CROSS-BORDER PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS IN EUROPE: INTERNATIONAL CONTRACTS AND NON-CONTRACTUAL LIABILITY Ester di Napoli LUMSA University, Rome 27 and 28 February 2018 dnpstr@unife.it

The european e-justice portal https://e-justice.europa.eu The Portal is maintained by the EU Commission, and it provides information on Member States’ legal systems, case law, in 23 languages. You may also find a lawyer / a notary in another Member State. The Portal is the outcome of the European Judicial Network in civil and commercial matters (EJN-civil), which is a flexible, non- bureaucratic network which brings together national judicial authorities. It aims to simplify and strengthen judicial cooperation between Member States. In operation since 2002, the EJN-civil improves the practical application and implementation of EU civil justice instruments. In such way, it contributes to building bridges between the different justice systems of the Member States and thereby creating mutual trust

The european e-justice portal https://e-justice.europa.eu In particular, the European Judicial Atlas in civil matters: conceived to be a future one-stop-shop in the area of practical information concerning judicial cooperation in civil matters List of regulations adopted according to article 81 of the TFEU Practical summary of all the regulations Standard («dynamic») forms

In particular: the hague conference on private international law (125 Anniversary) The World Organization for Cross-Border Co-operation in Civil and Commercial Matters 83 members, 82 States + the European Union (REIO – Regional European Integration Organization) The European Community became a member of the Hague Conference on 3 April 2007. With the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union replaces and succeeds the European Community as from that date Coordination between EU PIL instruments and the “Law of the Hague” (example: regulation 4/2009; and reg. 1215/2012 and the 2005 Hague Convention)

PRIVATE INTERNATIONAL LAW AS A DROIT SAVANT Doctrine Hague Academy of International Law (Recueil des cours) PIL blogs Conflict of laws.net SIDIBlog Conflictus legum

THE “BRUSSELS SYSTEM” Regulation (EU) n. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I bis” or “Brussels I recast”) Regulation (EC) n. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (“Brussels I”) Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (“Brussels Convention”)

THE 1968 BRUSSELS CONVENTION Art. 220 TEEC: «Member States shall, in so far as necessary, engage in negotiations with each other with a view to ensuring for the benefit of their nationals: - the protection of persons as well as the enjoyment and protection of rights under the conditions granted by each State to its own nationals; - the elimination of double taxation within the Community; - the mutual recognition of companies within the meaning of Article 58, second paragraph, the maintenance of their legal personality in cases where the registered office is transferred from one country to another, and the possibility for companies subject to the municipal law of different Member States to form mergers; and - the simplification of the formalities governing the reciprocal recognition and execution of judicial decisions and of arbitral awards».

THE 1968 BRUSSELS CONVENTION Still applicable: - between overseas territories - transitional cases (where recognition/enforcement is sought of a judgment given before the entry into force of Brussels I Regulation) The preliminary rulings of the Court of Justice: the Luxembourg Protocol of 3 June 1971 (differences with article 267 TFEU)

THE «parallel» lugano CONVENTION(s) The 2007 Lugano II Convention repealed the previous 1988 Lugano Convention. The Brussels Convention is supplemented by the Lugano Convention of 20 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Between EC/Denmark and the EFTA countries (Norway, Iceland and Switzerland): scope of application

BRUSSELS I and Brussels I-bis REGULATIONs Regulation n. 44/2001(Brussels I): outcome of the process of “Europeanization” of Private International Law Declaration of enforceability (exequatur): “(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation”. Regulation n. 1215/2012: Brussels I bis Regulation Articles 67 and 81 TFEU Article 267 of the TFEU: Interpretation of the Court of Justice of the EU – after the Lisbon Treaty (first instances); function of its activity

BRUSSELS I BIS REGULATION Recital 34 of the Preamble: Continuity between the 1968 Brussels Convention, Regulation (EC) No 44/2001 and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation by the Court of Justice of the European Union of the 1968 Brussels Convention and of the Regulations replacing it. Elements of continuity and discontinuity with Brussels I Regulation (CJEU case-law; third States; abolition of exequatur; strengthening of choice of court agreements). Inter-textual interpretation

BRUSSELS I BIS REGULATION outline Preamble: 41 recitals 81 articles: - Scope and definitions - Rules on jurisdiction - Rules on recognition and enforcement - Common provisions - Annexes (standard forms)

BRUSSELS I BIS REGULATION scope 1. Temporal scope of application (ratione temporis) 2. Personal scope of application (ratione personae) 3. Material scope of application (ratione materiae)

1. Temporal scope of application (ratione temporis) Article 66: «This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015. 2. Notwithstanding Article 80, Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within the scope of that Regulation»

1. Temporal scope of application (ratione temporis) Article 81: «This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 10 January 2015 (…). This regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties»

2. Personal scope of application (ratione personae) Domicile: the principal head of jurisdiction used by the rules on jurisdiction contained in the regulation Article 4: «1. Subject to this regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. 2. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that Member State»  Ordinary forum of the defendant

2. Personal scope of application (ratione personae) Article 5 : «Persons domiciled in a Member States may be sued only by virtue of the rules set out in Sections 2 to 7 of this Chapter» Recital 15 of the Preamble: «The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction».

2. Personal scope of application (ratione personae) Article 6 : «1. If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Article 18(1), Article 21(2) and Articles 24 and 25, be determined by the law of that Member State. 2. As against such a defendant, any person domiciled in a Member State may, whatever his nationality, avail himself in that Member State of the rules of jurisdiction there in force, and in particular those of which the Member States are to notify the Commission pursuant to point (a) of Article 76(1), in the same way as nationals of that Member State». See the European e-Justice Portal for Member States’ communications to the EU Commission.

2. Personal scope of application (ratione personae) Recital 16: «In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation».  Forum shopping

2. Personal scope of application (ratione personae) Article 62 (domicile of an individual): «1. In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law. 2. If a party is not domiciled in the Member State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Member State, the court shall apply the law of that Member State». The British concept of “domicile” is contained in par. 9 of Schedule 1 to the Civil Jurisdiction and Judgment Order 2001 (SI 2001/3929): an individual is domiciled in the UK if: “(a) he is resident in the United Kingdom; and (b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom”.

2. Personal scope of application (ratione personae) Article 63 (autonomous definition of «domicile of a legal person»): «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; (b) central administration; or (c) principal place of business. 2. For the purposes of Ireland, Cyprus and the United Kingdom, ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place. 3. In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law”.