Droit international général

The Court of Justice delivered today (7 September 2023) its decision in case C‑590/21 (Charles Taylor Adjusting Ltd, FD v Starlight Shipping Co., Overseas Marine Enterprises Inc.), which is about a “quasi anti-suit injunction” and recognition and enforcement of judgments from other Member States:

“Article 34(1) of [Brussels I] read in conjunction with Article 45(1) thereof, must be interpreted as meaning that a court or tribunal of a Member State may refuse to recognise and enforce a judgment of a court or tribunal of another Member State on the ground that it is contrary to public policy, where that judgment impedes the continuation of proceedings pending before another court or tribunal of the former Member State, in that it grants one of the parties provisional damages in respect of the costs borne by that party on account of its bringing those proceedings on the grounds that, first, the subject matter of those proceedings is covered by a settlement agreement, lawfully concluded and ratified by the court or tribunal of the Member State which gave that judgment and, second, the court of the former Member State, before which the proceedings at issue were brought, does not have jurisdiction on account of a clause conferring exclusive jurisdiction”.

One of the key points: “the judgment and orders of the High Court [of England and Wales] could be classified as ‘“quasi” anti-suit injunctions’. While the purpose of that judgment and those orders is not to prohibit a party from bringing or continuing legal action before a foreign court, they may be regarded as having, at the very least, the effect of deterring Starlight and OME, together with their representatives, from bringing proceedings before the Greek courts or continuing before those courts an action the purpose of which is the same as those actions brought before the courts of the United Kingdom, which matter is, in any event, for the referring court to determine” (paragraph 27). The Court adds, at paragraph 28, that “An injunction having such effects would not […] be compatible with Regulation No 44/2001”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=277063&mode=req&pageIndex=3&dir=&occ=first&part=1&text=&doclang=EN&cid=434606

How does the anchor defendant mechanism operate in the realm of EU trade marks and actions on trade mark infringement? Is the existence of an exclusive distribution agreement between the defendants sufficient to rely on this mechanism? Those are the questions that the Court of justice addresses in its judgment handed down this morning in the case Beverage City Polska, C-832/21.

A Polish company manufactures, advertises and distributes an energy drink. Its managing director is domiciled in the city where this company is based.

A German company is connected to the Polish one through an exclusive distribution agreement for Germany – on this basis, it sourced the energy drink from the Polish Company. Its managing director is also domiciled in Germany, in a different state of that country.

Another German company being a proprietor of an EU trade mark brings an action for injunctive relief throughout the entire EU and supplementary claims against the Polish and German companies as well as against their managing directors before a court in Germany, with jurisdiction over the place where the managing director of the German company is domiciled.

The German court bases its jurisdiction over the Polish defendants (the company and its managing director) on Article 8(1) of the Brussels I bis Regulation, referring to the principles established in the judgment of the Court of Justice in Nintendo.

As a reminder, Article 8(1) of the Brussels I bis Regulation – applicable in the case via Article 122 of the EU trade mark Regulation – states: ‘A person domiciled in a Member State may also be sued […] where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’

This decision is contested by the Polish company and its managing director.

The second instance court refers the following question to the Court of Justice for a preliminary ruling:

‘Are claims “so closely connected” that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of [Regulation No 1215/2012], where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?’

In his Opinion delivered this March, AG Richard de la Tour proposed the Court to answer the preliminary question in a following manner:

‘Article 8(1) of the Brussels I bis Regulation […] must be interpreted as meaning that more than one defendant, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled that are seised, in the context of infringement proceedings, of claims brought against them by the proprietor of an EU trade mark where the defendants are alleged to have infringed that trade mark in a materially identical manner through each of their acts in a supply chain. It is for the court seised to assess whether there is a risk of irreconcilable judgments resulting from separate proceedings, taking into account all the relevant material in the case file.’

In its judgment handed down this Thursday, the Court reminds that according to its case law in order for Article 8(1) to apply, it must be ascertained whether, between various claims brought by the same applicant against various defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. For decisions to be regarded as irreconcilable, it is not sufficient that there be a divergence in the outcome of the disputes, but that divergence must also arise in the context of the same situation of fact and law (para. 28).

Concerning the first requirement (ie. the same situation of law) the Court bases its reasoning on the universal effect of an EU trade mark within the territory of EU Member States. As such, for the Court, this requirement does not seem to be problematic in the situation at hand (para. 29 to 31).

This is the second requirement (ie. the same situation of fact) that is put under more scrutiny. The Court notes that – according to the information provided by the referring judge – the Polish and German companies do not belong to the same group. Furthermore, there is no link between the Polish company and its director, on the one hand, and the director of the German company described by the referring courts as an ‘anchor defendant’, on the other hand (para. 32).

Hence, the sole element potentially connecting the defendant companies seems to be the exclusive distribution agreement. The question is therefore whether such an agreement is sufficient to meet the requirement of ‘the same situation of fact’.

The Court starts it reasoning with a reminder: the purpose of the jurisdiction rule referred to in Article 8(1) of Brussels I bis Regulation is to facilitate the proper administration of justice, to reduce as far as possible the possibility of concurrent proceedings and thus to avoid solutions that might be irreconcilable if the cases were tried separately (para. 34). In order to assess whether there is a connection between the various claims brought before it, it is for the national court to take into account, in particular, the fact that several companies established in different Member States are accused, each separately, of the same acts of infringement in respect of the same products (para. 36).

Echoing the Opinion of its Advocate General, the Court states that the existence of a connection between the claims in question is based primarily on the relationship between all the acts of infringement committed, rather than on the organizational or capital links between the companies concerned. Similarly, in order to establish the existence of a single factual situation, particular attention must also be paid to the nature of the contractual relations existing between the companies involved (para. 37).

For the Court, the existence of the exclusive distribution agreement renders it more foreseeable that multiple actions on trade mark infringement will be considered as meeting the requirement of ‘the same situation of fact’ (para. 38).

The Court also noted that – as it transpires from the case file and the hearing – the close cooperation between the companies manifested itself in the operation of their websites, the domains of which belonged to only one of the co-defendants, through which the products at issue in the main proceedings were marketed by means of cross-references between these sites (para. 39). This also reveals the foreseeable nature of the obligation to respond to allegations of infringement from the same source before the same court (para. 40).

Probably to nuance those considerations, the Court adds that the circumstances justifying the reliance on the anchor defendant mechanism cannot be created in an artificial manner just in order to establish jurisdiction over co-defendants; that is, however, not the case if a ‘close link’ exists between the defendants – such a ‘close link’ exists in presence of an interest in hearing and judging them together to avoid solutions that might be irreconcilable if the cases were judged separately (para. 43-45).

Ultimately, the Court answered the preliminary question by stating that:

‘[…] a number of defendants, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled before which, in the context of an infringement action, claims have been brought against all of those defendants by the proprietor of an EU trade mark where they are each accused of having committed a materially identical infringement of that trade mark and they are connected by an exclusive distribution agreement.’

At least three aspects of the case merit particular attention:

• first, the requirement of ‘the same situation of fact’ appears to hinge on the defendant’s foreseeability that he may be summoned to a court with jurisdiction over other individuals or entities he collaborate with. In other terms, the closer the contractual link and the more intensive the cooperation are, the more one exposes himself to the risk of being sued outside of the court of his domicile through the anchor defendant mechanism;
• second, while the judgment stresses the relevance of contractual relations between the defendants and the fact of them being bound by an exclusive distribution agreement, it remains to be seen how this can translate into the situation of the managing director of a company against which the action is also brought through the anchor defendant mechanism; there is also even more fundamental the question of the possibility to consider that an action brought against the director of a company can ‘anchor’ via Article 8(1) the actions against another company and its director; those inquiries received consideration in the Opinion (points 68 et seq.);
• third, echoing the possibility to rely on the interdiction of the abuse of EU law from Vinyls Italia (para. 54 and 55) in the realm of private international law, the Court underscores that the facts underpinning a case should not be artificially fabricated just in order to justify the reliance on the anchor defendant mechanism.

The judgment can be found here.

On 27 October 2023, the Department of Private Law of Maastricht University (the Netherlands) is hosting a lecture by Prof. Dr. Horatia Muir Watt, Professor at the Sciences Po Law School (Paris), entitled: “Ecological Jurisprudence: The Shape of Legality at its Own Last Frontier (a Private International Law Approach)” at 17:00 (CEST time). This event will take place onsite and in English. For more information, click here.

Registration is free of charge. The deadline to register is 19 October 2023.

A Research Seminar with PhD researchers and Prof. Dr. Horatia Muir Watt will take place that same day from 10.00 – 12.00.

Prof. Horatia Muir Watt has recently published a book entitled: The Law’s Ultimate Frontier: Towards an Ecological Jurisprudence: A Global Horizon in Private International Law (Oxford: Hart, 2023). More information is available here.

London holds the distinction of being a preferred seat for arbitration, making significant developments in English arbitration law of general interest to arbitration specialists and, at times, private international lawyers. Few developments in arbitration law can match the significance of a reform affecting the statute providing a framework for arbitration. This is precisely what the Law Commission of England and Wales is recommending in its final report on the review of the Arbitration Act 1996.

One of the proposals aims to introduce a statutory rule for determining the governing law of an arbitration agreement, which significantly departs from the current common law position. Given the importance of this proposal, the EAPIL blog will host an online symposium on the law governing arbitration agreements from 11 to 13 September 2023.

In this post, I will introduce the Law Commission’s proposals and the symposium.

On 6 September 2023, following an extensive consultation process that included the publication of two consultation papers in September 2022 and March 2023, the Law Commission unveiled its proposals for reforming the 1996 Act (the text of the final report and draft Bill is available here; a summary is available here). These proposals aim to uphold the Act’s core principles, while introducing improvements aimed at enhancing London’s position as a global arbitration centre.

