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PRIVATE INTERNATIONAL LAW AND EU EXTERNAL RELATIONS: THINK LOCAL ACT GLOBAL, OR THINK GLOBAL ACT LOCAL?

  • Alex Mills (a1)
Abstract

In the European Union, private international law has almost exclusively been developed through the adoption of internal acts (particularly EU Regulations) in the pursuit of internal goals (principally, enhancing the efficient functioning of the internal market, and more recently and broadly the construction of an area of freedom, security and justice). This focus has and must come under challenge in light of two developments. The first is the apparent establishment of EU exclusive external competence in the field of private international law, creating the opportunity for external action by the EU. The second is the increased recognition that internal action by the EU has external effects, which should be viewed not merely as incidental but also as potentially instruments of external policy. In conjunction, these developments demand consideration of what role private international law could and should play as part of EU external relations. This article critically examines a range of possible techniques which might be adopted in relation to this new external dimension of EU private international law. These methods are not necessarily unique to private international law or the EU, and thus this article also provides a case study of the range of legal techniques which can be used by international actors to project policies externally.

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1 Arts 67(1) and 81(2), Consolidated version of the Treaty on the Functioning of the European Union (2012) OJ C 326/47, 26 October 2012 (henceforth, TFEU). See nn 39 and 84.

2 See further section IV.B.

3 ECJ Opinion 2/91 on Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work, at [26]; developing the principle established earlier in Commission v Council (‘ERTA Case’) (1971) ECR 263, Case 22/70. See generally G de Baere, ‘Constitutional Principles of EU External Relations’ (Oxford University Press 2008) 43ff; P Eeckhout, ‘EU External Relations Law’ (2nd edn, Oxford University Press 2011) 70ff.

4 ECJ Opinion 2/91, at [25], noting that ‘there is no contradiction between these provisions of the Convention and those of the directives mentioned’.

5 ECJ Opinion 1/03 on the Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (henceforth, ‘Lugano Opinion’) at [124]. See generally F Pocar (ed), ‘The External Competence of the European Union and Private International Law: The EC Court's Opinion on the Lugano Convention’ (Wolters Kluwer Italia 2007).

6 ibid at [126].

7 ibid.

8 ibid.

9 Art 3(2), TFEU.

10 Commission v Council (Judgment) [2014] EUECJ C-114/12 (4 September 2014) at [68].

11 ibid at [69].

12 ibid at [70].

13 ibid at [71].

14 ECJ Opinion 1/13 (14 October 2014) at [89].

15 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, OJ L 338/1, 23 December 2003.

16 Council Decisions 8933/15 and 8935/15, 5 June 2015. Somewhat controversially (at least in the sense that the European Commission issued a statement objecting), the decision only applies on behalf of those Member States which had not previously indicated (unilaterally) their acceptance of Singapore and Andorra's accession to the Convention, even though the ECJ concluded that such acts by Member States were contrary to EU law. The basis for this approach is presumably (and as suggested by Recital 12 of the Decision) a concern that such acts, even if invalid as a matter of EU law, might nevertheless have been valid as a matter of public international law, as this limitation on the competence of Member States was not ‘objectively evident’ prior to ECJ Opinion 1/13—see art 46 of the Vienna Convention on the Law of Treaties (1969).

17 On this issue, see generally Pocar (n 5).

18 Most recently, Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 2012 (henceforth, ‘Recast Brussels I Regulation 2012’).

19 With the exception of the rules on exclusive jurisdiction under arts 24 and 25. Art 26 does not clearly state whether it applies regardless of the domicile of the defendant, but (although the point is somewhat debated) its omission from mention in art 6 would suggest that it does not. See further eg J Fawcett and JM Carruthers, Cheshire, North and Fawcett Private International Law (14th edn, Oxford University Press, 2008) 297.

20 See n 5.

21 See the Lugano Opinion (n 5) at [152]ff.

22 See n 18.

23 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12/1, 16 January 2001 (henceforth, ‘Brussels I Regulation 2001’).

