3.1.2 Scope of Application Basic Principle: Freedom of Choice Applicable Law in the Absence of Choice

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1 CONTENTS Preface to the First Edition, v Preface to the Second Edition, vii Table of Cases... xvii Table of Legislation...xxxv Table of Conventions, Treaties... liii 1. Introduction The Concept, Nature and Development of Private International Law Sources of Private International Law The Three Processes of Private International Law, and Standard Connecting Factors Procedural Issues Application of the Law Characterisation (French: Qualification) of the Legal Question Connecting Factor Lex Causae Characterisation, Renvoi and the Incidental Issue or Vorfrage Forum Shopping and Forum non Conveniens The Impact of European Law on the Private International Law of the Member States Legal Basis The Development of European Private International Law Policy The Core of European Private International Law: Jurisdiction Summary The Brussels I Recast Regulation Scope of Application: Subject-Matter Scope of Application Ratione Personae The Jurisdictional Rules of the Regulation Detailed Review of the Regulation Trust is Good, Control is Better Scope of Application: Subject-Matter The Existence of an International Element Civil and Commercial Matters...30

2 x Contents Case 29/76 Eurocontrol Case 814/79 Ruffer Case C-271/00 Gemeente Steenbergen Case C-292/05 Lechouritou C-645/11 Sapir Case C-302/13 fly LAL Joined Cases C-226/13, C-245/13, C-247/13 and C-578/13 Fahnenbrock ( Direct and Immediate Effect ) Exclusions, Among which Exclusion of Insolvency and Arbitration Scope of Application Ratione Personae Domicile The International Impact of the Regulation The Jurisdictional Rules of the Regulation: A Matrix Exclusive Jurisdiction, Regardless of Domicile: Article Rights in Rem and Tenancies of Immovable Property Specifically with Respect to the Extension to Tenancies Short-Term Holiday Lets Contractual Action in Combination with Actio in Rem The Incorporation of Companies and Certain Other Aspects of Company Law The Validity of Entries into Public Registers Proceedings Concerned with the Registration or Validity of Patents, Trade Marks, Designs or other Similar Rights Required to be Deposited or Registered Proceedings Concerned with the Enforcement of Judgments Reflexive Application of the Exclusive Jurisdictional Rules? Jurisdiction by Appearance/Prorogation: Article Insurance, Consumer and Employment Contracts: Articles Protected Categories Generally Consumer Contracts Contracts for Individual Employment Insurance Contracts Agreements on Jurisdiction ( Choice of Forum or Prorogation of Jurisdiction ): Article The Overall Intention of Choice of Court Agreements Under the Brussels Regime Choice of Court in Favour of a Court Outside the EU: A Reflexive Effect for Article 25?...115

3 Contents xi Conditions with Respect to the Expression of Consent The Law Applicable to the Formation of Consent Sinking the Torpedo: Lis Alibi Pendens for Choice of Court The EU s Accession to the Hague Convention and the Consequential Priority of the Latter Binding Force of the Choice of Court Agreement on Third Parties General Jurisdiction: Defendants Domiciled in a Member State Where a Court is Seized: Article Special Jurisdiction: Defendants Domiciled in Another Member State: Articles Article 7(1): Actions Relating to a Contract Forum Contractus The Special Jurisdictional Rule for Tort: Article 7(2) Forum Delicti Commissi Multipartite Litigation and Consolidated Claims: Articles 8 (and 9) Multiple Defendants: Article 8(1) Warranties, Guarantees and Any Other Third Party Proceedings: Article 8(2) Counterclaims: Article 8(3) Matters Relating to Rights in Rem in Immovable Property: Article 8(4) Residual Jurisdiction: Defendants not Domiciled in any Member State: Article Loss of Jurisdiction: Lis Alibi Pendens ; and Related Actions: Articles Lis Alibi Pendens Identity of Parties Identity of Object or Subject-Matter Identity of Cause of Action Lis Alibi Pendens and the Forum Non Conveniens Doctrine Related Actions Applications for Provisional or Protective Measures: Article Recognition and Enforcement Recognition Enforcement The Core of European Private International Law: Applicable Law Contracts Summary Principles...203

4 xii Contents Scope of Application Basic Principle: Freedom of Choice Applicable Law in the Absence of Choice Detailed Review of the Regulation Scope of Application Contractual Obligations Exclusions Universal Application Freedom of Choice Protected Categories Applicable Law in the Absence of Choice Characterisation of the Contract Habitual Residence The Characteristic Performance Test Manifestly Closer Connection The Ultimate Option: Closest Connection Formal Validity, Consent and Capacity Incapacity Formal Validity Mandatory Law, and Public Order Purely Domestic Contracts: Article 3(3) Mandatory EU Law: Article 3(4) Overriding Mandatory Law: Article Public Policy: Article The Relationship with Other Conventions The Core of European Private International Law: Applicable Law Tort Introduction General Principles Scope of Application Situations Involving a Conflict of Laws Only Courts and Tribunals? Application to Arbitration Tribunals Non-Contractual Obligations Excluded Matters Non-Contractual Obligations Arising out of Family or Similar Relationships Non-Contractual Obligations Arising out of Matrimonial Property Regimes, Property Regimes of Relationships Deemed by the Law Applicable to such Relationships to have Comparable Effects to Marriage, and Wills and Succession Non-Contractual Obligations Arising Under Bills of Exchange, Cheques and Promissory Notes and Other Negotiable Instruments to the Extent that the Obligations Under such Other Negotiable Instruments Arise out of their Negotiable Character The lex Societatis Exception

