hague Judgement Convention and compares it with the scope of application of the Brussels Ibis Regulation. The third part is devoted to the determination of the scope of the application of the Agreement. Parts five and six analyse the types of ‘relation clauses’ adopted in the Convention and the Brussels Ibis Regulation and define the order of the application of international instruments. The materials used include literature and scientific publications relating to resolving conflicts between international instruments in the field of recognition and enforcement of foreign judgements. The following methods were used to write this paper: description, analysis, synthesis and comparison. Keywords: the Hague Judgement Convention, the Brussels Ibis Regulation, bilateral agreements, relationship."

The Classification of Dual-Purpose Contracts in European Private International Law

Consumers, as the presumed weaker party, are granted with favourable jurisdiction and choice of law rules under the Brussels Ibis Regulation and Rome I Regulation. The identity of a person as a consumer is the precondition of applying consumer protective rules. However, what if a person is acting partly for professional purpose and partly for private purpose? What criterion should be relied upon to classify a dual-purpose contract? Whether the private purpose must be predominant or primary, or it is irrelevant as long as the professional purpose is non-negligible? What if a person changes the purpose after the conclusion of contract? Whether the original purpose or the subsequent purpose should be decisive? This article aims to clarify the notion of hybrid consumer or dual-purpose contract in European private international law. The CJEU case might show that a less strict criterion is adopted to determine the legal nature of dual-purpose contracts. Compared to the notion of consumer in EU consumer directives and the 2019 Hague Judgments Convention, it might be advisable to adopt the non-predominant or primary purpose criterion. Accordingly, a dual-purpose contract is a consumer contract if the person is acting primarily outside of his trade or profession (primarily for personal, family or household purposes), or the professional purpose is so limited as not to be predominant. Meanwhile, a dynamic or ex post approach, albeit secondary to the static or ex ante approach, shall be adopted in examining the purpose of a dual-purpose contract. The subsequent change of purpose is relevant.

Effective Application of Provisional Measures under the Brussels Ibis Regulation

The article is devoted to the study of the notion of provisional measures under Article 35 of the Brussels Ibis Regulation.The purpose of the study is to analyse the jurisdictional grounds for the application of provisional measures by courtsof the Member States of the European Union. The authors argue that the Brussels Ibis Regulation establishes a dual-track jurisdictional system for the application of provisional measures in cases where the court is seised of the meritsof the case and when the court is not seised of the merits of the case. The application of both bases for provisionalmeasures is consistent with the principle of lis pendens, and therefore if the court that was the first to hear the first ap-plication for interim relief has priority to apply such measures. The analysis was based on the scientific literature on the peculiarities of the application of provisional measures andcase law of the Court of Justice of the European Union. The following methods were used to write the article: analysis,systematic, and legal interpretation.

Analyse Comparative / Comparative Perspectives

This article analyses the treatment of claims relating to trading cryptocurrencies under Brussels Ibis. There are essentially two ways to trade cryptocurrencies online: trading with crypto brokers and trading with other entities on crypto exchanges. Each of these possibilities raises specific issues of European civil procedure law. In particular, the distinction between the jurisdiction over contracts (Article 7(1) Brussels Ibis) and the tort jurisdiction (Article 7(2) Brussels Ibis) and the localisation of the place where the damage occurs in the sense of Article 7(2) Brussels Ibis causes problems. In addition, the jurisdiction over consumer contracts causes difficulties. Other fundamental problems can arise because the parties are pseudonymous or anonymous.

Jurisdiction and choice of law rules over electronic consumer contracts: The nexus between the concluded contract and the targeting activity

A foreign business is subject to the jurisdiction of a consumer’s domiciled country and the law of the consumer’s habitual residence, provided that the business has targeted at the consumer’s home country and the consumer contract falls within the scope of such targeting activities under Brussels Ibis and Rome I Regulations. However, it is unclear whether the contract must be concluded from a distance and has a causal link with the targeting activity. The CJEU concludes that the contract does not have to be concluded at a distance or have a causal connection with the targeting activity. This is also the case in China in which consumer choice of law rules, while not requiring a causal link, adopt a lower threshold by examining the dis-targeting test. By contrast, American jurisdiction rules over consumer contracts adopt a higher threshold, which requires a casual connection between the consumer’s claim and the business’s contact with the consumer’s state. Although the EU, USA and China have different private international law rules over consumer contracts, commonalities do exist in certain aspects. Based on a comparative study, this article argues that the fact that a contract is concluded at a distance or has a nexus with the targeting activity is a relevant factor, among other factors, to determine the targeting test. In this regard, Brussels Ibis and Rome I need a minor amendment.

