1 Introduction
1.1 Private international law
PIL is important in globalised world. It allows you to use the courts of states other than your
own and/or to use the laws of different states other than the laws of the state where you reside
to arrange your (client’s) private relationships (e.g.: marriage, tort, divorce, adoption, estate
planning, …) ⥤ a proper use of PIL will allow you to put your hands on laws that might
otherwise seem unreachable and to seize courts that can be much more attractive than the
courts of your home jurisdiction.
There are 2 approaches: passive approach (once you’re already in trouble) ↔ proactive
(before) / active (at the very beginning) approach
= Conflict of laws:
Law
Private: looks at the relationship being one of a private law relationship
↔ Public international law ⥤ we don’t concern ourselves with relationships between
states. It’s about relationships between individuals (including individual corporations)
» 2 main differences with public international law:
It aims to regulate relationships between private parties (≠ states)
It is designed to function primarily at the domestic level in domestic courts
» But: there is a limited overlap = in sovereign and diplomatic immunity (“Foreign
Act of State doctrine) = courts should not question the validity of acts taken by a
foreign government within that government’s territory
They happen in an international context = cross-border (e.g.: can be 2 Polish women who
get legally married in Hawaii while it is not recognised in Poland ⥤ neither will the status
of their children be)
1.2 Sources of PIL
In EU the main source of law for PIL = EU law. For some part of the issues that’s already been
the case since 1968 (Brussels Convention), but since particularly the 2000’s the amount of EU
private law that deals with PIL has grown immensely. So for EU MS there is an increasingly
small amount of situations where EU law has no say. So those situations where there is no EU
source of law = residual space. There are different approaches: some MS keep their own
course in the residual space. Other MS say it’s daft to have a set of different rules, so in their
residual space, they will just copy EU PIL (e.g.: Belgian residual statute on PIL (2004, WIPR)
frequently says EU law applies to this issue even if it doesn’t apply = regardless of its scope of
application, from the moment there is a contractual relation it will apply)
Currently, the main legal basis is art. 81 (& 67) TFEU: the EU may adopt legislation on
what is called judicial cooperation ⥤ includes jurisdiction, applicable law and recognition
and enforcement
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,Second important source of law: Hague Treaty = private initiative which tries to negotiate
international Conventions on a whole variety of PIL issues. The point of the Hague conference
is to foster predictability in the international relationship to contribute to international stability
and peace
Very often when the EU wants to harmonise a particular PIL issue, there will already be a
precursor in the Hague Convention. So there is certainly a wide variety of Hague
instruments which have a EU equivalent
Once adopted, States can become members to the convention ⥤ the Hague Convention
≠ international organisation ⥤ even if you are a member, you don’t have to accept every
single convention! Much more flexible approach towards harmonising PIL
There can be bilateral conventions (e.g. divorces) where the puzzle can be complicated when
thinking about recognition, …; especially when it brings you to non-EU MS which triggers the
application of Hague Convention or bilateral conventions ↔ EU law
⥤ The EUCJ has a massive role to play in regards to the interpretation
The sources most discussed in this course:
Brussels Ia Regulation: looks at jurisdiction in civil & commercial matters
Rome I Regulation: discusses the applicable law for contracts
Rome II Regulation: discusses the applicable law for non-contractual obligations
Insolvency Regulation: international restructuring
Lugano Convention
1.3 The three processes of PIL
PIL deals with mainly 3 questions:
1. Which is the court which can/should accept jurisdiction? Very often there will be more
than one court (= competing courts) and very often two parties will go to different
courts
Jurisdiction = forum ⥤ forum shopping = there might be different reasons why
individuals prefer a certain court = seizing a court which serves your interest best
Also think about reverse engineering: you find the most favourable
court/applicable law and then find arguments to get your way
Lex fori = the choice of law depends on the law of the country where the
proceedings are successfully brought. This is more about procedural issues (e.g.:
gathering evidence, trial by jury, …). Remember this: courts will always apply their
own procedure ⥤ procedure is always subject to lex fori
E.g.: France is a country where the residual PIL allows you to seize a French court
by the simple fact that you have the French nationality (so even in cases which
other than that issue have no relation to France)
2. Which law applies? = Applicable law (common law often calls it governing law, can
also be called lex causae (the law of the issue)). Crucial: will a court ordinarily apply
their own laws? ⥤ This is not the case! If it is the case that the court applies its own
laws = Gleichlauf (= concurrence between the court and the law that it applies). But,
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, more often than not in an international context, a court will apply a law that is not its
domestic law
The facts need to be accommodated within one/more legal category to which a
choice of law rule may be applied ⥤ characterisation/qualification (= putting a
private relationship in a legal category) is crucial.
