Droit international général

The European Parliament passed on 15 June 2023 a resolution expressing support for the accession of Ukraine to the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters.

As reported on this blog, the Council of the European Union had already decided on 24 April 2023 that the Union would establish treaty relations with Ukraine under the Convention following the accession of Ukraine.

According to Article 29 of the Convention, accession to the Convention by one State creates treaty relations between that State and the States that have already joined the Convention only if neither of them has notified the depositary that the accession should not have the effect of establishing treaty relations with the other. If a State intends to issue a declaration to that effect, it must do so within 12 months of the ratification or accession of the State concerned. Absent a declaration, the Convention comes into effect between the States in question on “the first day of the month following the expiration of the period during which notifications may be made”. 

The Council of the Union assessed, in its decision of 24 April 2023, that there were no reasons to prevent the accession by Ukraine from creating treaty relations between the Union and Ukraine under the Convention, and accordingly decided that an Article 29 declaration should not be issued.

By its recent resolution, the European Parliament basically expressed the same view.

The resolution does not entail, in itself, any effect on the international plane. Rather, it addresses a concern that relates to the role that the Parliament is entitled to play in the process leading to decisions regarding the establishment of the Union’s treaty relations with third countries.

Pursuant to Article 218(6) TFEU, the conclusion of an international agreement by the European Union requires a Council decision. When it comes to agreements covering fields to which the ordinary legislative procedure applies, including judicial cooperation in civil matters, the Council may only act “after obtaining the consent of the European Parliament”. The decision of 12 July 2022 whereby the Council decided that the Union would accede to the Hague Judgments followed precisely that pattern.

Now, under the current practice of the institutions, no formal procedure in accordance with Article 218(6) TFEU is initiated for the conventions that contain a non-objection mechanism, such as the Judgments Conventions. With respect to these conventions, the Commission only informs the Council and Parliament of any third country’s request to accede to a the convention in question. This means that if the Council decides to take no action regarding the third State’s accession (thus paving the way to the establishment of treaty relations with the latter), the Parliament risks being prevented from expressing its views on the desirability of the establishment of such relations.

In its recent resolution, the Parliament, having recalled that “an international agreement cannot affect the allocation of powers fixed by the Treaties”, stated that “the fact that at international level a silence procedure has been adopted to facilitate accession by third states should be of no consequence for the EU’s internal decision-making process”.

It is thus for the purposes of the internal decision-making process of the EU that the Parliament made use, by this resolution, of its prerogative under Article 218(6) TFEU to make a stance on the establishment of treaty relations between the Union and Ukraine under the Hague Judgments.

That said, the resolution also provided the Parliament with an opportunity to issue a political statement concerning the Union’s relations with Ukraine, in general. In the operative part, the Parliament reiterated its “unwavering solidarity with the people and leadership of Ukraine and its support for the independence, sovereignty and territorial integrity of Ukraine, within its internationally recognised borders”.

The Kingdom of Saudi Arabia (KSA) has recently enacted a new Civil Transactions Law (Royal Decree No. M/199, dated June 16, 2023). The law will enter into force on December 16, 2023, 180 days after its enactment (hereinafter referred to as “the new law”). This law has been rightly described as “groundbreaking” because, prior to the enactment of the new law, there has been no codification of civil law in the Kingdom, and civil law issues have traditionally been governed by the classical rules of Islamic Sharia according to the teachings of the prevailing school of fiqh (religio-legal jurisprudence) in the Kingdom (Hanbali School). Like most of the civil law codifications in the region, the new law focuses mainly on the so-called “patrimonial law,” i.e., property rights and obligations (contractual and non-contractual). Family relations and successions are dealt with in a separate law, which was previously enacted in 2022 and entered into force the same year (Personal Status Act, Royal Decree No. M/73 of 9 March 2022, entered into force on June 18, 2022).

From a private international law perspective, one particular aspect of the new law compared to other civil law codifications in the region is that, unlike most of the Arab civil law codifications, the new law does not contain rules on the choice of the applicable law. In other neighboring countries (namely Egypt, Jordan, Syria, Iraq, Qatar, Oman, and Yemen) as well as in other Arab jurisdictions (including Libya and Algeria), the civil law codifications include at the beginning of their respective Civil Code/Civil Transactions Act a chapter dealing with the “application of the law in space”. These choice-of-law codifications generally contain provisions on characterization, choice of law in family law and succession, property, contractual and non-contractual obligations, and some general rules such as renvoi (or its prohibition) and public policy, etc. Only a few Arab states have chosen to codify choice-of-law rules outside of their Civil Code (Kuwait and Bahrain) or Code of Obligations and Contracts (Morocco and Tunisia). Lebanon is the only country where choice-of-law principles have been developed mainly through case law. Thus, Saudi Arabia remains the only Arab jurisdiction where conflict of laws rules are almost non-existent and where the courts have not been able to develop a body of principles dealing with choice-of-law issues. This is because, in general, Saudi courts apply Saudi law when they assume jurisdiction, regardless of whether or not the dispute has a connection with another legal system or not. Whether there will be a codification of choice-of-law rules in the same way that rules on international jurisdiction and enforcement of foreign judgments have been codified remains to be seen.

 

Interestingly, however, the new law may affect the assessment of public policy in the context of the enforcement of foreign judgments. Indeed, based on the traditional Sharia rules and principles recognized in the Kingdom, Saudi courts have often relied on public policy and inconsistency with Sharia to refuse enforcement of foreign judgments. For example, in a case decided in 1996, the Saudi court refused to enforce a Dubai judgment on the ground that the said judgment allowed for compensation for lost profits and payment of moral damages (Board of Grievances, Case No. 1783/1/Q of 30/12/1417 Hegira [November 12, 1996]). The court cited Sharia rules and principles on compensation, according to which only real and quantifiable losses can be compensated. The new law departed from this traditional principle by clearly allowing compensation for both lost profits (article 137) and moral damages (article 138). Therefore, the traditional position of the Saudi court is no longer tenable under the new rules, as compensation for lost profits and moral damages are now available under the newly adopted rules.

 

Another important issue concerns interest. It is well known that the payment of interest is prohibited under Sharia rules and principles. Saudi courts have been particularly eager to refuse enforcement of those parts of the foreign judgments that order the payment of interest, including legal interest available under the laws of other Arab and Islamic states (see, for example, Board of Grievances, Case No. 2114/Q of 21/8/1436 Hegira [June 9, 2015] refusing enforcement of legal interests ordered by Bahraini courts but allowed partial enforcement of the main award). However, unlike lost of profits and moral damages, the new law’s position on interest is less clear. Several indicators in the new law suggest that the legislature did not wish to depart from the traditionally prevailing position. For example, the prohibition on agreeing to repay amounts that “exceed” the capital in loan agreements, either at the time of the conclusion of the agreement or at the time of the deferment of payment, is clearly stated in article 385 of the new law. Moreover, article 1 of the new law clearly refers to the “rules [al-ahkam] derived from the Islamic Sharia which are most consistent with the present law” as the source of law in the absence of an applicable provision of the new law or a rule of general principles contained in its last chapter. Accordingly, it can be expected that Saudi courts will continue to refuse to enforce the portion of the foreign judgments awarding interests on the ground of public policy and the inconsistency of interests with the principles of the Sharia as understood in the Kingdom.

 

The Institute of International Shipping and Trade Law is organising its 18th annual colloquium on 6 and 7 September 2023 in Swansea. The topic of the event this year is on Commercial Disputes- Resolution and Jurisdiction.

Delegates can attend both in person and online. Early bird registration is available by the end of June.

The list of speakers and chairpersons confirmed includes Masood Ahmed, Simon Baughen, Michael Biltoo, William Blair, Ruth Hosking, John A. Kimbell KC, Monica Kohli, George Leloudas, Aygun Mammadzada, Karen Maxwell, Francesco Munari, Brian Perrott, Marta Pertegas Sender, Richard Sarll, David Steward, Andrew Tettenborn and Patricia Živković.

