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EU Private International Law Elgar European Law 2nd Edition Peter Stone Online Reading

The document is a promotional overview of the second edition of 'EU Private International Law' by Peter Stone, highlighting its academic significance and the evolution of EU private international law since its first edition. It outlines the structure of the book, which covers civil jurisdiction, choice of law, family matters, and insolvency, while emphasizing the harmonization of laws within the EU. The text also provides links to additional related legal resources available for download.

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EU Private International Law
ELGAR EUROPEAN LAW

Founding editor: John Usher, formerly Professor of European Law and Head, School of
Law, , UK

European integration is the driving force behind constant evolution and change in the laws of
the member states and the institutions of the European Union. This important series will offer
short, state-of-the-art overviews of many specific areas of EU law, from competition law to
consumer law and from environmental law to labour law. Whilst most books will take a
thematic, vertical approach, others will offer a more horizontal approach and consider the
overarching themes of EU law.
Distilled from rigorous substantive analysis, and written by some of the best names in the
field, as well as the new generation of scholars, these books are designed both to guide the
reader through the changing legislation itself, and to provide a firm theoretical foundation for
advanced study. They will be an invaluable source of reference for scholars and postgraduate
students in the fields of EU law and European integration, as well as lawyers from the respec-
tive individual fields and policymakers within the EU.
Titles in the series include:

EU Consumer Law and Policy


Stephen Weatherill

EU Private International Law


Harmonization of Laws
Peter Stone

EU Public Procurement Law


Christopher H. Bovis

EU Criminal Law and Justice


Maria Fletcher and Robin Lööf with Bill Gilmore

Judicial Review in EU Law


Alexander H. Türk

EU Intellectual Property Law and Policy


Catherine Seville

EU Private International Law


Second Edition
Peter Stone
EU Private International
Law
Second Edition

Peter Stone
Professor, School of Law, University of Essex, UK

ELGAR EUROPEAN LAW

Edward Elgar
Cheltenham, UK • Northampton, MA, USA
© Peter Stone 2010

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or
transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or
otherwise without the prior permission of the publisher.

Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK

Edward Elgar Publishing, Inc.


William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA

A catalogue record for this book is available from the British Library

Library of Congress Control Number: 2009941137

ISBN 978 1 84844 083 8 (cased)

Typeset by Cambrian Typesetters, Camberley, Surrey


Printed and bound by MPG Books Group, UK
04
Contents
Preface vi

PART I INTRODUCTION

1 Introduction 3

PART II CIVIL JURISDICTION AND JUDGMENTS

2 History, outline and scope 17


3 Domicile 52
4 Alternative jurisdiction 75
5 Protected contracts 123
6 Exclusive jurisdiction 143
7 Submission 164
8 Concurrent proceedings 189
9 Provisional measures and taking evidence 210
10 Recognition and enforcement of judgments 222
11 Enforcement procedure 255

