1. International procedure
Overview of issues:
Jurisdiction of courts (incl. issue of lis pendens)
Service abroad
Specific rules for cross-border disputes (incl. possible use of harmonised rules of procedure)
Application of foreign law
Taking evidence abroad
Recognition and enforcement of foreign judgments or other instruments
Insolvency procedures

2. International procedure - sources
Sources in general
National law on jurisdiction, service, procedure incl. evidence of facts and law, insolvency proceedings, recognition and enforcement
In part replaced by EU legislation (esp. Regulations)
Multilateral and bilateral conventions
NB. For immunities of jurisdiction, see Ch. 1

3. Reasons for choice
Why does it matter ? What do you pay attention to when choosing a forum ?
Proximity-familiarity of a party (or its lawyer) with the court > predictability at less costs
Procedural reasons:
different rules of procedure, incl. rules on taking evidence (‘discovery’), on confidentiality
use of language,
costs and distribution of costs : ‘American rule’  (each party its own costs) v. fee-shifting (eg ‘English rule’ loser pays all, mitigated since 2013, as in most continental countries)
contingency fees ? Allowed in mist US states, forbidden in most continental systems, in E&W to some extent allowed. But conditional fee agreements or success fees usually allowed.
trust in the judges,
proximity of evidence (incl. presence of witnesses)
trust in law firms

4. Reasons for choice
Why does it matter ? What do you pay attention to when choosing a forum ?
Substantive reasons:
applicable rules of the lex fori, esp. those overruling choice of law (supermandatory rules)
Court of the country of the applicable law will know that law better > more predictable
« national » interpretation of foreign or uniform law
Possible home bias (eg interpretation of conformity of goods)
Available interim remedies
Remedies courts in that country (can) grant (eg specific performance; injunctions;
Practical possibility to enforce in that country: assets present there; post-decision discovery of assets (eg SCotUS 2014 in NML/Argentina)
Chances of recognition and enforcement abroad

5. Law market
For some countries, litigation is an interesting business > attempts to get international litigation by:
Organising special courts, e.g. Commerical Court in London, Dubai, Singapore, probably Amsterdam 2018, maybe Brussels.
Having special substantive rules for international contracts (Eg S. 12 of the UK Late Payment of Commercial Debts Act 1998, see chapter IPL)
Attracting insolvency tourism (see infra)

6. International jurisdiction according to domestic law
Domestic rules on international jurisdiction of national courts (in Belgium in Code of P.I.L.):
often rather wide jurisdiction,
e.g. based also on *nationality of claimant * foreign defendant found in the country, *foreign defendant doing business in the country, etc.;
sometimes limited by « FNC » (forum non conveniens)
sometimes protected by anti-suit injunctions against proceedings abroad (eg Gallo Winery t. Andina, case in US against exorbitant jurisdiction rule in Ecuador)
Lis alibi pendens not always an exception or ground for suspension
See infra EU rules, US rules, UK rules (for non_EU cases)

7. International jurisdiction
Domestic rules on international jurisdiction limited by:
International conventions (bilateral or multilateral) (no uniform interpretation authority)
Hague Convention on Choice of Court Agreements 2005 (COCA, in force for EU (Denmark joined separately 2018), Mexico and Singapore (also signed by US*, Ukraine, Montenegro and China)
* ratification in trouble because of dispute federal/state implementation
Hague Conference preliminary negotiations (2012) for a Judgments Convention (first project failed 1999, except for Choice of Court Convention)
Jurisdiction clauses in international transport conventions: CMR art. 31; Hague-Visby rules, Hamburg rules.
International convenions establishing international or common courts (eg European patent Court, Benelux Court)

8. International jurisdiction
EU-Regulations: next slide – with uniform interpretation by ECJ
Lugano Convention 1988, revised 2007: EU-EFTA Convention (CH, N, Iceland) parallel to EU-Regulation 44/2001 (incl. an endeavour to interpret in conformity with identical rules in EU Regulation)

9. International jurisdiction - EU
EU-Regulations:
Civil and commercial matters in general: Reg. 1215/2012 (« Brussels-I bis (‘Recast’) (next slide)
Separate Regulations on matrimonial matters and parental responsibility Brussels-II), maintenance obligations (alimony), on transnational successions (650/2012), matrimonial property regimes (2016/1103)
Regulation on insolvency proceedings 1346/2000 / Recast 2015 (s. further)
Purpose of these rules:
« Free movement of judgments », i.e. recognition and enforcement of judgments from other member states (in the USA: full faith and credit)
To reach this, harmonisation of international jurisdiction is required

10. EU – Brussels I Reg -
EU-Regulations - Civil and commercial matters in general:
originally Brussels Convention 1968, still relevant for overseas territories of art. 355 TFEU:
until Jan. 10, 2015 Old Brussels-I-Reg. 44/2001.
Now Reg. 1215/2012 (« Brussels-I bis (‘Recast’)
Scope ratione materiae – next slide
Relationship with other courts common to some member states (EPC, Benelux Court) in art. 71a ff.

11. EU – Brussels I Reg – Scope ratione materiae
Scope ratione materiae - excluded matters:
family & succession (separate Regulations)
social security,
jurisdiction over arbitration
Excluded is therefore also judging the validity of arbitration agreements: - jurisdiction rules left to national law;
- no recognition on the basis of Brussels-I;
- thus: a judgment not recognising an arbitration clause is not binding in other MS as to the arbitration clause)
- proceedings ancillary to arbitration are also outside Brussels-Ibis
Art. 71: priority to other treaties under some conditions (eg CMR art. 31 – see ECJ in C-533/08, TNT/AXA).