For registration and further info, see here.

Readers of this blog will certainly enjoy trying

eu-adapt.com

It is the result of a project coordinated by Afonso Patrão (University of Coimbra, in Portugal), joining efforts with the Universities of Heidelberg (Germany), Turku (Finland), Genoa (Italy) and Valencia (Spain), which will be useful when a right in rem is invoked under the law applicable to succession, but the lex rei sitae does not know such right in rem. As Afonso Patrão explains “the app will then suggest an equivalent under the law of the latter Member State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it”.

On Tuesday, July 4, 2023, the Hamburg Max Planck Institute will host its 35th monthly virtual workshop Current Research in Private International Law at 14:00-15:30 CEST. Robert Freitag (FAU Erlangen-Nürnberg) will speak, in German, about the topic

The Overdue Reform of the International Law on Names in Germany

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.

This book review was written by Begüm Kilimcioglu, PhD researcher, Research Groups Law & Development and Personal Rights & Property Rights, University of Antwerp

Barnali Choudbury, The UN Guiding Principles on Business & Human Rights- A Commentary, Edward Elgar Publishing, 2023

The endorsement of the United Nations Guiding Principles (UNGPs) in 2011 represents a milestone for business and human rights as the principles successfully achieved to put the duties of different actors involved in (possible) human rights abuses on the international agenda. The UNGPs provide a non-binding yet authoritative framework for a three-pillared scheme to identify and contextualize the responsibilities with regard to business and human rights: the State’s responsibility to protect, businesses’ responsibility to respect, and facilitating access to remedy. However, although the impact of the principles can be described as ground-breaking, they have also been criticized for their vague and generic language which provides for a leeway for certain actors to circumvent their responsibilities (see Andreas Rasche & Sandra Waddock, Surya Deva, Florian Wettstein).Therefore, it is important to determine and clarify the content of the principles to increase their efficiency and effectiveness. In this light, this commentary on the UNGPs which examines all the principles one-by-one through the inputs of various prominent scholars, academics, experts and practitioners is indeed a reference guide to when working on corporate social responsibility.

The UNGPs and private international law are inherently linked. UNGPs aim to address issues regarding human rights abuses and environmental degradation which are ultimately transnational. Therefore, every time we talk about the extraterritorial obligations of the States, or the private remedies attached to cross-border human rights violations, we have to talk within the framework of private international law. For instance, in a case where a multinational company headquartered in the Global North causes damage through its subsidiaries or suppliers located in the Global North, the contractual clauses regarding their respective obligations or the private remedies in their contracts brings the questions of which law is applicable or how to enforce such mechanisms. Furthermore, in cases where the violations are brought before a court, it is inevitable that the court will have to decide on which law to be applied to the conflict at hand. In this regard, although the commentary does not go into detail about conflict of laws/ private international law issues, we know that the implementation of the UNGPs requires the consideration of private international law rules.

The commentary consists of two parts; the first part is dedicated to the UNGPs, and the second part focuses on the Principles for Responsible Contracts (PRCs) which is an integral addition to the UNGPs.

The first part starts with the UNGPs’ first pillar, the State’s duty to protect in context. The authors Larry Cata Backer and Humberto Cantu Rivera (UNGPs 4&5) emphasize the centrality of the State as an actor in many interactions when it engages in various commercial transactions and the privatization of essential services. Such instances pose a unique opportunity for the State to exercise its influence over businesses, service providers, or investors to facilitate respect for human rights and to fulfill its duty to protect human rights. Furthermore, as Olga Martin-Ortega and Fatimazahra Dehbi highlights (UNGP 7) when a company is operating in a conflict zone, the States that are involved must engage effectively with the situation to protect human rights considering the heightened vulnerability. Overall, actions of privatization or other commercial transactions do not exempt the State from its own duties. On the contrary, the State has heightened duties to ensure and support respect for human rights through various means such as its legislation, policies, agencies or through (effective) membership of multilateral institutions or its contracts.

Moving onto the second pillar, the business’ responsibility to respect, Sara L. Seck emphasizes                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               that this responsibility is not framed as a duty—like the State duty to protect but rather is a more flexible term—and is independent of the State. However, more regard could have been given to common situations such as where the lines between the States and the businesses are blurred. I do not mean here the situations where the business enterprises are fully or partially owned by the State but rather – de facto—the businesses have more power (both in economic and political terms) on the ground. More examples could have been given such as how the revenues of Shell exceed the GDP’s of Malaysia, Nigeria, South Africa and Mexico. In the increasingly globalized and competitive world of today, the (possible) role of businesses changes rapidly. Conversely, the disconnect between the policies, statements, and pledges businesses make with respect to human rights and their actual performance has been identified and highlighted quite accurately. The analysis of the lack of incentives for businesses to respect and engage with human rights by Kishanthi Parella (UNGP 13) provides an excellent mirror to the situation on the ground. It is rightfully identified that although the pressure from the consumers, investors, and/or other stakeholders can incentivize companies to do better, it may be insufficient. For instance, although Shell has been criticized by civil society, affected stakeholders, and the public for over a decade, and has faced several high-profile cases, the change beyond its corporate policies and documents remains highly contested.

Naturally, this brings to the fore the importance of having legally binding, national, regional, and international, rules putting concrete obligations with strong enforcement mechanisms to force companies to do better and create a level playing field for the ones who already are genuinely engaged in human rights issues. Maddelena Neglia discusses the different mandatory legislations initiatives from different countries regarding the implementation of the UNGPs, and Claire Bright and Celine Graca da Pires examine the same initiatives through the lens of Human Rights Due Diligence processes.

However, as the analysis of the current transparency frameworks within the framework of UNGP 13, considering that there are already legally binding rules on non-financial information disclosure, foreshadows the possible outcomes of future legally binding rules, such as the Corporate Sustainability Due Diligence Directive (See also the last documents, the Council position and the Parliament position.) The commentary does not discuss the positions adopted by the Council and the Parliament as they were not yet adopted at the time the commentary was written). The current transparency laws show that unless such rules have teeth, they are bound to be ineffective.

Of course, the efforts of the States and businesses must be accompanied by strong and effective both State-based and non-State based and judicial and non-judicial remedies for the victims of corporate harm. On this matter, the commentary highlights the mechanisms that we are more prone to forgetting, such as the national human rights institutions (NHRIs) or multistakeholder initiatives (MSIs). It is usually the case that when thinking about remedies, the first thing that comes to mind are State-based judicial remedies. However, as Jennifer A. Zerk and Martijn Scheltema remind us there are several different types of remedies which can even be more effective depending on the context. Furthermore, on an academic level, we tend to focus more on Platon’s ‘theory on forms/ideas’ rather than how things work in practice. As a result of this disconnection between the academics and the victims, we also tend to forget to discuss whether the ‘form/idea’ complies with the reality on the ground. Therefore, the emphasis in the commentary on the (obvious) link between the remedies and the persons for whom these remedies are intended reminds us that remedies must be stakeholder centric.