The Law Commission’s major proposals are: codifying an arbitrator’s duty of disclosure; strengthening arbitrator immunity around resignation and applications for removal; introducing the power to make arbitral awards on a summary basis; improving the framework for challenges to awards under section 67 on the basis that the tribunal lacked jurisdiction; adding a new rule on the law governing arbitration agreements; and clarifying court powers in support of arbitral proceedings and emergency arbitrators.

Additionally, the Law Commission proposes several minor corrections, including: allowing appeals from applications to stay legal proceedings; simplifying preliminary applications to court on jurisdiction and points of law; clarifying time limits for challenging awards; and repealing unused provisions on domestic arbitration agreements.

Since private international lawyers are likely more interested in the proposed choice-of-law rule for arbitration agreements and the proposed new relationship between courts and arbitrators regarding jurisdictional challenges, I will focus on these two proposals.

The Rome I Regulation does not cover arbitration agreements, leaving the determination of the law governing arbitration agreements in England to the common law choice-of-law rules for contracts. These rules are well-known: a contract is governed by the law expressly or impliedly chosen by the parties or, in the absence of choice, by the system of law with which the contract is most closely connected. Applying this rule to arbitration clauses can be difficult. Does a broad choice-of-law clause in a matrix contract amount to an express choice of law for the arbitration clause contained therein? If the parties have not expressly chosen the law to govern their arbitration clause, is the choice of law for the matrix contract an indication of implied choice for the arbitration clause? Is the designation of the arbitral seat an indication of such implied choice?

The United Kingdom Supreme Court addressed these questions twice in the past three years in Enka and Kabab-Ji. The court’s majority in Enka (Lord Hamblen, Lord Leggatt, and Lord Kerr) set out the following rules for determining the existence of parties’ choice of law in [170]:

iii) Whether the parties have agreed on a choice of law to govern the arbitration agreement is ascertained by construing the arbitration agreement and the contract containing it, as a whole, applying the rules of contractual interpretation of English law as the law of the forum.

iv) Where the law applicable to the arbitration agreement is not specified, a choice of governing law for the contract will generally apply to an arbitration agreement which forms part of the contract.

v) The choice of a different country as the seat of the arbitration is not, without more, sufficient to negate an inference that a choice of law to govern the contract was intended to apply to the arbitration agreement.

vi) Additional factors which may, however, negate such an inference and may in some cases imply that the arbitration agreement was intended to be governed by the law of the seat are: (a) any provision of the law of the seat which indicates that, where an arbitration is subject to that law, the arbitration agreement will also be treated as governed by that country’s law; or (b) the existence of a serious risk that, if governed by the same law as the main contract, the arbitration agreement would be ineffective. Either factor may be reinforced by circumstances indicating that the seat was deliberately chosen as a neutral forum for the arbitration.

vii) Where there is no express choice of law to govern the contract, a clause providing for arbitration in a particular place will not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of that place.

The court also clarified that the law of the seat is ‘generally’ the system of law most closely connected to the arbitration agreement.

Unsurprisingly, consultees said that these rules were complex and unpredictable. This has led the Law Commission to propose a reform of these rules in its second consultation paper.

The proposal has three key elements: 1) retaining express choice; 2) eliminating implied choice; and 3) specifying that the law of the seat applies in the absence of an express choice.

The proposed choice-of-law rule for arbitration agreements reads as follows:

6A Law applicable to arbitration agreement

(1) The law applicable to an arbitration agreement is—

(a) the law that the parties expressly agree applies to the arbitration agreement, or

(b) where no such agreement is made, the law of the seat of the arbitration in question.

(2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement.

(3) This section does not apply in relation to an arbitration agreement that was entered into before the day on which section 1 of the Arbitration Act 2023 comes into force.

If a party participates in arbitral proceedings, raises a jurisdictional challenge before the tribunal, and is accorded a fair hearing, should they be allowed to challenge the tribunal’s jurisdiction before a court using the same arguments and evidence? The answer to this question is principally guided by two somewhat conflicting considerations: efficiency and freedom of contract (which, of course, includes a freedom not to be bound by a non-existent or invalid contract).

The UKSC addressed this issue in Dallah. Lord Mance wrote obiter in [26] that:

An arbitral tribunal’s decision as to the existence of its own jurisdiction cannot…bind a party who has not submitted the question of arbitrability to the tribunal. This leaves for consideration the nature of the exercise which a court should undertake where there has been no such submission and the court is asked to enforce an award. Domestically, there is no doubt that, whether or not a party’s challenge to the jurisdiction has been raised, argued and decided before the arbitrator, a party who has not submitted to the arbitrator’s jurisdiction is entitled to a full judicial determination on evidence of an issue of jurisdiction before the English court, on an application made in time for that purpose under s.67 of the Arbitration Act 1996.

Lord Collins and Lord Saville expressed similar views in, respectively, [96] and [159]-[160].

The Law Commission believes that such a de novo rehearing is inefficient and unfair to the party wishing to enforce the arbitration agreement. It proposes to limit when a participating party can raise a jurisdictional challenge before English courts.

Following a very controversial proposal in its first consultation paper, the Law Commission has settled on a proposal that has the following four key elements: 1) it covers situations where a party participates in arbitral proceedings, objects to the tribunal’s jurisdiction, and the tribunal rules on its jurisdiction; 2) the court will not entertain any new grounds of objection, or any new evidence, unless it was not reasonably possible to put them before the tribunal; 3) the court will re-hear evidence only if necessary in the interests of justice; and 4) these limitations are to be introduced through rules of court rather than the 1996 Act itself.

The proposed rules outlining this new relationship between courts and arbitrators regarding jurisdictional challenges, to be inserted in section 67, read as follows:

(3A) Rules of court about the procedure to be followed on an application under this section may, in particular, include provision within subsection (3B) in relation to a case where the application—

(a) relates to an objection as to the arbitral tribunal’s substantive jurisdiction on which the tribunal has already ruled, and

(b) is made by a party that took part in the arbitral proceedings.

(3B) Provision is within this subsection if it provides that—

(a) a ground for the objection that was not raised before the arbitral tribunal must not be raised before the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant did not know and could not with reasonable diligence have discovered the ground;

(b) evidence that was not heard by the tribunal must not be heard by the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant could not with reasonable diligence have put the evidence before the tribunal;

(c) evidence that was heard by the tribunal must not be re-heard by the court, unless the court considers it necessary in the interests of justice.

From 11 to 13 September 2023, the EAPIL blog will host an online symposium on the law governing arbitration agreements. The focus will be on assessing the Law Commission’s proposal and providing a comparative perspective. Professor Alex Mills (UCL) and Dr Manuel Penades Fons (KCL) will kick off the discussion by assessing the proposed choice-of-law rule for arbitration agreements from a UK perspective on Monday 11 September 2023. More contributions from comparative perspectives will follow on Tuesday and Wednesday.

Readers are encouraged to participate in the discussion by commenting on the posts. Those wishing to submit longer analyses on the law governing arbitration agreements, the relationship between courts and arbitrators, or any other issue relating to the Law Commission’s final report are invited to do so by e-mailing Ugljesa Grusic (u.grusic@ucl.ac.uk).

The editorial team of the EAPIL blog has just become a bit larger! Ugljesa Grusic, an Associate Professor at the Faculty of Laws of UCL, has kindly accepted to join our invitation: thanks a lot, Ugljesa, and welcome!

Please check out Ugljesa’s first post here.

It’s a rather special first post, as it announces an on-line symposium, edited by Ugljesa himself, that will run from Monday to Wednesday next week, on the law applicable to arbitration agreements in light of the recent proposals of the English Law Commission.

The Court of Justice delivered on 13 July 2023 its judgement in case C‑87/22 (TT v AK), which is about the interpretation of Article 15 Brussels II bis:

“1. Article 15 of Council Regulation (EC) No 2201/2003 […] must be interpreted as meaning that the court of a Member State, which has jurisdiction to rule on the substance of a case on the matter of parental responsibility under Article 10 of that regulation, may exceptionally request the transfer of that case, provided for by Article 15(1)(b) of the regulation, to a court of the Member State to which the child has been wrongfully removed by one of his or her parents.

2. Article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that the only conditions to which the possibility for the court of a Member State with jurisdiction as to the substance of a case in matters of parental responsibility to request that that case be transferred to a court of another Member State is subject are those expressly set out in that provision. When examining those conditions in respect of, first, the existence in the latter Member State of a court better placed to hear the case and, second, the best interests of the child, the court of the first Member State must take into consideration the existence of proceedings for the return of that child which have been instituted pursuant to the first paragraph and point (f) of the third paragraph of Article 8 of the [1980 Hague] Convention on the Civil Aspects of International Child Abduction […] and in which a final decision has not yet been delivered in the Member State to which that child was wrongfully removed by one of his or her parents”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=275389&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4466841

Tim Wöffen (University of Osnabrück) kindly made us aware of the Proposal for a Directive on European cross-border associations, adopted on 5 September by the Commission. The proposal aims to facilitate cross-border activities of non-profit associations in the EU and to improve the functioning of the Internal Market by removing legal and administrative barriers for non-profit associations that operate or wish to operate in more than one Member State. With regard to private international law, Articles 4 and 22 et seq seem particularly relevant. The public is invited to give their comments until November 1st.

Tim offers some initial thoughts (in German) here.

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft, ZVglRWiss) features various contributions to a comparative law symposium that was held at the Private University in the Principality of Liechtenstein (UFL) in autumn 2022. The topic consisted of legal aspects of crypto currencies and assets, with a particular focus on comparative law and private international law. Here are the articles’ German titles and their English abstracts:

Erstes rechtsvergleichendes Symposion an der Privaten Universität im Fürstentum Liechtenstein

Heribert Anzinger und Gerhard Dannecker

ZVglRWiss 122 (2023) 243–251

A short introduction into the symposium’s subject.

