Flux des sites DIP

The era of globalization is characterized by the dynamic movement of people across borders and migration in various parts of the world. The juxtaposition and coexistence of different ethnic, cultural or religious groups within society poses the challenge of accommodating divergent legal, religious and customary norms. Of key concern is how far the fundamental values of the receiving state ought to be imposed on all persons on the soil, and to what extent the customs, beliefs and the cultural identity of individuals belonging to minority groups should be respected. This challenge arguably requires reconsidering and reevaluating the conventional methods of private international law that are grounded in the territorial “localization” of legal relationships. Against this background, Yuko Nishitani (Professor at Kyoto University, Japan) envisaged studying various conflict of laws issues from the viewpoint of cultural identity in private international family law and delivered a lecture at the Hague Academy of International Law on “Identité culturelle en droit international privé de la famille”, which has been published in Recueil des cours, Vol. 401 (2019), pp. 127-450.

In her lecture, Nishitani first analyzes the notion and meaning of cultural identity in private international law, after comparatively delineating legal developments in major legal systems (Chapter I). The author posits that, while the notion of cultural identity should not be understood as its own legal category, it serves as a guiding principle and theoretical foundation in justifying certain solutions in private international law (Chapter II).

In multiethnic and multicultural societies, the belonging of individuals to states, regions, communities or other groups is gradually relativised and redefined. In light of the recent effects of globalization, the author contemplates the appropriate methods for determining the personal law to cater for the cultural identity of individuals, overcoming the conventional dichotomy between the principle of nationality and the principle of habitual residence (Chapter III). Considering the multiplication of relevant legal and social norms, the author also considers the interaction between state law and customary, religious or cultural non-state norms to seek solutions for “conflict of norms” in a broader sense (Chapter IV).

On the other hand, for the sake of coherence and security of the legal system, the state exercises control, where necessary, to preclude effects of foreign legal institutions. It is essential to define the functioning of public policy and fundamental rights so as to set limits to respect for cultural identity (Chapter V). Finally, the author reflects on alternative conflict of laws methods geared toward administrative and judicial cooperation between sovereign states, with a view to accommodating the cultural identity of individuals (Chapter VI).

At the end of her lecture, the author highlights the importance of constructive dialogue between different cultures, given that humanity has a long history of success in mutually developing, exchanging and enriching its diverse cultures.

More information about the author and the book are available here (in French).

The proceedings of the symposium held in June 2019 on the Paris international commercial chambers were published in a special issue of the Revue Lamy Droit des Affaires which can be freely download on the website of the Paris Court of Appeal.

The presentations were made in French, and the proceedings are written in the same language.

The Court has provided the following summary in English:

A little more than a year after the signature of the procedural protocols establishing the international commercial chambers in the Commercial Court and the Paris Court of Appeal, the symposium was opened to a large audience by Mrs Chantal Arens, First President of the Paris Court of Appeal, who, among other things, announced the forthcoming publication of a bilingual procedural guide before these chambers, with the aim of presenting the proceedings in a detailed and didactic manner, and called for the regulatory consolidation of the jurisdiction of the Paris Court of Appeal.

Mr Gille Cuniberti, Law Professor at the University of Luxembourg and moderator of the roundtables, pointed out that the creation of international commercial chambers forms part of an international competition between courts from which one of the issues at stake is the attractiveness of French law.

After a reminder of the origins of the commercial chambers by Mr Guy Canivet, Honorary First President of the Court of Cassation, and of the options chosen by the Ministry of Justice presented by Mr Thomas Andrieu, Director of Civil Affairs for the French Ministry, Ms Marie-Aimée Peyron, Chairman of the Paris Bar Association, went back on the support of the Paris bar in the creation of these chambers.

Students at the Sciences Po Law school of Paris (Mr Félix Briant, Ms Auriane Clement, Mr Mathieu Larroque, Ms Charlotte Muller) presented the fruit of their work done during one year with the International Commercial Chamber of the Court of Appeal by providing an overview of the choices made abroad in the creation of international commercial courts in Europe and in the world.

This symposium allowed to set out how to access to the international chambers in France, their jurisdiction and the applicable procedure, stressing in particular the desire to give greater importance to predictability in the conduct of the trial, the orality of the proceedings, the possible use of foreign languages and, in particular, the use of the English language.

Mr François Ancel, Ms Fabienne Schaller and Ms Laure Albert, all three judges in the International Commercial Chamber of the Paris Court of Appeal intervened to develop these various points, as have the President of the International Commercial Chamber at the Paris Commercial Court, Mr Philippe Bernard, and Mr François Vaissette, Avocat Général representing the General Public Prosecutor’s Office of the Paris Court of Appeal , which was able to clarify the role of the Public Prosecutor’s Office in these chambers.