24 See further eg Fawcett and Carruthers (n 19) 224 and 599; this is now set out in Recital 27 of the Recast Brussels I Regulation 2012.

25 See art 45(1)(e)(ii). This does not, however, appear to permit a defence to be raised if the claim has equivalent connections with non-Member States—a French judgment concerning title to New York immovable property would apparently be enforceable in the English courts. This phenomenon follows from the lack of consideration of connections with non-Member States under the jurisdictional rules, a problem highlighted in section IV.A below—although if the rules of subject matter exclusive jurisdiction are given reflexive effect, the problem should not arise in practice.

26 See further eg von Mehren, A Taylor, ‘Recognition and Enforcement of Sister-State Judgments: Reflections on General Theory and Current Practice in the European Economic Community and the United States’ (1981) 81 ColumLRev 1044; Takahashi, K, ‘Review of the Brussels I Regulation: A Comment from the Perspectives of Non-Member States (Third States)’ (2012) 8 JPrivIntL 1.

27 See n 10.

28 Although there is room for debate about what ‘scope’ means or ought to mean in this context, there is an argument that such an extension justifies application of the doctrine of exclusive competence, because it could undermine the perceived legitimacy of EU obligations. For example, if in this context one Member State (perhaps improbably) agreed to a treaty which required it to exercise exorbitant jurisdiction (over claims against non-EU domiciled parties), other Member States might be resistant to enforcing its judgments (as required by EU law) and thereby apparently endorsing its breach of international jurisdictional constraints.

29 Arts 29–30, Recast Brussels I Regulation 2012; Overseas Union Insurance v New Hampshire Insurance [1991] ECR I-3317.

30 Art 29(3), Recast Brussels I Regulation 2012.

31 Art 33(1)(a) and (3), and art 34(1)(b) and (3).

32 Art 33(3) provides that ‘The court of the Member State shall dismiss the proceedings if the proceedings in the court of the third State are concluded and have resulted in a judgment capable of recognition and, where applicable, of enforcement in that Member State.’

33 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (henceforth, Rome I Regulation).

34 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (henceforth, Rome II Regulation).

35 Rome I Regulation, art 2; Rome II Regulation, art 3.

36 Regulation (EC) No 662/2009 of the European Parliament and of the Council of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations.

37 See n 1.

38 See section IV.A.

39 See eg the Recast Brussels I Regulation 2012, Recital 3 (discussing ‘the objective of maintaining and developing an area of freedom, security and justice’ and ‘the proper functioning of the internal market’) and Recital 4 (discussing ‘the sound operation of the internal market’).

40 See further eg Mills, A, ‘Rediscovering the Public Dimension of Private International Law’ [2011] HagueYBIntlL and (2012) 30 The Netherlands Journal of Private International Law, Nederland Internationaal Privaatrecht (NIPR) 371; Mills, A, ‘The Private History of International Law’ (2006) 55 ICLQ 1.

41 See further eg Mills, A, ‘The Identities of Private International Law – Lessons from the US and EU Revolutions’ (2013) 23 DukeJComp&IntlL 445.

42 See further eg Mills, A, ‘Rethinking Jurisdiction in International Law’ (2014) 84 BYBIL 187, 221ff.

43 Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), COM(2010) 748 final, 2010/0383 (COD) <http://ec.europa.eu/justice/policies/civil/docs/com_2010_748_en.pdf>.

44 Art 26. Note also the Lugano Opinion (n 5), in the which the Court noted (at [141]) that ‘The smallest lacuna in those rules could give rise to the concurrent jurisdiction of several courts to resolve the same dispute, but also to a complete lack of judicial protection, since no court may have jurisdiction to decide such a dispute.’

45 See, notoriously, A Rand, ‘The Virtue of Selfishness’ (Signet 1964).

46 See generally <http://www.unidroit.org/>.

47 ibid.