12. EU – Brussels I Reg – Scope ratione personae
New Brussels-I-Regulation 1215/2012 (in force Jan 10, 2015) (Old = 44/2001)
Scope of application ratione personae
Regulates only procedures where a defendant is domiciled in a MS; otherwise: national procedural law applies (art. 6 (old 4.2)) (s. infra Hague Convention on Choice of Court Agreements)
Definition of domicile:
- of natural persons: art. 62 (old 59)) > national law (not autonomous) (><in other regulations, habitual residence is used, an autonomous concept)
- of legal persons: autonomous definition; alternative grounds (art. 63 (old 60)) can be sued as well at statutory seat, central administration or principal place of business
If residence unknown, last known residence may be used (C-327/10, Hypotecni banka / Lindner)

13. EU – Brussels I Reg – Scope ratione personae
Only « international » cases. See however C-478/12 Maletic: when consumer can sue travel organisator before court of its domicile, he can also sue the travel intermediary with a seat elsewhere in his country before the first court (although the latter relationship viewed in isolation is not international)
Extensions in Recast 1215/2012: also when defendant not domiciled in a MS:
Jurisdiction over consumer contracts (art. 18 I)
Jurisdiction over individual employment contracts (art.21)
Matters of exclusive jurisdiction (art. 24)
(valid) Choice of forum of a court in a member state (art. 25)
Outside these cases, national procedural law determines whether a non-EU defendant can be sued in e.g. proceedings against an EU-defendant

14. EU – Brussels I - General
General characteristics:
Hard & strict rules
Restrictive interpretation of any deviation from the basic rule «court of the defendant» (forum domicilii; against a forum actoris = home play)
No doctrine of «forum non conveniens» (FNC) - ECJ in C-281/02 Owusu (British tourist in Jamaica tort case, sues also travel agent in UK as ‘anchor defendant’)
Court examines jurisdiction ex officio (art. 27 ff., old 25 ff.)
No anti-suit injunctions (next slide)

15. EU – Brussels I – General: anti-suit injunctions
General characteristics (cont.)
No «anti-suit injunction» allowed: ECJ in C-159/02 Turner (not even by court seized first) and in C-185/2007 West tankers (not even in relation to arbitration) (disputed whether the latter remains true under the new 1215/2012 Regulation);
ECJ in C-536/13 Gazprom/Lithuania: whether a court should recognise or not a so-called anti-suit order by arbitrators is outside scope of Brussels-I and governed by national procedural law.
In the Alexandros case (Starlight Shipping/Allianz Marine), the UKSC (6 Nov 2013) did decide that Brussels-I (art. 27 old) and pending proceedings in Greece did not bar in England a claim for damages for breach of the jurisdiction agreement and an earlier settlement.

16. Brussels-I Excl. jurisdiction
Brussels-I-Regulation – Grounds for jurisdiction:
Some cases of exclusive jurisdiction (no choice of court possible):
Real estate: proprietary rights in immovable property + tenancy in immovable property (art. 24.1, old 22.1)
Matters of the law of companies and other legal persons (24.2, old 22.2)
Entries in public registers (24.3, old 22.3)
Intellectual property rights (24.4, old 22.4)
Enforcement (24.5, old 22.5)

17. Brussels I Choice of court
Requirements for choice of court agreements: Art. 25 (old 23). It must be recognized if:
1° Old Reg.: at least one party domiciled in a member state - no longer required in new art. 25;
2° consent of the parties is clear*. Also in case of conferral in a trust instrument (art with exceptions in 25.4). See next slide on validity;
3° in writing (incl. e-communication) or in another form customary in international trade or according to practices between the parties; e.g.:? Clause in conditions of issue of bonds or other financial instruments. Sufficient: online click-wrap (C-322/14 El Majdoub). Insufficient: mereley in general conditions on invoice (C-64/17 Saey Home)
4° indicating a court or the courts of a member state.
* For third parties, see further
Voluntary appearance of defendant without protest (art. 26, old 24) (except cases of exclusive jurisdiction under art. 24, old 22)

18. Brussels I Choice of court
Validity of choice of court agreements
Formal validity: uniform rule for all member states in Regulation itself; see supra
Validity of choice of court agreements to be assessed separately from the rest of the contract (art. 25.6)
Validity to be judged by the law of the designated forum (art. 25.1: lex fori prorogati), including its conflict of law rules (Consideration 20: renvoi possible), thus by the law applicable by virtue of the conflict of law rules of the designated forum
Validity of unilateral optional (or asymmetric) forum clauses ? French case law clarified in Cass.(Fr.) 7 Oct 2015 in Apple Sales : valid if the possible fora are sufficiently determined; valid in the UK (i.a. High Court 2017 Commerzbank/Liquimar); refused in Poland, Bulgaria.

19. Brussels-I Choice of court
Exceptions to choice of court agreements
Excluded in cases of exclusive jurisdiction (art. 24, old 22)
Limited in insurance, consumer and labour disputes (see art. 15, 19, 23) (old 13 c.q. 17 c.q. 21)
Overrules national restrictions (eg. Rules on jurisdiction in cases of Distributorship or Commercial Agency in Belgian Economic Law Code) Some restrictions in other treaties remain (eg CMR Convention)

20. Brussels I Choice of court
Interpretation
Restrictive interpretation. Eg jurisdiction clause covers claims for anti-competitive practices only if expressly covered (ECJ C-352/13 Hydrogen Peroxide; Cass.(Fr.) 7 Oct 2015)
Permissive or exclusive (mandatory) choice clause? Presumption of exclusive character (comp. infra Hague Convention)

21. Brussels I Choice of court
Effects between the parties and as to courts
- Problem under old Reg: no priority for designated court. If however, a court declines juridiction because of forum clause, courts in other MS are bound (C-456/11 Gothaer allgemeine/Samskip)
- New Brussels Ibis: The designated judge will judge (the effectiveness of) the choice of court agreement

22. Brussels I Choice of court
Effect of choice of court agreements: Art. 25 (old 23). Quid third parties ?
Disputed whether third party deriving rights from a contract is also bound by choice of court.
Cass.(Fr) 4 Jan 2005: addressee in transport contract is not bound.
ECJ:
holder of bill of lading is bound (C-71/83, Russ)
buyers of shares, i.e. future shareholders, are bound (C-214/89 Powell Duffryn)
buyers who bought bonds on a secondary market bound if the primary buyer is bound (C-366/13 Profit Investment);
but not in general, a buyer with direct action (C-543/10 Refcomp)

23. National law on choice of court
Quid if designated Court is outside EU ?
Outside the scope of Brussels-I-Reg > national law (unless another Treaty applies, see next slide on Hague Convention)
National restrictions thus apply, esp. in case of overriding mandatory provisions of substantive law (e.g. Agency, Distributorship)
(See also the same question as to arbitration clauses)
Explicit provisions in e.g. Belgian law: Belgian Courts always competent for cases of termination of commercial agency or distributorship
2 Possible approaches: either ex ante rejection of the choice of court if the foreign court is not obliged to apply the mandatory provisions, or ex post non-recognition if the foreign court has not done so (+ stay domestic case on the basis of recognition prognosis)
BGH 30 Jan 1961; recently BGH 5 Sep 2012, Virginia agency case: ex ante rejection. Although American Courts would probably apply German law on the basis of the comparative impairment doctrine ( 187(2) US restatement 2nd of Conflict of Laws)
English High Court in Accentuate Ltd v Asgira (2009) and in Fern Computer (2014): idem (arbitration clause)