Mr Alban Caillemer du Ferrage and Ms Emilie Vasseur, members of the Paris Bar, stressed the important role of the creation of these chambers and the will of the bar to promote the stipulation of clauses conferring jurisdiction to the benefit of the Paris courts (in particular in the choice of ISDA to open its Master Agreement to the jurisdiction of French courts and French law) and inisted also on the judicial administration of evidence and the voluntary appearance of the parties and witnesses.

Finally, scientific insight was given by Ms Marie-Elodie Ancel, Law Professor at the University of Paris Est Créteil on the first decisions handed down by the International Chamber of the Court of Appeal and by Professor François Mailhé, Deputy-Dean of the Faculty of Law and Political Science of the Picardie Jules Verne University, who asked in particular how to meet the needs of economic stakeholders (use of the English language, set up of a procedural timetable; compulsory production of evidence; cross-examination).

During his executive summary, Mr Emmanuel Gaillard, Visiting Professor at the Yale Law School and at the Harvard Law School, called for pursuing the movement initiated by the creation of these chambers, in particular in favour of the use of the English language without translation and by implementing an adequate communication to raise awareness of these chambers, considering that France could usefully offer a high-quality public service of justice within a reasonable time and in accordance with international standards.

In Oakfield Foods v Zaklad Przemyslu Miesnego Biernacki SP Z O O [2020] EWHC 250 (QB), Kimbell DJ granted a writ of control for £149,100.43 (monies to be paid into court) on the basis of the European orders for payment and their enforcement (EOPs) Regulation 1896/2006. The order for payment was issued in June 2018 by the Regional Court in Poznan.

In the simmering dispute on jurisdiction, it is Oakfield’s position that the court in Poland did not have jurisdiction because, under the terms of the sales agreement between it and Biernacki, there was choice of court for the courts of England and Wales. The position Biernacki in their application for the EPO is that the meat that was sold from Biernacki to Oakfield, was delivered in each case on Incoterms CIF/CIP under cover of CMR notes, and delivery took place in Poland.

Article 20 EOP provides for a system of review of the order. Oakfield argue that the time-limit included in it has not even begun running for service was not properly done. Oakfield have also launched proceedings in Poland challenging the EOP. Those proceedings were issued on 1 July 2019.

Kimbell DJ after discussing the service issues (incl the relation between the EOP and the Service Regulation) granted a writ of control (shielding therefore Biernacki from the risk of non-payment), stayed further enforcement until the litigation in Poland will be resolved, and also, at 98, ordered that Oakfield notify Biernacki’s English solicitors every four to six weeks of progress in the application challenging the EOP so as to avoid the claim being warehoused.

The substantial debate on jurisdiction in Poland clearly will involve the usual discussions on GTCs as well as Incoterms and choice of court.

Geert.

European orders for payment and their enforcement (EOPs) Regulation 1896/2006.
Writ of control granted for £149,100.43.
The underlying jurisdictional issue remains: forum contractus following Incoterms CIF/CIP under cover of CMR notes with delivery taking place in Poland. https://t.co/UE0nwfQ2DG

— Geert Van Calster (@GAVClaw) February 11, 2020

The fourth research seminar of the IFITIS Research Project, led by Jean-Sylvestre Bergé, will take place in Nice on 13 March 2020.

The IFITIS Project explores, generally, a phenomenon that the project leaders call “full movement beyond control”.

The expression refers to the movement of persons, goods, services etc. across territories. The phenomenon is understood to have a “full” dimension in that it calls for the attention and action of public and private actors (States, companies, individuals) at local, national and international levels. And it is regarded as “beyond control” in the sense that, in specific or short-term situations, like those of crisis, institutions with responsibility for such movement do not have full control over it.

The seminar, titled Antecedent and Modal Approaches to Circulation, is concerned with the understanding and representations of the notion of movement and with the modalities of movement in different areas of knowledge.

Speakers include Christian Rinaudo (Univ. of Nice), Jeremy Heymann (Univ. Jean Moulin – Lyon 3), Alain Strowel (Catholic Univ. of Louvain), Philippe Billet (Univ. Jean Moulin – Lyon 3), Marina Teller (Univ. of Nice), Jean-Yves Carlier (Catholic Univ. of Louvain), Sophie Robin-Olivier (Univ. Paris 1 – Panthéon Sorbonne) and Jean-Sylvestre Bergé (Univ. of Nice).

See here for further information.

The first issue of the Journal du droit international for 2020 has just been released. It contains two articles and several casenotes relating to private international law.

In the first article, Johanna Guillaumé (University of Rouen) explores the obligation of notaries to apply rules of private international law (L’office du notaire en droit international privé).

The English abstract reads:

The notary is more and more confronted with the presence of foreign elements and, consequently, with the implementation of conflict of law rules. Studies generally focus on the content of these rules and how they are to be implemented. However, this presupposes the resolution of a preliminary question : Is the notary obliged to implement the rules of private international law ? This is the question of the notary’s obligations when faced with a foreign element. No text provides an answer to this question. Case law is also very rare. The article attempts to define the office of the notary in private international law. The analogical approach is first taken, in order to see whether the obligations of the judge or the office of the civil registrar, which are better defined, can be extended to the notary. As the notary does not exercise the judicial mission of the former and does not have the bureaucratic dimension of the latter, the answer is negative. Therefore, only a functional approach can define the obligations of the notary in private international law, that is, an approach which takes into account the obligations that characterize the notarial activity : the obligation to draw up legal and effectives deeds on the one hand, and the obligation to issue instruments on the other. What is the scope of these obligations if there is a foreign element ?