48 See generally <www.hcch.net>. The European Commission's ‘Action Plan Implementing the Stockholm Programme: Delivering an area of freedom, security and justice for Europe's citizens’ (COM/2010/0171 final, 20.4.2010) includes a commitment to ‘Continue to support the Hague Conference on Private International Law and encourage its partners to ratify the conventions where the EU is or will become a Party or where all Member States are Parties.’

49 See generally Mills, A and De Baere, G, ‘T.M.C. Asser and Public and Private International Law: The life and legacy of “a practical legal statesman”’ (2011) 42 NYIL 3; JHA van Loon, ‘The Hague conference on private international law: An introduction’ in PJ van Krieken, and D McKay (eds), The Hague: Legal Capital of the World (TMC Asser Press 2005); Lipstein, K, ‘One Hundred Years of Hague Conferences on Private International Law’ (1993) 42 ICLQ 553.

51 See further <https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=992&disp=resdn>. See generally H van Loon and A Schulz, ‘The European Community and the Hague Conference on Private International Law’ in B Martenczuk and S van Thiel (eds), Justice, Liberty, Security: New Challenges for EU External Relations (Brussels University Press 2008).

53 Council decision No 2009/397/EC of 26 February 2009.

54 10 December 2014, Council Decision 2014/887/EU.

55 Art 26(6).

56 If the defendant is domiciled in a Member State, and the choice is in favour of a non-Member State court, then this raises the ‘reflexive effect’ problem under the Regulation—see below n 102 and accompanying text. If none of the parties is resident in a Contracting State, it is also possible that the Convention is displaced by another treaty—see art 26(2).

57 See generally <https://www.hcch.net/en/projects/legislative-projects/judgments>. Note also the European Parliament resolution of 23 November 2010 on civil law, commercial law, family law and private international law aspects of the Action Plan Implementing the Stockholm Programme (2010/2080(INI), at [35] (urging the Commission ‘to use its best endeavours at the Hague Conference to revive the project for an international judgments convention’).

58 See eg Report of the Fourth Meeting of the Working Group on the Judgments Project, 3–6 February 2015, available at <http://www.hcch.net/upload/wop/gap2015pd07b_en.pdf>.

59 Such cases are, for example, affected by arts 24 and 25 of the Recast Brussels I Regulation 2012—see n 19.

62 See Mills and De Baere (n 49).

63 See section IV.A.

64 See text accompanying n 102.

65 See eg M Cremona, ‘Disconnection Clauses in EU Law and Practice’ in C Hillion and P Koutrakis (eds), Mixed Agreements Revisited: The EU and its Member States in the World (Hart 2010).

66 A Mills, ‘Variable Geometry, Peer Governance, and the Public International Perspective on Private International Law’ in D Fernandez Arroyo and H Muir Watt (eds), Private International Law and Global Governance (Oxford University Press 2014).

71 See generally Mills, A, ‘Antinomies of Public and Private at the Foundations of International Investment Law and Arbitration’ (2011) 14 JIEL 469; M Sornarajah, ‘The International Law on Foreign Investment’ (3rd edn, Cambridge University Press 2010).

72 See generally <http://ec.europa.eu/trade/policy/accessing-markets/investment/>; Special Issue: The Anatomy of the (Invisible) EU Model BIT’ (2014) 15(3)-(4) Journal of World Investment and Trade; A Dimopoulos, EU Foreign Investment Law (Oxford University Press 2011).

73 Regulation (EU) No 912/2014 of the European Parliament and of the Council of 23 July 2014 establishing a framework for managing financial responsibility linked to investor-to-State dispute settlement tribunals established by international agreements to which the European Union is party, OJ L 257, 28.8.2014, at 121.

74 For example, the Inter-American Convention on the Law Applicable to International Contracts (Mexico Convention) (1994); the Buenos Aires Protocol on International Jurisdiction in Disputes Relating to Contracts (1994); and the Los Leñas Protocol on the Recognition and Enforcement of Judgments of other Mercosur States (1992).