24. Choice of court – Hague C
Choice of Court Agreements – Hague Convention 2005 (in force in: see supra)
Art. 1: defines « international cases »
Art. 2: outside scope of application: consumer cases, labour cases, family law, successions, insolvency, competition, most tort cases, property in land, legal persons, most intellectual property cases, etc.
Art. 3 a) applies (only) where the agreement indicates a Court of a contracting state as exclusive forum*
* The choice is deemed exclusive, unless expressly declared non-exclusive by the parties
Relationship with Brussels-I: Hague has priority, applies as soon as one of the parties is domiciled in a Hague state, unless all parties are domiciled in the EU (see Art. 26)

25. Choice of court – Hague C
Choice of Court Agreements – Hague Convention 2005:
Art. 3 formal requirements: in writing or by any other means of communication that renders information accessible so as to be usable for subsequent reference
Art. 5: substantive validity to be determined under the law of the chosen court (lex fori prorogati)

26. Choice of court – Hague C
Choice of Court Agreements Hague Convention effects
Art. 5: Chosen court* must hear the case, unless it finds the agreement invalid; Art. 5: validity under the law of the chosen court
More precisely: chosen court system (state basis) (transfer to other court of same state system remains possible); it cannot invoke ‘forum non conveniens’
Any not-named court must decline jurisdiction (unless named court has declined) (Art. 6). But there is no rule preventing that court to examine the validity of the clause (≠ Brussels-Ibis)
Convention does not govern interim measures (art. 7)
Recognition and enforcement may only be refused on the grounds of art. 9 (i.a. art. 11 punitive damages, cfr. existing case law in Germany, France; Italy changed its case law against it on July 5,2017)

27. Brussels-I general rules
Grounds for jurisdiction (cont.)
Basic rule: domicile of the defendant (forum domicilii, rule against forum actoris) (Art. 4, old 2)
Art. 8.1 (old 6.1.) Plurality of defendants if closely linked : next slide
Art. 8.3 (old 6.3): Counterclaims: same court
Art. 8.2 (old 6.2): Third party intervention: possible in same court

28. Brussels-I general rules
Art. 8.1 (old 6.1.) Plurality of defendants if closely linked (requirement of reasonable foreseeability in ECJ C-145/10 Painer, (violation of privacy by media), taken over in Recast 1215/2012)
(but for defendants outside EU, national law determines this)
8.1. is often used for forum shopping.
Eg allows a company with 1 British creditor to apply in England for approval of a « Scheme of Arrangement » (which requires consent of 75% of the concerned class of creditors)
Eg acting against a daughter company in the country of the mother company by filing claim against both (mother as ‘anchor defendant’)
Exception where claimant and anchor defendant collude to artificially create the basis for jurisdiction (C-352/13 Cartel Damage Claims) (s. also C-103/05 Reisch Montage)
> EWCA 14 Feb 2018 in Okpabi (Ogale) / Shell (mother RDS and Nigerian subsidiary SPDC): dismisses the claim against Shell holding on the merits and thus no jurisdiction against the Nigerian daughter

29. Brussels-I provisional measures
Provisional measures: art. 35 (old 31)
may be demanded in the country where they can/must be performed/enforced
condition is that they are provisional - restrictive interpretation of « provisional measure »: only « conservatory measures » (ECJ in C-104/2003), incl. obtaining information or preserving evidence
Does not include eg ordering the hearing of a witness (but a court has jurisdiction for such measures if asked by the court having jurisdiction over substance, see further Reg. 1206/2011 on evidence)
BUT: territorial scope limited: see infra recognition/enforcement (only measures by court having jurisdiction over substance, have effect on other MS).

30. Alternative jurisdiction: contracts
Brussels-I-Regulation – grounds for jurisdiction (contracts)
Alternative grounds, on which claimant can base jurisdiction:
art. 7.1.a. (old 5.1.a) claim based on a contractual obligation and other ‘matters related to a contract’:
place of performance of the obligation (as determined by the substantive law applicable to the obligation) (secondary obligations follow the principal obligation)
Contractual obligation includes:
tort claims where the conduct complained of may be considered breach of contract terms (C-548/12, Brogsitter);
unjust termination of long term commercial relationships (C-196/15 Granarolo)
Recourse between joint & several debtors of a contractual debt (C-249/16 Kareda)
Compensation claim of passenger against air carrier, including subcontracting carrier (with whom passenger has no contract) (C-274/16 Flightright)
Not: precontractual liability (> tort)

31. Alternative jurisdiction: contracts
Brussels-I-Regulation – grounds for jurisdiction (contracts)
Alternative grounds on which claimant can base jurisdiction:
art. 7.1.b (old 5.1.b) in sales and service contracts
> a more specific and autonomous rule: place of delivery c.q. provision of service or place where should have been delivered/provided.
> for air transport as well place of departure as arrival (C-204/08, Rehder)
> for connecting flights under a sinile booking, courts of place of finale arrival also have jurisdiction for failures cocnenrign the first flight (C-274/16 Flightright)
> for carriage of goods with several stops: as well place of dispatch as of delivery (C-88/17 Metso Minerals)
To be determined by interpreting the contract, taking into account also « including terms and clauses which are generally recognised and applied through the usages of international trade or commerce, such as the Incoterms » (C-87/10 Electrosteel). If that does not help, place of factual delivery (C-381/08 Car Trim)

32. Alternative jurisdiction: torts
Brussels-I-Regulation – Alternative grounds on which claimant can base jurisdiction – tort:
Art. 7.2 (old 5.3) Claim based on a non-contractual obligation from tort:
‘Tort’ is an autonomous concept, and includes e.g.
direct actions in a chain of contracts
fair compensation for copyright (C-572/14 Austro-Mechana)
Quid actio pauliana (ouiisde insolvency proceedings) ?
No tort claim: C-261/90, Reichert-II
Claim against the third party is « based on » the claim against the fraudulent debtor; if creditor is contractual, jursdiction can be besed on 7 I (place of performance of the main contract): C-337/17 Feniks