Each legal category has a connecting factor (linking factor) = which legal system
connects most closely with this category of legal questions (see also more on this
below). They can be divided into two categories:
Personal connecting factors: domicile, residence, nationality
Causal connecting factors: lex domicilii, lex fori, lex contractus, lex loci contractus,
lex loci actus, lex delicti (tort), lex situs, lex loci celebrationis, lex incorporationis, lex
protectionis
Also important to think about the ordre public limit: when the judge applies foreign
law, they must always make sure that they don’t apply law that is too alien to the
national legal system (e.g.: a validation of a bigamous marriage won’t be possible,
but a divorce from one will be)
3. What is the effect of a judgment? = Recognition and enforcement. If you have the court
decision in your favour, it can still be difficult to enforce it in another country, especially
outside of the EU
E.g.: very well known that among common law countries, there is a lot of mutual
trust about court decisions (e.g.: UK and Singapore; India is very hesitant to
recognise from non-common law countries)
This is a very important step you need to think about! If you have your judgment but
cannot enforce it, it’s not really helpful for you
1.4 Characterisation, renvoi and the incidental issue/Vorfrage
Characterisation = the facts are accommodated within one/more legal category to which a
choice of law rule may be applied = pigeon holing (≈ branches of private law). Disadvantage:
pays no regard to whether the rule chosen was meant to be applied in a certain case.
Importance: not all national PIL uses the same categories (e.g.: statutes of limitations can be
procedural law = lex fori ↔ substantive law)
Subcategory of characterisation = incidental issue/Vorfrage = sometimes national/EU law
has determined which applicable law is connected to a given legal category, but before it can
be applied you still need to decide on the actual existence of the category in the relevant facts
EU Regulations have harmonised the approach to Vorfrage in contract law and in torts
(e.g.: art. 10(1) of Rome I)
Renvoi = is a certain reference, by application of PIL rules, a limited reference to the
substantive laws of that State only? ⥤ 2 types:
1. Renvoi/remission = referral to the lex fori (= terugverwijzing/herverwijzing)
2. Renvoi au second degré/transmission (= verderverwijzing)
Renvoi is important to prevent forum shopping, but: often very complex ⥤ often excluded
from treaties and national laws
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,1.5 Forum shopping and forum non conveniens
Forum shopping = technique whereby a litigant selects his forum to sue on the basis of
suitability or a choice of law. Can be abused, e.g.: torpedo-technique = selecting a forum for
the time they take to decide a case
Forum non conveniens = a national court may decline to exercise jurisdiction on the ground that
a court in another State, which also has jurisdiction, would objectively be more appropriate
Often more favourable in common law than civil law
1.6 The hierarchy between laws
In the Agent Orange case, there is a use of residual PIL rules ⥤ when EU law doesn’t apply, it
is then and only then that EU MS can use their own national rules on jurisdiction
Hierarchy that needs to be followed: EU law > international law (e.g.: Hague Convention) >
national law
1.7 Applicable sources
One of the biggest challenges in PIL scenarios: finding the Treaty that might potentially apply
⥤ biggest skill = data finding. What sources can you use? Treaties, secondary law. For the
statutory interpretation of EU-law, you need access to amendments, to the Commission’s
proposal, to the view of the Council on the instrument and whether or not it has been adopted.
Think here about the Cilfit case
1.8 The choice of jurisdiction
There can be several reasons to chose a certain court over another. E.g.: a few reasons why it
is/isn’t attractive to choose a Belgian court:
The BIBC (Brussels International Business Court) (it was never actually created) = one of
many ICC’s (International Commercial Courts) with specialised chambers dedicated to
international commercial litigation. ICC’s are important: it’s a part of the image of your
country (e.g.: English courts have a very good reputation ↔ Russia). The status of your
legal system = an important part of your reputation = an important part of your FDI
(foreign direct investment)
The burden of proof: in common law countries, foreign law is seen as a fact which needs
to be proven (a lot of cross-examination) ↔ civil law countries has ius novit curia = the
court is expected to know the law (in almost all civil law jurisdictions, this extends to foreign
law)
The general societal outlook of a court = the sympathy you hope to receive from a court.