75 See P Jenard, ‘Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed at Brussels, 27 September 1968’, OJ C 59/1, 5 March 1979, 6–7; Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (1968), Consolidated version OJ C 27/1, 26 January 1998, art 55.

76 See further discussion in ‘Study: Possibility and terms for applying Brussels I Regulation (recast) to extra-EU disputes’, Directorate-General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, at the request of the European Parliament Committee on Legal Affairs, PE 493.024 (March 2014) at 42 (available at <http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493024/IPOL-JURI_ET%282014%29493024_EN.pdf>).

77 Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ 1988 L 391/9.

78 See further discussion in ‘Study: Possibility and terms for applying Brussels I Regulation (recast) to extra-EU disputes’ (n 76).

79 The EU may, of course, also be able to effectively mandate a relatively fixed model law in negotiations with weaker parties.

80 See generally A Mills, The Confluence of Public and Private International Law (Cambridge University Press 2009).

81 See further Mills (n 42).

82 See further Mills, A, ‘Federalism in the European Union and the United States: Subsidiarity, Private Law and the Conflict of Laws’ (2010) 32 University of Pennsylvania Journal of International Law 369, 406ff.

83 See generally Mills (n 41).

84 Rome I Regulation, Recitals 1 and 6.

85 See eg the criticisms in Mills (n 41) 470.

86 See generally M Bogdan, ‘The Treatment of Environmental Damage in Regulation Rome II’ in J Ahern and W Binchy (eds), The Rome II Regulation on the Law Applicable to Non-Contractual Obligations (Brill 2008).

87 Relying on art 4 of the Recast Brussels I Regulation 2012. The English courts could not, at least absent exceptional circumstances, refuse to exercise jurisdiction, as discussed below.

88 Pursuant to art 18 of the Recast Brussels I Regulation 2012.

89 See n 43.

90 ‘Study: Possibility and terms for applying Brussels I Regulation (recast) to extra-EU disputes’ (n 76) 42.

91 See arts 18 and 21 of the Recast Brussels I Regulation 2012.

92 See Samengo-Turner v J & H Marsh & McLennan (Services) Ltd [2007] EWCA Civ 723; Petter v EMC Europe Ltd [2015] EWCA Civ 828 and [2015] EWHC 1498 (QB).

93 Petter v EMC Europe Ltd [2015] EWCA Civ 828 and [2015] EWHC 1498 (QB).

94 See n 44.

95 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7, 10 January 2009, art 7.

96 The same argument applies in relation to any of the other matters dealt with as subject-matter exclusive jurisdiction under art 24 of the Recast Brussels I Regulation 2012, such as disputes concerning the validity of registered intellectual property rights, or the validity of the decisions or constitution of a company.

97 Pursuant to arts 4 and 7 of the Recast Brussels I Regulation 2012.

98 Note also the equivalent problem in the context of the recognition and enforcement of judgments, discussed n 25.

99 See further discussion in Mills (n 41) 469.

100 Art 24(1).

101 Art 26.

102 Owusu v Jackson [2005] ECR I-1383, Case C-281/02. See generally Fentiman, R, ‘Civil Jurisdiction and Third States: Owusu and After’ (2006) 43 CMLRev 705; Briggs, A, ‘The Death of Harrods: Forum Non Conveniens and the European Court’ (2005) 121 LQR 535.

103 See further eg Smith, P, Lasserson, B, and Rymkiewicz, RReflections on Owusu: The Radical Decision in Ferrexpo’ (2012) 8 JPrivIntL 389.

104 Pursuant to Recital 24.

105 At least one person involved in the negotiation of the Recast Regulation has argued (at a conference attended by the author) that this effect in relation to jurisdiction agreements is intentional, because it incentivizes non-Member States to accede to the Hague Convention on Choice of Court Agreements, as only jurisdiction agreements in favour of the courts of Convention States will be given effect. If this is indeed the basis of the rule, there must be concerns about whether rendering important clauses of numerous commercial contracts unenforceable, and potentially disadvantaging a range of EU commercial actors in their external business activities, is an appropriate mechanism to use to pursue such a policy goal.