5 Contents xiii Violations of Privacy and Rights Relating to Personality, Including Defamation Other Exclusions Civil and Commercial Matters Applicable Law General Rule: Lex Loci Damni One General Exception to the General Rule and One Escape Clause General Exception: Parties Habitually Resident in the Same Country Escape Clause: Case Manifestly More Closely Connected with Other Country Specific Choice of Law Rules for Specific Torts No Specific Rules for Protected Categories Product Liability Unfair Competition and Acts Restricting Free Competition Environmental Damage Damage Caused by Infringement of Intellectual Property Rights Damage Caused by Industrial Action Freedom to Choose Applicable Law Scope of the Law Applicable Contract-Related Tort Claims Overriding Mandatory Law and Public Order The Insolvency Regulation The Overall Nature of and Core Approaches to Insolvency and Private International Law Genesis of the Insolvency Regulation General Context of the 2015 Amendments Scope of Application, Dovetailing with the Brussels I Recast and Overall Aim The So-called Bankruptcy Exception Under the Jurisdiction Regulation The Definition of Insolvency Proceedings Four Cumulative Conditions Collective Proceedings Based on the Debtor s Insolvency Which Entail the Partial or Total Divestment of a Debtor Which Entail the Appointment of a Liquidator, Now Called an Insolvency Practitioner Opening by a Court or Judicial Authority? Relation with the Judgments Regulation (Brussels I Recast): Dovetail or Not? Core Aim of the Regulation The International Impact of the Regulation The Jurisdictional Model: Universal Jurisdiction Based on COMI, Alongside Limited Territorial Procedures

6 xiv Contents Main Insolvency Proceeding: Centre of Main Interest (COMI) COMI as (Un)Defined by the Regulation European and National Case-Law on COMI Universality of the Proceedings Opened in the COMI Member State When is an Insolvency Procedure Opened within the Meaning of the Regulation? Secondary and Territorial Insolvency Proceedings Territorial Insolvency Proceedings Secondary Insolvency Proceedings Applicable Law Exceptions Recognition and Enforcement of Insolvency Proceedings Judgments Concerning the Opening of Insolvency Proceedings Other Judgments in the Course of Insolvency Proceedings Defences Against Recognition and Enforcement Powers of the Liquidator/Insolvency Practitioner The European Succession Regulation Introduction The Regulation Broadly Introduced The Notion of Courts and the Position of the Office of Notary Scope of Application Ratione Materiae Ratione Loci Ratione Tempore Harmonisation of the Rules on Jurisdiction and Applicable Law Complete Harmonisation No Residual Private International Law Concerning Succession Law? Jurisdiction Applicable Law The Concept of Habitual Residence The European Certificate of Succession Dispositions of Property upon Death The Administrator of the Estate Bottlenecks/Obstacles/Problems Free Movement of Establishment, Lex Societatis and Private International Law Daily Mail Centros Ǜ berseering Inspire Art Cartesio and its Mirror Image: Vale Grid Indus

7 Contents xv 8. Private International Law, Corporate Social Responsibility and Extraterritoriality The Role of Private International Law in Operationalising Corporate Social Responsibility The United States: Litigation Based on the Alien Tort Statute The Discovery of ATS by the CSR Community Corporate Liability Under ATS and the Setback Under Kiobel The Touch and Concern Test of the US Supreme Court in Kiobel Post-Kiobel Case-Law Summary on the US The European Union Jurisdiction General Jurisdictional Rule: Article 4 of the Brussels I Recast Regulation Special Jurisdictional Rule: Article 7(5) Brussels I Recast Regulation Operations Arising out of a Branch Special Jurisdictional Rule: Article 7(2) Brussels I Recast Tort Special Jurisdictional Rule: Article 7(4) Jurisdiction Regulation Review of the Jurisdiction Regulation The International Dimension of the Regulation Applicable Law Piercing of the Corporate Veil and Compliance Strategies Inspiration from Competition Law? Outside of Competition Law Conclusion Annexes Regulation 1215/2012, the Brussels I Recast Regulation Rome I Rome II Regulation 2015/848, the Insolvency Recast Regulation Regulation 650/2012, the Succession Regulation Index...513

Litigating the overseas activities of corporations

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