PART III CHOICE OF LAW IN RESPECT OF OBLIGATIONS

12 Contracts 287
13 Protected contracts 346
14 Torts 369
15 Restitution 411

PART IV FAMILY MATTERS

16 Matrimonial proceedings 419


17 Parental responsibility 443
18 Other family matters 483

PART V INSOLVENCY

19 Insolvency 509

Index 537

v
Preface
The European Union legislation in the sphere of private international law has undergone
considerable development since the publication of the first edition of this work in 2006.
The case-law on existing EU measures (the Brussels I Regulation on civil jurisdiction and
judgments; the Rome Convention 1980 on the law applicable to contractual obligations;
the Brussels IIA Regulation on matrimonial matters and parental responsibility; and the
Regulation on insolvency proceedings) has continued to expand, and several new EU
regulations have been adopted. Thus choice of law in respect of civil obligations is now
governed by the Rome I Regulation on contractual obligations, and by the Rome II
Regulation on non-contractual obligations. In the sphere of family law, a Regulation on
jurisdiction, choice of law and judgments in respect of maintenance obligations has been
adopted and will become applicable in 2011. The European Union has become a member
of the Hague Conference on Private International Law, and is in the process of giving
effect, in relation to external countries, to the Hague Convention 1996 on parental respon-
sibility and child protection, and to the Hague Convention 2005 on choice of court agree-
ments. With regard to the EFTA countries, a revised Lugano Convention on civil
jurisdiction and judgments has been concluded by the European Union and brought into
operation in relation to Norway. Consideration has also begun of a proposal for an EU
regulation dealing with succession on death.
In general, the present author continues to welcome the harmonisation of private inter-
national law at European Union level. Since private international law seeks to co-ordinate
the operation of private law in the interests of justice and certainty for persons involved
in transnational activities or relationships, and the achievements of these goals can be
obstructed by divergencies between the rules adopted in different countries, the establish-
ment of a harmonised system of private international law, operative throughout most of
Europe, seems an appropriate activity for the EU institutions. Thus the recent willingness
of British governments to give way to pressure from certain commercial interests and their
level advisers, and accordingly to play an obstructive role in relation to this harmonisation
project, seems entirely regrettable.
On the other hand, there are features of the current approach adopted by the European
institutions in this sphere which appear to merit fundamental reconsideration. In particu-
lar, the enthusiasm of the EU Commission to eliminate the need, in the context of the
enforcement of one Member State of a judgment given in another Member State, for an
enforcement order made by a court of the State of enforcement, seems unjustified and,
indeed, dangerous. Apart from the practical difficulties which may arise, the idea of auto-
matic enforceability gives far too little consideration to the need to ensure that (at least)
private individuals and small businesses receive a minimum of essential procedural
protection from the courts of the country in which they reside or are based. Even the
suppression of jurisdictional review in the State addressed goes beyond what has been
found acceptable between sister States in the United States of America, and has obvious

vi
Preface vii

dangers, especially in relation to proceedings brought in bad faith. There is a real risk that
excessive enthusiasm for ‘the free movement of judgments’ may eventually discredit the
whole process of harmonisation in this sphere.
In general the manuscript of this work was completed in January 2010. But major
developments (such as rulings given by the European Court) up to September 2010 have
been incorporated.

Peter Stone
Colchester
England
PART I

Introduction
1. Introduction

PRIVATE INTERNATIONAL LAW AND ITS HARMONISATION


The area of law known as private international law, or the conflict of laws, addresses three
kinds of problem which arise, in connection with legal relationships governed by private law,
where a factual situation is connected with more than one country. Rules of private interna-
tional law may conveniently be referred to as conflict rules.
Such a situation may arise from the connections of persons, of acts or events, or of prop-
erty involved. Thus relevant connections may include an individual’s domicile, residence, or
nationality; the place of incorporation, or the location of the headquarters, or of a branch, of
a company; the place of conclusion or performance of a contract; the place where an accident
giving rise to a tort claim occurred; or the location of property.
Three kinds of problem are dealt with by conflict rules. They relate to direct jurisdiction;
to choice of law; and to foreign judgments. Rules on direct jurisdiction define the circum-
stances in which the courts of one country are competent, and should be willing, to entertain
proceedings in respect of disputes which have some connection with another country. Such
rules are applicable by a court for the purpose of determining its own jurisdiction to entertain
proceedings instituted before it. Rules on choice of law select from the connected countries
the one whose law is to supply the substantive rules to be applied in determining the merits
of the dispute. Rules on foreign judgments define the circumstances in which a judgment
given by a court of one country is to be recognised or enforced in another country.
In the modern world, every country having a developed legal system has its own set of
conflict rules, which form part of its private law. Such rules differ from one country to
another, and these differences tend to undermine the purposes of the rules. For such purposes
include the achievement of legal security (by way of certainty, predictability and uniformity
of results, regardless of which country’s courts are involved) for the persons involved. Like
any other rules of a country’s private law, its conflict rules may be harmonised with those of
other countries by means of international treaties, and in this respect much has been achieved
by the conventions negotiated at the Hague Conference on Private International Law.1
Especially in recent years, further harmonisation has been achieved at European level by
measures adopted within the framework of the European Community or Union, and it is on
such harmonisation that the present work is focused.