The second article, authored by Guillaume Kessler (University of Chambery), discusses the evolution of the private international law of parentage in new family configurations (Le droit international privé à l’épreuve du renouveau de la filiation).

The abstract reads:

In recent years, parentage law has been undergoing a disruption due to the combined effect of major social and technological developments that have led to the emergence of new family configurations such as co-maternity, multiple parenthood, surrogate motherhood, parentage without sexuality or same-sex adoption. French private international law has not yet really taken note of this renewal and continues to be based on rules that were already open to criticism in their time and that can now be considered obsolete. A change of connecting factor, with a preference given to the law of domicile rather than that of nationality, would be a first step towards resolving some of the difficulties created by this ongoing revolution. The development of the recognition when the status has been established abroad would be a second one. However, the importance of the issue and the complexity of the problems may require an even more radical methodological change and make it necessary to strengthen international cooperation in an area that might seem resistant to multi-state agreements.

A full table of contents can be downloaded here.

Professor Ron Brand has just published a new article in the Journal of Dispute Resolution that arose from his presentation at the 2019 Annual Meeting of the American Society of Comparative Law. In it, he applies comparative method to international litigation from the perspective of a U.S.-trained lawyer, and particularly one who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters.

The article is available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3532035

On 29 November 2019, the Council of the European Union adopted a general approach regarding the recast of Regulation 1393/2007 on the service of judicial and extrajudicial documents abroad. On 7 February a new Council document was published, featuring the Annexes of the future Recast Regulation.

The new Regulation, which will likely be adopted in the Summer or Autumn of 2020, is not expected to bring about major changes to the current legal landscape.

A comparison is provided below between some key features of the Commission’s proposal of 31 May 2018, on the one hand, and the corresponding solutions envisaged in the compromise text elaborated by the Council, on the other.

1. The Commission proposed to clarify by an additional paragraph in Article 1 that the Regulation does not apply “to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party”, thereby moving to the body of the Regulation what was already stated in Recital 8 of the 2007 Regulation. Concurrently, the Commission envisaged to introduce a new provision – Article 7a – requiring the recipient to appoint a representative for the purpose of service in the forum State for all documents following the one introducing proceedings. The Council took the view that both innovations should be dropped.

2. The Commission Proposal aimed to enhance electronic communication between Transmitting and Receiving Authorities, suggesting the establishment of national IT systems (Article 3a). This provision was partially amended, following the concerns of national delegations with respect to the sustainability of a decentralized mechanism.

3. The Proposal introduced a new provision, aiming at a more active assistance of Member States authorities towards a smoother and more efficient search of the whereabouts of the defendant (Article 3c). The provision underwent minor amendments by the Council.

4. The Proposal added two paragraphs to Article 8. One was meant to extend the delay by which the recipient may refuse service, while the other intended to specify the duty of the court of the forum to examine whether the refusal was founded. The Council’s compromise text retained the former suggestion, while rejecting the latter.

5. The Proposal introduced two additional paragraphs in Article 14 on service by post, suggesting the use of a specific acknowledgment of receipt, and deeming postal service as validly effected when served to adult persons living in the same house with the recipient. The Council rejected the proposed amendments. With reference to Article 14, two additional points should be stressed: first, the wording of the provision has changed in a way that leads to the conclusion that postal service does not have to pass through transmitting authorities / court channels; second, postal service may be resorted to not only for persons domiciled, but also for those who are merely present in the country of destination.

6. The Commission Proposal attempted to pose an obligation to all Member States to provide information on professions or competent persons permitted to effect direct service. The Council deleted this part of the proposal almost in its entirety. The efforts of the Commission towards extending direct service in all Member States met with the adamant refusal of the Council.

7. The Proposal introduced a provision on electronic service (Article 15a). The Council adopted in principle the proposal as Article 14a, slightly modifying its wording. It also stated the obligation of Member States to specify the conditions under which electronic service will be accepted.

8. The Commission proposed two innovations on Article 19, regarding the situation where the defendant fails to enter an appearance: an additional tool of communication for the purposes of Article 19(2), i.e. sending an e-mail or a message to an address or an account known to the court seised, and a streamlined approach to the delay within which an application for relief must be filed with the court (2 years following the date of the judgment). Both proposals were discarded by the Council.

As a general conclusion, it may be stated that the innovative steps proposed by the Commission were met with reservation both by the European Parliament and the Council. What hopefully will improve is the cooperation between Member States authorities in the preliminary field of transmission. This will of course depend on the willingness and preparedness of Member States.

