The Prestige litigation before the CJEU. A tricky Opinion on court-sanctioned arbitral awards as judgments under Brussels Ia.

I give background to Collins AG’s Opinion in C-700/20 The London Steam-Ship Owners’ Mutual Insurance Association Limited v Kingdom of  Spain here. The Court of Appeal nota bene in the meantime has held that the High Court should have never referred, as I report here.

Does an English ‘Section 66’ (Arbitration Act) judgment, which confirms an arbitral award is enforceable in the same way as a judgment in ordinary, qualify as a judgment under the recognition and enforcement Title of Brussels Ia? If it does, the Spanish judgment contradicting the award is unlikely to be recognised.

The case at issue in essence enquires how far the arbitration exception of Brussels Ia stretches. Does the arbitration DNA of the case once and for all means any subsequent involvement of the courts is likewise not covered by Brussels Ia (meaning for instance that it must not have an impact on the decision to recognise and enforce an incompatible judgment issued by another Member State in the case); or should the  involvement of the courts in ordinary be judged independently against the Regulation’s definition of ‘judgment’.

The case therefore echoes the High Court’s later intervention in the infamous West Tankers case, and the recent CJEU judgment in C-568/20 J v H Limited (on third country judgments).

(44) the 1958 New York Convention does not come into play in the proceedings for the reason that those proceedings do not involve, as Article I(1) of that convention requires, the recognition and enforcement of an arbitral award in a State other than that in which that award was made: the award was made in the UK.

The AG suggests a broad scope of the exclusion, seeking support in the Jenard and Schlosser Reports. He also confirms the exclusion of arbitration has the effect, in particular, of making it impossible to use that regulation to enforce an arbitral award in another Member State by first turning it into a judgment and then asking the courts of the other Member State to enforce that judgment under Chapter III.

However, in the case at issue he suggests the proceedings are not caught by the arbitration exception, for 3 reasons:

(53) the notion of ‘judgment’ needs to be interpreted broadly;

(54) CJEU Solo Kleinmotoren instructs that for a finding to be a ‘judgment’,  ‘the decision must emanate from a judicial body of a Contracting State deciding on its own authority on the issues between the parties’;  that is the case here for (55) the S66 court does not rubberstamp; it discusses and settles a range of substantive issues between the parties;

(57) there is no requirement that a court must determine all of the substantive elements of a dispute in order to deliver a judgment that satisfies the purposes of that provision; reference here is made to CJEU C-394/07 Gambazzi (see the Handbook 2.576).

In the view of the AG (62) A1(2) is not determinative as to whether a judgment under the recognition and enforcement Title comes within the scope of the Regulation. Those provisions, he suggest, were enacted for different purposes and pursue different objectives: they aim to protect the integrity of a Member State’s internal legal order and to ensure that its rule of law is not disturbed by being required to recognise a foreign judgment that is incompatible with a decision of its own courts. A1(2) on the other hand is firmly part of the free movement of judgments rationale of the Regulation (and limitations thereto).

I think the CJEU judgment could go either way and if I were a betting man (which I am not) I suspect the Court will not follow and instead will take the same holistic approach towards protecting the application of Brussels Ia by the courts in ordinary, as it did in CJEU West Tankers. By the very nature of s66 (and similar actions in other Member States), the ‘issues between the parties’ are different in actions taking place entirely in courts in ordinary, and those in arbitration awards which are subsequently sanctioned (in the sense of ‘approved’) by a court. The latter proceedings do not discuss ‘the issues’ between the parties. They only engage a narrow set of checks and balances to  ensure the soundness of the arbitration process.

Neither do I follow the logic (63) that if the UK were not allowed to take account of the s66 judgment in its decision to recognise, it would mean that Member States would have to ignore all internal judgments with res judicata in an excluded area, including insolvency, social security etc., in favour of other Member States judgments ‘adjudicating upon the same issue’ (63): if they truly adjudicate upon ‘the same issue’, the judgment of the other Member State will be exempt from Brussels Ia. This is unlike the case at hand which clearly did involve a Spanish judgment on a subject matter covered by the Regulation. The arbitration exemption is the only exemption that relates to a modus operandi of conflict resolution: all the others relate to substantive issues in conflict resolution.

