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Summary Conflict of Laws LSE LLB Notes

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Conflict of laws notes with a wide enough array of topics to do well in the exam. In my open-book exam, I got a First after only bringing these notes into the exam.

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  • August 2, 2024
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Brussels I: Introduction
Introduction to the EU Rules on Jurisdiction
Overview
 The rules of the Brussels I Regime embody the civil law approach to jurisdiction
 Since Brexit (Jan 2021), these only apply to proceedings in EU Member States
 From January 2015, this is Regulation EU 1215/2012, or the 'Brussels I Recast Regulation'
 This was previously contained in Regulation EC 44/2001 (the original 'Brussels I' Regulation), and
before that in the Brussels Convention of 1968
 By the late 1950s, many in the European community already wanted the "free movement of
judgments" in order to harmonise the internal market
EEC Treaty Art. 220 [1957]
 Member States should negotiate with a view to secure "the simplification of formalities
governing the reciprocal recognition and enforcement of judgments"
EEC Commission Communication [1959]
 A true internal market between the States requires adequate legal protection
 As jurisdiction is derived from Members States' sovereignty, legal certainty in the common
market is dependent on the adoption by the Member States of a satisfactory solution to the
problem
 They were considering many different types of legal instruments to achieve these goals


Aims of Brussels I 2012
 The Brussels Convention of 1968 was replaced in 2000 by Regulation EC 44/2001
 In 2012, the European Parliament and the Council adopted an updated Recast version of this
 The Recitals state that main aims of Brussels I 2012:
o (3) The EU is "to adopt measures relating to judicial cooperation in civil matters having
cross-border implications, particularly when necessary for the proper functioning of the
internal market"
o (4) It is essential to "unify the rules of conflict of jurisdiction in civil and commercial
matters, and to ensure rapid and simple recognition and enforcement of judgments" in
order to prevent hampering "the sound operation of the internal market"
o (6) This must be done by a "binding and directly applicable" EU instrument
o (13) In principle, common rules should apply "when the defendant is domiciled in a
Member State"
o (14) Defendants not domiciled in an EU Member State should generally be subject to
national rules of jurisdiction applicable in the MS of the court seised. However, certain
rules of jursidiction in Brussels I 2012 should apply regardless of D's domicile, in
situations where consumers and employees must be protected

, o (15) Rules must be predictable and jurisdiction is, in principle, generally based on D's
domicile. There are only a few well-defined situations where there should be a different
connecting factor.
o (16) "There should be alternative ground of jurisdiction based on a close connection
between the court and the action", in order to be just, while ensuring legal certainty and
avoiding D being sued in an MS he could not have foreseen.
o (19) Should respect autonomy of the parties
o (26) The principle of mutual trust in the Union justifies that any MS judgment should be
recognised in all other MS
o (29) Direct enforcement does not mean the defendant cannot apply for refusing
recognition or enforcement
 Bomhoff Observations
o Recitals 13 and 14 ensure the EU rules normally only apply where D is domiciled in an
EU MS. This is why English rules were still relevant during this time, even before Brexit
o The courts of D's domicile have 'general' jurisdiction, which means regardless of
whether there are any futher connections between the forum and the dispute
o Other courts may have specific or special jurisdiction, based typically on the existence of
a close connection between the dispute and that court


Lugano Convention 2007
 Lugano 2007 extends Brussels Regime principles to the Contracting States of the European Free
Trade Area (EFTA: Norway, Switzerland, Iceland, Liechtenstein)
 UK government was unable to join this after Brexit
 Lugano 2007 is modelled on Brussels I 2000


Rules on Domicile for Individuals and Corporations
Relevance in Brussels I
 Article 6(1) of Brussels I 2012
o "If the defendant is not domiciled in a Member state, the jurisdiction of the courts of
each Member State shall … be determined by the law of that Member State"
o This is subject to exceptions but is the main rule
 Article 4(1) of Brussels I 2012
o "Persons domiciled in a Member State shall, whatever their nationality, be sued in the
courts of that Member State"
 Brussels I leaves the definition of domicile to national law as per Article 62 of Brussles I 2012
 General jurisdiction is where urisdiction is aailable, regardless of the complaint's subject matter