Regarding actual service of process, the situation remains the same. A divide among Member States will continue to exist in regards to direct service; e-service will heavily depend on the conditions set out by Member States; a unified approach regarding the term within which an application for relief was rejected; finally, the obligation of the claimant to serve everything abroad will continue to exist, save for the exceptions provided for by the Regulation (legal representative and unknown residence), confirmed by the CJEU in the Alder case.

I reviewed the High Court’s decision (refusal of anti-suit) in Gray v Hurley here. The Court of Appeal [2019] EWCA Civ 2222 has now referred to Luxembourg.

As I noted at the time, the High Court discussed the matrimonial exception of Brussels Ia, as well as the exclusive jurisdictional rule of Article 24(1), and (briefly) Article 25’s choice of court. The appeal however only concerns the application of Article 4’s domicile rule. Was Mr Hurley domiciled in England on 26 March 2019, when the court was seized?  Article 62(1) Brussels Ia refers to the internal law. Lavender J decided that Mr Hurley was not domiciled in England, however that Lindner should be read as extending to the defendant’s last known domicile in a case where the Court: (1) is unable to identify the defendant’s place of domicile; and (2) has no firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. I suggested at the time that this is a very relevant and interesting reading of Lindner, extending the reach of Brussels Ia as had been kickstarted by Owusu, with due deference to potential New Zealand jurisdiction (New Zealand domicile not having been established).

Note also that Mr Hurley had initially also relied on A34 BI1 however later abandoned this line. Article 34 is however cross-referenced in the discussion on Article 4’s domicile rule.

The Court of Appeal has concluded that the meaning of Article 4(1) and its applicability in this case is not acte clair and has referred to Luxembourg. The focus of the discussion was not whether or not Ms Gray was domiciled in England (see however my doubts as to the extension of Linder in the case at issue). Rather, the focus is on anti-suit and Article 4: Ms Gray submits that Article 4(1) provides her with a right not to be sued outside England, where she is domiciled, and that the court is obliged to give effect to this right by the grant of an anti-suit injunction to restrain proceedings in a third State.

As the Court of Appeal notes, the consequences of her arguments are that an EU-domiciled tortfeasor who was being sued only in a third State could require the court of his domicile to grant an anti-suit injunction – in contrast to the ‘flexible mechanism’ under Articles 33 and 34 in cases where the same or related proceedings exist in both jurisdictions. By the same token, if there are proceedings in a Member State, the defendant could seek an anti-suit injunction to prevent the claimant from taking or continuing unrelated proceedings in a third State. And, as appears from the present case, it is said that it makes no difference that the claimant’s case is not one that the courts of the Member State could themselves entertain, meaning that the ‘right’ said to be conferred on the claimant by Article 4(1) would have no content.

Yet again therefore interesting issues on the use of anti-suit to support EU (rather than: a particular Member State) jurisdiction. The Court of Appeal is minded not to side with Ms Gray, for comity reasons (anti-suit being a serious meddle in other States’ jurisdictional assessment) and because the use of anti-suit here would not serve the Regulation’s objectives of sound and harmonious administration of justice. At 52 it suggests the MS Gray line of reasoning would have profound consequence which would be expected to be explicit in the Regulation and not to be arrived at sub silentio – but refers to the CJEU for certainty.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2 practically in its entirety.

The EAPIL founding conference, scheduled to take place in Aarhus on 14, 15 and 16 May 2020, is fast approaching.

We are happy to announce that all law students without a final master degree in law may now register to the conference at a reduced fee of 30 Euros.

The reduced fee gives access to all lunch breaks and the reception.

Those wishing to also take part in the conference dinner are asked to pay for the full dinner fee (50 Euros).

Further information can be found here.

Which rules are more important to determine the protection of weaker parties in financial disputes – the Brussels I bis Regulation on jurisdiction and the recognition and enforcement of judgments, or the Markets in Financial Instruments Directive (MiFID)?

That is, in a nutshell, the question faced by the CJEU in Petruchová v. FIBO Group Holdings, a case decided on 3 October 2019.

Mrs Petruchová, a Czech resident, had entered into a framework agreement with a Cypriot brokerage company, allowing her to conclude highly speculative transactions in the market for foreign exchange (FOREX). The agreement contained a clause giving jurisdiction for any dispute under the contract to Cypriot courts. When a trade went awry, Mrs Petruchová nevertheless sued the brokerage company in the Czech Republic.

The solution seemed straightforward. It seemed obvious that Mrs Petruchová was a consumer in the broad sense, as defined by Article 17(1) of Brussels I bis, given that she had speculated outside her trade and profession for her private account. Under Article 25(4) of Brussels I bis, forum selection agreements with consumers are valid only where they meet the conditions set out in Article 19, which was not the case.