Overall, the commentary points out several important issues about the UNGPs:

• The uncertainty surrounding the UNGPs is real—although this was an intentional choice by Professor Ruggie, considering the current frameworks and how far we have come in the business & human rights world, we should not religiously hold onto the UNGPs but rather search for ways to improve and build upon them. UNGPs indeed were a marvelous achievement at the time, in 2011, when it was even unthinkable for most people that businesses could have any kind of responsibility regarding human rights; yet a worldwide consensus was reached. However, now, there is an enormous momentum to genuinely address corporate disasters through better regulation and enforcement.
• Another important prong in this process still is the international treaty. The commentary does not go into much detail about the Legally Binding Instrument on Business and Human Rights (Penelope Simmons discusses the international treaty within the framework of UNGP 26 as a way to strengthen access to remedy and Barnali Choudhury proposes the international treaty as a way to tackle the remaining problems with the implementation of the UNGPS and the PRCs), however I do believe that the international treaty must also be discussed as an option to better implement the UNGPs. The drafting process of the treaty is evidence of one of many problems with the implementation of the UNGPs. As Daniel Augenstein (UNGP 1), Gamze Erdem Turkelli (UNGP 10) and Dalia Palombo (UNGP 25) point out, international cooperation is very important to effectively address the multi-faceted and transnational problem of respecting and protecting human rights and facilitating remedy when human rights abuses occur within the context of corporate harm. They show that no sole State can fix such a problem, and cooperation between States is essential. This cooperation can be done through could be done by engaging with other States in cases of corporate harm and exchanging information (or making it easy to exchange information) between authorities and courts, or information, as we increasingly see in private international law instruments. However, when we look at the process of drafting such a treaty which would provide common frameworks and rules to do so, it is clear that there is reluctance of the Global North countries whereas the recipient countries of damage are naturally much more enthusiastic.
• The second part of the commentary concerns the Principles for Responsible Contracts which provide guidance for the preparation, management and monitoring of Investor-State (investment) contracts, together with options for access to remedy for the (possible) victims. The PRCs reflect the same principles as the UNGPs and they are supposed to be read in conjunction.

The focus on the PRCs is valuable because historically international investment law and international human rights law were seen as two separate fields of law with no intersection. However, today, as the understanding of human rights is significantly evolving, the link between investments and human rights is becoming all the more evident. Investments – in all sectors but especially the extractive sector- can adversely impact to a significant extend, environmental degradation and human rights, lives of local and indigenous communities and marginalized and vulnerable groups. Rightly so, as the first part of the commentary on UNGPs, the second part, especially within the scope of PRC 7, Tehtena Mebratu-Tsegaye and Solina Kennedy highlight the importance of meaningful stakeholder engagement with the (potentially) affected stakeholders and the ways to design more inclusive community involvement strategies.

Secondly, PRCs is a great opportunity to provide guidance to increase the effectiveness and efficiency of the contractual clauses used in investment contracts. Contractual clauses are the most widely used tools among businesses to pledge and ensure human rights compliance in their activities (see p 63). However, the effectiveness of these clauses is rather limited. Therefore, this wide use must be seen as an advantage and be built upon. In other words, the clauses must be structured in such a way that they do not leave unnecessary wiggle room for the companies and successfully cover the governance gaps.

Lastly, the importance of human rights impact assessments by investors before, during and after a project is a common narrative through the part on the PRCs. This emphasis is important as we are on the verge of adopting hard laws on human rights due diligence that may successfully enforce companies to be more engaging, robust and effective when they address human rights concerns. It has to be borne in mind that investors are also businesses enterprises, and they also must conduct their own Human Rights Due Diligence regarding their projects. In this regard, it is sometimes even the case that investors have more adverse impacts than other types of business actors because of their indirect impact via the projects they finance. Thus, the engagement of the investors with human rights is crucial for effective human rights protection.

Overall, the commentary is a must-have for everyone who is working on business and human rights. The UNGPs constitute the base of all the work that has been done over the years in the field. Thus, to be able to comprehend what business and human rights mean and to build on them, it is essential to examine the UNGPs in detail, which is what the commentary provides.

This post was written by Felix M. Wilke.

Many papers and posts have already appeared on the EU rule of law crisis, in particular on serious doubts regarding the independence and impartiality of the judiciary in certain Member States. In light of the recent judgment against Poland (C-204/21), more are likely to follow. For the most part, the discussion concerns potential reactions under primary law and the effects the crisis already has had on the European Arrest Warrant. There have been some predictions that the crisis also would affect judicial cooperation in civil and commercial matters (e.g. by Frąckowiak-Adamska). Indeed, how could it not? In this post I want to flag some issues and ideas to be fleshed out in a later publication, based on a presentation I gave at the IAPL Summer School 2023. As always, comments are very much welcome.

Mutual Trust and its Limits

It all goes back to mutual trust. According to the CJEU, mutual trust in particular means the presumption that other Member States comply with EU law and with the Charter of Fundamental Rights (Opinion 2/13). If we know or have very good evidence that another Member State’s judiciary is not independent or impartial, and the Member State thus cannot guarantee the right to a fair trial, this assumption seems to have been rebutted. One can hardly do business as usual, i.e. continue to apply instruments like Brussels Ibis that are based on mutual trust as if nothing had changed.

We actually have famous precedent for that from the field of judicial cooperation in criminal matters. In LM, the Court of Justice held that the “real risk” of a breach of the fundamental right to an independent tribunal “is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to a [European Arrest Warrant]”. Granted, Article 1(3) of the Framework Decision on the European Arrest Warrant contains the express admonition that the Decision does not modify the Member States’ obligation to respect fundamental rights – even though the immediately prior provision of paragraph 2 requires them to execute any European Arrest Warrant based on mutual recognition.

In one area based on mutual trust, then, courts in one Member State can under certain circumstances review whether trust is actually warranted. This has been dubbed “horizontal Solange” (Canor), as opposed to “reverse Solange” (von Bogdandy et al.) and the good old regular “Solange” (Germany’s Constitutional Court). As long as – solange – there are no systemic violations of the rule of law, each Member State should cooperate with the others. So, should we pull a “horizontal Solange” in civil and commercial matters? Should it perhaps be a “modified horizontal Solange”, adjusted to the specifics of civil proceedings?

Horizontal Solange as Part of Public Policy Reservations

One obvious answer is that we have been doing so in civil and commercial matters, anyway. For the Brussels Regime has always contained a public policy reservation (now Art. 45(1)(a) Brussels Ibis). Public policy is the classic tool of trust management (M. Weller). It is accepted that violations of procedural fundamental rights in another Member State can trigger this reservation. While Brussels Ibis lacks a clear statement on fundamental rights like Article 1(3) Framework Decision on the European Arrest Warrant, the obligation to respect the fundamental rights of the Charter exists as a matter of course when Member States are “implementing” EU law (Article 51(1) of the Charter). Thus, even if the vague Recital 38 Brussels Ibis did not exist, public policy must be interpreted against the backdrop of the Charter. More importantly, even instruments of judicial cooperation in civil and commercial matters without a written public policy reservation must be interpreted as allowing a review of potential fundamental rights violations in another Member State.

But to rely on public policy does not come without obstacles. Should the burden of proof rest with the applicant even where there are systemic deficiencies in another Member State? Should an application even be necessary? The seriousness of the rule of law problems and their relation to the public interest might suggest a negative answer, but this would likely ask too much of those tasked with enforcing foreign judgments, in particular non-judicial bodies. And what about the unwritten condition of exhaustion of all remedies in the Member State of origin (Diageo Brands)? Some would say that it does not make sense, period. At least it does not make sense if the foreign judiciary as such does not meet the standards of independence and impartiality. Systemic deficiencies obviate the exhaustion requirement as it itself is based on mutual trust.

Doubts about the Existence of “Courts” and “Judgments”

Speaking of independence and impartiality: Has not the CJEU held in Pula Parking – even though the actual problem was that Croatian notaries did not conduct inter partes proceedings – that these two features characterize “courts” for the purposes of Brussels Ibis? Without them, a national body is no “court”. Without being a “court”, it cannot give “judgments” within the meaning of Article 2(a) Brussels I bis. This calls into question already the scope of application of Chapter III of Brussels I bis (and, thinking it through to the end, also the application of the lis pendens rules). If this is not met, there would be no recognition and enforcement. The result thus would seem to be the same as after a successful application relying on public policy.

The scope of application, however, must be checked ex officio, and a failure to exhaust national remedies in the Member State of origin clearly could not change the nature of body that gave the decision. Hence, the requirements could be quite different from the public policy reservation. On the other hand, again, to require an assessment of the independence and impartiality of other Member States’ bodies in every single case would put the institutions in the Member State addressed in over their heads.

Exploiting Private Parties?

Moreover, one could characterize this approach with some merit as exploiting civil and commercial matters, ultimately: the parties of such matters to address a crisis not of their making. I feel a certain unease about this, and I do not think I am the only one who feels that way. Granted, to make a Member State a less attractive forum could be an effective tool of bringing about change in that State. And it does seem paradoxical to continue to apply an instrument of mutual trust where serious doubt has been cast on this trust.