For family law cases: the interest of the child will be looked at differently in different places,
because of different family values. It also applies in commercial litigation: as a big bank,
you can expect more sympathy in London or Liechtenstein ↔ Germany, Italy, France
Recent case law and the development of case law (e.g.: climate law litigation: you will
probably go to the Netherlands/Belgium ↔ federal US court)
Comparative law: as an international litigation lawyer, you aren’t expected to be a specialist
in all kinds of law, but you should be able to advise clients to bring proceedings before a
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, court in a beneficial country for them ⥤ you do have to do some comparative research
and become familiar with a lot of stuff yourself (and not just rely on your colleagues)
The height of damages: in US you can get much higher (punitive) damages than in other
courts
Costs: think about a variety of fees = court fees, lawyer costs, the costs of the opposing
party should you lose (= costs follow the event in common law = loser pays)
In Belgium you also recover some of the costs of the losing party, but it’s very
negligeable (max. €35 000). So it’s less risk if you lose, but also if you win. For deep
pocketed parties, this doesn’t matter much because they are very wealthy
Important: third party funding (TPF) = someone else takes the financial risks for you:
the public (crowdfunding), the lawyer (there will be a contingency fee, a no-win-no-fee-
arrangement, …) or commercial investments in lawsuits (investing in lawsuits = big
business). Belgium has very strict rules on TPF and fee arrangements of lawyers
Discovery: in common law courts you have great means to get evidence ↔ a lot less in
civil law courts
Language of the procedure, but this is almost never relevant
Time: torpedo = the longest time for a case. Best chances in Italy or Belgium. Many
international commercial litigations avoid Belgium because of all the delays (≈ the Belgian
torpedo). But, this can also be a reason why a party would choose Belgium
1.9 Case law
Depp & Heard litigation case (libel): Depp sued UK tabloids for defamation in English courts
but failed to win the case. He also filed a lawsuit in Virgina, where the defendant newspaper
was domiciled, avoiding California anti-SLAPP laws (SLAPP-suits = strategic lawsuit against
public participation, it’s a suit you introduce in a friendly context effectively to shut the other
one up). Forum shopping was used to select a jurisdiction with more favourable laws
Beckham case: a Bosnian hooker made libelous claims about Beckham’s involvement with her.
The magazine publishing the story aimed to avoid UK courts by publishing the story on their
website’s international extension. Beckham (English national domiciled in LA), faced
challenges in suing in the UK due to jurisdictional requirements and the burden of proof.
Beckham needed to show it was factually untrue (= prove malicious intent for libel) (easy: he
was in Detroit, not NY), but the malicious intent is very difficult
Kate Middleton privacy case: her topless photos were published in France. She chose to sue
the paparazzo in French courts based on their stronger privacy laws instead of English courts.
She did so based on the domicile of the defendant (you can almost always sue in the domicile
of the defendant). There was a problem with enforcement and recognition (the photos were
already published on the internet)
Joseph Weiler case: a libel case involving a book review published in an online journal. The
case involved multiple nationalities (US, Israel, Germany, France). The claimant, with dual
French-Israeli nationality, chose to sue in France due to its ability to hear cases involving
French claimants and the possibility of pursuing the matter as both a civil and criminal suit. In
this case there was also parochial or exorbitant jurisdictional rule. Parochial = a derogatory
term for localist kind of attitude = you are very obsessed with your local environment and
have a narrow minded approach
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,Agent Orange case: a Vietnamese-French woman sued a US producer of Agent Orange in
France, claiming French nationality as a basis for jurisdiction, despite the events occurring in
Vietnam. France allowed the lawsuit to proceed based on the claimant’s French nationality.
She sued the US Operations (not the US army = foreign sovereign immunity)
Parental kidnapping case: Italian Australian family with 4 daughters, only one was over 18.