Dörte Poelzig und Moritz Kläsener

ZVglRWiss 122 (2023) 252–268

Crypto assets have been the subject of lively discussion in German civil law literature for several years now. However, no comprehensive regulation has been enacted to date. Thus, the question remains as to how the various manifestations of crypto assets are to be classified under civil law, and what consequences this has, in particular, for legal protection and the manner of disposal. This question naturally concerns not only the German, but also the other European legislators. This article is concerned with the legal discussion in Liechtenstein, Switzerland, and Austria, meaning that its focus lies on legal systems that show a certain proximity to German law. Nevertheless, the article also takes a look at the less closely related English legal system. The solutions that were found in these legal systems will be presented here and compared with the German approaches in literature and legislation.

Matthias Lehmann

ZVglRWiss 122 (2023) 269–288

This paper compares emerging conflict-of-laws rules designed to determine the law applicable to digital assets, such as Bitcoin, Ether or stablecoins. Such rules have been developed in the U.S., England, Germany, Switzerland and Liechtenstein; in addition, UNIDROIT has recently drafted a Principle on the question. The article gives an overview of the different rules and tries to distill an “ideal” rule from them. The result could, for example, serve as inspiration for the German legislator or for the joint project of UNIDROITand the Hague Conference on Private International Law.

Jonas Stürmer

ZVglRWiss 122 (2023) 289–303

Crypto assets continue to be particularly popular with criminals and play a major role in various crimes. Although this also regularly poses practical difficulties for law enforcement authorities, it sometimes also offers opportunities for investigations. The particularly practice-relevant confiscation according to sections 73 onwards of the German Criminal Code as well as provisional preservation, on the other hand, are legally possible; here, too, practical challenges occur.

Daniela Hohenwarter-Mayr und Christina Mittermayer

ZVglRWiss 122 (2023) 304–337

The increase in popularity of alternative means of payment is bringing crypto assets closer to the focus of tax law. Due to their characteristics and various functionalities the proper taxation of income from cryptocurrencies is however a challenge. In addition to substantive law hurdles also the efficiency of tax enforcement is not ensured. Austria addresses these difficulties by incorporating cryptocurrencies into the taxation scheme for capital assets and the deduction of a withholding tax. This paper deals with the Austrian approach from a comparative law perspective, its constitutional implications and the need for an accompanying international exchange of information.

Jörn Erbguth

ZVglRWiss 122 (2023) 338–355

Blockchains have a complex relation to data protection. On the one hand, they are subject to criticism due to distributed responsibility and immutability – on the other hand, they can empower individuals and protect privacy better than centralized approaches through privacy enhancing technology. However, in the field of crypto asset trading, upcoming financial market regulations, e.g. the MiCA regulation, prohibit the use of anonymization features and facilitate the identification of transactions written on public blockchains with transaction parties. The paper discusses the compliance of crypto asset trading with the GDPR.

Ergebnise und Forschungsperspektiven des Ersten rechtsvergleichenden Symposions an der Privaten Universität im Fürstentum Liechtenstein

Tina Ehrke-Rabel

ZVglRWiss 122 (2023) 356–360

A short summary of the symposium’s main results and further perspectives for research.

The Hague Academy of International Law has made known the programme of the winter course on International Law of 2024.

The course will be opened by Yves Daudet (Hague Academy of International Law) with a lecture on Solidarity in International Law.

The general course, titled On the Interface between Public and Private International Law, will be given by Campbell Mclachlan KC (Victoria University of Wellington).

The special courses will be as follows: Ximena Fuentes (University of Chile), Defying Existing International Law as the Starting Point of the Formation of New Customary Law; Patrícia Galvão Teles (Autonomous University of Lisbon) The Advisory Function of International Courts and Tribunals; Maria Gavouneli (National and Kapodistrian University of Athens) Energy in International Law; August Reinisch (University of Vienna) The Settlement of Disputes Involving International Organizations; Ben Saul (University of Sydney) The Special Regime of International Counter-Terrorism Law; Santiago Villalpando (Office of United Nations Educational, Scientific and Cultural Organization – UNESCO) The Practice of the Law of Treaties since the Vienna Convention.

The directors of studies will be Fuad Zarbiyev (Geneva Graduate Institute) for the English-speaking section, and Paula Wojcikiewicz Almeida (Getulio Varga Foundation Law School in Rio de Janeiro) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee applicants is between 1 May 2023 and 1 October 2023. Selected attendees of the Winter Courses will also be able to participate in the doctoral networking sessions coordinated by Daniëlla Dam-de Jong (Leiden University), additional afternoon lectures, embassy visits, social activities,  and to register for an exceptional event: the “Hours of Crisis“ Simulation Exercise. The competition will be conducted in English only.

More information on the Academy’s programmes may be found here.

The eleventh edition of the treatise on Droit international privé in the Précis Dalloz series, one of the leading texts on private international law in France, has recently been published (January 2023, 1100 pages).

The previous edition was published ten years ago. The new, fully revised edition has been prepared by Pascal de Vareilles-Sommières (Sorbonne Law school, Paris I University), who was the co-author of the previous editions (alongside the late Yvon Loussouarn and Pierre Bourel), and Sarah Laval (Littoral Côte d’Opale University).

The first part, titled “Common rules governing private international law” (Règles générales de droit international privé), focuses on the general theory of private international law, and adopts an original distinction between “identification of the legal source” (i.e. in the three fields of choice of law, jurisdiction and judgments) and “regime of the foreign norm” (i.e. the regime of the international regularity (or lawfulness) of the foreign norm – law and judgment – and then the regime of the implementation of the foreign norm).

The second part, titled “Special rules governing private international law” (Droit international privé special), is concerned with the special rules applicable in the different fields of private law (i.e. persons, family, property, obligations, businesses). Another sign of originality here is that each of the areas presented contains a preliminary development on the “policy of building connecting factors”.

While the treatise’s foreword is insightful and conceived as a “user’s guide”, I thought it would be interesting to directly ask the two authors about some specific features of this revised edition. They kindly agreed to answer some questions for the readers of the EAPIL blog and I thank them very warmly.

– This treatise takes, in your own words, a “neo-Savignian” approach to private international law. What does this mean?

On the one hand, a neo-Savignian approach to PIL focuses, like under the traditional Savignian approach, on the links between a given legal relationship and a particular country, in order to sort out, in favour of this country, the choice-of-law/choice-of-court issues (including issues related with jurisdiction of foreign courts, in case of a dispute over a foreign judgment dealing with the case) arising out of said relationship. Like Savigny, a neo-Savignian advocate believes that one of these links (or one set of links among them) justifies better than others the precedence of the concerned country as to ruling the relationship at stake through its law or its courts. This creed relies on the idea that the authority of a ruler varies depending on the strength of its links with the governed subject.

When enacting a choice-of-law (or choice-of-court) rule, a lawmaker who follows a neo-Savignian approach picks up the link (or set of links) which, in his opinion, is the most relevant for the kind of relationship covered by the created rule – and which appears to him as showing the “seat” (like Savigny used to say) of the legal relationship in a particular country. This link will therefore become the connecting factor in the choice-of-law rule (or the jurisdictional basis in the choice-of-court rule – including, here again, the jurisdictional standards applied to foreign courts, as provided by the foreign judgment regime) covering the legal relationship at stake. And this “seat country” will consequently have (at least in principle) its law and/or the judgments rendered by its courts enforced, for said legal relationship, by the forum (viz, the country whose choice-of-law/choice-of-court rules apply, assuming that the dispute is brought before that country’s courts).

But on the other hand (and conversely to the Savignian approach), our neo-Savignian approach promotes the idea that legal relationships between private persons in an international setting do not necessarily have only one seat in one country – whose law and courts would thus govern this relationship –, but may well have (and actually often have) several “anchors” or relevant connections to different countries, each of whom being a possible seat or “anchorage”. Two important consequences stem from this: (i) in a given case, the seat relevant for adjudicating the dispute may well prove different from the seat relevant for legislating over it; (ii) moreover, since one must think contemporary choice-of-law and choice-of-court rules (including, as aforementioned, those governing foreign judgments) in terms of domestic rather than international sources (at least in principle), the seat of a given relationship may well vary from country to country.

All this shows that, in our early XXI century, reasoning (as used to do Savigny) in terms of “one seat in one country for one kind of relationship” – at least each time this relationship appears in an international setting – is a bit misleading since it does not correspond to the truth of law as it is experienced by the parties. Our neo-Savignian doctrine admits the possibility of plural seats for a given legal relationship and addresses this occurrence through a set of choice-of-law and choice-of-courts rules which are inspired by Savigny’s thought (search of the most relevant links), as adapted to fit the contemporary legal landscape for private law applying in an international context (plurality of relevant fora enacting varied choice of law and choice of court rules). Accordingly, in a given country, the conflict between the countries (taken as lawmakers or as judgment-makers for the case at stake) with which a legal situation is linked, will be won by the one that has the most relevant relationship with the situation, this relevance being determined by a series of private and public considerations.

Far from being merely neutral, the choice-of-law rules appear as the result of a certain policy implemented by the authors of these rules (the “choice-of-law policy”, distinct from the “substantive policy” enacted by the substantive law chosen as applicable and relevant when it comes to sorting out the substantive issue). The same is true, mutatis mutandis, for the choice-of-court rules.

The neo-Savignian approach also repudiates two popular postulates: (i) the postulate according to which countries are not affected by the solution of conflict of laws (since at a minimum, the authority of the sovereign country, taken as a ruler, vis-à-vis the parties to the legal relationship is at stake when sorting out a choice-of-law/choice-of-court issue); and (ii) also the postulate according to which, in a given case, the applicable law and the jurisdiction of courts are basically disconnected from one another; on the contrary, they are both seen as one side of the exercise of one countries’ power to make “law” (broadly speaking: either by enacting a bill, or by rendering a judgment). The originality of the neo-Savignian approach therefore also lies in a sort of presumption that the country whose courts have jurisdiction over a case often ought to be (and actually, quite naturally) the country whose law governs the relationship (jurisdiction of the forum legis).

– Could you concretely illustrate this neo-Savignian approach?

Let us take one example of a multiple-seat private law relationship; it will be provided by the family chapter of PIL, and more especially, the filiation issue (relation of child to father).