However, there was a nagging problem. MiFID provides for a much more nuanced protection of weaker parties to financial transactions than Brussels I bis. Not only does it distinguish between three different categories of investors (retail investors, professional investors, and eligible counterparties), it also uses different criteria to determine the investor’s sophistication. Among them are the client’s wealth, the number of trades she has previously executed, and any experience she might have in the financial industry. In addition, the investor can to some extent choose to upgrade or downgrade her categorisation.

In Petruchová v. FIBO Group Holdings, the CJEU gave priority to Brussels I bis. It stressed that the knowledge and information that a person possesses in a certain field do not matter for the purposes of determining whether she requires consumer protection (para 55-56). Nor do the value of her transactions, the risks associated with them, or her active conduct (para 59).

The Justices admitted the need for consistency of EU law, which could involve taking into account other legislative provisions when defining the “consumer” (para 61). Yet, the parallel concept of the retail investor in MiFID did not appeal to them. Their ‘killer argument’ was that the definition under MiFID also covers legal persons – a major ‘no-no’ for consumer protection (para 71).

The CJEU also did not follow a parallel to Article 6(4) of the Rome I Regulation on the law applicable to contractual obligations, which the Czech court of first instance had invoked to exclude disputes over financial instruments from the scope of consumer protection. To overcome this point, the CJEU distinguishes between the purposes of Rome I and Brussels I bis (para 64).

Instead of this complex and debatable argument, the Court of Justice could have relied on a proper reading of Article 6(4)(d) of Rome I, which excludes rights and obligations which constitute a financial instrument only “in so far as these activities do not constitute provision of a financial service”. FIBO Group Holdings had clearly rendered a financial service to Mrs Petruchová.

The upshot of the case is that the concept of the consumer in the Brussels Ia Regulation remains uniform and does not differ in financial disputes. This result has the benefit of clarity.

But one may reasonably ask why an investor defined as a ‘professional’ for the purposes of MiFID is permitted to ignore jurisdiction agreements she has entered into. Are not the latter much easier to understand than the obligations under complex financial instruments? Perhaps one could argue that the investor is only a “part professional”: professional in financial matters but an amateur in legal matters, such as forum selection clauses.

Regretfully, the CJEU has not entered into this discussion.

Thank you Filbert Lam for yet again flagging an important case. In [2020] EWCA Civ 6 Kabab-Ji SAL v Kout Food Group Flaux LJ extensively discussed the application of Sulamerica as to the governing law of an arbitration agreement which provides for arbitration in Paris but which is contained in a main agreement which is expressly governed by English law; and as to whether the respondent became a party to the main agreement and/or the arbitration agreement notwithstanding the presence of No Oral Modification provisions in the main contract.

Parties’ choice of English law for the underlying contract was found to also be an express choice of the law governing the arbitration agreement. This meant there was no need to consider the implications (particularly viz a possible implied choice of law) of a choice of Paris as seat or other aspects of the Sulamérica test. The award applying French law was set aside.

Jonathan Lim suggests here that the judgment is a departure from the understanding of separability in previous CA decisions, although the ensuing discussion on his feed also suggests that the factual interpretation of the clauses might suggest the exact opposite. I tend to agree with Jonathan: the generic nature of the clauses and the lack of (reported at least) other strong indications seem to suggest the finding of express choice of law was optimistic.

Geert.

On 10 February 2020, the European Commission announced its intention to open a process of consultation to get feedback from citizen and stakeholders on whether the EU should join the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters (the Hague Judgments Convention). 

In the words of the Commission, the EU has put in place a highly developed internal acquis for the cross-boder recognition and enforcement of judgments, as a necessary complement to its single market. By way of contrast, at the international level the recognition and enforcement of judgments in civil and commercial matters has, until recently, not been successfully regulated, even if some bilateral agreements between States exist.

Currently, civil or commercial judgments rendered by courts in the European Union can be recognised and enforced in a third country only in a limited number of situations, namely: (i) based on the 2005 Choice of Court Convention, which has a limited scope; (ii) in Iceland, Norway and Switzerland based on the Lugano Convention; (iii) based on a limited number of bilateral treaties between individual Member States and third States; (iv) based on multilateral treaties related to particular matters; or (v) on the basis of the national law of third States, sometimes subject to reciprocity. 

The Commission believes that the adoption in July 2019 of the Hague Judgments Convention may change the situation just described. Moreover, it claims that a future proposal for EU accession to the Judgments Convention would be in line with the objectives set out in the Political Guidelines for the European Commission (2019-2024), in particular related to “An economy that works for people”.

The policy objectives of the EU accession to the Judgments Convention would be: to enhance access to justice for EU businesses and citizens through a system that facilitates the recognition and enforcement of judgments everywhere in the world where the debtor happens to have assets; to increase legal certainty for those involved in international trade and investment; to reduce costs for businesses and citizens involved in international dealings or in international dispute resolution; to allow the recognition and enforcement of third-country judgments in the EU only where fundamental principles of EU law are respected, such as for instance the right to a fair trial, and which do not affect the EU acquis related to the internal recognition and enforcement of judgments.