Australian court: jurisdiction of the Italian courts must be respected ⥤ ordered the children’s
return (return order), which was carried out in the dead of night by the Australian army
Also a case with a cable accident in Italy, parents died but son was kidnapped by his
grandparents and taken to Israel, but ordered to be returned to Italy to his paternal
grandparents
In parental kidnapping cases, the Hague Conventions are very important. Typical rule: if
the child is taken away from the country of its habitual residence, then the child must be
returned there. But: the judge has to take into account the interests of the child. Risk: this
leads to abuse by the parents by stretching the period that a child has stayed in a certain
country
In family law, it’s very important that things go fast (↔ commercial proceedings)
Insolvency and corporate restructuring cases:
Big restructuring of a Chinese real estate corporation where HK courts issued a judgment
saying that the underground is bussed ⥤ have appointed trustees (common law). To what
extent can the HK judgment and the power of the HK trustees in bankruptcy be recognised
in mainland China? (China has 3 legal systems: Macau, HK and mainland China) ⥤ a lot
of the banking and finance practice is carried out in HK and Macau, not so much the
mainland. Question in international restructuring: to what degree with the Chinese judicial
authorities on the mainland accept and cooperate with an enforcement of an insolvency
judgment from HK
Nyrstar case: a Belgian corporation which reorganises its debt (corporate restructuring) =
haircut: you write off part of your credit (collective agreement with creditors)
Sabena was acquired by Swissair ⥤ Swissair packed a lot of debt with Sabena ⥤ Sabena
went bankrupt ⥤ CoA Brussels: Swissair had to pay billions of euros in damages to the
now insolvent Sabena. Needs to be enforced in Switzerland (Swissair has its assets here)
Cilfit case: in the EU there are 24 authentic languages. CJEU ⥤ this means that a national
court is obliged to apply and consult the meaning of primary and secondary EU-law in all the
24 equally authentic languages
In practice, this doesn’t mean that the judge has to read the law in 24 different languages.
But: as a legal counsel, you have to consult several versions so you can check if there are
contradictions between different languages
1.10 Standard connecting factors & development of EU PIL policy
⥤ If you add up all the possible reasons to choose a certain court, you have a complex matrix
of reasons to choose a court. You get the kind of strategic management (e.g.: Beckham case)
where a counsel will make sure he’ll do the utmost to set up the case and any potential conflict
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,in such a way as to keep away from certain jurisdictions and secure litigation in other
jurisdictions
Historical evolution:
Roman law: pretor peregrinus = judge who was involved in issues between non-Romans.
Important principle: foreign law is applied by the Roman courts ⥤ your own law follows
you wherever you go. After the collapse of Rome, this idea (particularly for family law)
stayed. Even now, courts adhere to your nationality, marital status, relationship with your
offspring, … ⥤ this follows your nationality, with the ordre public limit
16th-17th century: reflection of how national courts should treat international laws.
Important in US: governmental interest analysis = the idea that you encourage and allow
your courts to apply the laws of foreign nations, but only to the degree that those states are
themselves interest in doing so, and only to the degree that it doesn’t obstruct your national
policies
Important person = professor Von Savigny: the most important part of PIL = the
applicable law exercise = mechanical. Important approach: it determines how we
interpret PIL today. Von Savigny came up with the idea that every (international)
conflict of law naturally has an applicable law that attaches itself to it = lex voluntatis
in an international setting
» When talking about a contract = law chosen by parties; capacity to marry = lex
patriae (your nationality); tort = locus damni (= the law of the place where to
damage occurred); ceremonial part of marriage = lex loci celebrationis; inhouse rules
of a corporation = lex societatis
» This was very natural for Von Savigny. All a judge had to do was qualify the facts
presented in front of him to determine the jurisdiction ≈ pigeon holing (the judge =
a post man)
» Not always simple! E.g.: when are you talking about a contract? Common law: you
need consideration ↔ civil law: a unilateral contract is possible ⥤ a judge in a civil
law court will qualify it as a contract = lex voluntatis ↔ common law court will
qualify it as tort = locus damni
Now: the applicable law is most important. You must qualify an issue in a private law
category. Each category has its connecting factor ⥤ the applicable law = whatever
substantive law that follows from the application of that connecting factor (see more on
this above)
What you often see in EU PIL, is that it tries to address an obvious fallacy in Von
Savigny’s optimism = depending on the postmaster (the judge), you might follow a
different qualification
We see the same in Brussels Ia: the regulation is filled with notions of private law.