Commercial arbitration enjoys a peculiar privilege in the CJEU’s view on ADR (see CJEU Komstroy). I do not think however the Court will give it a forum shopping boost in the context of Brussels Ia.

Geert.

EU Private International Law, 3rd ed. 2021, ia 2.120.

 

The CJEU confirms a corporation’s general duty of care is not caught by the corporate carve-out. Judgment in ZK v BMA (Peeters Gatzen suit) impacts on business and human rights litigation, too.

The CJEU a little while back held in C‑498/20 ZK v BMA on the applicable law for the Dutch ‘Peeters Gatzen’ suit, for which I reviewed the AG Opinion here. The suit is  a tortious suit brought by a liquidator. In Nk v BNP Paribas the CJEU held at the jurisdictional level it is covered by Brussels Ia, not by the Insolvency Regulation.

A first issue of note, which I discuss at some length in my earlier post, is whether the liability is carved-out from Rome II as a result of the lex societatis provision. The CJEU confirms the AG’s contextual analysis, without repeating his general criterion, emphasises the need for restrictive interpretation, and specifically for the duty of care holds that liability resulting from a duty of care of a corporation’s bodies and the outside world, is covered by Rome II. This is important for business and human rights litigation, too: [55]

Pour ce qui concerne spécifiquement le manquement au devoir de diligence en cause au principal, il convient de distinguer selon qu’il s’agit du devoir spécifique de diligence découlant de la relation entre l’organe et la société, qui ne relève pas du champ d’application matériel du règlement Rome II, ou du devoir général de diligence  erga omnes, qui en relève. Il appartient à la seule juridiction de renvoi de l’apprécier.

The referring judge will have to decide whether the case engages the duty of care vis-a-vis the wider community (including the collectivity of creditors) however it would seem most likely that it does. If it does, locus damni is held, confirming the AG view, to be The Netherlands if the referring judge finds that the insolvent corporation’s seat is based there. The financial damage with the creditors is indirect only and does not establish jurisdiction.

[44] Should a judge decide that they do not have jurisdiction over the main claim, they also and necessarily have to relinquish jurisdiction over the warranty /guarantee claim against a third party under A8(2) BIa. CJEU Sovag is referred to in support.

Geert.

Galapagos Bidco v DE. The CJEU fails to clarify whether move of COMI by mere market notice, may be effective.

Krzysztof Pacula reported end of March on CJEU C-723/20 Galapagos Bidco v DE and justifiably highlighted the Brexit issue. The case concerns a move of COMI – centre of main interest within the context of the Insolvency Regulation 2015/848 and it is on the element of impromptu move that my post will focus.

Galapagos SA is a Luxembourg holding company whose centre of administration (‘effective place of management‘ according to the former directors) was moved in June 2019, at least so contend previous directors, to England. At the end of August 2019, they apply to the High Court in England and Wales to have insolvency proceedings opened.

Echos of the tussle are here and of course also in Galapagos Bidco SARL v Kebekus & ors [2021] EWHC 68 (Ch). The day after the move of centre of administration, the former directors were replaced with one other, who moved centre of administration to Dusseldorf and issued relevant market regulation statements to that effect. This move was subsequently recognised  by the Courts at Dusseldorf as having established COMI there. The High Court action in London was never withdrawn and would seem to have been dormant since.

Applicant in the proceedings is Galapagos BIDCO Sarl, a creditor of Galapagos SA. It is I understand (but I am happy to be corrected by those in the know) Luxembourg based. As Krzysztof reports, it contests that the German move has effected move of COMI which it argues lies in England (although I fail to see how its reasoning should not also apply to the earlier instant move from presumably Luxembourg to England).

The question that arises is whether, in the determination of the centre of a debtor company’s main interests, specific requirements must be imposed to prevent abusive conduct. Specifically, in the light of the Regulation’s stated aim of preventing forum shopping, whether ‘on a regular basis’ in the second sentence of the first subparagraph of Article 3(1) Insolvency Regulation 2015, presupposes an adequate degree of permanence and is not present if the establishment of a centre of administration is pursued at the same time as a request to have insolvency proceedings opened. Respondents in the appeal, which include the insolvency administrator (trustee) contend that the requirement of administration ‘on a regular basis’ is fulfilled if the administration is permanent.

