Content IPRax-Issue 3/2024 (June 2024)

In addition to numerous substantive legal problems, the diesel emissions scandal raises intricate questions of conflict of laws. For actions brought by plaintiffs domiciled abroad, it must be clarified which law is applicable to claims for damages against domestic manufacturers of emissions-manipulated vehicles. At first glance, numerous connecting factors of the Rome II Regulation come into consideration for the claims. As a result, the general conflict rule of Art. 4 para. 1 Rome II Regulation should cover these cases. Despite the tortious qualification of producer liability, one small but essential aspect could be assessed under German law on the basis of the company statute: the attribution of knowledge. This question is addressed in the second part of the article.

Private international law often mentions the concept of habitual residence. Where a person’s habitual residence is located at must be determined based on an overall assessment of objective and subjective criteria. The task poses particular challenges if the person whose habitual residence is to be determined is suffering from dementia. It is then debatable to what extent her will to reside and remain at a certain location can be taken into account. The article contends that the will of a person with dementia to stay and remain at a certain location should be considered in the overall assessment, insofar as this is possible. Should the person with dementia no longer be able to form or express such a will, her best interests and hypothetical will should be taken into consideration instead.

In three parallel decisions of 27 July 2023, the German Federal Supreme Court (Bundesgerichtshof ) activated a rather unique provision of German procedural law (section 1032 (2) ZPO) to review the validity of arbitration clauses in intra-EU investment disputes under Union law (as stipulated by the CJEU in case C-286/16, Achmea). This annotation interprets the decisions of the Bundesgerichtshof in the light of recent developments of EU law regarding investment arbitration and in the context of current developments of investment protection in the European Union. It demonstrates that the enforcement of awards arising out of intra-EU investment arbitration will finally be stopped either by the domestic laws of EU member states on arbitration or by EU legislation on the prohibition of state aid.

The article reviews a decision of the German Federal Labour Court dealing in the first place with the question whether an employee can sue a legal person – which is not his employer and not domiciled in a Member State within the meaning of Article 63(1) of Regulation No 1215/2012 (Brussels Ia Regulation) – under a letter of comfort, according to which the legal person is directly liable to the employee for claims arising from an individual contract of employment with a third party. The second question is whether German law is applicable according to Regulation (EC) No 593/2008 (Rome I Regulation) to claims arising under such a letter of comfort. Following the guidance of the European Court of Justice (ECJ) in a decision of 20.10.2022 (C-604/20) both questions are answered by the German Federal Labour Court in the affirmative. The author does not criticize the decision of the German Federal Labour Court, which was determined by the decision of the ECJ, but the decision of the ECJ itself.

In its judgment of July 5th, 2023, the German Federal Court of Justice (BGH) further developed its case-law on the law applicable to an action for indemnity between the insurers of a tractor unit coupled with a trailer arising as a result of a road traffic accident that occurred in a Member State other than the one where the vehicles are registered. Having regard to the CJEU’s ruling in its joined cases ERGO Insurance and Gjensidige Baltic, the BGH held that the law governing such an action must be determined either in accordance with Art. 19 Rome II Regulation or solely by reference to Art. 7 Rome I Regulation. Once again, the BGH refrained from initiating a preliminary ruling procedure under Art. 267 TFEU regarding the question as to how the law governing claims for indemnity is to be determined under the Rome I or Rome II Regulation. Instead, the BGH annulled the appellate court’s decision and referred the case back to that court to carry out further enquiries as to whether the law of the country where the two vehicles are registered, that is, Romanian law, satisfied the conditions of Art. 7(4)(b) Rome I Regulation and thus governed the insurance contracts of the parties. In this case, Romanian law would take precedence by analogy to Art. 4(4) Rome I Regulation over the concurrently designated German law. This article argues that, in view of the specific circumstances of the case, the BGH cannot be criticised for not having referred the question of which of the alternative approaches of determining the applicable law is correct to the CJEU for a preliminary ruling. Nevertheless, the assumption that the law governing an action for indemnity between insurers must be determined either in accordance with Art. 19 Rome II Regulation or by reference to Art. 7 Rome I Regulation alone is not free of doubt. Furthermore, it is questionable whether Art. 7(4)(b) Rome I Regulation allows Member States to apply their own law to claims for indemnity between insurers. Hopefully, the CJEU will soon be given an opportunity to resolve all the intertwined issues of interpretation of the Rome I Regulation and the Rome II Regulation regarding actions for contribution and indemnity between insurers.

The Saarbrücken Higher Regional Court had to deal with claims for compensation for use by the (German) owner against the (French) possessor of a laboratory car. This provided the court with a rare opportunity to address the characterization of claims under the “owner-possessor-relationship” (§§ 987 et seq. BGB).