Under French law, the choice-of-law rule points to a country as being the correct lawmaker for filiation where it turns out that the child’s mother has the nationality of that country (C. civ., Article 311-14); whereas the jurisdiction rule points to France as being the correct judgment-maker for filiation where the defendant (often the suspected father) is domiciled in France (CPC, Article 42), or, in case he is not, where he is a French citizen (C. civ., Article 15), or even, as a minimum, where the claimant (the child in a filiation proceeding) is a French citizen (C. civ., Article 14). These rules show that French substantive law on filiation will apply before French courts in a dispute brought before French courts each time that (i) the suspected father is domiciled in France, or at least that he, or the child, has French nationality (so that French courts have jurisdiction); and (ii) the mother is French (so that French substantive law governs the case). In such a case, France gets a plenary power to provide for a substantive regime (both through legislature and through court) for the filiation. The seat of the relation of child to father (at least from the French viewpoint) is located in France, both with respect to the substantive law governing the case and to the court having the final word in the dispute.

Let us assume now that the man is Italian, and the child is a US citizen (since he was born within the US territory, where one assumes also here that his French mother lives with him). In that case, Italian courts claim jurisdiction over the case (Italian Act No 218, 1995, Article 37). Assuming that the claimant brings the dispute against the suspected father before Italian courts, these courts should assert jurisdiction on the filiation issue, since for Italy, the judicial seat of the case is in Italy. As to the legislative seat, it will be provided by the Italian choice-of-law rule, under which the law governing filiation is the law of the country of origin (nationality) of the child (Italian Act No 218, 1995, Article 33), here the law of the relevant US state. Hence the Italian court will not apply the French law, even though the child’s mother is French (and notwithstanding the French choice-of-law rule claiming applicability of French law for that reason).

Typically, under our neo-Savignian approach, the filiation proceeding covers a relation that has not one seat in onecountry, but at least three seats in three countries (France, Italy and the United States), and parties to this relationship should be aware of this data when wondering what is the content of the legal regime governing the substantive issues arising out of their case. One should add here that the country where the filiation proceeding is brought would be well advised not to forget this plural-seat data when it comes to addressing the legal issues arising out of this dispute. It is probably so for France, if recognition of enforcement of the Italian judgment is sought there: even though the French choice-of-law rule claims French substantive law being applicable to the filiation issue (since the mother is French), the foreign judgment regime as set up by French case-law does not rule out the Italian judgment for the mere reason that the Italian court did not enforce French law (but rather the law of the relevant state in the USA).

– The formal presentation of private international law solutions in the treatise is inspired by a “trans-systemic/transnational” pedagogy. The aim is to go beyond the particularistic (i.e., French-oriented) approach to the discipline. Could you elaborate on that?

This presentation divides each PIL development into two parts. The first part is more about rhetoric; it sets the problematics, the principles and the interests at stake for each topic, it lists the different considerations that shall be taken into consideration to solve the choice-of-law/choice-of-court issues, and it suggests a solution according to the neo-Savignian approach. These rhetoric parts are not too deeply invaded by legal data from one particular country or another. Accordingly, at that stage, the book rather sticks to a universalist view of PIL.

The second part of the developments on each issue is a presentation of the rules as they exist in some jurisdictions, would these rules stick to the solutions exposed in the first part or would they differ from them. In this second part, the rules are not only French rules, but European and International (Hague Conventions in particular) rules as well. The purpose of this transnational presentation is to depart from a purely French point of view as well as to understand the extent to which French Law solutions are similar to European and International Law solutions. The outcome of this presentation is that, contrarily to other handbooks on the libraries’ shelves, this recast edition is not merely a book on French PIL, but rather a book on PIL as it is conceived and applied by France, by the European Union and by the international community through international conventions (mainly Hague conventions from the Hague Conference for PIL).

The (private international) law of choice-of-court agreements provides us with a good example of this methodology. In the rhetoric part of the presentation on this issue, the book draws on (i) the relation between the lawfulness of choice-of-court agreements and the question whether the jurisdiction rule is binding or non-binding in law, for the parties; and (ii) the considerations influencing the decision whether such a rule ought to be binding in law or not for the parties. Then, in a series of developments on law as it is in force in some jurisdictions, a quick presentation is made regarding French law, EU law (Brussels I bis Regulation) and the Hague convention on choice of court agreements.

– How do you “present” and “represent” in the treatise the Europeanisation of private international law and, ultimately, EU private international law?

To make a long story short, one can say that there are two possible paths that one can follow in order to present the EU as a lawmaker in the field of PIL.

On the one hand, the traditional way tends to look at the EU from the classical public international law viewpoint. EU member-states are sovereign States bound by an international treaty (Treaty of Rome, 1957 – which was ultimately renamed the Treaty on the Functioning of the European Union by the Treaty of Lisbon, 2007). From that standpoint, EU PIL is fostered by EU institutions and comes into force in the EU member-states through an international treaty. It is on that basis that it becomes part of the law of each member-state and it ought to work as such.

On the other hand, a more unusual analysis of the EU is to see this entity as a political entity having some features of a sovereign State (nevertheless not all of them, so that it cannot claim being a State from the international law standpoint, but, at a maximum, it may qualify as what is sometimes called a “proto-state”). As such, EU PIL in a member-state differentiates from domestic PIL of this member-state, with some consequences like one in the field of characterization, where, for a member-state court, resorting to domestic definitions for interpreting EU legal categories as used in EU PIL regulations is not appropriate (at least in principle). Similarly, the proto-state notion proves useful for the correct understanding of the function of EU PIL, compared to member-state PIL of domestic origin. This last one may be seen as a tool for fixing the ambit of legislative or judiciary action of a member-state. The first one is seen in the book as delineating the outskirts of each member-state’s private law (as made by a legislature or by a court), whether with regards to each other, or even with regards to non-member-states. It may well be used also as a tool for delineating the outskirts of EU private law where it exists, as the case may be. And finally, the proto-state notion is useful to understand another influence of EU law on EU member-state PIL having a domestic origin: to the extent that EU may be seen as a “proto-federal State”, the interference of EU freedom of persons (Article 21 TFEU) on the law of EU member-states, including PIL of domestic origin, appears as one regarding the lawfulness of the legal provisions composing this domestic law.

One must add that the European influence on the PIL of European countries is not limited to EU law, but may come from other organizations or instruments as well, like the Council of Europe. This international organization is much less integrated than the European Union, and for this reason the book does not see it as a proto-state. But of course, this does not prevent us from scrutinizing the possible incidence of the Council of Europe law (and especially the ECHR case-law) on EU (and EU member-state) PIL, particularly through the reshaping of the public policy defence.

– Could you concretely illustrate your “proto-state” approach of EU PIL?

Article 4.1 of Rome II Regulation and Articles 4, 7, and 45 of the Brussels I bis Regulation read as follows, through the proto-State notion as applied to the European Union:

In principle, under Article 4.1 of Rome II regulation, the EU grants (or recognizes) jurisdiction to legislate in matter of non-contractual obligation to any member-state having sovereignty on the territory where the damage occurs. The same jurisdiction to legislate is recognized in principle by EU PIL to any non-EU country exercising sovereignty on this territory. EU member-states are granted jurisdiction to adjudicate a case in non-contractual obligations under the Brussels I.a regulation (article 4 and 7); but countries having rendered a judgment in this subject matter may be seen as providing a regular ground to their judgment, even though they are not a country selected by these articles, and this is so whether they are (i) an EU member-state (since the origin of the EU member-state judgment is not controlled under article 45.3 of Brussels I.a regulation); or (ii) a non-EU country (since EU PIL does not cover recognition and enforcement of non-EU country judgments).

– For the benefit of the private international law community, what are the two or three major issues which, in your book, seem to you to be at the heart of the reflections to be conducted for the private international law of the future? 

The first issue could be a potential harmonization between the answer to the two questions of (i) which law prevails? and (ii) which court has jurisdiction? In France, scholars usually have strong opinions on the separation between these two fields and stick to the postulate that their regulation relies on distinct considerations: whereas the court that has jurisdiction appears to be chosen after purely procedural considerations, the choice of law is usually determined by non-procedural considerations, since the choice-of-law issue may arise outside any proceedings. This presentation neglects the idea that choosing a country’s court instead of another one is not neutral with respect to the outcome of the proceeding and eventually has a strong influence on the solution of the dispute. Therefore, a country exercising a legislative power also has an interest in exercising its judicial power. Taking these elements into consideration might be a good opportunity to review the choice-of-court rules and see to what extent they stick – or could stick – to this approach.

A second issue is about the leeway available to a court when it comes to exercising its jurisdiction over a case presenting relevant links with court’s country. Since the claimant holds a strong sway on the outcome of the proceeding – through the choice of the forum where the dispute is brought –, any country ought to provide its courts with the power to give up the exercise of its jurisdiction over the dispute, each time it turns out that the claimant would have an excessive advantage in suing the defendant before the court of one of the countries whose links with the case are sufficient to trigger its jurisdiction to adjudicate.

A third issue could be the digitalization of international private relations. This digitalization emphasizes the opportunity to depart from a reasoning in terms of mere localization of facts and urges the need to adopt a reasoning in terms of policy advocated for by the choice-of-law/choice-of-court legislature. For these relations, the determination of the applicable law or of the court that has jurisdiction cannot be the result of a search for a country where the facts take place (it is submitted that this country really does not exist), but the result of the comparison between the different public and private interests at stake. Eventually, the relationship arising in a digitalized context has its seat in the country with the most relevant links to it – relevance being here the outcome of an analysis and weighing of the competing interests that one can find, for a country, to be recognized as a ruler (through its laws or courts) for said relationship, and, for the parties to said relationship, that this country be recognized as governing it.

Marion Ho-Dac and Cécile Pellegrini (both Lyon Catholic University) are hosting a conference at Lyon Catholic University on Friday 29 September 2023 on the occasion of the launch of their book “Governance of Artificial Intelligence in the European Union What Place for Consumer Protection?”.