Yet we can hardly blame a claimant for having pursued her claim in a certain Member State, even less so when jurisdiction in that State was based on entirely uncontroversial grounds, perhaps even on Brussels Ibis itself. To put a stop to EU judicial cooperation in civil matters without an individual violation of the defendant’s/debtor’s fundamental rights also would be questionable from the perspective of the claimant’s/judgment creditor’s fundamental rights. The ECtHR has recognized that the enforcement (even) of foreign judgments is an integral part of the guarantee of Article 6(1) ECHR (Hornsby v. Greece, McDonald v. France, Avotiņš v. Latvia). Then again, if one negated the scope of application of Brussels Ibis, at least national rules of recognition and enforcement could still apply.

Tentative Conclusions

I am inclined to let national bodies operate on the prima facie basis of a foreign “judgment” for now. There is less risk of legitimizing such bodies this way than accepting preliminary references from them (as the CJEU does, C-132/20). A potential gamechanger would be a decision under Article 7(2) TEU. Yes, such a decision seems unlikely. But the inadequacy of solutions under primary law do not imply the necessity of sweeping modifications of the rules for cross-border proceedings.

I would relegate the rule of law issues to the public policy clauses (whether express or implied). This implies court proceedings upon application (typically) of the debtor. The interpretation and application of the public policy reservation must sufficiently accommodate the applicant’s right to a fair trial. For example, if the applicant can establish systemic rule of law violations, she must not have exhausted all remedies in the State of origin. One could also be more liberal with the requirement of “manifest” violations. Additionally, I would advocate for a similar unwritten exception to the lis pendens rules, in line with LM. If there is the “real risk” that a later judgment from another Member State could not be recognized and enforced due to public policy, there is no point in staying one’s own proceedings. It will be hard to establish this real risk, to be sure. But that is not necessarily bad – civil and commercial matters are not the right place to try to solve systemic problems.

Apostolos Anthimos and Marta Requejo Isidro are the editors of The European Service Regulation – A Commentary, on Regulation (EU) No 2020/1784. The book has just been published by Edward Elgar in its Commentaries in Private International Law series.

Presenting a systematic article-by-article commentary on the European Service Regulation (recast), and written by renowned experts from several EU Member States, this book gives balanced and informed guidance for the proper operation of judicial cooperation in civil and commercial matters within the EU in the field of cross-border service of documents.

First setting out the origins and evolution of the Regulation, the Commentary proceeds to analyse in forensic detail the relevant case law of both the European Court of Justice and national courts on cross-border service. It moreover points the reader to the pertinent legal scholarship from various EU jurisdictions, and provides a pathway for solving practical problems surrounding the service of documents between Member States of the European Union in civil and commercial proceedings.

Key Features: systematic article-by-article analysis facilitates navigation and reference; integration of the relevant case law ensures a rounded interpretation of the Regulation; practical approach provides tangible guidance for complex cross-border proceedings; renowned team of contributors offer clarity and insight.

Thanks to its in-depth but also practical analysis of each provision of the Regulation, the Commentary will be a valuable resource for judges, scholars and students of European procedural law, as well as for practitioners involved in cross-border civil and commercial litigation.

Contributors include Apostolos Anthimos, Gilles Cuniberti, Stefano Dominelli, Pietro Franzina, Burkhard Hess, Alexandros Ioannis Kargopoulos, Christian Koller, Kevin Labner, Elena Alina Onţanu, Marta Requejo Isidro, Vincent Richard, Andreas Stein, Michael Stürner.

Further information are available here.

XVI CONFERENCE OF THE AMERICAN ASSOCIATION OF PRIVATE INTERNATIONAL LAW – ASADIP IV Workshop on Research Strategies for Private International Law – PIL 9th August 2023 -Wednesday 15:00-18.30- PUC Rio-Gavea, Rio de de Janeiro – Call for Papers –

The Brazilian Research Network on Private International Law (“Brazilian PIL-RN”), an initiative of the Inter-institutional Research Group “Private International Law in Brazil and International Fora” (CNPq/DGP), the Latin American Network of International Civil Procedural Law, the Open Latin American Chair of Private International Law and the American Association of Private International Law – ASADIP – will jointly host the IV Workshop on Research Strategies for Private International Law on August 9, 2023, on the occasion of the awaited XVI ASADIP Conference 2023 (“PIL between the Innovation and the Disruption”) in Rio de Janeiro.

PUC Rio will be our host institution for the IV Workshop on Research Strategies in PIL, in this edition structured in two main clusters:

1. Joint Meeting of PIL Research Groups and Networks in Brazil, ASADIP Region and global partners
2. Thematic panels on IPR research with presentation of scientific papers in Working Groups on PIL and Emerging Issues:

• WG I: Sustainable Development Goals-SDGs and Private International Law

• WG II: Dialogues between PIL, International Law and International Trade
• WG III – Migrations, human rights and private international law
• WG IV – PIL between data flow, artificial intelligence and new technologies
• WG V – Current developments on International legal cooperation

This Call for Papers invites participants and specialists to submit proposals – articles/papers, expanded abstracts (for Master and Doctoral candidates) and posters (Undergraduate students) for the presentation of scientific pieces at the IV Workshop on PIL Research Strategies. It is open to submissions of unpublished/ongoing works by faculty professors, investigators, as well postgraduate and undergraduate students, on topics of interest for the research agenda of Private International Law, its strategies and potential impacts on society, local/regional spaces, and international organizations. Proposals may be submitted in any of the three official languages for ASADIP: Spanish, English and Portuguese.

A such warm-up academic initiative is a part of the main proceedings of the XVI ASADIP Conference2023 “PIL between Innovation and the Disruption”,which will take place between 10-11 August 2023 in Rio de Janeiro (PUC Rio and University of Estado do Rio de Janeiro – UERJ).

Highlight on relevant deadlines: 06/28/2023 – 1st deadline for submission of proposals 05/07/2023 – 2nd deadline for submission of proposals 10/07/2023 – Deadline for the evaluation feedback on the proposals 07/17/2023 – Deadline for issuing invitation letters and acceptance of selected proposals 24/07/2023 – Confirmation of participation and registration of participating authors 09/08/2023 – IV Workshop – PUC Rio – preparation for the XVI ASADIP Conference (2023) Executive/Organizing Committee: Nadia de Araujo (PUC-Rio) Fabricio B Pasquot Polido (University of Minas Gerais – UFMG) Valesca Borges (University of Espirito Santo – UFES) Inez Lopes (University of Brasilia – UnB).

Scientific Committee:

The Scientific Committee for the IV Workshop on PIL Research Strategies will rely on the valuable participation of several scholars from ASADIP member countries and partnering institutions:

Alfonso Ortega Gimenez (Univ. Miguel Hernandez de Elche, Espanha)

Anabela Goncalves (Univ. de Minho, Portugal)
Augusto Jaeger (Fed. Univ. Rio Grande do Sul – UFRGS) Caitlin Mulholland (PUC Rio)
Carmen Tiburcio (University of State of Rio de Janeiro – UERJ)

Clarissa Brandao (Fed University Fluminense-UFF) Daniel Rojas-Tamayo (Univ. Externado, Colombia) Daniela T. Vargas (PUC Rio) Diego P. Fernandez Arroyo (Science Po, Paris) Eduardo Vescovi (Univ. de la Republica, Uruguay) Elizabeth Villalta (Univ. de El Salvador) Eugenia C. Barza (Fed Univ. Pernambuco – UFPE) Fernando P. Meinero (UniPampa) Gustavo F. Monaco (Univ. Sao Paulo) Lidia Spitz (PUC-Rio)

Luis Ernesto Rodriguez (Univ. Central de Venezuela)

Maria Laura Capalbo (Univ. de la Republica, Uruguay)

Maria Mercedes Albornoz (CIDE, Ciudad de Mexico)