In its decision handed down on 25 January 2022, the German Federal Court of Justice (BGH) had to decide on the proper qualification (also termed classification or characterization) process in European Private International Law. The court had to find the conflict rule applicable to a Polish statutory provision on the personal liability of the management board’s sole member for the unpaid debts of a Polish company undergoing insolvency proceedings at its Center of Main Interest (COMI) in Germany. It was faced with the task of choosing between the conflict rules of European international company law, international insolvency law (European Insolvency Regulation) and tort law (Rome II Regulation). The court did not decide on the matter or asked the European Court of Justice for a preliminary ruling. Instead, it referred the issue back to the Court of Appeal, claiming that the answer could not be found without knowledge of the provision’s classification in substantive Polish law. The author criticizes this approach as violating the principle of autonomous interpretation of European law detached from the terminology and concepts of the Member States’ substantive laws.

In this abduction case, parents fought for over eight years about parental responsibility over their son who was abducted in 2014, when he was half a year old, by the mother from Spain to Germany, her home country. On his application, the Spanish father – first not knowing the whereabouts of mother and child – was granted personal custody for his son by a Spanish court. However, his return application to a German court in 2016 failed because of Art. 12 ss 2 Hague Abduction Convention. For lack of international jurisdiction, several court applications by mother and father failed. But finally, the father got a Spanish title ordering the mother to return the child. The Spanish court issued a certificate under Art. 42 ss 2 Brussels IIbis Regulation. The German Family Court and the Court of Appeal denied a stay of the enforcement of this Spanish decision because of Art. 43 Brussels IIbis Regulation. The mother then launched a constitutional complaint for provisional measures hindering enforcement.

Aside from interesting questions on Art. 12 ss 2 Hague Abduction Convention and on international jurisdiction, the case raises the issue whether the courts in the country of enforcement might stay or deny enforcement if the title obviously does not qualify as privileged title under Art. 42 Brussels IIbis Regulation, because there was no decision under Art. 11 ss 8 Brussels IIbis Regulation as required by Art. 40 ss 1 (b) Brussels IIbis Regulation. In addition, the question arose whether a serious endangerment of the child’s wellbeing could hinder a decision of the courts of the enforcement state to stay or deny enforcement at least in extreme cases.

In his first decision, the German Federal Constitutional Court (BVerfG) left open the second issue, but stayed the enforcement for a certain time because it seemed arguable that the enforcement state was not hindered to question enforcement under the rules on privileged decisions if these rules were not applicable at all. In the other two decisions, the Federal Constitutional Court dealt with the admissibility of the constitutional complaint in the principal proceedings. The court now denied admissibility because, since 1 August 2022, the Brussels IIter Regulation enabled mother and child to apply to the German courts for a change of the Spanish order and to get judicial protection against enforcement by the German Family Court. Unfortunately, the Federal Constitutional Court does not comment on Art. 100 ss 2 Brussels IIter Regulation and the problem of the still validly subsisting Spanish order.

12 BGH 277.2023 I ZB 43/22

13 BGH 27.7.2023 I ZB 74/22

14 BGH 27.7.2023 I ZB 75/22

15 BAG 29.3.2023 5 AZR 55/19

16 BHG 5.7.2023 IV ZR 375/21

17 OLG Saarbrücken 5.4.2023 U 54/21

18 BGH 25.1.2022 II ZR 215/20

19 BverfG 1.8.20233 1 BvQ 50/22

20 BVerfG 5.9.2023 1 BVR 1691/22

21 BVerfG 12.10.2023 1 BvR 1558/22

The new Private International Law Act of the Republic of Korea (KPILA 2022), which took eight years to prepare, was promulgated on 4.1.2022, and finally took effect on 5.7.2022. The greatest significance of the KPILA 2022 is the introduction of many detailed rules on international jurisdiction to adjudicate (hereinafter, “International jurisdiction rules”). Consequently, the KPILA 2022 has a dual structure, with one wing comprising the international jurisdiction rules and another choice of law rules. It has been accordingly evaluated as a breakthrough change and is a significant development in the history of private international law of the Republic of Korea. Regarding their substantive content, the international jurisdiction rules have the following features. Firstly, many of them have been developed by consulting the venue provisions of domestic laws including the Civil Procedure Act. Secondly, some of them reflect the attitude of the precedents of the Supreme Court under the Korean Private International Law Act 2001. Thirdly, several provisions of international documents were incorporated in pursuit of international consistency. Fourthly, the “targeted activity” criteria have been adopted in consideration of wide internet use. Fifthly, the doctrine of forum non conveniens, as understood under Anglo-American law, was accepted subject to strict requirements.