The book tackles the interplay between Artificial Intelligence (AI) governance and consumer protection on the European Union (EU) market. An in-depth analysis of the existing and future EU legal framework is conducted in order to assess its capacity to meet the challenges posed by AI. The effectiveness of consumer rights, and more widely of fundamental rights, in the digital single market calls for a regulatory ecosystem that fosters trust and therefore, upstream, transparency and explainability of AI systems. Hence, the book explores different normative paths – from hard law to standardization – as well as monitoring and supervision tools – from ethics to media literacy – that could progressively lead to an inclusive and comprehensive EU governance structure for AI. Several book’s chapters highlight the complexity of balancing conflicting interests such as the protection of consumers against the adverse impacts of AI, supporting AI development and technological innovation and putting AI at the service of empowered consumers. Ultimately, the book offers important insights into thinking about tomorrow’s digital consumer in EU law, inviting a rethinking of European policy boundaries and related legal regimes.

The full programme for the event can be found here.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

C. Budzikiewicz/K. Duden/A. Dutta/T. Helms/C. Mayer: The European Commission’s Parenthood Proposal – Comments of the Marburg Group

The Marburg Group – a group of German private international law scholars – reviewed the European Commission’s Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. The Group welcomes the initiative of the Commission and embraces the overall structure of the Parenthood Proposal. Nevertheless, it suggests some fundamental changes, apart from technical amendments. The full article-by-article comments of the Group with redrafting suggestions for the Commission Proposal are available at www.marburg-group.de. Building on the comments, the present article authored by the members of the Marburg Group focuses on the main points of critique and considers the present state of discussion on the proposed Regulation.

U.P. Gruber: A plea against ex post-adaptation of spousal inheritance rights

Adaptation is recognized as a tool to eliminate the lack of coordination between the provisions of substantive law derived from different legal systems. According to a widespread view, adaption is very often necessary with regard to the spouse’s share in the deceased’s estate, namely if the matrimonial property regime and questions relating to succession are governed by different laws. However, in this article, the author takes the opposite view. Especially in light of the ECJ’s classification of paragraph 1371(1) BGB as a provision dealing with succession, there are new solutions which render ex post adaptations superfluous.

M. Mandl: Apparent and virtual establishments reflected through Art. 7 No. 5 Brussels Ia Regulation and Art. 19 (2) Rome I Regulation

The Federal Court of Justice (Bundesgerichtshof – BGH) has ruled that a dispute has the required connection to the operation of an (existing) establishment pursuant to Article 7 (5) Brussels Ia Regulation if the business owner operates an internet presence that gives the appearance of being controlled by this establishment instead of the company’s central administration and the contract in dispute was concluded via this internet presence. This decision provides an opportunity to examine the prerequisites and legal consequences of apparent establishments and so-called virtual establishments (internet presences) from a general perspective, both in the context of Article 7 (5) Brussels Ia Regulation and in connection with Article 19 (2) Rome I Regulation.

D. Nitschmann: The consequences of Brexit on Civil Judicial Cooperation between Germany and the United Kingdom

The United Kingdom’s withdrawal from the European Union has far-reaching consequences for international civil procedure law. This is exemplified by the decisions of the Higher Regional Court of Cologne for the international service of process. Since the European Regulation on the Service of Documents no longer applies to new cases, the Brexit leads to a reversion to the Hague Service Convention and the German-British Convention regarding Legal Proceedings in Civil and Commercial Matters. Of practical relevance here is, among other things, the question of whether and under what conditions direct postal service remains permissible.

R.A. Schütze: Security for costs of english plaintiffs in Austrian litigation

The judgment of the Austrian Supreme Court (Oberster Gerichtshof – OGH) of 29 March 2022 deals with the obligation of English plaintiffs to provide security for costs according to sect. 57 Austrian Code of Civil Procedure. The principle stated in para. 1 of this section is that plaintiffs of foreign nationality have to provide security for costs. But an exception is made in cases where an Austrian decision for costs can be executed in the country of residence of the plaintiff.

The OGH has found such exception in the Hague Convention 2005 on Choice of Court Agreements. As the United Kingdom has, on 28 September 2020, declared the application of the Hague Convention 2005 for the United Kingdom, the Convention is applicable between Austria and the United Kingdom despite the Brexit. The Hague Convention opens the possibility to recognition and execution of judgments rendered under a choice of court agreement including decisions on costs.

Th. Garber/C. Rudolf: Guardianship court authorisation of a claim before Austrian courts ¬– On international jurisdiction and applicable law for the grant of a guardianship court authorization

The Austrian court has requested court approval for the filing of an action by a minor represented by the parents. The international jurisdiction for the granting of a guardianship court authorisation is determined according to the Brussels II-bis Regulation or, since 1.8.2022, according to the Brussels II-ter Regulation. In principle, the court competent to decide on the action for which authorization by the guardianship court is sought has no corresponding annex competence for the granting of the authorization by the guardianship court: in the present case, the Austrian courts cannot therefore authorize the filing of the action due to the lack of international jurisdiction. If an Austrian court orders the legal representative to obtain the authorization of the guardianship court, the courts of the Member State in which the child has his or her habitual residence at the time of the application have jurisdiction. In the present case, there is no requirement for approval on the basis of the German law applicable under Article 17 of the Hague Convention 1996 (§ 1629 para 1 of the German Civil Code). The Cologne Higher Regional Court nevertheless granted approval on the basis of the escape clause under Article 15 para 2 of the Hague Convention 1996. In conclusion, the Cologne Higher Regional Court must be agreed, since the escape clause can be invoked to protect the best interests of the child even if the law is applied incorrectly in order to solve the problem of adaptation.

M. Fornasier: The German Certificate of Inheritance and its Legal Effects in Foreign Jurisdictions: Still Many Unsettled Issues

What legal effects does the German certificate of inheritance („Erbschein“) produce in other Member States of the EU? Is it a reliable document to prove succession rights in foreign jurisdictions? More than one decade after the entry into force of the European Succession Regulation (ESR), these questions remain, for the most part, unsettled. In particular, commentators take differing views as to whether the Erbschein, being issued by the probate courts regardless of whether the succession is contentious or non-contentious, constitutes a judicial decision within the meaning of Article 3(1)(g) ESR and may therefore circulate in other Member States in accordance with the rules on recognition under Articles 39 ESR. This article deals with a recent ruling by the Higher Regional Court of Cologne, which marks yet another missed opportunity to clarify whether the Erbschein qualifies as a court decision capable of recognition in foreign jurisdictions. Moreover, the paper addresses two judgments of the CJEU (C-658/17 and C-80/19) relating to national certificates of inheritance which, unlike the German Erbschein, are issued by notaries, and explores which lessons can be learned from that case-law with regard to certificates of inheritance issued by probate courts. In conclusion, it is submitted that, given the persisting uncertainties affecting the use of the Erbschein in foreign jurisdictions, the European Certificate of Succession provided for by the ESR is better suited for the settlement of cross-border successions.

E. Vassilakakis/A. Vezyrtzi: Innovations in International Commercial Arbitration – A New Arbitration Act in Greece

On 4.2.2023 a new Arbitration Act came into effect in Greece. It was approved by means of Law No. 5016/2023 on international commercial arbitration, and was enacted in order to align the regime of international commercial arbitration with the revision of the UNCITRAL Model Law on International Commercial Arbitration adopted in 2006 (hereinafter the revised Model Law). The new law contains 49 arbitration-related provisions and replaces the Law No. 2735/1999 on international commercial arbitration, while domestic arbitration continues to be regulated by Art. 867–903 of the Greek Code of Civil Procedure (hereinafter grCCP). A reshaping of Art. 867 ff. grCCP was beyond the “mission statement” of the drafting Committee.1 Besides, it should also be associated with a more extensive and, in consequence, time-consuming reform of procedural law. Hence, the dualist regime in matters of arbitration was preserved.

Pursuant to Art. 2, the new law incorporates on the one hand the provisions of the revised Model Law and on the other hand the latest trends in international arbitration theory and practice. Therefore, it is not confined to a mere adjustment to the revised Model Law, but also includes several innovative provisions that merit a brief presentation.

Notifications:

C. Rüsing: Dialogue International Family Law, 28th – 29th April, Münster, Germany.

The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIL 2024. This year’s Focus Section will concentrate on International and European Economic Law – Moving Towards Integration? In the General Section, the EYIEL will address Current Challenges, Developments and Events in European and International Economic Law.

For the Focus Section, abstracts can cover any topic relating to the interlinkages and integration of economic law with other fields such as labour and human rights, environmental protection or climate change. This could cover developments in the WTO as well as in bi- and pluslateral trade agreements, in investment law or in EU law. We particularly welcome contributions addressing the following aspects:

• Labour, human rights and sustainable development provisions and chapters in FTAs; ? Developments in WTO jurisprudence and other dispute settlement mechanisms relating to the integration of non-trade topics in the WTO; 
• Innovations in investment treaty law in relation to sustainable development, environmental law and/or human rights; 
• New approaches inside and outside the WTO (e.g. fisheries agreement, environmental goods agreements); 
• Comparative analysis of developments relating to interlinkages and integration of economic law in different regions (Europe, North- and South-America, Asia, Africa, Pacific) 
• Specific instruments and clauses within agreements integrating and determining the relationship of trade and non-trade topics, including techniques to counter fragmentation and advance integration/harmonization; 
• “Greening” of EU law and European economic law; 
• Global value chain regulation and governance models for sustainable production and consumption; 
• Dogmatic approaches to systemic integration in international (economic) law. 

For the General Section, abstracts should address topics of current relevance to European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged.

Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts together with a short bionote should be submitted until 31 October 2023 via email to eyiel@leuphana.de.

Successful applicants will be notified by 31 December 2023 that their proposal has been accepted. They are expected to send in their final contribution by 30 April 2024.

Final submissions will undergo peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, the review will focus on the development of the paper’s central argument put forward in the abstract.