The Reform of the Brussels Ibis Regulation

The Reform of the Brussels Ibis Regulation

Internet, consumer contracts and private international law: what constitutes targeting activity test?

ABSTRACT A foreign business is subject to consumer jurisdiction and applicable law rules provided in Articles 17–19 Brussels Ibis Regulation and Article 6 Rome I Regulation only if it conducts commercial activities targeted at the consumer’s home country. This paper aims to answer the question what constitutes targeting activity test, especially in the context of the Internet and E-commerce, for the purpose of applying such pro-consumer private International law rules. To this end, it is necessary to examine the non-exhaustive list of factors given by the CJEU in the influential Pammer and Hotel Alpenhof judgment. This paper argues that no single factor is decisive, instead, an overall assessment should be conducted. Moreover, the targeting test should perhaps be supplemented by the dis-targeting test, which focuses more on the ring-fence mechanism. In this regard, apart from asking consumers individually about their whereabouts, it can be done by exploiting geo-location and geo-blocking technologies to technologically block unsolicited consumers.

The Tango Between Art.17(3) Brussels Ibis and Art.6(4)(b) Rome I under the Beat of Package Travel Directive

Package travel tourists are explicitly protected as consumers under Article 6(4)(b) Rome I, but not under Article 17(3) Brussels Ibis since it does not even mention the term ‘package travel’. Such discrepancy is widened with the replacement of Directive 90/314 by Directive 2015/2302 with enlarged notion of package travel. As regards protecting package travel tourists as consumers with favorable jurisdiction and applicable law rules, this article argues that Article 17(3) Brussels Ibis is two steps behind Article 6(4)(b) Rome I. In order to close the gap, a uniform concept of package travel should be given. To this end, it is suggested that Article 17(3) Brussels Ibis should adopt the notion of package travel employed in Article 6(4)(b) Rome I. Despite this, these two provisions only cover packages containing transport, as an exception of transport contracts. Packages not including transport do not fall under the exception of transport contracts. Since all package travel contracts should be protected as consumer contracts, regardless of containing transport or not, it is more logical to delete the exception of transport contracts and create a separate provision to protect package travel contracts as consumer contracts.

Rezension zu: Peter Mankowski (ed.), Research Handbook on the Brussels Ibis Regulation. With contributions by T.M.C. Arons e.a.

Article Rezension zu: Peter Mankowski (ed.), Research Handbook on the Brussels Ibis Regulation. With contributions by T.M.C. Arons e.a. was published on December 1, 2021 in the journal Zeitschrift für das Privatrecht der Europäischen Union (volume 18, issue 6).

The Shell Nigeria Judgments by the Court of Appeal of the Hague, a Breakthrough in the Field of International Environmental Damage? UK Law and Dutch Law on Parental Liability Compared

On 29 January 2021, the Court of Appeal of The Hague rendered three judgments in cases brought by Nigerian citizens who had suffered damage as a result of leaks from oil pipelines. The proceedings stand out because they are being conducted in the Netherlands, not only against Shell Nigeria, but also against the former UK and Dutch parent companies of the Shell group, as well as against the current group holding company Royal Dutch Shell Plc. The Court of Appeal, in line with the Vedanta judgment of the UK Supreme Court, makes an extensive analysis of the structure of the Shell group and, based thereon, derives (albeit limited) a duty of care for the parent company Royal Dutch Shell Plc (RDS) vis-à-vis the claimants. corporate social responsibility, international environmental damage, piercing the corporate veil, EEX Regulation (recast), Brussels I-bis Regulation, Rome II Regulation

Reforming the Brussels Ibis Regulation: Perspectives and Prospects

According to article 79 of Regulation (EU) 1215/2012, the EU Commission shall present a report on the application of the Brussels Ibis Regulation by 11 January 2022. This paper intends to open the discussion about the present state of affairs and the necessary adjustments of the Regulation. Although there is no need to change its basic structure, the relationship of the Brussels Ibis Regulation with other EU instruments (as the General Data Protection Regulation) should be reviewed. There is also a need to address third-State relationships and cross-border collective redress. In addition, the paper addresses several inconsistencies within the present Regulation evidenced by the case law of the CJEU: such as the concept of contract (article 7 no 1), the place of damage (article 7 no 2), the protection of privacy and the concept of consumers (articles 17 – 19). Finally, some implementing procedural rules of the EU Member States should be harmonised, i.e. on the assessment of jurisdiction by national courts, on judicial communication and on procedural time limits. Overall, the upcoming review of the Brussels Ibis Regulation opens up an opportunity to improve further a central and widely accepted instrument of the European law of civil procedure.