1 On 3rd April 2007, the European Community became a member of the Hague Conference on
Private International Law, by accession pursuant to EC Council Decision 2006/719, [2006] OJ L297/1.
See pp. 13–14 et seq. below.

3
4 EU private international law

HARMONISATION AT EUROPEAN COMMUNITY LEVEL


Since the entry into force of the Treaty of Lisbon on 1st December 2009, the adoption at
European level of measures for the harmonisation of conflict rules is now governed by Title
V (Articles 67–89) of Part III of the Treaty on the Functioning of the European Union. These
provisions have replaced Title IV (Articles 61–9) of the EC Treaty, under which many impor-
tant measures had been adopted in the sphere of private international law, mainly in the form
of EC regulations adopted either by the Council alone, or jointly by the Council and the
Parliament. By the Treaty of Lisbon, the European Union has replaced and succeeded to the
European Community.
Article 67(1) of the Treaty on the Functioning of the European Union declares that the
Union constitutes an area of freedom, security and justice with respect for fundamental rights
and the different legal systems and traditions of the Member States. Article 67(4) adds that
the Union is to facilitate access to justice, in particular through the principle of mutual recog-
nition of judicial and extrajudicial decisions in civil matters.
Within Title V of the Treaty on the Functioning of the European Union, Chapter 3 (Article
81) is entitled Judicial Co-operation in Civil Matters.2 Article 81(1) requires the Union to
develop judicial co-operation in civil matters having cross-border implications, based on the
principle of mutual recognition of judgments and of decisions in extrajudicial cases; and spec-
ifies that such co-operation may include the adoption of measures for the approximation of
the laws and regulations of the Member States. Then Article 81(2) authorises the adoption of
measures for these purposes, particularly when necessary for the proper functioning of the
internal market,3 aimed at ensuring the following results:

(a) the mutual recognition and enforcement between Member States of judgments and of
decisions in extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of
laws and of jurisdiction;
(d) co-operation in the taking of evidence;
(e) effective access to justice;
(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary
by promoting the compatibility of the rules on civil procedure applicable in the Member
States;
(g) the development of alternative methods of dispute settlement; and
(h) support for the training of the judiciary and judicial staff.

Thus it seems clear that all aspects of private international law may be subjected to harmon-
isation by measures adopted under Title V.
Article 81(2) also specifies that measures under Article 81 are to be adopted by the
Parliament and the Council, acting in accordance with the ordinary legislative procedure.4

2 Article 81 replaces Articles 65 and 67 of the EC Treaty.


3 The insertion of ‘particularly’ in Article 81(2) seems designed to weaken the requirement of
connection with the internal market, as compared with Article 65 of the EC Treaty.
4 This corresponds to the co-decision procedure under the EC Treaty.
Introduction 5