Submissions addressing particular regional and institutional developments should be analytical and not descriptive. Due to its character as a yearbook, the EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words (including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.

The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.

This post was written by Verena Wodniansky-Wildenfeld, University of Vienna.

On 8 March 2023, the German Supreme Court issued a judgment on the paternity of two children. In the case at hand, the validity of the marriage of the mother, which gives rise to the presumption of paternity, had to be determined as a preliminary issue. This was further complicated by the interference of a talaq divorce.

An Iranian-German woman married an Iranian man in Iran in 1996 and was subsequently divorced by a talaq in Iran in 2006. The recognition of this divorce was refused in Germany, as is usual for reasons of public policy in connection with the right to be heard, in 2012 by a decision of a German administrative authority. In 2009, the woman remarried another Iranian man in Iran and gave birth to two children in 2010 and 2013, who have had their habitual residence in Germany ever since. The second husband was registered as the father in the German birth register. The registry office wanted to correct this registration in favour of the first husband, as Section 1592(1) of the German Civil Code (BGB) considers the husband of the mother at the time of the birth as the legal father of the child.

The core issue before the German Supreme Court was the determination of the law applicable to parenthood. In the absence of overriding rules of EU or international law (the Bilateral Treaty between Germany and Iran did not apply because the mother of the children has both German and Iranian nationality), the court turned to national conflicts rules. Article 19(1) of the Introductory Act to the German Civil Code (EGBGB) provides for an alternative connecting factor based either on the law of the child’s habitual residence or, for each parent separately, on his or her nationality. In the case of married persons, parentage may also be determined according to the law governing the general effects of their marriage at the time of birth.

As the children had their habitual residence in Germany, the Court examined parentage in accordance with German substantive law. Accordingly, the children’s father would be the person who was married to the child’s mother at the time of birth.

The question arose to whom the mother was effectively married at the time of birth. The court therefore assessed the validity of the second marriage as a preliminary question. The substantive requirements for marriage are governed by the law of the nationality of each of the spouses (Article 13(1) EGBGB). Accordingly, the second marriage violated from a German viewpoint the prohibition of bigamy (Section 1306 BGB), as the Iranian divorce was not recognised in Germany. For the mother of the child, the second marriage would merely be dissolvable under German law, but not automatically null and void by operation of law (ex lege). For the second husband, who is exclusively of Iranian nationality, Iranian law applies according to Article 13(1) EGBGB, which stipulates that a man must not marry a woman who is already married (Article 1050 Iranian Civil Code), otherwise the marriage is considered to be invalid.

In this respect, the Court first had to decide whether the talaq divorce with the first husband was effective in order to answer the question of the validity of the marriage with the second husband.

The legally binding decision of the German administrative authority not to recognise the talaq divorce has the consequence that it has no legal effect in Germany. A separate conflict-of-laws assessment is therefore not required, at least in cases with a strong national link, as in the present case. The Court therefore correctly assumed that the second marriage of the mother was a violation of the Iranian prohibition of bigamy and therefore null and void, as the divorce had to be considered invalid.

In order to avoid a situation in which the status of the parties to a marriage is in doubt (limping marriage), the “stricter” law that is most opposed to the marriage is generally applied when examining the substantive requirements for marriage. According to this principle, the second marriage would be considered void, as it is considered void under Iranian law. However, this would be a “paradox” result in so far as the marriage would not be null and void under either of the two legal systems when examined individually. Therefore, the Court deviates from the principle of applying the stricter law and, exceptionally, allows the milder German law to decide the consequence. The result is that under German law two marriages existed at the time of birth. The court resolves the subsequent double presumption of paternity by an analogous application of Section 1593 sentence 3 BGB (A child that could be both the child of the former husband and the new husband is to be regarded only as the child of the new husband). Consequently, only the second marriage is decisive, and the second husband was registered as the father of both children.

Although the reasoning of the decision may appear contrived and somewhat forced, the outcome reflects the factual circumstances. The prior legally binding decision not to recognise the divorce and the resulting lack of a conflict-of-laws analysis forces the court to reach deep into its bag of tricks in order not to undermine a presumption of paternity that is effective in both legal systems. Adaptation would normally be the tool of choice in cases where the result of a conflicts analysis is unsatisfactory because the legal consequences would not arise in either jurisdiction. In the case at hand, however, adapting the outcome was not possible due to the interplay between procedural law and substantive law. The procedural effect of the refusal to recognise the divorce must be clearly distinguished from the conflict-of-laws implications. The court is therefore facing the challenge of making corrections at the level of the legal consequences in order to achieve the desired result. Dogmatically as well as methodologically, it is always problematic to put the cart before the horse in this way, and once again the approach taken by the Court is not flawless. Instead of following legal practice, the Court chose the most practical solution in the individual case – which is always where legal practice and science have to part company.

I am thrilled to announce that my book on international child abduction has been published this week (María Mayela Celis Aguilar (aka Mayela Celis), Madrid: Dykinson, 2023, 604 pp. – in Spanish). More information is available here.

I am most grateful to Prof. Marina Vargas Gómez-Urrutia and Hans van Loon for having written the Foreword of this book and for their support throughout this process. This book is dedicated to the memory of Adair Dyer, former Deputy Secretary General of the Hague Conference on Private International Law (HCCH), whom some of you may have known.

As stated in the publisher’s website (translation into English): “This monograph conducts a critical study of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction by analysing both case law and doctrine. In particular, it examines key concepts of the Convention, such as habitual residence and rights of custody, as well as other problems that arise more frequently in its application. But not before carrying out a detailed study of the phenomenon of international child abduction from a multidisciplinary and human rights approach.

“From a case law perspective, this work analyses approximately 600 judgments – and decisions – issued in 46 countries party to the 1980 Hague Convention, as well as decisions from seven international or regional tribunals and bodies. Moreover, it prominently studies the decisions rendered by the European Court of Human Rights and the Court of Justice of the European Union that were considered most relevant. In addition, reference is made to decisions and opinions of the Inter-American Commission on Human Rights, Inter-American Court of Human Rights, International Court of Justice, UN Committee on the Elimination of Discrimination against Women, and the UN Committee on the Rights of the Child. 25 mediatic or historical cases are also analysed on the basis of news media or sociological and historical literature.

“From a doctrinal perspective, this book carries out a detailed study of the latest doctrinal developments, both European and Latin-American. Furthermore, from a legislative perspective, this work includes an analysis of the latest legislative developments regarding both hard law and soft law. With respect to the former, this work briefly studies the European Brussels II ter Regulation (2019/1111) and with regard to the latter, it analyses and provides critical comments on the Guide to Good Practice of the HCCH on Article 13(1)(b) of the 1980 Hague Convention.”

Book reviews are very much welcome.

On Tuesday, September 19, 2023, the Hamburg Max Planck Institute will host its 36th monthly virtual workshop Current Research in Private International Law at 17:00-18:30 (CEST). Chris Thomale (Universität Wien/Università degli Studi Roma Tre) will speak, in German, about

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

crosspost from https://eurolatinstudies.com

The collection of assignments presented here is the result of the V Workshop Jean Monnet Network – BRIDGE on “El Derecho Internacional Privado en las Relaciones entre la Unión Europea y América Latina” which took place on April 19th, 2023, in hybrid mode, at University of Sevilla, Spain. This initiative promoted an intense debate on the theoretical and practical aspects about international law and the relations between European Union and Latin America, with the presence of professors and researchers from several universities.

The proceedings are part of the activities developed by Jean Monnet Network project called “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”, co-financed by the Erasmus+ Program of European Commission (620744-EPP-1-2020-1-BR-EPPJMO-NETWORK), composed of a consortium of seven Latin American and European universities.

The articles presented at the Workshop were previously evaluated through Call for Papers, launched in January 2023, and selected by the Organizing Committee composed of Professors Aline Beltrame de Moura (Federal University of Santa Catarina), Beatriz Campuzano Días and Mª Ángeles Rodríguez Vázquez (both from University of Sevilla, Spain). Part of the articles selected for presentation at the Workshop were published in Anais do V Workshop Jean Monnet Network – BRIDGE and the others were published in the V edition of the Latin American Journal of European Studies (2023-1).

Holidays are over and September 2023 will be a busy month at the Court of Justice also as regards private international law, starting with the delivery of the Opinion by AG Emiliou in case C-90/22, Gjensidige, and of two decisions by the third and the fifth chamber respectively (both formations of five judges) already on Thursday 7.

The request for a preliminary ruling in Gjensidige comes from the Lietuvos Aukščiausiasis Teismas (Lithuania). In the case at hand, the proceedings in cassation focus on the legal provisions governing the significance of an agreement conferring jurisdiction, entered into by the parties to a contract for international carriage, in the context of determining both the jurisdiction of the court hearing the dispute that arose from that contract and the legal consequences of a breach of the lis pendens rules. The national court is asking the following:

Can Article 71 of Regulation No 1215/2012, having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of the CMR Convention also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?

Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of Regulation No 1215/2012 be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?

After assessment of the specific features of the situation and the resulting legal consequences, can the term ‘public policy’ used in Regulation No 1215/2012 be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as the CMR Convention, creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

One the same day the Court will hand down its judgement in cases C-590/21, Charles Taylor Adjusting,  and C-832/21 Beverage City Polska.