33. Alternative jurisdiction: torts
(cont.)
Rule in 7.2: place where the harmful event occurred.
In general, this can be the place where the event was caused (locus acti) or where the damage occurs (locus damni) (C-21/76 Bier /Mines de Potasse). For a defective product: where it is produced or where damage is caused, not where it is merely marketed C-45/13 Kainz)
Also possible for negative declarations on liability in tort (C-133/11 Folien Fischer) > incentive for defendant to go to court first
For pure economic loss: domicile of the claimant is not in itself a locus damni, there has to be more (application: prospectus liability towards an investor:country of the investment contractn of the bank account where damage is suffred; …: C-304/17 Löber)
For damage to personality rights or IP rights: next slide

34. Alternative jurisdiction: torts
Application to personality and IP rights (apart from the forum of the defendant):
For damage to personality rights (such as defamation):
full jurisdiction for worldwide damage in country where act is committed (locus acti).
in addition as to country where damage is suffered (thus as locus damni):
-- for damage to personality rights by printed press (C-68/93, Shevill): only partial jurisdiction inother countries where damage was caused.
-- for damage caused online: also full jurisdiction incountry of centre of main interest of damaged natural or legal person; partial jurisdiction in other countries where damage is caused (C-509/09 eDate advertising; C-194/16 Bolagsupplysningen) > risk of ‘libel tourism’ (and refusal of recognition in US on the basis of Libel terrorism protection Acts or SPEECH act)
But an action for rectification and removal of online content is ‘indivisible’ > no additional partial jurisdiction (C-194/16 Bolagsupplysningen)
For Damage to IP rights (including on internet) (C-523/10 Wintersteiger; C-170/12 Pinckney; C-441/13 Hejduk):
full jurisdiction in country where act is committed;
partial jurisdiction inother countries where damage was caused > risk for ‘copyright tourism’

35. Alternative jurisdiction other
7.5. (old 5.5) Disputes arising out of the operations of a branch, agency or other establishment: its location
10-16 (old 8-14) Insurance contracts litigation
17-19 (old 15-17) Consumer contracts litigation in 3 cases
(a) a contract for the sale of goods on instalment credit terms;
(b) a contract for a loan repayable by instalments, or for any other
form of credit, made to finance the sale of goods; or
(c) the contract has been concluded with a person who pursues commercial or professional activities in the MS of the consumer's domicile or, by any means, directs such activities to that MS or to several States including that MS (NB. no requirement that contract is concluded as distance contract: C-190/11 Mühlleitner / Autohaus Yusufi)
20-23 (old 18-21) Labour contracts litigation: importance of the habitual work place (NB. For air crew ther eis a kind of presumption that this is the so-called home base; C-168/16 Nogueira/Ryanair)

36. Alternative jurisdiction: general
Restrictive interpretation of alternative grounds
e.g. succeeding party such as assignee*, subrogated party** cannot use the alternative jurisdiction (except when it personally meets the requirements)
* C-89/91 TVD /Shearson Lehman Hutton; C-106/17, Hofsoe; C-498/16 Schrems (even consumer as assignee of consumer)
** C-347/08 Vorarlberger Gebietskrankenkasse

37. Lis alibi pendens in EU
Brussels-I-Regulation – further rules on jurisdiction (+ parallel in Lugano Convention)
Lis alibi pendens in other MS (art. 29, old 27) – Scope of application:
same claim* (same cause of action) between same parties** already*** before another court
* C-29/16, HanseYachts: a mere measure for inquiry (gathering proof) is not yet the substantive claim
** C-452/12 Nipponkoa: where a claim for a declaration of non-liability is already pending, a recourse by the insurer of the defendant who has paid a third party falls within the scope of lis pendens.
*** Date of seizure autonomously defined (art. 32, old 30): claim filed at court or claim received by the servicing authority (see further the rules on servicing abroad). Where court proceedings must start with pretrial arbitration (as many cases in Switzerland), date of starting the arbitration: C-467/16 Schlömp.

38. Lis alibi pendens in EU
Brussels-I-Regulation – further rules on jurisdiction
Lis alibi pendens in other MS (art. 29, old 27) - Effects:
Later court must suspend/stay proceedings until court first seized has decided (and must decline jurisdiction if first court decides it has jurisdiction). First court has Kompetenzkompetenz (even on the question whether there is a choice for court agreement naming another court). This is not the case when:
A) the court seized later has exclusive jurisdiction on the basis of Ch. II. S. 3 (insurance), 4 (consumer) or art. 24 (old 22) (ECJ C-438/12 Weber/Weber)
B) New rule in Brussels Ibis art. 31.2: where another court is seised on the basis of a choice of court agreement, that court has to decide first: named court has Kompetenzkompetenz (differs from old rule, as found in ECJ C-116/02, Gasser).

39. Lis alibi pendens in arbitration
Brussels-I-Regulation – further rules on jurisdiction
Lis alibi pendens and arbitration
No suspension if there is arbitration agreement, even if arbitration proceedings already pending
the wide exclusion of arbitration from the scope in the Recast (s. supra) also means that the fact that the validity of an arbitration agreement is already pending before one court not deprive other courts of jurisdiction !

40. Lis alibi pendens extra EU
Brussels-I-Regulation – further rules on jurisdiction
new in Recast 1215/2012 art. 33:
Lis alibi pendens in non-EU court : later EU court may suspend proceedings. Here the forum non conveniens doctrine is used.
Decision of non-EU Court with res iudicata: EU court will dismiss the proceedings if the non-EU judgment is capable of recognition (new art. 33.3)

41. Connex case pending
Brussels-I-Regulation – further rules on jurisdiction
Connexity (connected or related cases): later court MAY suspend or refer the case (no obligation) (art. 30, old 28)
Connexity with case in non-EU court (new in Recast 1215/2012 art. 34)

42. Jurisdiction in common law
International jurisdiction of UK Courts outside Brussels I-bis > domestic law
In the English common law tradition (England & Wales, USA, Canada, Australia, etc…): mostly wide rules of jurisdiction but with many or wide exceptions:
- Starting point is a wide jurisdiction in personam or in rem –
- But limited by exceptions such as:
- choice of court
- forum non conveniens (rather discretionary power for a court who has ‘jurisdiction simpliciter’ to decline jurisdiction). A clear FNC exception is found in the UK Defamation Act 2013.
Developed more in detail for US law on the next slides