But an exception is made by Article 81(3) in respect of measures concerning family law with
cross-border implications. Measures on family law are to be established by the Council,
acting in accordance with a special legislative procedure, under which the Council will act
unanimously after consulting the European Parliament.5
The power of the European Court to give preliminary rulings on the validity or interpreta-
tion of acts of the European institutions at the request of national courts, now conferred by
Article 267 of the Treaty on the Functioning of the European Union, now has full application
to measures adopted under Article 81 of that Treaty or under its predecessor, Articles 61(c)
and 65 of the EC Treaty. Prior to the entry into force of the Treaty of Lisbon, Article 68 of
the EC Treaty enabled preliminary rulings on the interpretation of measures adopted under
Title IV thereof to be requested only by national courts of last resort, but this restriction has
now been eliminated by the Treaty on the Functioning of the European Union. Thus a refer-
ence for the interpretation of a provision of, for example, the Brussels I Regulation may now
be made by any court of a Member State, whether the referring court is a court of first
instance, a court of intermediate appeal, or a court of final appeal.6
By Protocol 21 to the Treaty on European Union and the Treaty on the Functioning of the
European Union, as amended by the Treaty of Lisbon, measures adopted under Title V of Part
III of the Treaty on the Functioning of the European Union apply to the United Kingdom or
Ireland only if they elect to participate in the adoption of, or after its adoption to accept, the
measure in question. By Protocol 22, as so amended, measures adopted under Title V do not
apply to Denmark, unless and until it elects wholly or partly to abandon this opt-out. These
provisions conferring options on the relevant Member States resemble those formerly made
by Article 69 of the EC Treaty, along with associated Protocols, in relation to measures
adopted under Title IV of that Treaty. But Protocol 22 now enables Denmark to substitute a
regime giving it an option in relation to each individual measure, similar to that enjoyed by
the United Kingdom and Ireland.
So far Ireland has chosen to participate in the adoption of all of the measures which have
been adopted under Title IV of the EC Treaty in the sphere of private international law, and
with one exception7 the United Kingdom has chosen either to participate in the adoption of,
or after adoption to accept, all of these measures. Accordingly, almost all of the existing
measures in this sphere are applicable to the United Kingdom and to Ireland. But these
measures have not become applicable to Denmark except where a special agreement on their
extension to Denmark has been concluded between the European Community and Denmark.

5 Article 81(3) also permits the Council to adopt a decision transferring aspects of family law with
cross-border implications to the ordinary legislative procedure. Such a decision may be adopted by the
Council, acting unanimously on a proposal from the Commission and after consulting the European
Parliament. But the proposal must also be notified to the national Parliaments, and if a national Parliament
makes known its opposition within six months of the notification, the decision cannot be adopted.
6 In principle, a national court of last resort has an obligation to refer relevant questions, but this
is subject to the limited exception relating to clear and obvious points admitted by the European Court
in Case 283/81: CILFIT v Ministry of Health [1982] ECR 3415. For a sound application of the acte clair
principle in the sphere of private international law, see T v L [2008] IESC 48 (Irish Supreme Court). For
a rejection of a reference by a lower court, relating to the Brussels I Regulation, as inadmissible under
Article 68 of the EC Treaty, see Case C-278/09: Martinez v MGN, 20th November 2009.
7 The exception relates to EC Council Decision 2009/941, on the Hague Protocol 2007 on the
Law Applicable to Maintenance Obligations.
6 EU private international law

Before 1999, measures designed to secure the harmonisation of conflict rules at EC level
had taken the form of conventions, signed and ratified by the Member States. Conventions in
this sphere could be concluded on the basis of Article 220 of the EEC Treaty, or its succes-
sor, Article 293 of the EC Treaty, which required the Member States, so far as is necessary,
to enter into negotiations with each other with a view to securing for the benefit of their
nationals (inter alia) the simplification of formalities governing the reciprocal recognition and
enforcement of judgments of courts or tribunals and of arbitration awards. Conventions could
also be based on a voluntary choice by the Member States to go beyond the requirements of
that provision. After the entry into force of the Treaty of Maastricht on European Union, such
conventions could also be drawn up by the Council, and recommended to the Member States
for adoption in accordance with their respective constitutional requirements, on the basis of
Title VI (Article K) of that Treaty, which dealt with co-operation in the fields of justice and
home affairs, including judicial co-operation in civil matters. After the entry into force of the
Treaty of Amsterdam, Title VI of the Treaty of Maastricht ceased to be available; and after
the entry into force of the Treaty of Lisbon, Article 293 of the EC Treaty has also ceased to
be available. Thus future measures at European level within the sphere of private interna-
tional law must now be based on Article 81 of the Treaty on the Functioning of the European
Union.
The measures of European harmonisation of conflict rules, currently adopted or proposed,
may be classified under five headings: civil jurisdiction and judgments; the law applicable to
civil obligations; family matters; insolvency; and procedural co-operation.