Marilda Ribeiro (University of State of Rio de Janeiro – UERJ)

Nieve Rubaja (Univ. de Buenos Aires, Argentina)

Nuria Gonzalez (Univ. Nac. Autonoma de Mexico)
Paula M. All (Univ. Nac. del Litoral, Argentina) Raphael Vasconcelos (University of State of Rio de Janeiro – UERJ) Renata A. Gaspar (ESPM, Sao Paulo)
Tatyana Scheila Friedrich (Fed. University of Parana – UFPR) Valesca Borges (University of Espirito Santo – UFES) General information and submission rules:

• The proposals of papers – articles, expanded abstracts and posters – in the official languages for ASADIP – Spanish, English and Portuguese – should be submitted and sent within the deadlines to the e-mail: 4workshop.dipr.pucrio2023@gmail.com.
• There will be no registration fees and the organising committee will issue acceptance letters according to the flow of requests from selected participants.Participants will be solely responsible for arranging financial support in their respective institutions for transportation, accommodation, travel logistics and per diems for the presentation of selected papers at the IV Workshop.
• The papers selected by peer review and approved should be adjusted according to the guidelines for authors and will be published in books/collections and proceedings of the event, with support from Brazilian and international funding agencies.

More information can be found on the ASADIP website, social media of the organizing institutions and updates on Sympla.

In a judgment of 17 May 2023 (Albaniabeg Ambient sh.p.k v. v. Enel Spa), the French supreme court for private and criminal matters (Cour de cassation) denied enforcement in France to an Albanian judgment on the ground that it had been sought for the purpose of evading an arbitral award made beforehand in Italy.

Background

In 2000, Italian company Bechetti Energy Group S.p.a. (‘BEG Italy’) concluded a co-operation agreement with another Italian company, Enelpower SpA, to develop and operate an Albanian hydroelectric power plant. Enelpower was a wholly owned subsidiary — previously an internal division — of ENEL, Italy’s well known power operator

As Enelpower decided not to pursue the project, BEG Italy initiated arbitral proceedings against Enelpower in Italy. The claims of BEG Italy were denied in an award rendered in 2002, which was subsequently declared enforceable in Italy. An action to set aside the award was lodged with Italian courts, in particular on the ground that one arbitrator had a conflict of interest. It was eventually rejected by the Italian supreme court (Cassazione) in 2009.

In the meantime, the Albanian subsidiary of BEG Italy, Albaniabeg Ambient sh.p.k, which had been created for the purpose of the project, initiated proceedings in Albanian courts in 2004 against Enelpower and its mother company, ENEL, Italy’s power operator, of which Enelpower was a wholly owned subsidiary.  It also claimed compensation for the loss sustained as a consequence of the fact that the project would not be pursued. Albaniabeg prevailed and obtained in 2009 a judgment ordering Enelpower and ENEL to compensate Albaniabeg.

Albaniabeg then started to seek enforcement of the Albanian judgment in various jurisdictions, including in France.

French Common Law of Judgments

Albania being outside of the EU, the enforcement of the Albanian judgment in France was governed by the French common law of foreign judgments. It lays down four condition for that purpose. The first is that the foreign court should have jurisdiction. The second is that the foreign judgment comports with French public policy.

The third and most interesting condition for present purposes is that the judgment should not have been obtained for the purpose of evading the application of French law or the making/enforcement of a French judgment (fraude). The condition is rarely applied. This is because the requirement that the foreign has jurisdiction implies that there is a sufficient connection between the dispute and the foreign court, will typically also give a justification to the plaintiff to bring proceedings and the foreign court, and make it very difficult to demonstrate that the sole purpose of the foreign proceedings were to avoid the application of French law or the making/enforcement of a French judgment.

The fourth condition is that there should be no irreconcilable decision in France. More on this later.

Evasion of an Arbitral Award (fraude à la sentence arbitrale)

The judgment of the Cour de cassation is remarkable for two reasons. First, it applies, for the first time to my knowledge, the concept of evasion (fraude) to an arbitral award. Secondly, it actually finds that the foreign judgment was obtained for the purpose of evading the arbitral award, and denies enforcement to the judgment on this ground.

The court agrees with the findings of the court of appeal that the following facts revealed BEG Italy’s willingness to evade the arbitral award: three months before Albaniabeg initiated the proceedings, its shareholdeds changed in order to create the misleading impression that it was autonomous from BEG Italy, which was in any case the only contracting party in the project at that time;  Albaniabeg had initiated the Albanian proceedings right after BEG had lost the arbitration; Albaniabeg was, in essence, alleging the same breaches (though on a delictual ground) and seeking compensation for the same loss.

The judgment of the Cour de cassation is also interesting as, for the first time, it applies the concept of evasion for a purpose other than protecting the application of French law or the integrity of French judicial proceedings.

Irreconcilable Decisions

Another argument which had been raised against the enforcement of the Albanian judgment was that it was irreconcilable with the arbitral award which was made earlier, and thus recognised in France before the Albanian judgment was made.

One important issue raised by this argument was that the parties were not the same in the arbitral and the Albanian proceedings. But there is a long line of authorities in France which have ruled that third parties cannot interfere with arbitral awards.

I have not seen the judgment of the court of appeal, but I understand that the court of appeal had also denied enforcement on this ground. The Cour de cassation, however, does not address the issue in its judgment. One reason is that it sufficed that it would only confirm that one ground for denying enforcement existed. Whether the judgment rendered by the  European Court of Human Rights in this case was another reason is unclear.

European Court of Human Rights

In January 2010, BEG Italy had lodged a complain against Italy before the European Court of Human Right. In a judgment of 20 May 2021, the ECtHR found that Italy had indeed violated Article 6, § 1, of the European Convention on the ground that it had not sanctioned an arbitration where one of arbitrators’ impartiality could be doubted.

The judgment of the Cour  de cassation does not mention this judgment of the ECtHR, and it is unclear whether it influenced its decision in any way.

One reason why it might not have is that, I understand, at the present time, Italy has not revoked its decision not to set aside the arbitral award. BEG had asked the ECtHR to rule on this, but the Strasbourg court refrained from doing so, leaving it to Italy to decide how to best implement its decision (a report on the situation from an Italian perspective, by Michele Grassi, will appear on this blog in the coming days).

Another reason might be that, whether the arbitral award was rendered by an arbitral tribunal which did not meet the standard of impartiality did not change the fact that the Albanian proceedings were initiated for the purpose of evading the arbitral award.

Sarah McKibbin (University of Southern Queensland) and Anthony Kennedy (Serle Court Chambers, London; St Edmund Hall and Somerville College, Oxford) edited a book titled The Common Law Jurisprudence of the Conflict of Laws, with Bloomsbury.

This book presents a collection of leading common law cases in private international law ranging from the 18th to the 21st century. The cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile, foreign immovable property and choice of law in contract are just some of the topics that this collection examines. The ‘unusual factual situations’ of some 18th- and 19th-century English cases also reveal compelling human interest stories and political controversies worthy of further exploration.
Drawing on a diverse team of contributors, this edited collection showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa.

The table of contents can be accessed here.

Those ordering the book online at www.bloomsbury.com are offered a 20% discount (the codes are GLR BE1UK for UK orders, and GLR BE1US for US orders).

Professor Dr. Giesela Rühl, LL.M. (Berkeley) is currently seeking to fill three PhD positions at her Chair at Humboldt University of Berlin ( https://www.rewi.hu-berlin.de/en/lf/ls/rhl/index.html).

The successful candidate should have a keen interest in issue of private international law, international civil procedure and/or civil procedure (including access to justice and digital justice). Since the positions come with teaching obligations, knowledge of the German language (and German law) is required.

The official call for applications will be out soon. In the meanwhile if you are interested (or have any questions) please do not hesitate to get in touch: sekretariat.ruehl.rewi@hu-berlin.de.

On 31 May 2023, the Commission adopted an implementing decision whereby the European citizens’ initiative (ECI) entitled Effective implementation of the concept of judicial precedent in EU countries shall be registered. The English version can be downloaded here.