As for the policy options, the Commission puts forward the following:

Option 0: Baseline scenario: no policy change. The Union will thus not accede to the Judgments Convention and the current status quo will continue. However, given the EU’s active involvement in these negotiations and the fact that its results reflect EU’s policy interests, this scenario is taken into account mainly as a benchmark in order to assess the other options.

Option 1a: The Union will accede to the Judgments Convention without making any declaration.

Option 1b: The Union will accede to the Judgments Convention, excluding certain matters reflecting the EU’s policy objective of protecting weaker parties, such as consumers, employees or, in matters relating to insurance, the policyholder, the insured or the beneficiary, or/and certain matters falling under the exclusive jurisdiction of EU courts, for instance with regard to disputes relating to tenancies or commercial lease of immovable property.

Option 1c: The Union will accede to the Judgments Convention excluding State entities from the application of the Convention

Option 1d: A combination of options 1b and 1c

The Commission’s preliminary assessment of acceding to the Convention points to a positive outcome in economic terms, coupled with an improvement of growth and investment, thus of employment (the Commission acknowledges nontheless that as trade and investment of companies from outside the EU might also increase, some negative economic impacts in the short term cannot be excluded for EU competitors).

From the point of view of access to justice, signing the Convention would have postive implications as well. In terms of administrative burdens, the Commission is once again optimistic: although some Member States with a simple system for recognition and enforcement would face some negative impact if the new system based on the Judgments Convention is implemented, the Commission believes that such possible negative impacts would be offset by the important economic benefits.

The public consultation on the above-mentioned policy objectives and options, and on the likely impacts of signing the Convention, will be launched in March/April 2020 and run for a minimum period of 12 weeks. It will be available via the Commission’s central public consultations page; the questionnaires will be available in English, French and German but the replies can be made in any of the 24 official languages.

An in-depth Study on the Hague Judgements Convention Draft of November 2017, requested by the JURI Committee of the EU Parliament, to a large extent, still valid under the final version, can be downloaded here; it includes a chapter devoted to the relationship with the EU rules, and policy recommendations on the position of the EU vis-à-vis the Convention. A detailed explanation of the Convention as adopted is provided by A. Bonomi (Professor at the University of Laussane) and C. Mariottini (Senior Research Fellow, Max Planck Institute Luxembourg) at the Yearbook of Private International Law, vol. 20 (2018/2019), pp. 537-567. 

The 12th edition of the leading French treatise on private international law of Prof. Pierre Mayer (Panthéon-Sorbonne University) is out. The book is now primarily updated  by Vincent Heuzé (Panthéon-Sorbonne University) and Benjamin Remy (Cergy Pontoise University).

The book covers all traditional dimensions of the conflict of laws and, in keeping with the French tradition, the law of citizenship and immigration.

More details can be found here.

Maria Caterina Baruffi and Matteo Ortino (both University of Verona) have edited Trending topics in international and EU law: legal and economic perspectives.

The book collects the proceedings of the #TILT Young Academic Colloquium, held in Verona on 23-24 May 2019. The event, targeted to Ph.D. students and early career scholars, was organised by the Law Department of the University of Verona in collaboration with the Ph.D. School of Legal and Economic Studies and the European Documentation Centre.

The volume is divided into four parts, respectively devoted to public international law, including papers on human rights, international criminal law and investment law; private international law ; EU law, both in its general aspects and its policies; and law and economics.

The table of contents can be found here. See here for further information.

I have for the moment little to go on in a new claim, launched in the English courts, in the Corporate Social Responsibility /mass torts category. The claim was apparently filed against Barrick Tz Limited, formerly Acacia Mining, domiciled in the UK, alleging human rights abuses by security forces at the company’s North Mara mine.

Of jurisdictional note undoubtedly will be the application of Articles 33-34 Brussels Ia: forum non conveniens – light, and a likely application for summary judgment by defendant. There is as far as I know no mother holding issue involved, unlike in Vedanta or Bento Rodriguez /Samarco.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

Claim was issued against Barrick Tz Limited, formerly known as Acacia Mining.

For the kind of jurisdictional issues involved, use search string 'CSR' on the https://t.co/nqA3VE1lht blog. #bizhumanrights https://t.co/wIr8X6D0Le

— Geert Van Calster (@GAVClaw) February 10, 2020

It took quite some time but the news is finally here: North Macedonia has an entirely new Private International Law Act.

The Act was adopted by the Assembly on February 4th 2020 and it was just published in the Official Gazette of the Republic of North Macedonia No. 32, on 10 February 2020. The Act is not available online yet but we will make sure to share it here as soon as it or an English translation is available.

The first draft of the Act was completed in 2015 and was much welcomed by experts and scholars in the region as it ensured compatibility with all relevant EU Regulations, including Rome I, Rome II, Rome III, Brussels I bis, Brussels II bis, Succession Regulation etc. Since then, the Draft Law had been waiting for discussion and adoption by the Assembly until recently. The wait was worth it since the law has been passed without any amendments which is even more groundbreaking given that the new Act is quite a departure from the previous PIL Act in force.