There’s a whole range of private law subjects on which we have no European
harmonisation in substantive private law
» A lot of what is discussed in European contract law = ius commune. But: most of
EU private law is not harmonised! There is no European definition in substantive
contract law on what a contract or a trust is ⥤ big challenge
» Important in CJEU’s interpretation of Brussels Ia = predictability and harmonious
application across MS ⥤ we need a common understanding of the meaning of
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, concepts using jurisdictional rules ⥤ the CJEU has many times had to harmonise
concepts of PIL, which the legislator has never managed to do
» EU competence = standard, subjected to general limits (e.g.: subsidiarity,
proportionality)
» Predictability of forum = cornerstone of jurisdictional regime EU ⥤ unification of
applicable law by harmonisation of substantive law: positive harmonisation +
harmonising conflicts rules on choices of law. Turning point in EU Commission’s
approach to PIL = Tampere European Council on the creation of an area of
freedom, security and justice. This approach is continued in Stockholm Programme
2 General principles
2.1 The fifth free movement
European interest in PIL started in 1957: art. 220 EEC = “MS may enter negotiations with each
other with a view to securing for the benefit of their nationals” + a list of issues of what the
states can negotiate on. One of the issues was “the simplification of formalities governing the
reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration
awards”
⥤ This refers to the fifth free movement principle, which is the free movement of judgements
and arbitral awards
1957 is one year before the negotiations on the New York Convention on arbitration and
recognition of arbitration awards. Interestingly, for some reason, they foresaw that this wouldn’t
go via the EU- law procedures: there already was an EU legislative process, but art. 220
suggested that, for a number of issues (and amongst others: the free movement of judgements),
this was something we’d do outside of the EU institutional framework. One of the results that
came out of this decision, was the Brussels Convention, 1968, which is the mothership/the
mother treaty of EU jurisdictional rules
2.2 The Maastricht Treaty
MT set up the pillar structure: community method pillar + common foreign and security policy
pillar + justice and home affairs pillar ⥤ with the MT, the MS wanted to build further on the
idea of a united Europe. The first pillar was kept in a strict, strong pillar with all the community
methods of interpretation by the CJEU, … + two pillars where they start cooperating on issues
that have been a part of national sovereignty, more than the community method. Importance:
for a long time, EU PIL was a part of the justice and home affairs pillar (! not the community
method pillar) ⥤ MS hung to their sovereignty ⥤ so in the MT, nothing could move in justice
and home affairs unless all MS agreed
Controversial element of justice and home affairs = cooperation in visa and asylum ⥤ 3 MS
(Denmark, Ireland and UK) didn’t fully take part in this pillar for this reason. Afterwards, when
unanimity was abandoned, an exception was kept for harmonisation in anything to do with
justice and home affairs (which also includes international litigation + recognition of judgments
+ harmonisation of applicable law)
The 3 MS had negotiated a flexible opt-in (Ireland and UK) or inflexible opt-out (Denmark)
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, Opt-in: whenever the EU Commission would propose further harmonisation, all they
had to do was send a letter if they wanted to join
Opt-out: if Denmark wants to take part in the justice and home affairs aspects, it needs
to conclude a specific protocol (= a public international law instrument)
Tip for the exam: when you see ‘Ireland’, ‘UK’ or ‘Denmark’ ⥤ ask yourself if EU PIL applies,
since there are opt-ins and opt-outs
2.3 Treaty of Amsterdam
The ToA got rid of the MT pillar structure by introducing a firmer legal basis. Legal bases are
crucial in EU law: without a specific place in the European Treaties, which gives the European
institutions the right to act in a particular area + which circumscribes what exactly the EU can
do in that particular area, nothing can move in EU-law. This explains why the very first recital
of EU secondary law is always the legal basis
EU PIL was made a firm part of PIL (art. 65 ToA). One specific instruction was introduced:
the EU could only act as far as necessary for the proper functioning of the internal market.