,Scope of Brussels I
Civil and Commercial Matters
Article 1 of Brussels I 2012
o The Regulations only apply to cases involving "civil and commercial matters"
o This applies to jurisdiction rules, and rules on enforcing judgments
 The concept of civil and commercial matters arose in Eurocontrol, a case involving Eurocontrol, a
Treaty organisation in charge of coordinating air traffic control in Europe and LTU, a German airline
company
CJEU Case C-29/76, Eurocontrol: "Autonomous Interpretation" [1976]
Result
 The Oberlandesgericht Dusseldorf court in germany referred to the CJEU the question:
o For the purposes of interpreting "civil and commercial matters" in Article 1 of Brussels I,
is the law to be applied the law of the State in which judgment was given or the law of
the state in which proceedings for an order for enforcement were issued?
 Eurocontrol asked competent German courts to authorise the enforcement of an order by the
Belgian courts that LTU pay to it certain sums by way of charges imposed by Eurocontrol for the
use of its equipment and services
 Article 1 serves to indicate the area of application of the Convention, so it needs to be applied
equally and uniformly
 "Civil and commercial matters" cannot be interpreted solely in the light of the division of
jurisidiction between the various types of courts existing in certain States
 The concept is independent and must be interpreted using the objectives and scheme of the
Convention, as well sas the general principles of national elegal systems
 In this case the dispute concerns the recovery of charges payable by a person governed by
private law to an international body governed by public law
 The procedures for collection were fixed unilaterally by the body in question, fixing the place of
performance in Brussels and the national courts of belgium selected to adjudicate
 The answer is that in interpreting "civil and commercial matters" make reference must not be
made to national law but to the objectives of the Convention and general principles from the
corpus of the national legal systems
 On the basis of these criteria, a judgment given in an action between a public authority and a
person governed by private law, in which a public authority has acted in the exercise of its
powers, is excluded from the area of application of the Convention
 "Civil and commercial" if "governed by general provisions of law applicable to relations between
private individuals"
Significance
 The CJEU introduced the idea of European/autonomous interpretation of key Brussels Regime
terms
 The criterion of a public authority acting in the exercise of its public powers

CJEU Case C-49/12, HM Commissioners for Revenue and Customs v Sunico [2013]
Background and Question
 HMRC brought a claim in Danish Court

,  UK public authorities (MS at the time) bringing a claim for damages against undertakings and
natural person resident in another MS on the basis of an allegation made pursuant to UK
national law
 Old case so Brussels I 2000 applies, but same issue
 Question: Should "civil and commercial matters" (Article 1(1) of Brussels I 2001) mean the scope
of Brussels I extends to cover the scenario where:
o The authorities of a Member State bring a claim for damages against undertakings and
natural persons resident in another Member State on the basis of an allegation (under
UK national law) of a tort in the UK?
Consideration
 Referring court wants to know whether "civil and commercial matters" includes an action where
one MS's public authoirty claims damages from a persons resident in another in respect of loss
caused by conspiracy to commit VAT fraud in the first MS
 Sunico argue a judgment delivered in UK courts is not enforceable in Denmark because the claim
is governed by UK VAT law and therefore it is not in the scope of "civil and commercial matters"
 UK HMRC commissioners do not exercise any exceptional powers in comparison to private law
relationships, so it is not based on public tax law
 Although the amount of damages corresponds to the amount of output VAT payable by a
taxable person, the extent of Sunico's tortious liability and the amount of the claim is not proof
that the action involves the exercise of public authority, because it is common grounds that their
legal relationship is governed by UK tort law, not VAT law
Answer
 "Civil and commercial matters" within the meaning of Article 1(1) of Brussels I 2000 must be
interpreted as meaning that:
o It covers an action whereby a public authority of one claims, as against natural and legal
persons resident in another Member State, damages for loss caused by a tortious
conspiracy to commit VAT fraud in the first Member State
Analysis
 Dicey, Morris and Collins on the Conflict of Laws, 15th edn, [2012], para.5-025
o "This is a surprising result"
o "The rule in England is that the English court will not allow a claim for the direct or
indirect enforcement of a penal, revenue or other public law of a foreign state"
o If this were considered in English courts in a similar claim with a foreign government, it
would be inadmissible


EU Jurisdiction: Tort
Article 7(2) Brussels I 2012
Introduction
 7(2) allocates jurisdiction in "matters relating to tort/delict" to the court of "the place where the
harmful event occurred or may occur"
 It provides the plaintiff with an extra option if D's domicile is not attractive for them
 This was Article 5(3) of the Brussels Convention 1968
 Remember it only applies if D is domiciled in an EU MS
 And jurisdiction can only be attributed to courts of an EU MS

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