Until now, the Republic of North Macedonia had been applying the PIL Act enacted in 2007 (Official Gazette of Republic of Macedonia No 87/2007). An amendment of this act was made in 2010 specifically to provisions on choice of law (Official Gazette of the Republic of Macedonia, No. 87/2007, 156/2010). While the rules on choice of law in contractual and non-contractual matters were updated to match the EU Conventions (and later Regulations), the Act of 2007 had stayed quite true to its predecessor – the Yugoslav PIL Act of 1982.

This new PIL Act of 2020 makes North Macedonia now the bearer of the most modern PIL Act in the Region of the Western Balkans. The last adopted PIL Act in this region was the Act of Montenegro, in force since 2014. Although other reforms of PIL Acts are underway in Serbia (since 2014) and Kosovo (since 2018) these countries and Bosnia and Herzegovina continue applying the Yugoslav PIL Act of 1982, while Albania’s PIL Act in force is that of 2011.

A more detailed report of the PIL developments in the region of the Western Balkans will be posted soon.

For queries about the Act, please contact Prof. Toni Deskoski at t.deskoski@pf.ukim.edu.mk, or Prof. Vangel Dokovski at v.dokovski@pf.ukim.edu.mk, or me at donike.qerimi@uni-pr.edu.

A spectre is haunting Europe – the spectre of human rights lawsuits. Striking human rights cases have always enjoyed high media attention. But lately, they appear in a new dimension in Europe. The headline-grabbing “KiK” trial before the Regional Court of Dortmund and the current discussion about the adoption of a German Supply Chain Law are proof of this: It has long ceased to be a mere thought that German companies could be held liable in Germany for damage that occurred somewhere in their global supply or value chain. But are civil courts and arbitral tribunals suited at all for enforcing international human rights obligations of business enterprises, which are already highly controversial under substantive law?

On 4 May 2020, the Munich Center of Dispute Resolution (MuCDR) will host a conference that will be dedicated to this phenomenon. It will shed light on fundamental theoretical and dogmatic questions of civil human rights lawsuits as well as their consequences for the legal system, the legal profession, the German economy as well as for potential plaintiffs.

The full conference programme is available  here (in German).

Date: Monday, 4 May 2020

Registration: Participation in the conference is free of charge. Registration is required. Please find the registration form online.

 Venue: Ludwig Maximilians University, Main Building, Senatssaal E 106, Geschwister-Scholl-Platz 1, 80539 Munich, Germany

Conference language: German

Luis de Lima Pinheiro (university of Lisbon) has posted Public Policy and Private International Law – Portugal on SSRN.

The abstract reads:

The present report is aimed at describing the concept, legal framework, and features of the public policy clause in the Portuguese legal order, and at giving an account of the main applications of this clause in modern Portuguese case law and literature (marriage, children, custodianship, succession, contract, non-contractual obligations, property, intellectual property, and corporate).

The report deals mainly with choice of law, but reference is also made to the recognition of foreign judgments, since the public policy features and applications are to a large extent common in both contexts.

Portuguese courts tend to respect the exceptionality of the public policy clause. In recent case law, only a few judgments have deviated from this guideline, namely concerning the right of some heirs to a legal portion of the estate. In the vast majority of situations, the arguments based upon international public policy considerations were not accepted by the courts.

The paper is forthcoming in Public Policy and Private International Law (Olaf Meyer ed., Edward Elgar). It can be downloaded here.

Written by Anna Wysocka-Bar, Senior Lecturer at Jagiellonian University (Poland)

On 2 December 2019 Supreme Administrative Court of Poland (Naczelny S?d Administracyjny) adopted a resolution of seven judges (signature: II OPS 1/19), in which it stated that it is not possible – due to public policy – to transcribe into the domestic register of civil status a foreign birth certificate indicating two persons of the same sex as parents. The Ombudsman joined arguing that the refusal of transcription infringes the child’s right to nationality and identity, and as a result may lead to infringement of the right to protection of health, the right to education, the right to personal security and the right to free movement and choice of place of residence. Interestingly, the Ombudsman for Children and public prosecutor suggested non-transcription. The background of the case concerns a child whose birth certificate indicated two women of Polish nationality as parents, a biological mother and her partner to a de facto union. Parents applied for such transcription in order to apply subsequently for the issuance of the passport for the child. 

The Supreme Administrative Court stated that in accordance with the law on civil status register, the transcription must be refused if contrary to ordre public in Poland. The public policy clause protects the domestic legal order against its violation. Such violation would result from the “recognition” of a birth certificate irreconcilable with fundamental principles of public policy. It was underlined that in accordance with Article 18 of the Constitution of Poland marriage is understood as a union between a man and a woman; family, motherhood and parenthood are under protection and guardianship of the State. In accordance with those principles and the whole system of family law, only one mother and one father might be treated as parents of a child. Any other category of “parent” is unknown. The Court underlined, at the same time, that transcription of the birth certificate into the domestic register should not be indispensable for a child to obtain a passport, as the child has, by operation of law, already acquired Polish nationality as inherited from the mother. However, in practical terms this would require challenging administrative authorities’ approach (requesting domestic birth certificate) in another court procedure. 