This meant that EU PIL could only really advance in those areas where harmonisation was
considered to be necessary for the proper functioning of the internal market (this isn’t the case
for parental kidnapping)
2.4 TFEU
In the current legal bases (art. 67 & 81 TFEU): the reference to the internal market still exists,
but it is no longer a precondition. You can now always have harmonisation, particularly when
it’s necessary for the proper functioning of the internal market (↔ beforehand: if it wasn’t
necessary, you couldn’t have a Commission proposal). The EU = an area of freedom, security
and justice
Judicial cooperation in civil matters with cross-border implications (mutual recognition of
judgments and decision) ⥤ Parliament and Council can act through the ordinary legislative
procedure, particularly when necessary for the proper functioning of the internal market
Important exception to the requirement of qualified majority voting in the area of family
law: in cases of harmonisation in family law with cross-border implications, there is still the
requirement of unanimity (e.g.: international succession, divorce, marriage, adoption, …)
Important: enhanced cooperation (art. 20 TFEU) = a procedure whereby a select group of MS
can advance amongst themselves using EU institutions, even if the other MS don’t want to join
them = min 9 MS can establish advanced cooperation/integration, without other MS being
bound. PIL is the biggest user of enhanced cooperation. Result: l’Europe à la carte
Tip for the exam: first ask yourself it if applies to opt-in and opt-out countries, and then ask yourself if
there was enhanced cooperation
2.5 EU PIL in post-Brexit UK
Don’t dismiss the relevance of EU PIL in continuing litigation in the UK:
There’s acquired EU-law = any procedure that was introduced before IP day
(implementation day = implementation of transitionary period = 31/12/2020) will still be
subject to EU-law (there’s still quite a lot of litigations that were started before IP day)
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, There’s also retained EU-law. UK was a MS of EU for 40+ years ⥤ has a lot of
implemented EU law ⥤ can’t just replace that many laws in only 1 year. So, by using
retained EU-law, they just copied the already implemented EU law and said that from the
day of withdrawal (01/01/2021), all of UK law in areas previously regulated by EU law,
will still be EU law. The goal is to amend those laws gradually. This is confusing for citizens,
but very profitable for lawyers:
There’s a withdrawal agreement = regulates the life of many UK citizens who are still
in the EU (and vice versa)
TCA (application can be difficult) ⥤ has more direct impact on UK businesses, less so
on UK natural persons
You have acquired EU-law = all those procedures introduced before IP day are subject
to EU-law proper
You have retained EU-law which now still looks like EU-law, but will change gradually
over time
3 Brussels Ia Regulation: jurisdiction
3.1 History
Brussels Convention (with 6 MS) 1968 = result of art. 220 EEC. In statute book (you can bring
it to the exam), there is a table of equivalence between the Brussels Convention of 1968 and
Brussels I (2001) + table of equivalence between the 2001 and the 2012 regulation
1968 Convention: recognition and enforcement (Dutch: EEX Verdrag = Executieverdrag)
2001 Brussels I Regulation = Jurisdiction Regulation (EEX Verordening)
2012 Brussels Ia Regulation (BIa) = international treaty. If you look at the preparatory
works, you see it wasn’t a Commission proposal because it wasn’t an EU-law instrument
⥤ you have a classic public international law trail of travaux
The mission creep = facilitation recognition and enforcement: free movement of
jurisdictions (quickly became an exercise in jurisdiction)
Work with report (Jenard: still an authoritative source of interpretation)
Lugano Convention = important because at some point (when the MS were setting up a
cooperation with the EFTA States), they started realising that the idea of free movement of
judgments = part of the support for the internal market ⥤ it would encourage corporations to
do business with each other. With the Lugano Convention, this idea was extended to the EFTA
MS that wanted to join the Convention (Sweden, Norway, Iceland)
Remark: there is a second Lugano Convention (Lugano II) since 2007. We must be aware of
this: the moment there’s involvement of a SW, IC, NO party, it may be that Lugano applies
(sometimes even when Brussels Ia doesn’t apply (supra)). This is an intuition we must have.
Lugano is almost a copy-paste of Brussels Ia, but not quite! Particularly if you think of the
dates, you’ll appreciate why: the most recent Lugano Convention = in 2007 ↔ the most
recent Brussels Regulation = 2012, where quite a few changes were made. Hence, Lugano
is not a copy- paste of the current Brussels Ia Regulation: it is almost a copy-paste of the
previous Brussels I Regulation of 2001
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