The decision has been taken pursuant to Regulation (EU) 2019/788 on the European citizens’ initiative. The Regulation establishes the procedures and conditions required for an initiative inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens of the Union consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The initiative comes from a small group of persons (according to Article 5 of the Regulation, an initiative must be prepared by at least seven natural persons), whose affiliation is not disclosed on the webpage. The e-mail address of the substitute to the representative of the organisers points to the University of Bucarest.

The objectives of the initiative as expressed by the organisers are the introduction of ‘a mechanism at national level which guarantees mutual recognition of final judicial decisions adopted by courts’ in other Member States and ‘the option of invoking national judicial precedents decided by the courts of the country in question’, with a view to ‘consolidat[ing] a uniform judicial practice among the Member States’.

The mechanism would apply provided that: ‘(a) the Court of Justice of the European Union (CJEU) has had occasion to interpret the applicable provisions of EU law’ and that ‘(b) the case in question concerns similar or identical legal questions’. The organisers ask for the mechanism to be ‘actually available to litigants, allowing them to request the recognition of another decision relevant to their case at any stage of the proceedings.’ Furthermore, they consider that ‘a certain degree of flexibility should be ensured in light of the ‘rebus sic stantibus’ clause, making it possible to change the case-law if certain fundamental circumstances have changed.’ In addition, Member States should be ‘obliged to impose  effective, dissuasive and proportionate penalties in cases where the mechanism is not complied with’.

The text of the initiative is available here. Judging from its last paragraph, it has wide ambitions in terms of material scope: ‘Firstly, the initiative is based on Articles 81 and 82(1) TFEU as regards the recognition of judgments with cross-border implications. Secondly, the proposal is based on Article 352 TFEU and potentially Article 114 TFEU, so as to cover all situations which lead to inconsistent application and interpretation of EU [law] that could impede the attainment of EU’s objectives and the proper functioning of its internal market.’

In the absence of further explanations, I am not sure (but curious) about how the future mechanism would relate to already existing EU legal texts on the recognition and enforcement of foreign judgments in civil and commercial matters.

I fail to see third parties to a decision being granted, as per EU law, a right to requests its recognition in the usual sense of the word; but perhaps there is a new notion of recognition in the making – one providing for ‘precedential’ effect. Or, maybe, what makes the difference between the initiative’s desired mechanism in comparison to the status quo is the prong on ensuring litigants an option to rely ‘on national judicial precedents decided by the courts of the State concerned’, if ‘the State concerned’ is means a Member State other than the one where the court seized sits.

Again, I am not sure this is the correct understanding of the initiative, which at some point states that The mechanism ‘should apply not only to recognising final judicial decisions adopted in other Member States, but also to recognising final judicial decisions adopted in the country in question’ (italics added).

In any event, the future mechanism would only apply subject to three cumulative criteria being met: (i) the final judicial decision at stake applied provisions of Union law; (ii) the CJEU has already interpreted the same relevant provisions of Union law and (iii) the case concerned is governed by similar or identical points of law. First and second conditions do not look like too difficult to identify in a given case; the same can definitely not be claimed for the third one.

As a rule, all statements of support of a citizen’s initiative* shall be collected within a period not exceeding 12 months from a date chosen by the group of organisers (the ‘collection period’). According to Article 8 (1) of Regulation 2019/788, that date must be not later than six months from the registration of the initiative in accordance with Article 6. So far, I have found no indication on how to express support to this particular initiative. Pursuant to Article 11(7) of Regulation 2019/788, the recourse to individual online collection systems will no longer be possible for initiatives registered after the end of 2022; organisers will thus have to use the central online collection system, for which the Commission is responsible. It maybe that further clarification as regards the exact scope of the initiative’s proposed mechanism is to be found there (not to be taken for granted, though: assuming it is technically possible, there is a thin line between simply explaining an initiative and actually amending it).

*In order to ensure that a European citizen’s initiative is representative, a minimum number of signatories coming from each of those Member States is required. This translate into conditions set under Article 3 of the Regulation. Statistics on European Citizen Initiatives presented, registered, and valid, can be found in a recent report of the European Parliament.

The Visible College of International Lawyers and the HCCH 2019 Judgments Convention –Conference in Bonn

The HCCH 2019 Judgments Convention has been the subject of an ever-growing body of academic research and discussion ever since it was signed; but due to the pandemic, almost all of it had to happen in writing. Just in time for its entry into force, though, and thus perfectly timed, the first international conference on the HCCH 2019 Judgments Convention Cornerstones – Prospects – Outlook took place a week ago at the University of Bonn, hosted by Matthias Weller together with Moritz Brinkmann and Nina Dethloff, in cooperation with the Permanent Bureau of the HCCH, and with the support of the German Federal Ministry of Justice.

The conference brought together much of the aforementioned discussion between a range of academics, practitioners and policymakers, including the contributors to the book of the same title, edited by Matthias Weller, João Ribeiro-Bidaoui, Moritz Brinkmann, and Nina Dethloff, for which the conference doubled as a launch event. It accordingly followed the same structure, organized into seven panels overall that were split into three larger blocks.

 

The first of those (“Cornerstones”) focused on some of the core concepts underpinning the Convention. Wolfgang Hau (LMU Munich) discussed the meaning of ‘judgments’, ‘recognition’, and ‘enforcement’; Pietro Franzina (Catholic University of Milan) focused on the jurisdictional filters (with an emphasis on contractual obligations, i.e. Art. 5(1)(g)); and Marcos Dotta Salgueiro (University of the Republic of Montevideo) discussed the grounds for refusal. After some lively discussion, the block continued with papers on the Convention’s much-discussed Art. 29 (Cristina Mariottini (Luxembourg)) and on its interplay with the 2005 Choice of Court Convention (Paul Beaumont (University of Stirling)).

Also in light of some less nuanced recent interventions, Cristina Mariottini’s paper was particularly welcome to dispel some myths surrounding Art. 29. The speaker rightly pointed out that the mechanism is not only very different from the much-criticized bilaterilasation requirement of the 1971 Convention but can also be found, in one form or another, in a range of other instruments, including the rather successful 1970 Evidence and 1980 Child Abduction Conventions.

A much wider angle was then taken in the second block (“Prospects for the World”), which brought together perspectives from the European Union (Andreas Stein (European Commission)), the US (Linda Silverman (NYU)), Canada (Geneviève Saumier (McGill University)), the Balkan Peninsula (Ilja Rumenov (Skopje University)), Arab countries (Béligh Elbalti (University of Osaka)), Africa (Abubakri Yekini (University of Manchester) and Chukwuma Okoli (University of Birmingham)), the MERCOSUR Region (Verónica Ruiz Abou-Nigm (University of Edinburgh)), the ASEAN countries (Adeline Chong (SMU)), and China (Zheng (Sophia) Tang (Wuhan University)) in four consecutive panels. While the first block had already highlighted some of the compromises that had to be made during the drafting of the Convention and at the diplomatic conference, it became even clearer that the Convention (or, more precisely, the prospect of its ratification) may be subject to vastly different obstacles and objections in different parts of the globe. While some countries may not consider the Convention to be ambitious enough, others may consider it too much of an intrusion into their right to refuse the recognition and enforcement of foreign judgments – or raise even more fundamental concerns regarding the implementation of the Convention, its interplay with existing bilateral treaties (seemingly a particularly pertinent problem for Arab countries), or with multilateralism in recognition and enforcement more generally. The conference gave room to all of those concerns and provided important context through some truly impressive comparative research, e.g. on the complex landscape of bilateral agreements in and between most Arab states.

The different threads of discussion that had been started throughout the event were finally put together in a closing panel (“Outlook”). Ning Zhao (HCCH) recounted the complicated genesis of the Convention and reflected on the lessons that could be learned from them, emphasizing the need for bridging differences through narrowing down the scope of projects and offering opt-out mechanisms, and for enhancing mutual trust, including through post-convention work. She also provided an update on the ongoing jurisdiction project; José Angelo Estrella Faria (UNIDROIT) advocated a holistic approach to judicial cooperation and international commercial arbitration; and Hans van Loon (HCCH) finally summarized the conference as a whole, putting the emphasis both on the significant achievement that the convention constitutes and the need to put further work into its promotion.