The request for a preliminary ruling in case C-590/21 was lodged by the Areios Pagos (Court of Cassation, Greece). It concerns the interpretation of Article 34(1) and Article 45(1) of the Regulation No 44/2001 (Brussels I), in proceedings on the recognition and enforcement by a court of a Member State of judgments issued by a court of another Member State which have the effect of deterring parties, which had brought proceedings before another court of the former Member State, from continuing the proceedings pending before it. The questions referred read:

(1) Is the expression “manifestly contrary to public policy” in the EU and, by extension, to domestic public policy, which constitutes a ground for non-recognition and non-enforcement pursuant to point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to be understood as meaning that it extends beyond explicit anti-suit injunctions prohibiting the commencement and continuation of proceedings before a court of another Member State to judgments or orders delivered by courts of Member States where: (i) they impede or prevent the claimant in obtaining judicial protection by the court of another Member State or from continuing proceedings already commenced before it; and (ii) is that form of interference in the jurisdiction of a court of another Member State to adjudicate a dispute of which it has already been seised, and which it has admitted, compatible with public policy in the EU? In particular, is it contrary to public policy in the EU within the meaning of point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to recognise and/or declare enforceable a judgment or order of a court of a Member State awarding provisional damages to claimants seeking recognition and a declaration of enforceability in respect of the costs and expenses incurred by them in bringing an action or continuing proceedings before the court of another Member State, where the reasons given are that: (a) it follows from an examination of that action that the case is covered by a settlement duly established and ratified by the court of the Member State delivering the judgment (or order); and (b) the court of the other Member State seised in a fresh action by the party against which the judgment or order was delivered lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction?

(2) If the first question is answered in the negative, is point 1 of Article 34 of Regulation No 44/2001, as interpreted by the Court of Justice of the European Union, to be understood as constituting a ground for non-recognition and non-enforcement in Greece of the judgment and orders delivered by a court of another Member State (the United Kingdom), as described under [(1)] above, where they are directly and manifestly contrary to national public policy in accordance with fundamental social and legal perceptions which prevail in Greece and the fundamental provisions of Greek law that lie at the very heart of the right to judicial protection (Articles 8 and 20 of the Greek Constitution, Article 33 of the [Astikos Kodikas (Greek Civil Code)] and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in [Article 176, Article 173(1) to (3) and Articles 185, 205 and 191] of the [Kodikas Politikis Dikonomias (Greek Code of Civil Procedure)] cited in paragraph 6 of the statement of reasons) and Article 6(1) of the [European Convention on Human Rights], such that, in that case, it is permissible to disapply the principle of EU law on the free movement of judgments, and is the non-recognition resulting therefrom compatible with the views that assimilate and promote the European perspective?

In his Opinion delivered on 23 March 2023, AG Richard de la Tour proposes propose that the Court of Justice answer as follows:

Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a court of a Member State can refuse to recognise and enforce a decision on the ground that it is contrary to public policy based on the fact that that decision prevents the continuation of proceedings pending before another court of that Member State, in that it awards to one of the parties provisional damages in respect of the costs and expenses incurred by it in bringing those proceedings, where the reasons given are, first, that the subject matter of those proceedings is covered by a settlement duly established and ratified by the court of the Member State delivering that decision, and, second, that the court of the other Member State before which those proceedings were brought lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction.

It is now for judges K. Jürimäe, M. Safjan, N. Piçarra, N. Jääskinen (as reporting judge) and M. Gavalec to decide.

In case C-832/21, Beverage City Polska, the Oberlandesgericht Düsseldorf (Higher Regional Court for Civil and Criminal Matters of Düsseldorf, Germany), made a request for a preliminary ruling on the interpretation of Article 8, point 1, of the Brussels I regulation, in relation to Article 122 of Regulation (EU) 2017/1001 on the European Union trade mark. The main proceedings engaged the owner of a Union trademark, established in the United States, and a distributor and its supplier, respectively domiciled in Germany and Poland, regarding the alleged violation by them of said trademark. The Court of Justice is asked to complete its jurisprudence on the requirements of the special rule established in Article 8, point 1, of Regulation No. 1215/2012, which allows several persons domiciled in different Member States to sue before the courts of the domicile of only one of them, whereas the claims filed before the referring court are directed against several companies and their administrators, against whom the action has been filed not only in their capacity as representatives of such companies, but also in their personal capacity.

AG Richard de la Tour’s Opinion, March 23, 2023 proposes the Court to answer:

Article 8(1) of Regulation (EU) No 1215/2012 …, read in conjunction with Article 122 of Regulation (EU) 2017/1001 …, must be interpreted as meaning that more than one defendant, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled that are seised, in the context of infringement proceedings, of claims brought against them by the proprietor of an EU trade mark where the defendants are alleged to have infringed that trade mark in a materially identical manner through each of their acts in a supply chain. It is for the court seised to assess whether there is a risk of irreconcilable judgments resulting from separate proceedings, taking into account all the relevant material in the case file.

The decision corresponds to judges E. Regan, D. Gratsias, M. Ilešič (reporting judge), I. Jarukaitis and Z. Csehi.

Three further decisions will be published the following week, i.e. on Thursday 14.

C-632/21, Diamond Resorts Europe e.a., is a Spanish request from the Juzgado de Primera Instancia e Instrucción n.º 2 de Granadilla de Abona on the law applicable to contractual obligations under Regulation No 593/2008 (Rome I) and (to some extent) its predecessor, the 1980 Rome Convention. The succinct presentation  of the facts according to the English summary of the request establishes that an action was brought before the referring Spanish court seeking the annulment of two contracts (of 14 April 2008 and of 28 June 2010) concluded between a UK company and the applicants in the main proceedings, Mr JF and Ms NS, of British nationality. The contracts relate to the purchase of points which enable consumers to use accommodation belonging to the club owned by the defendant in Europe, including Spain. Consumers are not allocated specific accommodation, even for a specified period each year; instead, they are offered a brochure of accommodation and must request availability for each property at a particular time.

These are the questions referred to the Court:

1) Are the 1980 Rome Convention … and Regulation No 593/2008 on the law applicable to contractual obligations to be construed as applying to contracts in which both parties are United Kingdom nationals?

If the answer to the first question is in the affirmative

2) Is Regulation No 593/2008 to be construed as applying to contracts concluded before its entry into force, pursuant to Article 24 of that regulation? If the answer is no, must a club-points-based timeshare contract be treated as falling within the scope of Articles 4(3) or (5) of the 1980 Rome Convention, including where the consumer has chosen the law of a State other than his or her State of habitual residence as the applicable law? Further, if the answer is that such contracts can come under either provision, which set of rules takes priority?

3) Irrespective of the answers to the second question, is a club-points-based timeshare contract to be treated as a contract for the acquisition of rights in rem in immovable property or association-type rights in personam?

– If it is considered that rights in rem are acquired, for the purposes of determining the law applicable, which of Article 4(c) and 6(1) of Regulation No 593/2008 is applicable by way priority, including in the event that the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?

– If it is considered that rights in personam are acquired, are those rights to be treated as a tenancy of immovable property, for the purposes of Article 4(c), or as a provision of services, for the purposes of Article 4(b)? Further, and in any event, is Article 6(1) applicable by way of priority in so far as the contract is with a consumer and/or user, including where the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?

4) In all of the above cases, is national legislation which states that ‘all contracts concerning rights relating to the use of one or more immovable properties situated in Spain during a specified or specifiable period of the year are subject to the provisions of this Law, regardless of the place or the date on which such contracts were concluded’ to be interpreted as being compatible with the provisions governing the applicable law laid down in the 1980 Rome Convention and in Regulation No 593/2008?

No Opinion has been asked for. The Court will decide in a chamber of three judges, namely L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer.

On the same day, the same chamber will hand down the judgment in case C-821/21, Club La Costa e.a., corresponding again to a Spanish request; no Opinion precedes the decision. Six questions have been referred to the Court on the Brussels I bis and Rome I Regulations:

In relation to Regulation (EU) No 1215/2012 …:

1. In the case of consumer contracts to which Article 18(1) of the Brussels I Regulation is applicable, is it compatible with that regulation to interpret the term ‘the other party to a contract’ used in that provision as encompassing only a person who signed the contract, such that it cannot include natural or legal persons other than those who actually signed the contract?

2. If the term ‘the other party to a contract’ is interpreted as encompassing only a person who actually signed the contract, in situations in which both the consumer and ‘the other party to a contract’ are domiciled outside Spain, is it compatible with Article 18(1) of the Brussels I Regulation to conclude that the international jurisdiction of the Spanish courts cannot be determined by the fact that the group of undertakings to which ‘the other party to a contract’ belongs includes companies that are domiciled in Spain but did not sign the contract or signed different contracts other than that in respect of which a declaration of nullity is sought?

3. If ‘the other party to a contract’, as referred to in Article 18(1) of the Brussels I Regulation, provides evidence that its domicile is established in the United Kingdom in accordance with Article 63(2) of the regulation, is it compatible with that provision to conclude that a domicile so established delimits the option that can be exercised under Article 18(1)? And, in addition to that, is it compatible with that provision to conclude that it does not simply establish a mere ‘presumption of fact’, or that that presumption is overturned if ‘the other party to a contract’ carries on business outside the jurisdiction of its domicile, or that the onus is on ‘the other party to a contract’ to demonstrate that its domicile, as determined in accordance with the provision cited, is the same as the place where it carries on its business?

In relation to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008:

4. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 3 of that regulation to conclude that clauses determining the applicable law, which are included in the ‘general conditions’ of the contract signed by the parties or which are included in a separate document which is expressly referred to in the contract and is shown to have been provided to the consumer, are valid and applicable?

5. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that it can be relied on by a consumer and by the other party to a contract?

6. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that, if the conditions laid down therein are satisfied, the law indicated in that provision will in all cases be applied in preference to that indicated in Article 6(3), even though the latter may be more favourable to the consumer in the particular case?

In the main proceedings, Mr NM, a British national domiciled in the United Kingdom, concluded in Spain in 2018 a timeshare contract under Spanish Law 4/2012 of 6 July 2012. Mr NM’s wife, also a British national domiciled in the UK, was a party to the contract as well, as was, through its Spanish branch, the entity Club La Costa (UK) PLC, a British company domiciled in the UK which directs its commercial activities to Spain and other countries, including the UK. The timeshare contract contained a clause according to which it ‘shall be interpreted in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.’ Mr NM brought an action against the other party to the contract, Club La Costa (UK) for a declaration of nullity of that contract before the referring court together with a claim for a refund of payments made PLC. The claim was directed as well against another four companies, three of British nationality and a fourth of Spanish nationality; none of them had participated in the conclusion of the contract at issue in the main proceedings; they had, though, in the conclusion of other contracts in which Club La Costa (UK) PLC was not involved. The disputed issue in the main proceedings is whether the Spanish courts have jurisdiction to hear the claim. It is also necessary to determine what the applicable law is. In this regard, albeit not the subject matter of a question to the Court of Justice, the doubts of the referring court are raised by the fact that under Spanish procedural law, if a foreign law is applicable, the party which invokes that law must confirm the existence and content of that law. Spanish law also lays down rules on the admission of evidence under foreign law.