CIVIL JURISDICTION AND JUDGMENTS


The Brussels I Regulation

The most important Community instrument in the sphere of private international law is
Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in
Civil and Commercial Matters, which is commonly referred to as the Brussels I Regulation.8
The Regulation was adopted by the EC Council on 22nd December 2000. It entered into force
on 1st March 2002 for the fourteen then existing Member States other than Denmark; on 1st
May 2004 for the ten then acceding Member States;9 on 1st January 2007 for Bulgaria and
Romania;10 and on 1st July 2007 for Denmark.11 It has replaced the Brussels Convention of
27th September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters, which is commonly referred to as the Brussels Convention.12

8 For its text, see [2001] OJ L12/1. The Brussels I Regulation is examined in Chapters 2–11 and
18 of the present work.
9 See the Athens Act of Accession 2003, Article 2. For minor adjustments, see its Annex II, Part
18(A)(3).
10 See the Luxembourg Act of Accession 2005, Articles 2 and 56; [2005] OJ L157.
11 See the Agreement between the European Community and Denmark, approved by EC Council
Decisions 2005/790 and 2006/325; [2005] OJ L299/61 and [2006] OJ L120/22.
12 For the latest version of its text, see [1998] OJ C27/1. The Convention was based on Article
220 of the EEC Treaty.
Introduction 7

The Regulation lays down rules on direct jurisdiction, applicable by the court seised of the
original action in determining its own jurisdiction, as well as rules on the recognition and
enforcement of judgments given in other States to which the Regulation applies. It applies to
most types of civil matter. But certain matters (such as most family matters; and insolvency
proceedings) are excluded from its scope.
On 21st April 2009, the EC Commission issued a Report on the Application of the
Brussels I Regulation,13 together with a Green Paper on the Review of the Regulation.14
These documents launched a consultation, designed to lead eventually to a proposal for the
amendment of the Regulation.

The Lugano Conventions

The Brussels I Regulation is supplemented by the Lugano Convention of 16th September


1988 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,
which may conveniently be referred to as the Lugano Convention 1988.15 This was designed
in substance to extend the Brussels Convention to the EFTA countries, and its substantive
provisions largely accord with those of the 1989 version of the Brussels Convention. It
remains in force between the fifteen pre-2004 EC Member States, and Switzerland, Iceland
and Poland.
A revised version, which may conveniently be referred to as the Lugano Convention 2007,
has been signed and concluded by the European Community.16 This entered into force
between the Community, Denmark and Norway on 1st January 2010, but it has not yet
entered into force for Switzerland and Iceland. Its contents largely reflect the Brussels I
Regulation.

The Hague Convention 2005

A Convention on Choice of Court Agreements was adopted at the Hague Conference on


Private International Law on 30th June 2005. This Convention was signed by the European
Community on 1st April 2009,17 and has also been signed by the United States of America,
and acceded to by Mexico; but it has not yet entered into force.

Uncontested Claims

As regards judgments, the Brussels I Regulation is now supplemented by EC Regulation


805/2004, creating a European Enforcement Order for Uncontested Claims.18 This

13 COM(2009) 174 final.


14 COM(2009) 175 final.
15 For its text, see [1988] OJ L319/9. See also the Jenard and Möller Report, [1990] OJ C189/57.
16 See EC Council Decisions 2007/712 and 2009/430; [2007] OJ L339/1 and [2009] OJ L147/1.
The revised Convention was signed at Lugano on 30th October 2007. For its text, see [2009] OJ L147/5.
17 See EC Council Decision 2009/397; [2009] OJ L133/1. For the text of the Convention, see
[2009] OJ L133/3. The Convention is examined at pp. 181–6 and 252–4 below.
18 This will be referred to as the Uncontested Claims Regulation. For its text, see [2004] OJ
L143/15. For discussion, see Chapters 10 and 11 below.
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