43. US jurisdiction rules
International jurisdiction of US Courts: mostly wide rules of jurisdiction but with many or wide exceptions
International jurisdiction rules based on interstate jurisdiction rules (mainly made by the states) federal Alien Tort Statute (ATS)
Grounds for jurisdiction: it is sufficient that there is a contact in personam or in rem with the state concerned
- (next slide)

44. US jurisdiction rules
Jurisdiction in personam: originally physical presence, since the 20th C. very broadly formulated (‘long-arm’ statutes), e.g. mere presence of the defendant (domicile, citizenship, temporary presence, doing business) or consent of the defendant (choice of court agreement, next slide). Also place of the effects of a tort (if aimed at effects in that place), see SC in Calder/Jones 1984
Restricted by SC in Daimler v Bauman (Jan 14, 2014): general jurisdiction only in home state of defendant; otherwise only specific jurisdiction for claims linked to the place; in case of a foreign state, (even) where there is no immunity of jurisdiction because of commercial activities, SCotUS accepts jurisdiction only if the claim is based upon the commercial activity in the US (1 Dec 2015 in OBB Personenverkehr)
Restrictive interpretation of the ATS by SC in 2018 in Jesner / Arab Bank
Jurisdiction in rem: dispute over property in an asset situated in that state. Also a freezing order is limited to the assets held in that state (eg bank accounts in the domestic branch, no foreign bank accounts)

45. US jurisdiction rules
International jurisdiction of US Courts: mostly wide rules of jurisdiction but with many or wide exceptions
Exceptions / Limitations to jurisdiction:
Choice of Court Agreement (widely accepted, but not without possibility for the judge to refuse recognition – SC 3 Dec 2013 in Atlantic Marine Construction Co. / J-Crew)
Defendant fraudulently lured into the jurisdiction (invited for dinner)
Forum non conveniens (rarely accepted !, Gilbert case 1947)
Lis alibi pendens: «first filed rule»

46. Servicing docs. abroad Service abroad of judicial documents
Hague Convention 1965 on the service abroad of judicial and extrajudicial documents in civil and commercial matters (in force in all EU MS Except Austria; in total 72 states): cross-border service to a known address:
can take place via the «central authorities» of the contracting states;
a direct service abroad is possible in certain cases.
EU Regulation 1393/2007 on service between member states: next slide
Matters outside these Conventions/Regulations: regulated by domestic law (usually via bailiff + postal service)

47. Servicing docs. abroad
EU Regulation 1393/2007 on service between member states:
transmission via central authorities (art. 4 ff.) (standard forms);
alternative forms in art. 12 ff;
direct service by officials in the MS addressed if this is permitted by the law of that State (art. 15)
C-473/04 Plumex: no hierarchy between these alternatives
addressee may refuse to accept if neither in the official language of the place of destination nor in a language easily understood by defendant (art. 8); authority must deliver the model form to addressee (Annex II of Reg. 1393/2007).
Additional rules in specific regulations (eg Small Claims Regulation)

48. Cross-border procedures
National law may have specific rules of procedure for cross-border litigation (rare, except EU-Regulations mentioned infra)
If such rules are restrictive, they may be set aside by EU law, e.g. the requirement of a Cautio iudicatum solvi for foreign claimants
EU: proposals of the Storme-Commission 1994
Some largely uniform procedures for cross-border litigation introduced in the law of all EU member states:
Small claims Regulation (Reg. 861/2007; amended by Reg 2015/2412)
Payment order Regulation (Reg. 1896/2006)
New Regulation on attachment of bank accounts (“European Account Preservation Order”)
Model law by ALI/Unidroit Principles of transnational civil procedure (Principles + Annex with “Rules”)

49. Applying foreign law
What is the task of the judge when, according to the conflict of law rule, foreign law must be applied ?
Continental rule: curia novit ius, applies also to the foreign law indicated by the domestic conflict rule (eg Belgian Cass. 18 March 2013). Judge may obtain information according to the European Convention on Information on Foreign Law (London 1968) (not frequently used). More frequent: expert opinion on foreign law
Anglo-American rule: foreign law is a matter of fact that must be proven (usually by expert opinion, esp. affidavit by qualified foreign lawyer)

50. Evidence - problems Applicable law:
rules on means of proof accepted for certain facts, eg contracts: the applicable substantive law
rules on obtaining evidence: domestic procedural law (lex fori).
Procedural law of evidence differs a lot, e.g. concerning discovery (actio ad exhibendum):
continental rule: restricted to specific documents
>< in USA: much broader («fishing expeditions»)

51. Evidence – expert opinions
Means of proof especially relevant in international trade: expert examinations; certificates or reports of control/surveillance organisations, etc. (see e.g. in relation to documentary l/c)
Parties may use the ICC Rules for Experts (deal with proposal of experts by ICC, appointment rules, administration rules) (see Ch. 12)
Experts may be:
court-appointed experts or joint experts of all parties
single experts of one or more parties only
National law contains some standards for experts (independence, impartiality,etc….)
Some Codes of conduct (eg Euroexpert).
See also in Ch. 12 Rules on the Taking of Evidence in International Arbitration

52. Evidence Taking evidence abroad – 1. unilaterally
supposes voluntary compliance
in some cases compliance is even forbidden (by « blocking statutes » or by a specific court order) except where information is exported on the basis of international conventions (as the Hague Convention, next slide)
Eg French Law of 16 July 1980 (originally reaction against US action against shipping cartels): communication of economic, commercial, industrial, financial or technical information is prohibited
- if capable of harming the sovereignty, security or essential economic interests of France or contravening public policy;
- if leading to establishment of proof in foreign legal proceedings.
Eg Swiss Banking law (bank secrecy)
Eg China’s Great legal Firewall (prohibition to give information except Court on the basis of Hague conv.)
That prohibition sometimes set aside by foreign court:
eg E&WC.A. 22 Oct 2013: recourse to the Evidence Regulation not necessary
SCotUS uses different tests to decide whether or not to respect the foreign statute and use the lex fori or the Hague Convention (SC 15 June 1987 in Aérospatiale v US) (SDNY Sep 2015in Gucci / Weixing Li, injunction against bank of China)