106 See n 26.

107 Regulation (EU) No 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries, OJ L 351, 20.12.2012, at 40.

108 See generally Mills (n 80) 5ff.

109 See generally Mills, A, ‘The Dimensions of Public Policy in Private International Law’ (2008) 4 JPrivIntL 201.

110 See eg Recast Brussels I Regulation 2012, art 45(1)(a); Rome I Regulation, art 21; Rome II Regulation, art 26.

111 See generally eg Santiso, C, ‘Good Governance and Aid Effectiveness: The World Bank and Conditionality’ (2001) 7 Georgetown Public Policy Review 1; Gore, C, ‘The Rise and Fall of the Washington Consensus as a Paradigm for Developing Countries’ (2000) 28 World Development 789.

112 See generally Scott, J, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 AmJCompL 87; Scott, J, ‘The New EU “Extraterritoriality”’ (2014) 51 CMLRev 1343.

114 The compatibility of these rules with public international law was challenged but upheld by the ECJ—see Air Transport Association of America (Reference for a preliminary ruling) [2011] EUECJ C-366/10. They have since been suspended to allow for negotiation of a possible global approach through the International Civil Aviation Organization, which is ongoing—see generally <http://www.icao.int/Meetings/GLADs-2015/Pages/default.aspx>.

115 Schrems [2015] EUECJ C 362/14 (6 October 2015).

116 See further Mills (n 109) 214; Watt, H Muir, ‘Evidence of an Emergent European Legal Culture: Public Policy Requirements of Procedural Fairness under the Brussels and Lugano Conventions’ (2001) 36 TexIntlLJ 539.

117 Pellegrini v Italy [2001] ECHR 480 (30882/96).

118 Drozd and Janousek v France and Spain (1992) 14 EHRR 745.

119 At [110].

120 ibid. An equivalent approach was followed by the House of Lords in USA v Montgomery (No 2) [2004] UKHL 37.

121 See generally Blythe, MA, ‘The Extraterritorial Impact of the Anti-Trust Laws: Protecting British Trading Interests’ (1983) 31 AmJCompL 99; Lowe, AV, ‘Blocking Extraterritorial Jurisdiction: The British Protection of Trading Interests Act, 1980’ (1981) 75 AJIL 257.

122 See eg Fawcett and Carruthers (n 19) 563.

123 28 USC 4102-5. This Act, however, controversially relies on the US First Amendment to define this minimum standard: see Mills (n 109); Rosen, MD, ‘The SPEECH Act's Unfortunate Parochialism: Of Libel Tourism and Legitimate Pluralism’ (2012) 53 VaJIntlL 99.

124 See eg Mills (n 80) 190ff; Mills (n 109); Meidanis, HP, ‘Public Policy and Ordre Public in the Private International Law of the EU: Traditional Positions and Modern Trends’ (2005) 30 ELRev 95; Watt, H Muir, ‘Evidence of an Emergent European Legal Culture: Public Policy Requirements of Procedural Fairness under the Brussels and Lugano Conventions’ (2001) 36 TexIntlLJ 539.

125 See n 114; see further eg Mullen, LE, ‘The European Union Overstepping Its Bounds and Borders: The Extraterritorial Effect of the Emissions Trading System and Its Call for Multilateral Action’ (2013) 74 UPittLRev 783; Havel, BF and Mulligan, JQ, ‘The Triumph of Politics: Reflections on the Judgment of the Court of Justice of the European Union Validating the Inclusion of Non-EU Airlines in the Emissions Trading Scheme’ (2012) 37 Air and Space Law 3.

126 See n 111.

127 OJ 2010 C 115/01, 4.5.2010.

An early version of this article was presented at a conference at the University of Ferrara in February 2015, and thanks go to Pietro Franzina and the other organizers of and participants in that conference, and to Piet Eeckhout and Joanne Scott for comments on a later draft.

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