It should be explained here that the resolution was taken on the request of the panel of judges of the Supreme Administrative Court reviewing the cassation appeal brought by the parents, and therefore, in this particular case is binding. In other, similar cases panels of judges should, in general, follow the standpoint presented in such resolution. If the panel of judges is of a different view, it should request another resolution, instead of presenting a view contrary to the previous one. As a result, it might happen that there are two resolutions of seven judges presenting different views. Given the above, it can be said that the question of transcription is not as definitively answered as might seem at first glance. 

A similar justification based on the public policy clause in conjunction with Article 18 of the Constitution has already been presented before in other cases, for example one concerning children born in the US out of surrogacy arrangements with a married woman, whose birth certificates indicated two men as parents, a (biological) father and his partner (identical judgments of 6 May 2015, signature: II OSK 2372/13 and II OSK 2419/13). The implications of these judgments were quite different as the Court refused to confirm that children acquired Polish nationality by birth from their father. In the eyes of the Court and according to fundamental principles of Polish family law, children born out of surrogacy (which is not regulated in Poland) by operation of law have filiation links only with the (biological, surrogate) mother and her husband. The paternity of the biological father (only) might be (at least theoretically) established, once the paternity of the surrogate mother’s husband is successfully disavowed in a court proceeding. 

Here it should be added that opposite views were presented by the Supreme Administrative Court in other judgments. One of the cases concerned transcription of the birth certificate of a child born in India out of surrogacy arrangement. Such birth certificate indicates only the father (in this case a biological father) and do not contain any information about the (surrogate) mother. This was perceived as contrary to public policy by the administrative authorities, which underlined that in the Polish legal order establishing paternity is always dependent on the establishment of maternity. As a result, the lack of information about the mother raises doubts as to paternity of the man indicated on the birth certificate as father. Interestingly, based on the same birth certificate the acquisition of Polish nationality of the child was earlier confirmed by administrative authorities. In its judgment of 29 August 2018 (signature: II OSK 2129/16), Supreme Administrative Court criticized the way the public policy clause was so far understood. The Court (which hears the case after the refusal of administrative authorities of two instances and administrative court of the first instance – just as in all of the mentioned cases) underlined that this clause must be interpreted having regard to a broader context of the legal issue at hand, in particular it should take into account constitutional values (always prevailing best interest of a child) and international standards on protection of children’s rights and human rights. This allows for the transcription of the birth certificate into civil status records in Poland. 

Another interesting case concerned again the question of confirmation that the children acquired Polish nationality by birth after their father (four identical judgments of 30 October 2018, signatures: II OSK 1868/16, II OSK 1869/16, II OSK 1870/16, II OSK 1871/16). Four girls were born in US through surrogacy. The US birth certificates indicated two men as parents, one of them being a Polish national. The Supreme Administrative Court underlined that for the legal status of a child, including the possibility of confirming acquisition of Polish nationality, it should not matter that the child was born to a surrogate mother. What should matter is that a human being with inherent and inalienable dignity was born and this human being has a right to Polish nationality, as long as one of the parents is a Polish national.  

The above mentioned cases, where the Supreme Administrative Court presented a conservative approach and approved the refusal of the confirmation that children born out of surrogacy acquired Polish nationality by birth is now pending before European Court of Human Rights (Schlittner-Hay v. Poland). The applications raise violation by Poland of Article 8 (respect for private and family life) and Article 14 (discrimination on grounds of parents’ sexual orientation) of the European Convention on Human Rights. 

This shows that practical implications for children to same-sex parents and from surrogacy arrangements are of growing interest and importance also in Poland. The approaches of domestic authorities and courts seems to be evolving, but are still quite divergent. The view on the issue from the European Court of Human Rights is awaited.  

Following an earlier post, here’s a reminder of the First Edition of the Milan Investment Arbitration Pre-Moot.

Albert Henke prepared for this reason the following announcement:

On February, 14 and 15, 2020 will take place in Milan the First Edition of the Milan Investment Arbitration Pre-Moot, an event jointly organized by the Law Firm DLA Piper, Milan, Università degli Studi of Milan and the European Court of Arbitration (Italian section). The Pre-Moot will be a chance for ten University teams from all around the world to test their advocacy skills in moot arbitration hearings, in preparation for the Frankfurt International Arbitration Moot Competition, the oldest and most prestigious student competition in the area of investment protection law, scheduled for the beginning of March 2020 in Frankfurt (https://www.investmentmoot.org/news-2-2/). The Pre-Moot will be introduced by a Conference hosted by Università degli Studi on the topic: “Outstanding issues and recent developments in international investment arbitration”. All the information in the attached flyer.