53. Evidence Taking evidence abroad
Rogatory Commissions sent abroad (for examination of witnesses, visit of a location abroad, etc.)
Hague Convention on Taking Evidence Abroad 1970 (in force 1972)
via a central authority in the requested state
or via personnel of the requesting state in the requested state in case of voluntary appearance of the requested persons
- most states made a reservation for pre-trial discovery (based on art. 23 Convention) (even the UK made the reservation)
US Courts can on the basis of S USC issue orders to produce evidence to assist foreign and international tribunals and litigants before these courts
EU-Regulation 1206/2001 on co-operation in taking of evidence: next slide

54. Evidence – EU Reg.
EU-Regulation 1206/2001 on co-operation in taking of evidence
demand directly addressed by «requesting court»  to «requested court» in other member state; use of standard forms; subsidiary role of a central body in each member state.
Directive only facilitates taking evidence, thus does not forbid any measure which can be taken without the cooperation of the other member state:
- C-170/11, Lippens e.a.: Court has the option, to summon a person residing in another Member State before it and hear him as a witness in accordance with the law of its Member State.
- C-332/11 Prorail: entrusting to an expert a task of taking of evidence to be carried out in another Member State, can be done without this procedure, unless it affects the powers of the Member State in which it takes place, in particular where it is an investigation carried out in places connected to the exercise of such powers or in places to which access or other action is, under the law of the Member State in which the investigation is carried out, prohibited or restricted to certain persons.

55. Recognition & enforcement
Deals with so-called « Title import »
Within federal states: « Full faith and credit »
Otherwise traditionally re-examination of the case in country where recognition / enforcement is asked, unless simplified by treaties
No global convention until now (only for Choice of Court Agreements (supra), including rules on recognition and enforcement). Judgments Convention expected 2019.
Some regional conventions: Australia/NZ (’Trans-tasman’), 1992 Las Leñas (Mercosul), 1983 Riyadh Arab agreement, Minsk agreement
CMR art. 31
In the EU:
certain judgments from courts of other EU states enjoy full faith and credit (automatically enforceable),
for others under Reg. 44/2001 a simplified procedure of « exequatur », now abolished by Brussels-I Recast 1215/2012
National law outside the scope of the EU rules: infra

56. Recognition & enforcement
General framework: Brussels-I-Regulation (+ separate regulations in family, maintenance obligations, successions, insolvency, etc.)
Before the Recast there was already automatic enforceability without exequatur in case of:
European Enforcement order for uncontested claims (Reg. 805/2004) awarded in a procedure according to domestic law of a member state
European Payment Orders (supra)
Decisions in European Small Claims Procedures (supra)

57. Recognition & enforcement
General framework: Brussels-I-Regulation - New rules (Recast 1215/2012):
automatic recognition and enforcement without obtaining an exequatur, on presentation of judgment* + certificate with summary (and possibly translations) (one could say: exequatur is granted by the country of origin). Enforcement requires prior serving of certificate to that person.
Limited grounds for refusal in case of opposition/appeal :
- contrary to public policy (45.1a) (interpreted restrictively by ECJ, see eg C-681/13, Diageo Brands)
- judgment in default and defendant not served in sufficient time (45.1b)
- incompatible with a judgment issued in the country of enforcement (45.1c & d)
- from a court having no jurisdiction according to te Regulation (45.1e)
- see also art. 64: civil decision in criminal proceedings, defendant had no opportunity to arrange defence
* Q: is homologation of an English Scheme of Arrangement a judgment in the sense of art. 32 ? In principle yes
NY Convention on arbitration takes precedence over the Regulation

58. Recognition & enforcement
Automatic recognition and enforcement applies under the Recast 1215/2012 also to:
Authentic instruments (as notarial deeds) (58.1)
Court settlements (58.2)

59. Enforcement measures
Differences as to available enforcement measures, e.g.
Astreinte (Zwangsgeld)
Disclosure obligations: can a debtor be obliged to disclose its assets, and does this extend to foreign assets ?
UK case law: also foreign assets
SCotUS 16 June 2015 in Argentina / NML Capital: idem

60. Extraterritorial enforcement in the EU
Extraterritorial effect of provisional measures under Brussels-Ibis:
by court having jurisdiction over substance: measure enforceable in the EU (if unilateral procedure, then only after service of decision to the defendant)
by court not having jurisdiction over substance: if jurisdiction for protective measures (supra), the effect is confined to the territory of that MS (eg freezing order relates only to bank accounts in that MS) + judge with jurisdiction on the merits can condemn the beneficiary to lift the conservatory seizure
Belgian case law on enforcement measures: have effect only in countries where the judgment is enforceable (thus for an astreinte Cass. 29 oct 2015)

61. Recognition & enforcement in the EU outside EU-Regulations
Outside scope of EU-Regulations:
traditionally re-examination of the case in country where recognition / enforcement is asked, unless simplified by treaties
Eg in Belgium simplified since 2004 (Code of PIL art. 25 § 1 abolishes re-examination and lists grounds for refusal, basically 2: public policy and rights of defense)
Recent example: Class actions settlements in L&HSP approved by US court were recognised in Belgium and thus binding for all claimants not having opted out of these US class actions (Decision of 23 March 2017)
Disputed among European states whether foreign punitive damages can be recognized (very restrictive opinion in Germany – BGH 1992 and art. 40, 3 EBGB), more flexible in Italy (Cass. 5 July 2017), France (Cass Schlenzka) and Spain (TS 2001).
Eg in the UK: common law rules + Statutes 1920 & 1933 mainly dealing with commonwealth countries

62. Recognition & enforcement: USA
In the US:
Recognition and enforcement basically state law (not federal)
It can take place on the basis of:
common law (comity, in case of fair foreign trial by a competent court basically no retrial of the merits, SC in Hilton/Guyot 1895)
For monetary judgments the Uniform Foreign Money Judgments Recognition Act (1962) or the Uniform Foreign-Country Money Judgments Recognition Act (2005) (Code of civil procedure S ff.)
a few treaties (such as on Child custody)
Grounds for non-recognition
No fair trial etc…
Jurisdiction not recognised
Clearly offensive to public policy
in some states absence of reciprocity
on the basis of Libel terrorism protection Acts or SPEECH* act, US courts refuse recognition of judgments infringing free speech (as some English libel or defamation judgments)
* Securing the Protection of our Enduring and Established Constitutional Heritage Act