The conference had set out to identify the cornerstones of the 2019 Convention, to discuss its prospects, and to provide an outlook into the future of the Convention. It has clearly achieved all three of these goals. It included a wide range of perspectives on the Convention, highlighted its achievements without shying away from discussing its present and future obstacles, and thus provided ample food for thought and discussion for both the proponents and the critics of the Convention.

At the end of the first day, Burkhard Hess (MPI Luxembourg) gave a dinner speech and reflected on the current shape of the notorious ‘invisible college of international lawyers’ in private international law. As evidenced by the picture above, the college certainly was rather visible in Bonn.

 

 

This post has been written by Anna Bleichenbacher, MLaw, University of Basel, Nievergelt & Stoehr Law and Notary Office (Switzerland).

The Swiss Federal Supreme Court (Bundesgericht) published a leading decision on recognition and public certification of foreign conversions of ancient law pay paternities (Zahlvaterschaften) into paternities with civil status effects on June 15th, 2023 (decision of Swiss Federal Supreme Court 5A_81/2022 of May 12th, 2023).

Respondent in the present case was a German citizen, living in Germany (respondent). She was born out of wedlock in 1967 and acknowledged by her father (father) in the same year, both in Germany. The acknowledgement included only a pay paternity. A pay paternity was a legal institution with an obligation to pay maintenance. The pay paternity did not include a legal child relationship recorded in the civil register.

According to the German law on the legal status of children born out of wedlock of August 19th, 1969 (law on children born out of wedlock), a father who has acknowledged his obligation to pay maintenance for a child in a public deed or an enforceable debt certificate, is seen as a legal father to child, recorded in the civil register, after the enforcement of the law on children born out of wedlock. In short, Germany knows the ipso iure conversion of the pay paternity into the paternity with civil status effects.

Switzerland also knows the legal institution of the pay paternity. However, Swiss law did not provide for ipso iure conversion of the pay paternity into a paternity with civil status effects.

The respondent’s father was a Swiss citizen, living in Switzerland. In 2016, he died, not only leaving behind the respondent, but also his wife and a common daughter (born in wedlock; appellants). In 2017, the respondent appealed to the Swiss civil status authorities, claiming the registration and public certification of the birth in Germany as well as the legal child relationship to the father. After exhaustion of the intra-cantonal appeal process, the appellants reach the Swiss Federal Supreme Court with two main arguments against the registration and public certification of the respondent’s legal child relationship to the father:

(1) Applicability of the Swiss Federal Act on Private International Law (PILA) in the present case

The PILA entered into force on January 1st, 1989. The appellants claimed that recognition and enforcement in the present case are governed by the respective law in force at the time of the respondent’s birth in 1967. This would be the Federal Act on Civil Law Relations of Settled Persons and Residents of June 25th, 1891. The Swiss Federal Supreme Court made clear that the date of the foreign decision or other legal act (i.e. the acknowledgment of the child) is irrelevant. The time at which the question of recognition and enforcement arises is decisive.

Therefore, the PILA is applicable for the present case.

(2) Violation of the Swiss Ordre Public in case of recognition and public certification

The PILA supports the recognition and enforcement of foreign decisions and other legal acts by the principle “in favorem recognitionis”. A foreign child acknowledgment is recognized in Switzerland if it is valid in form and content in one of the jurisdictions named in Art. 73 para. 1 PILA. These include the state of the child’s habitual residence, the child’s state of citizenship or the state of domicile or of citizenship of the mother or the father.

As mentioned above, the legal child relationship between the respondent and the father is based on the acknowledgment of the father in 1967 and the ipso iure conversion of the pay paternity into a paternity with civil status effects. The validity of this conversion in Germany has been proven by German civil status documents of the respondent.

Since Germany is a jurisdiction in the sense of Art. 73 para. 1 PILA, and the child acknowledgment is valid there, Switzerland will only refuse the recognition and public certification in case of violation of Swiss Ordre Public.

The Swiss Federal Supreme Court stated that, just because Swiss law does not provide for ipso iure conversion of the pay paternity, a German legal act on paternity valorization does not violate Swiss Ordre Public. This is mainly because both jurisdictions aim for a similar purpose, namely the equality of children born out of wedlock. In an obiter dictum, the Swiss Federal Supreme Court even doubts the conformity of Swiss regulation with fundamental rights.

In summary, the recognition and public certification of a German ipso iure converted pay paternity into a paternity with civil status effects does not violate the Swiss Ordre Public. In application of the PILA, Swiss civil status authorities are obliged to carry out the post-certification of such legal child relationship.

The latest issue of RabelsZ has just been released. It contains the following contributions:

OBITUARY

Eva-Maria Kieninger, Ralf Michaels: Jürgen Basedow * 29.9.1949 † 6.4.2023, pp. 229–235, DOI: 10.1628/rabelsz-2023-0051

ESSAYS

Felix Berner: Implizite Qualifikationsvorgaben im europäischen Kollisionsrecht, pp- 236–263, DOI: 10.1628/rabelsz-2023-0028

Implicit Characterization in European Conflict of Laws. – Most German scholars assume that problems of characterization in European choice of law are to be resolved by means of functional characterization. This essay challenges that assumption. Quite often, European choice-of-law rules themselves require a certain treatment of a characterization problem. This can follow from the rules or recitals of European regulations. In such cases, the required approach is more or less explicitly given. However, the required analysis can also be implicitly established, especially when it is derived from the purpose of certain choice-of-law rules. The approach towards characterization is of both practical and theoretical significance. In practice it determines the outcome of a characterization inquiry. On a theoretical level, the approach towards characterization embodies a conceptual change: The more rules on characterization there are, the more the classic problem of characterization is marginalized. Questions of characterization turn into questions of “simple statutory interpretation”.

Frederick Rieländer: Die Anknüpfung der Produkthaftung für autonome Systeme, pp. 264–305, DOI: 10.1628/rabelsz-2023-0032

The Private International Law of Product Liability and AI-related Harm. – As the EU moves ahead with extensive reform in all matters connected to artificial intelligence (AI), including measures to address liability issues regarding AI-related harm, it needs to be considered how European private international law (PIL) could contribute to the EU’s objective of becoming a global leader in the development of trust-worthy and ethical AI. To this end, the article examines the role which might be played in this context by the conflict-of-law rule concerning product liability in Article 5 of the Rome II Regulation. It shows that the complex cascade of connecting factors in matters relating to product liability, although providing legal certainty for market players, fails to consistently support the EU’s twin aim of promoting the up-take of AI, while ensuring that injured persons enjoy the same level of protection irrespective of the technology employed. Assessing several options for amending the Rome II Regulation, the article calls for the introduction of a new special rule concerning product liability which allows the claimant to elect the applicable law from among a clearly defined number of substantive laws. Arguably, this proposal offers a more balanced solution, favouring the victim as well as serving the EU’s policies.

Tim W. Dornis: Künstliche Intelligenz und internationaler Vertragsschluss, pp. 306–325, DOI: 10.1628/rabelsz-2023-0043

Artificial Intelligence and International Contracting. – Recently, the debate on the law applicable to a contract concluded by means of an AI system has begun to evolve. Until now it has been primarily suggested that the applicable law as regards the “legal capacity”, the “capacity to contract” and the “representative capacity” of AI systems should be determined separately and, thus, that these are not issues falling under the lex causae governing the contract. This approach builds upon the conception that AI systems are personally autonomous actors – akin to humans. Yet, as unveiled by a closer look at the techno-philosophical foundations of AI theory and practice, algorithmic systems are only technically autonomous. This means they can act only within the framework and the limitations set by their human users. Therefore, when it comes to concluding a contract, AI systems can fulfill only an instrumental function. They have legal capacity neither to contract nor to act as agents of their users. In terms of private international law, this implies that the utilization of an algorithmic system must be an issue of contract conclusion under art. 10 Rome I Regulation. Since AI utilization is fully subject to the lex causae, there can be no separate determination of the applicable law as regards the legal capacity, the capacity to contract or representative capacity of such systems.