Derecho internacional privado y Derecho marítimo internacional: competencia judicial internacional y acuerdos atributivos de jurisdicción en la LNM

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Jurisdiction concerning annex actions in the context of the insolvency and Brussels Ibis regulations

AbstractThe legislation of the European Union has addressed the private international law aspects of civil and commercial matters and those of insolvency cases separately. While the Brussels Ibis Regulation (and its predecessors) focuses on “classic” civil of commercial cases, insolvency proceedings are subject to the (recast) Insolvency Regulation. However, the close interference between the two related areas of law—commercial and insolvency—results in a category of cases that are commercial and contentious in nature, and so they would tend to gravitate towards the Brussels regime, but yet they are so closely connected to the insolvency proceedings that justifies a special approach. This article focuses on the question of international jurisdiction regarding these “annex actions” in the context of the EU law. It will attempt to explore the historical roots of the current provisions and the evolution of both the European legislation and the relevant case law. The examination of this progression provides a better understanding of the current legislation and answers some questions apparently left open in the recast Insolvency Regulation.

Requirements upon Agreements in Favour of the NCC and the German Chambers – Clashing with the Brussels Ibis Regulation?

In recent years, the Netherlands and Germany have added themselves to the ever-growing number of countries opting for the creation of an international commercial court. The Netherlands Commercial Court (NCC) and the German Chambers for International Commercial Disputes (Kammern für internationale Handelssachen, KfiH) will conduct proceedings entirely in English and follow their own, diverging rules of civil procedure. Aspiring to become the future venues of choice in international commercial disputes, the NCC law and the legislative proposal for the establishment of the KfiH allow parties to agree on their jurisdiction and entail detailed provisions regulating such agreements. In particular, the NCC requires the parties’ express and in writing agreement to litigate before it. In a similar vein, the KfiH legislative proposal requires in some instances an express and in writing agreement. Although such strict formal requirements are justified by the need to safeguard the procedural rights of weaker parties such as small enterprises and protect them from the peculiarities of the NCC and the KfiH, this article questions their compliance with the requirements upon choice of court agreements under Article 25 (1) Brussels Ibis Regulation. By qualifying agreements in favour of the NCC and the KfiH first as functional jurisdiction agreements and then as procedural or court language agreements this article concludes that the formal requirements set by the NCC law and the KfiH proposal undermine the effectiveness of the Brussels Ibis Regulation, complicate the establishment of these courts’ jurisdiction and may thus threaten their attractiveness as future litigation destinations.

Current Developments in Forum Access: Comments on Jurisdiction and Forum Non Conveniens – European Perspectives on Human Rights Litigation

This article explores the approach recently adopted by supranational and national courts in Europe vis-a-vis the assessment of jurisdiction in human rights and public interest litigation. In its first part, the article analyses whether, and to extent, the private international law doctrine of forum of necessity could, in the current state of the law, help guaranteeing the effectiveness of the “right to a court” vested by article 6 E.C.H.R. Reference will be made to the interpretations of this head of jurisdiction recently submitted by the highest civil courts of France and Switzerland, as well as by the European Court of Human Right in the seminal Nait-Liman case. Remarking the fairly narrow understanding of said doctrine arisen in recent case-law, this article, in its second part, looks into alternative procedural strategies that plaintiffs in foreign-cubed cases may adopt in order to ground jurisdiction in Europe. The paper contends, in particular, that there are multiple ways in which these plaintiffs could profit from the hard-and-fast logic underlying the jurisdictional regime set in place by the Brussels Ibis Regulation. Nevertheless, while establishing jurisdiction might no longer be a big impediment, several other issues of procedural and substantive law might still derail a judgment on the merits.