63. Insolvency proceedings
Types of insolvency proceedings usually found abroad:
Liquidation proceedings, such as bankruptcy
Reorganisation and composition proceedings, such as:
* judicial reorganisation (eg Ch. XI in the US Bankruptcy Code)
* collective agreement with creditors (suspension of the execution by creditors in order to reorganise the business)
In all these proceedings the control over the assets of the debtor is granted to an administrator and the claims of the creditors are dealt with collectively (instead of individually)
Not an « insolvency proceeding »: English ‘Scheme of Arrangement’ under part 26 Companies Act

64. Insolvency proceedings
1997 International and EU instruments on jurisdiction and cooperation:
Uncitral Model Law on cross-border insolvency (model used in the US bankruptcy Code ch. 15; in the UK in the Cross-Border Insolvency Regulations 2006 and in several other EU countries as rules for non-EU cases), in the OHADA, etc.
EU-Regulation 2000/1346 on insolvency proceedings, from June 26, 2017 on Recast EU-Regulation 2015/848, infra.
« Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters » drafted by the Judicial Insolvency network (JIN) adopted by Courts of Singapore, England & Wales, Bermuda, NSW (Australia) and several US bankruptcy Courts (Delaware, Florida, SD New York).
International and EU instruments on substantive insolvency law:
- OHADA Uniform Act on Insolvency 2015
March 12, 2014 Recommendation from the European Commission dealing with substantive insolvency law, followed on 22 Nov 2016 by a Proposal for a Directive (mainly on business rescue proceedings) (COM2016/723)

65. Insolvency proceedings
International (‘cross-border’) insolvency: two conflicting solutions / principles:
universalism (single bankruptcy extended to all countries where debtor has assets) (eg Belgian, German, US law)
Moderate territorialism: insolvency proceedings in each country relate only to assets in that country (rather in French, Dutch law)
radical territorialism: insolvency proceedings in each country relating to assets in that country that are « ring-fenced »: the product is used first for debts incurred in that country
Universalism only works insofar as the proceedings are recognised in other countries where assets lie.
Eu-Reg and Uncitral both choose a compromise: main proceedings + non-main proceedings

66. EU Insolvency regulation scope of application
EU-Regulation Recast 2015/848 (in force 26 June 2017)
Scope of application: only where debtor has its « centre of main interest » (COMI) in a Member State; not limited to cases where at least 2 member states are involved (C-328/12, Schmid / Hertel)
Presumption that the seat of a legal person is its COMI (art. 3 id. recast, but no presumption if COMI shifted less than 3 months ago).
Definition of insolvency proceedings to which it applies (art. 1.1:
collective proceedings,
based on insolvency,
(a) which entail the partial or total divestment of a debtor, and the appointment of a liquidator
(b) added in the Recast: proceedings where « debtor in possession » but under control or supervision of the court (But not: UK Schemes of Arrangement)
(a list is found in the Annex A to the Regulation)
Exclusions: next slide

67. EU Insolvency regulation scope of application
EU-Regulation Recast 2015/848
Not covered by the Insolvency Regulation, but by separate Directives:
financial institutions (WUDB, Winding up Directive for Banks 2001/24, and Bank Recovery and Resolution Directive (BRRD) 2014/59)
insurance companies (WUDI-Directive).
No uniform rules regarding investment companies yet (except in the BRRD).
NB. Sovereign default:
No international framework yet for state insolvency
for local government, some countries apply private law, eg Detroit city insolvency.

68. EU Insol.Reg - jurisdiction
EU-Insolvency Regulation 2015/848 - Basic solution – possible procedures:
I. Main proceedings / secondary or territorial proceedings
Art. 3.1.: main proceedings: possible (only) in country of « centre of main interest » of the debtor (« COMI »). In principle universal jurisdiction, unless limited by a territorial procedure. Recast 1°defines COMI and 2° also covers jurisdiction over avoidance actions (art. 3a)
Result: forum shopping (insolvency tourism) by moving the COMI.
NB. In US law, the same criterion (COMI) is used for jurisdiction and recognition.

69. EU Insolvency regulation - jurisdiction
II. Art. 3.2.: a territorial insolvency can be opened in other MS where the debtor has an establishment. When there is a main proceeding, the territorial one is called « secondary »:
it is territorial with respect to assets,
but universal with respect to creditors (all creditors may file, not only for debts incurred in that country – no ring-fencing).
Under the old Regulation it had to be a liquidation procedure, subject to duty to cooperate in case main proceedings are not liquidating (C-116/11 Bank Handlowy); Recast broadens the scope.
A territorial procedure can be requested only by local creditors, a secondary by any creditor (C-327/13 Burgo Group) (including the insolvency administrator of the main)
Recast 2015 limits possibility of such secondary procedures a bit more (see i.a. art. 36 recast)
Insolvency administrator may propose local creditors instead of secondary proceedings a dealing « as if «  secondary proceedings had been opened (« synthetic secondary proceedings »)
Where no secondary procedure is opened: no enforcement proceedings possible except those permitted by the law of the state of the main proceedings (ECJ in C-444/07)

70. EU Insolvency regulation – scope of jurisdiction
EU-Insolvency Regulation art. 3 Scope of jurisdiction – v. Brussels-I
‘vis attractiva concursus’ : jurisdiction includes actions derived directly from the insolvency proceedings and closely connected with them, e.g.
actions that arise only under insolvency law (eg to seek liability on company officers: C-133:78 Gourdain/Nadler) (or liability of a creditors commitee: C-649/16 VAV Invest)
actions to set a detrimental transaction aside (pauliana) (C-339/07, Seagon/Deko Marty) where only the liquidator can bring the action (and even where the defendant resides outside the EU: C-328/12, Schmid / Hertel) (but not if there is no insolvency proceeding: C-337/17 Feniks), but probably not a tort claim for collective damage of creditors (A-G in C-535/17)
actions challenging the exercise of a power by the liquidator
Not: dispute about ownership of assets, incl. reservation of title (ECJ in C-292/08, German Graphics)

71. EU Insolvency regulation – scope of jurisdiction
Effect of opening of insolvency proceedings upon procedures that in themselves fall within Brussels-I and not the InsolReg:
Pending procedures: the lex fori of that procedure determines the effect of the opening on that procedure (new art. 18, old 15; as well procedures where the insolvent is owner/creditor as those where the insolvent is debtor: ECJ in tarrago da Silveira, C-250/17); this is not the case for enforcement procedures: they can only take place in accordance with the law governing the insolvency proceedings (C-212/15, Enefi: also for enforcement by tax authorities)
New procedures: law of the country where insolvency is opened determines effect of the opening on that procedure (Art. 7(2)(f), old 4(2)). Interpretation: this would only preclude enforcement actions that are not allowed under the lex concursus and not actions to determine a claim (incl. a right of ownership, cfr. ECJ in German Graphics).