The CJEU unfortunately fails to answer that question, choosing to reply instead with a hierarchical answer which encourages race to court: [36]

the court of a Member State with which a request to open main insolvency proceedings has been lodged retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is moved to another Member State after that request is lodged, but before that court has delivered a decision on that request, and that, consequently, where a request is lodged subsequently for the same purpose before a court of another Member State, that court cannot, in principle, declare that it has jurisdiction to open such proceedings until the first court has delivered its decision and declined jurisdiction.

However in the case at issue, the Withdrawal Agreement has the effect that if the High Court has not, as it would seem, taken its decision on the opening of proceedings prior to the end of Brexit Implementation Day 1 January 2021 (CET), the German courts need no longer apply that consequence of mutual trust and are at liberty to determine the existence of COMI.

The CJEU ends by suggesting Q1 no longer needs answering. Yet I think it does. Perhaps not so much for the case at issue (which explains why the judicially economical CJEU does not offer a reply). The German courts, as Zacaroli J notes in his decision [14], held in October 2019 that COMI for GAS has successfully moved to Germany as from 25 August 2019, the day the capital market and bondholders were informed that the centre of administration had been moved to Düsseldorf. Yet the file does not suggest that COMI prior to the attempted move, existed in Germany: it was established there following the new director’s decision. In accordance with the Regulation’s presumptions, it would have previously existed in Luxembourg. The element of ‘on a regular basis’ therefore still matters. Is the CJEU suggesting that a mere information of the capital markets suffices to move COMI?

Geert.

EU Private International Law, 3rd ed. 2021, Heading 5.6.1.

 

CJEU holds EU flight Regulation abides by customary international law in extending its reach to flights partially carried out outside the EU.

A brief post on the judgment of the CJEU in C-561/20 United Airlines. The CJEU held that the EU flight delay compensation rules of Regulation 261/2004 apply to a flight operated by non-EU airline on behalf of EU airline, even when  the delay relates to flight segment outside the EU. On the issue of international jurisdiction, the Court engages with customary international law questions, referring ia to its C-366/10 ATAA judgment which I discussed here.

The CJEU firstly [51] repeats that since

a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying such a principle

I do not think its poor view on the lucidity of customary international law is justified, however its finding that only manifest errors may lead to illegality does of course mean the CJEU does not have to worry about all the nuts and bolts of territorial jurisdiction. It suffices [52] that there is a close connection with the territory of the EU since the Regulation specifies that connecting flights fall within the scope of that regulation on the ground that the passengers have started their journey from an airport located in a Member State. [53]:

The regulation applies to a long delay caused in a leg of a flight operated in a third country only in limited and clearly defined circumstances in which the flight concerned, taken as a whole, is operated from an airport located in the territory of a Member State. Such a flight and its passengers thus retain a close connection with the territory of the European Union, including for the leg of the flight operated outside the European Union.

Flights which are wholly operated in a third country or between two third countries, without any connection with EU territory [55].

Geert.

J v H Limited. CJEU holds third country judgments may, under circumstances, be smuggled into Brussels Ia via the backdoor. Yet they will be vulnerable to ordre public exceptions.

I reviewed Pikamae AG’s Opinion in C-568/20 J v H Limited here. The issue is whether, exequatur having been abandoned in Brussels Ia, arguments as to whether the a judgment issued in a third, non EU Member, State of origin be at all covered by Brussels Ia may be raised by way of an Article 45 objection to recognition and enforcement.

The CJEU has now held and first of all clarifies its findings in C-129/92 Owens Bank. [36]: Owens Bank does not mean that a decision adopted on the basis of a judgment emanating from a third State, in accordance with the rules on jurisdiction and procedure of a Member State, may never fall within the scope of that regulation. [26] it is sufficient (but also necessary, GAVC) that they be judicial decisions which, before their recognition and enforcement are sought in a State other than the State of origin, have been, or have been capable of being, the subject, in that State of origin and under various procedures, of an inquiry in adversarial proceedings. This re-emphasises the audi alteram partem principle such as emphasised eg in CJEU Zulikarpašić. It also means that ‘exequatur sur exequatur ne vaut‘ is not quite dead, as has been suggested – a mere confirmative order of an ex-EU judgment without adversarial proceedings would not enjoy free movement.