Peter Kutner: Truth in the Law of Defamation, pp. 326–352, DOI: 10.1628/rabelsz-2023-0038

This article identifies and examines important aspects of truth as a defence to defamation liability in common law and “mixed” legal systems. These include the fundamental issue of what must be true to establish the defence, whether the defendant continues to have the burden of proving that a defamatory communication is true, the condition that publication must be for the public benefit or in the public interest, “contextual truth” (“incremental harm”), and the possibility of constitutional law rules on truth that are different than common law rules. The discussion includes the emergence of differences among national legal systems in the operation of the truth defence and evaluation of the positions that have been adopted.

 

BOOK REVIEWS

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure, transnational law, and comparative law (pp. 353–427).

Diamedica Therapeutics Inc v Pharmaceutical Research Associates Group BV NCC22/018 ECLI:NL:RBAMS:2023:2540 highlights the IMHO troubled Rome I implications for property rights as opposed to contractual rights. The judgment was issued by the NCC, the Netherlands Commercial Court. (The NCC origin also explains the judgment already being available in English).

The claim is one for revindication by PRA of documents and digital data pertaining to the clinical trials regarding a medicine developed by DiaMedica. The court held that whereas the contractual relationship between the parties is governed by the laws of the State of New York as the lex voluntatis (the law parties chose to apply to the contract), Dutch law governs the question whether a property right can be created on documents and data situated in the Netherlands.

In discussing the applicable law issues, the court in my view lacks the clarity of approach required in this area, particularly seeing as a State’s approach towards digital data clearly is an important element in the attractiveness of its contract law for the sector.

[4.5] the Court holds that per Article 3(1) Rome I, the lex voluntatis, the laws of New York, covers the interpretation of the agreement. This includes the existence of a right to suspend contractual obligations, here: whether PRA may retain the Documents or suspend surrendering the Documents in order to secure payment of its final invoice. It equally holds however that the existence of a property right (footnotes omitted)

is not a matter of contract but a matter of property law. The Rome I Regulation is not applicable. As there is no treaty or regulation guiding this issue, the rules of Dutch domestic private international law apply. Under Article 10:127(1) of the Dutch Civil Code (DCC) the property law regime relating to things, as a rule, is the law of the state in whose territory the thing is situated (the lex rei sitae). The ‘thing’ in question are the Documents which are situated in the Netherlands. Therefore, Dutch law governs the manner in which rights in rem arise, whether such rights can be created, and if so, what the requirements are for a transfer or creation of rights (Article 10:127(4) DCC). Also, the question whether a revindication claim can be initiated, and if so by whom, is governed by the lex rei sitae. Hence: Dutch law.

, leading to a finding in favour of DiaMedica on the basis of Dutch law.

The merits of the case are not of interest to this blog: the identification of applicable law to the property rights, is. The NCC’s analysis shows the difficulty with the in my view unsatisfactory, if seemingly solidly rooted (see the Guiliano-Lagarde Report most succinctly p.10; Dicey 33-033 and 33-054; other standard works pay less attention to the issue) conclusion that ‘property’ rights are not caught by the Regulation, only contractual rights. See here nota bene for an Opinion of Vlas AG for the Dutch Supreme Court, flagging that in restitution cases the analysis may be more complicated than the NCC in current case suggests.

In the discussion of digital assets in particular (see eg here re UNIDROIT work on same, and here for the UK Law Commission paper), the property rights element surely is essential. This in my view gives those States with lex voluntatis also covering the property aspects (such as arguably Belgium’s residual private international law rules) an edge when it comes to regulatory competition in the area.

Nota bene just this morning, professor Lehmann posted a paper on the wider issue, calling for people to drop focus on the property analysis. Rebus sic stantibus however, the issue of relevance in the case here, remains: parties in my view would do well to identify a lex contractus which encompasses property rights in party autonomy. Unusually perhaps and most probably not by design, this makes laws such as those of Belgium, a clear winner (whether as lex contractus for the whole contract of merely, by way of dépeçage, for the property aspects only).

Geert.

May personal data be subject to property rights?
Challenging 1st instance decision A'dam

Revindication of documents and data. Ownership over digital data in clinical trials
Held despite NY law as lex contractus per Rome I to be subject to NL property law https://t.co/pC6N9sAuZ3

— Geert Van Calster (@GAVClaw) April 28, 2023

Matthias Lehmann (University of Vienna) has made available on SSRN a new paper with the title Who Owns Bitcoin? Private Law Facing the Blockchain.

The abstract reads as follows:

Blockchain, or “distributed ledger” technology, has been devised as an alternative to the law of finance. While it has become clear by now that regulation in the public interest is necessary, for example to avoid money laundering, drug dealing or tax evasion, the particularly thorny issues of private law have been less discussed. These include, for instance, the right to reverse an erroneous transfer, the ownership of stolen coins and the effects of succession or bankruptcy of a bitcoin holder. All of these questions require answers from a legal perspective because the technology ignores them.
Particular difficulties arise when one tries to apply a property analysis to the blockchain. Surprisingly, it is far from clear how virtual currencies and other crypto assets are transferred and acquired. The traditional requirements posed by private law, such as an agreement between the parties and the transfer of possession, are incompatible with the technology. Moreover, the idea of a “void” or “null” transfer is hard to reconcile with the immutability that characterizes the blockchain.
Before any such questions can be answered, it is necessary to determine the law governing blockchain transfers and assets. This is the point where conflict of laws, or “private international law”, comes into play. Conflicts lawyers are used to submitting legal relations to the law of the country with the most significant connection. But seemingly insurmountable problems occur because decentralized ledgers with no physical connecting factors do not lend themselves to this type of “localization” exercise.
The issue of this paper therefore is: How can blockchain be squared with traditional categories of private law, including private international law? The proposal made herein avoids the recourse to a newly fashioned “lex digitalis” or “lex cryptographica”. Rather, it is suggested that the problems can be solved by using existing national laws, supplemented by an international text. At the same time, the results produced by DLT should also be accepted as legally protected and corrected only where necessary under the applicable national rules. In this way, a symbiosis between private law and innovative technology can be created.

Written by Phoebe Winch, Secretary of International Law Association (ILA) Australian Branch.

 

The Australian Branch is now calling for submissions for the 2023 Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law.

The prizes are awarded for essays that demonstrate outstanding scholarship and make a distinct contribution to the field of public international law and private international law (conflict of laws), respectively. Essays for the prize to be awarded in 2023 should be sent to the email address of the Secretary of the Australian Branch at secretary@ila.org.au.

Further details (including conditions of entry) are available here. The deadline for submission is: 15 July 2023.

The results will be made available on the website of the ILA (www.ila.org.au) on approximately 31 August 2023. Winners will be notified by email. 

Tobias Lutzi (University of Augsburg), Ennio Piovesani (University of Turin), Dora Zgrabljic Rotar (University of Zagreb) edited a book titled Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended?, with Bloomsbury.

The book is the result of the third project of the EAPIL Young Research Network.

This book looks at the question of extending the reach of the Brussels Ia Regulation to defendants not domiciled in an EU Member State. The Regulation, the centrepiece of the EU framework on civil procedure, is widely recognised as one of the most successful legal instruments on judicial cooperation. To provide a basis for the discussion of its possible extension, this volume takes a closer look at the national rules that currently govern the question of jurisdiction over non-EU defendants in each Member State through 17 national reports. The insights gained from them are summarised in a comparative report and critically discussed in further contributions, which look at the question both from a European and from a wider global perspective. Private international lawyers will be keen to read the findings and conclusions, which will also be of interest to practitioners and policy makers.

The table of contents is available here.