72. EU Insolvency Regulation
EU-Regulation– Effects abroad of procedures:
opening of proceedings can be published in other MS (art );
recast organises a web-based EU-wide system of insolvency registers (art. 25 ff)
main insolvency must be recognised in other MS (art. 19); has in principle the same effects as if it were opened in that state (art. 20) – except where manifestly contrary to public order (art. 26) (e.g. fundamental rights) or insofar as it is a matter for a secondary procedure effectively opened
further rules on coordination
Recast : * duty to cooperate incl. exploring possibility of restructuring (see art. 41 ff recast).
In Recast new Ch. on insolvency of members of a group of companies (56 ff.) – possibility of appointing a group coordinator whose task is to present a Group Coordination Plan

73. EU Insolvency Regulation – rights in rem
Art. 8 (+ for reservation of title art. 10): As to existing property rights on assets which fall under the insolvent estate but are situated in another member state (for the situs, see next slide):
The right is « not affected ».
Unclear whether this implies a conflict of law rule
Insofar as there is a property right under the law of the situs, thus remain unaffected: the right to dispose, to use, to revindicate, etc. (incl. enforcement rights).
Whether the right is in rem, depends on the applicable law, insofars as it does meet some minimum criteria deduced from the Regulation (see ECJ in C-195/15 Senior Home, in casu German tax burdens)
surplus must go in the insolvent estate (lex concursus)

74. EU Insolvency Regulation – rights in rem
What is the situs ?
Recast art. 2(9) clarifies the lex rei sitae in respect to certain assets, such as:
(i) registered shares: located in the registered office of the company
(ii) book entry securities (‘dematerialised’): where the account is maintained
(iii) account money (cash in accounts): member state indicated by the IBAN
(viii) other rights to performance (claims): COMI of the debtor
Quid with special immaterial assets, suc as e.g.:
- slots for airlines (main asset in the Niki bankruptcy)

75. EU Insolvency Regulation – applicable law
The lex concursus (i.e. the lex fori of the place of opening of the insolvency) determines according to Art. 7 i.a.:
the procedural aspects of the insolvency: which assets are in principle administered; how they are administered (powers of the administrator, the court, the debtor); formalities to be fulfilled by creditors; how sale and distribution proceedings are organised; distribution of the product in the absence of property rights
effect on later disposition of assets, other than assets subject to registration
includes also actions that arise only under insolvency law (same category for applicable law as that of art. 3 for jurisdiction – see ECJ in C-594/14 Kornhaas)
Whether claims filed too late are forclosed (ECJ in C-212/15, Enefi)
effect of insolvency on current contracts (art. 7.2.e) (incl. the question whether administrator may terminate contracts, or question whether other party may invoke an ipso facto termination clause)
Except: individual execution right of creditor with proprietary right (lex rei sitae) (eg in many countries creditor with mortgage) – to be decided by the lex rei sitae

76. EU Insolvency Regulation – detrimental acts
Whether detrimental acts are voidable/defeasable*: lex concursus, unless undefeasable according to lex causae (art. 7.2.m + art. 16)
* in the US « preference action » (payee was unduly preferred)
Scope ratione materiae:
The category of acts against which art. 16 grants protection must be understood widely (cfr. the corresponding art. 30 in the WUDB (Bank Winding Up Directive) was interpreted extensively in E-28/13 (EFTA Court), LBI v Merrill Lynch: includes as well voidness under contract law as under insolvency law)
On the other hand, the defense also requires that the act cannot be defeated under the lex causae on any ground (C-310/14 Nike/Sportland).
Third party protected if under the lex causae the act is not defeasable in concreto (eg. can invoke prescription under the lex causae) (C-557/13 Lutz; E-28/13)
Third party must proof the validity of the act under the lex causae (C-310/14 Nike) but not in the sense that he must prove that all possible causes of invalidity are absent (C-54/16, Vinyls Italia)
Ratione temporis: Applies only to acts before the opening of the proceedings, including the exercise after the opening of rights derived from such acts (C-557/13, Lutz).
The defense of art. 16 must be invoked in accordance with the procedural rules of the lex fori (ECJ in C-54/16, Vinyls Italia)
Foreign lex causae even applies in case of a purely internal contract where foreign law has been chosen, unless the choice is fraudulent (ECJ in C-54/16, Vinyls Italia)

77. EU Insolvency Regulation – applicable law
Set-off: important differences between national laws on effect after insolvency. Art. 9 Reg.: set-off is effective if either effective under the lex concursus or under the lex causae of the passive claim (claim of the insolvent debtor used by the creditor to get paid).
Effect on labour contracts: governed by lex contractus (art. 13)

78. Outside the EU InsolReg
In the UK: at least 2 alternative grounds for recognition of foreign insolvency decisions and assistance to foreign insolvency proceedings
Section 426 UK insolvency Act : courts from a list of commonwealth countries may request «assistance » in the UK
Cross Border Insolvency Regulations 2006 implementing the Uncitral model law
Uncitral Model law:
- same principle as the Eu Regulation: main proceeding in the country of the COMI; non-main proceedings possible where an establishment. If certain requirements are met, such foreign proceedings will be recognised
Application in the UK: As long as no foreign main proceeding is recognised, UK jurisdiction is no restricted by it; when a foreign main proceeding is recognised, the proceeding in the UK becomes non-main
Foreign insolvency administrators may seek « assistance » (have standing before the courts)
Cross-border cooperation among courts
Recent refusal by Amsterdam Court to recognise Yukos bankruptcy pronounced in Russia (public order). Sale of shares in the Dutch subsidiary by Russian trustee not recognised.