Finally, the decision by judges L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer in case C-393/22, EXTÉRIA, not accompanied by a previous Opinion, will be published on 14 September 2023. Here, the Nejvyšší soud (Supreme Court, Czech Republic) asks the Court in Luxembourg whether Article 7(1)(b) of Regulation No 1215/2012 must be interpreted ‘as meaning that the concept contract for the provision of services also includes a contract to enter into a future contract (pactum de contrahendo), in which the parties undertook to enter into a future contract that would be a contract for the provision of services, within the meaning of that provision’.

This blogpost is an edited version of this blogpost written in Dutch by Stichting IJI (The Hague Institute for private international law and foreign law). We thought it was interesting to also bring it to the attention of the international readership of this blog.

Introduction

In the Netherlands, international high-tech surrogacy is a hot topic, resulting in interesting legal developments. Recently, a Dutch District Court dealt with a case on the recognition of US court decisions on legal parenthood over children born from a high-tech surrogacy trajectory in the US, providing many private international law insights on how to assess such request for recognition. Furthermore, on July 4 a bill was proposed that encloses several private international law provisions. This blogpost briefly highlights both developments.

High-tech surrogacy in the Netherlands

In the Netherlands, high-tech surrogacy – this involves the use of in vitro fertilization (ivf), often with the use of an ovum of a woman other than the surrogate mother – has been allowed (decriminalized) since 1997, but under strict conditions. Important conditions include having a medical reason and medical, psychological and legal information and counseling. It should be noted that commercial surrogacy is illegal.

It is not well tracked how often surrogacy occurs in the Netherlands. The Dutch government estimates that there are several dozen occurrences annually, but indicates that the number is increasing.

High-tech surrogacy abroad

Because, i.a., there are not always (enough) surrogate mothers to be found in the Netherlands, it occurs that some intending parents search for a surrogate mother abroad. Surrogacy is treated differently abroad, to which roughly three variations apply:

1. Surrogacy is prohibited (e.g. Germany and France);
2. Surrogacy is allowed, through a legal framework with either various safeguards (counseling, legal assistance, judicial review etc.) or rules that provide for the legal parenthood of the intended parents. Thereby, as far as legal parenthood at birth is concerned, roughly two alternatives can be distinguished. For example, the surrogate mother is regarded as the legal mother and her husband or partner as the legal father. But there are also countries where the intended parents are considered to be the legal parents from the birth of the child;
3. There is no specific regulation in place for surrogacy and existing legal regulations are applied by analogy or not (e.g. Belgium and the Netherlands).

In case intended parents enter into a surrogacy trajectory abroad, all kinds of private international law issues arise in the Netherlands regarding, among others, the legal parenthood of the intended parents.

District Court decision of January 13, 2023

Early in 2023, said private international law issues arose before the District Court of The Hague (ECLI:NL:RBDHA:2023:363). The court had to rule on several requests by two married men (hereinafter: husband X and husband Y) regarding legal parenthood over children born from a surrogacy trajectory in the US.

The surrogate mother became pregnant with twins following ivf treatment in the US. Two embryos were transferred to her, using sperm from husband X and an ovum from an ovum donor, and sperm from husband Y and an ovum from an ovum donor. The couple applies in the Netherlands for, among other things, recognition of several court decisions on legal parenthood issued in the US, including a decision on denial of paternity, denial of maternity and establishment of paternity, and a decision on custody.

The District Court ruled that the court decisions from the US could be recognized in the Netherlands, with an extensive assessment of the public policy exception and the question of whether there was a diligent surrogacy trajectory.

Dutch bill of July 4, 2023 to regulate (international) surrogacy

On July 4, 2023, a bill was proposed in the Netherlands. This bill introduces rules for granting parenthood after surrogacy within the Netherlands and further holds rules for recognising parenthood after surrogacy from abroad. The bill indicates there will be a standard for ‘responsible surrogacy’ that intended parents should consider when choosing a surrogacy route both domestically and abroad. If certain conditions are met and the court has given its consent prior to conception, the intended parents will be considered the legal parents from birth. The bill also provides a specific recognition scheme for decisions made abroad, in which family law relations following surrogacy have been established or modified between the child and the intended parents. Important here is that the surrogacy process has been diligent. The standard will be that comparable requirements have been met that are also set for a ‘national’ surrogacy trajectory.

On 31 August 2023, the European Court of Human Rights has handed out its decision regarding application in case C. v. Italie (application no. 47196/21), on the refusal by the Italian authorities to recognize the bond of filiation established by a Ukrainian birth certificate between the child C, born abroad by surrogacy, and her biological father and her mother of intention. Article 8 of the Convention is at stake.

The Court has declared the request admissible (unanimously); it has held, by six votes to one, that there has been a violation of Article 8 of the Convention in its procedural aspect in connection with the establishment of parentage between the applicant and L.B.; and has held unanimously that there has been no violation of Article 8 of the Convention on account of the refusal to transcribe the applicant’s birth certificate in respect of her intended mother.

The decision is already available in French at HUDOC.

On a related previous ruling against Denmark, with three dissenting opinions (out of seven) see E. Sinander’s post here.

In 2018, L.B. and E.A.M., an Italian heterosexual couple, enter into a surrogacy contract in Ukraine. An embryo from an egg from an anonymous donor and sperm from L.B. was implanted in the uterus of a surrogate mother. The applicant was born in August 2019. A birth certificate was drawn up in Ukraine.

On September 16, 2019, L.B. and E.A.M. asked the civil registrar of the Italian town of V. for the entry into the civil status register of the child’s Ukrainian birth certificate. By decision of 4 December 2019, the civil status office rejected the request on the ground that such a transcription was contrary to public order. On January 14, 2020, L.B. and E.A.M. appealed before the court of V. They requested the transcription of the certificate and, in the alternative, the transcription of the name of the biological father alone. By a decision of March 16, 2020, the court dismissed the appeal on the grounds that taking into account the best interests of the child could not lead to disregard of the principle of incompatibility of surrogacy with public order. L.B. and E.A.M. appealed against this decision and requested, by way of an interim appeal included in the appeal proceedings, the partial transcription of the birth certificate in respect of L.B. In a judgment of June 14, 2021, the Court of Appeal dismissed their appeal.

On 8 June 2022, L.B. asked the civil status office of the municipality of C.S., where he had transferred his residence, to carry out a partial transcription of his daughter’s birth certificate. By a note of July 6, 2022, the civil status office refused the partial transcription on the grounds that the prohibition of surrogacy could not be circumvented.

On the merits, the Strasbourg Court considers that the existence of an interference with the applicant’s right to respect for her private life is beyond doubt. It recalls that such interference infringes Article 8 unless, ‘in accordance with the law’, it pursues one or more of the legitimate aims set out in the second paragraph of this provision and if it is ‘necessary in a democratic society’, the notion of ‘necessity’ implying an interference based on a pressing social need and, in particular, proportionate to the legitimate aim pursued (Mennesson v. France, no. 65192/11).

The Court finds that the rejection of the request for the entry in the civil status registers of the applicant’s foreign birth certificate was provided for by law, within the meaning of the second paragraph of Article 8, surrogacy being prohibited under Italian law. It also finds the condition of legitimate aims is met, in that the interference under examination pursued two of the legitimate aims listed in the second paragraph of Article 8 of the Convention (‘the protection of health’ and ‘the protection of human rights and freedoms of others’).

The interference is, however, not ‘necessary in a democratic society’ to achieve the pursued aims. Here, the Court differentiates:

A. On the establishment of the parent-child relationship between the applicant and her biological father, the Court recalls that, according to its case-law, Article 8 of the Convention requires domestic law to provide for the possibility of recognition of the link between a child, born as a result of surrogacy practiced abroad, and the intending father when the latter is the biological father. In addition, the Court has already noted that the absence of recognition of a parent-child relationship between a child born from surrogacy practiced abroad and the intended parent has negative consequences on several aspects of the right of the child to respect for private life; it also disadvantages the child in as far as it places him in a form of legal uncertainty as to his identity in society. It is in the interest of the child who is in this situation that the duration of the uncertainty as to the establishment of his filiation be as short as possible.

Regarding the case at hand, the Court concludes that the domestic courts dismissed the disputed claims without weighing the various interests at stake and, above all, without considering the requirements of speed and efficiency required in proceedings such as the present one. The Court finds that, in view of the particular circumstances of the case, despite the margin of appreciation afforded to the State the Italian authorities failed in their positive obligation to guarantee the applicant’s right to respect for her privacy to which he is entitled under the Convention. Accordingly, there has been a violation of Article 8 of the Convention on this point (see dissenting opinion by Judge Wojtyczek).

B. Regarding the impossibility for the applicant to have the bond which unites her to her intended mother recognized, the Court admits that Italian law does not allow the transcription of the birth certificate for the intended mother. It acknowledges, however, that Italian law guarantees the latter the possibility of legally recognizing the child through adoption. In this regard, the Court notes that, according to the Plenary Assembly of the Italian Court of Cassation, adoption enables the courts seised to assess the requirements of Article 8 of the Convention and the best interests of the child.

In view of the foregoing, the Court is of the opinion that by refusing to transcribe the applicant’s Ukrainian birth certificate into the Italian civil status registers in so far as it designates E.A.M. as her mother, the Respondent State did not, in the circumstances of the case, exceed its margin of appreciation. Therefore, there has been no violation of Article 8 of the Convention on this point.