At [29] the Court moreover instructs, with reference to the principle of mutual trust, that the courts in the State of recognition, must not apply the definition restrictively. In the case at issue [32] the High Court order at issue in the main proceedings was, at the very least, the subject of a summary hearing in the Member State of origin, hence it qualifies as a ‘judgment’.

While the Court effectively acknowledges that this amounts to Brussels Ia-sanctioned recognition and enforcement of non-EU judgments through the backdoor (‘on the substance, that [UK, GAVC] order was made so as to give effect to judgments delivered in a third State which are not, as such, enforceable in the Member States’: [33]), A45’s grounds of refusal, including infringement of ordre public, remain available: [45]

Such an infringement may, inter alia, lie in the fact that the party against whom enforcement is sought was not able to defend him or herself effectively before the court of origin and to challenge the decision sought to be enforced in the Member State of origin

Geert.

EU Private International Law, 3rd ed 2021, 2.573.

No Harry, don’t look at the light! The CJEU in Sharewood on Rome I’s rei sitae exception to consumer protection.

In C-595/20 Sharewood, the CJEU last week held on the extent of Rome I’s rei sitae exception to consumer contracts. In essence, as a result of Article 6 Rome I, for consumer contracts, choice of law is free (in the case at issue this lex voluntatis was Swiss law) except the consumer may always fall back on the mandatory laws of his habitual residence (here, Austrian law).

For a limited selection of contracts, including (A6(4)c) ‘a contract relating to a right in rem in immovable property or a tenancy of immovable property other than a contract relating to (timeshares)’, party  autonomy is restored in full under the terms of Articles 3 and 4 Rome I, hence the consumer loses his protection.

The contract at issue is a tree purchase, lease and service agreement. The trees at issue are grown in Brasil. The ground rent for the lease agreement, which granted the right to grow the trees in question, was included in the purchase price of those trees. The service agreement provided that ShareWood would manage, administer, harvest and sell the trees and would remit the net return on the timber to UE, the (anonymised) consumer. The difference compared to the gross return, expressed as a percentage of the return, was retained by ShareWood as its fee for the provision of those services.

The question in the case at issue is essentially how intensive the link to (foreign) soil needs to be for it to fall under the rei sitae carve-out for consumer contracts. The CJEU does refer to some of its Brussels Ia case-law, including Klein and Kerr, for the ‘tenancy’ element of the question, but not for the ‘rights in rem’ part of the discussion, where it more straightforwardly concludes on the basis of the contractual arrangements that the trees [28]

must be regarded as being the proceeds of the use of the land on which they are planted. Although such proceeds will, as a general rule, share the same legal status as the land on which the trees concerned are planted, the proceeds may nevertheless, by agreement, be the subject of personal rights of which the owner or occupier of that land may dispose separately without affecting the right of ownership or other rights in rem appertaining to that land. A contract which relates to the disposal of the proceeds of the use of land cannot be treated in the same way as a contract which relates to a ‘right in rem in immovable property’, within the meaning of Article 6(4)(c) of the Rome I Regulation

and [37]

the main purpose of the contract at issue in the main proceedings is not the use, in the context of a lease, of the land on which the trees concerned are planted, but… to generate income from the sale of the timber obtained following the harvest of those trees. As is apparent from the order for reference, the lease provided for in that agreement, which includes only the right to allow those trees to grow and has no purpose other than the acquisition of those trees, is intended merely to enable the sales and services elements provided for in the contract to be carried out.

Not caught therefore by the rei sitae exception.

I often refer my students to Harry, in A Bug’s Life, to make the point that both for jurisdictional and for applicable law purposes, the mere presence of real estate does not lead to the rei sitae jurisdictional and governing law implications being triggered. CJEU Sharewood is a good illustration of same.

Geert.

 

Bayer at the CJEU on neonicotinoids. (Belatedly) of bees, ponies, sophistry and precaution.

The CJEU held (first Chamber, which includes the  CJEU President Koen Lenaerts) in C‑499/18 P Bayer Crop Science v European Commission a few months back. Here at GAVCLaw the judgment was firmly on our minds – but my analysis not yet put to paper.

The case centres around the legality of the conditions imposed by the EU for the approval of the active substances clothianidin, thiamethoxam and imidacloprid (these are neonicotinoids), and prohibiting the use and sale of seeds treated with plant protection products containing those active substances. The act challenged by Bayer is Commission Implementing Regulation 485/2013 and the justification for the measures are the documented losses of honeybee colonies as a result of the use of the substances.

The application follows a tried and tested path of applicants in the chemical and related sectors. Firstly and preferably, find some holes in the (often extensive) documentary trail of preparatory and advisory paperwork relied upon by the Institutions in their measure, and claim these devastate the legality of the eventual measure. A typical example would be ‘the studies relied upon reported testing of the substances on small ponies while the eventual regulation cites concerns for both small and medium-sized ponies’. Secondly, try and tempt the CJEU into finding fault with the application of core principles of EU law (such as subsidiarity, proportionality, ultra vires, attributed powers etc) and /or EU sectoral policy (such as in particular the precautionary principle), or confuse the Court with at best esoteric but usually sophistic discussions on eg ‘new and scientific knowledge’.

The General Court had found against Bayer. Much of the appeal before the CJEU discusses the first type of arguments and, like the General Court, dismisses them.

On the suggested infringement of the precautionary principle, the Court first of all rejects that precaution cannot be relied upon until an ‘exhaustive’ scientific assessment is made: [81]: ‘an exhaustive risk assessment cannot be required in a situation where the precautionary principle is applied, which equates to a situation in which there is scientific uncertainty.’ The point is NOT that precaution does not engage with science. It does. That is also where its weakness may lie: it desperately speaks the language of data, science and numbers yet as the saying goes, “Data is like a spy – if you torture it long enough, it will tell you anything you want to know.” The point is rather (see eg [78]) that for one to have to wait for every single new potential sub-study into a sub-issue, would hand industry the golden ticket for delay tactics; [82] that studies are underway which may call into question the available scientific and technical data, is not an obstacle to application of the precautionary principle.

Bayer put essentially the same argument to the CJEU with slightly differing angles (eg suggesting that for already approved active substances, precaution must be applied to a higher threshold than for new to be approved substances) and the Court rejected them at each turn.

Update 18 February 2022 Compare nb also recently the General Court in T‑518/19 Sipcam on economic cost-benefit and the precautionary principle.

A good judgment.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

 

 

 

 

 

LOT. Place of performance under Article 7(1)a in case of multicarrier flights. The CJEU dismisses landing place of first leg of multileg flight as forum contractus.

The CJEU held yesterday in C-20/21 LOT Polish Airlines, on the place of performance (hence creation of jurisdiction in an application for flightdelay compensation) of a flight consisting of a confirmed single booking and performed in several legs by two separate air carriers. That the claim came within Article 7(1)’s gateway for contracts is a result of CJEU flightright. The Court also held in that case that both the place of departure of the first leg of the journey and the place of arrival of the last leg of the journey were forum contractus.

In the case at issue, jurisdiction is sought for the place of landing of the first leg of the journey. In CJEU Zurich Insurance, on multimodal transport, place of dispatch was added as forum contractus, with the CJEU refraining from holding explicitly whether other legs of the journey could count as such forum (Tanchev AG had opined they should not). In current case, the CJEU would seem to confirm my feeling that in Zurich Insurance it implicitly sided with a limitation of fora. Indeed it holds that the place of arrival of the first leg is not forum contractus under A7(1), however, there is a caveat: [24]:

the referring court does not indicate the elements of the contract which could justify, with a view to the efficacious conduct of proceedings, the existence of a sufficiently close link between the facts of the dispute in the main proceedings and its jurisdiction.

The CJEU’s dictum is formulated in more absolute terms:

The second indent of [A7(1) BIa] must be interpreted as meaning that, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs on which transport is performed by separate air carriers, where a claim for compensation, brought [under the flightdelay Regulation 261/2004] arises exclusively from a delay of the first leg of the journey caused by a late departure and is brought against the air carrier operating that first leg, the place of arrival for that first leg may not be classified as a ‘place of performance’ within the meaning of that provision

However given the caveat [24] it is not to be excluded that contractual terms could distinguish the finding of lack of forum contractus.

Geert.

EU Private International Law, 3rd ed. 2021, 2.399 ff.

J v H Limited. Pikamae AG emphasises the ‘safety valve’ of disciplining fellow European judges’ incorrect decisions on the scope of application of EU private international law.

I am hoping to tackle some of the pre-Christmas queue this week, kicking off with the Opinion (no English version available) of Pikamae AG in C-568/20 J v H Limited. The case concerns the enforcement of a 2019 decision of the England & Wales High Court [I believe that judgment is Arab Jordan Investment Bank Plc & Anor v Sharbain [2019] EWHC 860 (Comm). The dates do not quite correspond (6 days of) but the amounts and line of argument do].

Clearly the UK were still a Member State at the time. The English decision was based, in turn, on two Jordanian judgments of 2013. It had rejected, on the basis of the English common law (judgments issued outside the EU are not subject to EU recognition and enforcement rules), the arguments against enforcement in the UK. The judge subsequently issued an Article 53 Brussels Ia certificate.

The issue is not whether a judgment merely confirming a non-EU judgment, may be covered by Article 53 Brussels Ia. CJEU Owens Bank has already held they cannot (see Handbook, 3rd ed. 2021, 2.573). The issue is rather whether, exequatur having been abandoned in Brussels Ia, arguments as to whether the judgment in the State of origin be at all covered by Brussels Ia, may be raised by way of an Article 45 objection to recognition and enforcement.

CJEU Diageo Brands, among others, has confirmed the narrow window for refusal of recognition on the basis of ordre public. The AG suggests wrong decisions on the scope of application of BIa, leading to incorrect A53 certificates, may fall within that category. Far from upsetting the principle of mutual trust, he suggests it is a necessary ‘safety valve’, a “soupape de sécurité » (40) which assist with said mutual trust. The AG qualifies the opinion by suggesting the issuing of an A53 certificate for a judgment that merely enforces an ex-EU judgment, is a grave error in the scope of application of the Regulation.

Should the CJEU confirm, discussion of course will ensue as to what are clear errors in the scope of application, or indeed in the very interpretation of Brussels Ia.

Geert.

EU Private International Law, 3rd ed 2021, Heading 2.2.17.1.

Ask me no questions, and I’ll tell you no lies. The CJEU on internet (libel) jurisdiction in Gtflix.

The CJEU held yesterday in Grand Chamber in C-251/20 GtflixTV – for the facts see my initial flag of the case here. I reviewed the Opinion of Hogan AG here. The AG need not have bothered for the Court entirely ignores the Opinion.

The AG had predicted, as had I, that the CJEU would not heed his calls (joining those of plenty of AGs before him) that the Article 7(2) CJEU Bier introduced distinction between Handlungsort and Erfolgort be abandoned or at least curtailed. The CJEU however also dismisses his suggestion that the case at issue, which involves defamation of competitors over the internet, does not engage the Bolagsupplysningen case-law (infringement of personality rights over the internet) but rather Tibor Trans on acts of unfair competition.

I do not see quite clearly in the Grand Chamber’s mention [28] that Gtlix did not request inaccessibility of the information in France: for Gtflix did request retraction.

Instead of qualifying locus damni jurisdiction, the CJEU squarely confirms its faith in the Mosaic consequences of Article 7(2) locus damni jurisdiction. Each court in whose district damage has occurred, will continue to have locus damni jurisdiction even if the claimant requests rectification of the information and the removal of the content placed online in the Handlungsort or centre of interests jurisdiction. Locus damni jurisdiction in my view extends only to the damage occurring in that district (for Article 7(2) determines territorial, not just national jurisdiction), albeit in current, internet related case the CJEU [38] would seem to speak of ‘national’ jurisdiction, linked to accessibility in the Member State as a whole.

Those courts’ locus damni jurisdiction is subject to the sole condition that the harmful content must be accessible or have been accessible in that Member State. Per CJEU Pinckney, an additional direction of activities to that Member State is not required (the recent High Court approach in Mahmudov on which I shall blog shortly, is at odds with that approach nota bene).

Grand Chamber judgments must not only be expected in cases where earlier authority is radically changed or qualified. It can also occur in cases where the CJEU wishes to reconfirm a point earlier made but stubbornly resisted in scholarship and lukewarmly embraced in national court practice.

Geert.

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