Flux des sites DIP

In Farrar & Anor v Miller [2022] EWCA Civ 295, the issue is whether a firm of solicitors which has been acting for a claimant in litigation pursuant to a damages-based agreement can validly take an assignment of their client’s cause of action.

It is the common law of champerty which militates against law firms acting ostentatiously as a party with a purely commercial interest in the litigation and it is their role as officers of the court which is cited as being core of the hesitation (see inter alia the EP study on third party litigation funding here). In England and Wales it was the rules against maintenance and champerty that, prior to 1990, led to solicitors ia not being able to conduct litigation pursuant to conditional fee agreements -CFAs.

Statute then intervened to change this in narrowly defined circumstances  (CFAs and damages-based agreements only) however that did not lift the common law’s general opposition to same and it is this opposition which both the first instance judge and the Court of Appeal refer to to reject the possibility of assignment: [52]

the Assignment is neither a conditional fee agreement nor a damages-based agreement: what section 58(1) and section 58AA(2) show is that Parliament, being well aware of the common law rules, decided to go so far towards relaxing them as sections 58 and 58AA provide and no further.

Permission to appeal with the Supreme Court is being sought.

Geert.

Litigation funding. common law principles of assignment, including champerty
Whether solicitors acting pursuant to damages-based agreement can validly take assignment of client's cause of action

Farrar & Anor v Miller [2022] EWCA Civ 295https://t.co/On1VyazyO8 pic.twitter.com/hvG1kU07bO

— Geert Van Calster (@GAVClaw) March 12, 2022

In this post, Marylou Françoise presents her doctoral work on the role of courts in choice of law from an EU law perspective (‘L’office du juge en conflit de lois : Étude en droit de l’Union européenne’). This is a important issue for all EU PIL experts and obviously a recurring topic in France (see here, here, here and here).

This work raises a topical issue at the crossroad of private international law, EU law, and civil procedure. It aims at rethinking the national procedural system of EU Member States to accommodate more efficiently European choice-of-law rules. The status of EU choice-of-law rules before national courts can legitimately be questioned in the light of the objectives pursued by these rules.

EU choice-of-law rules are part of a specific policy of the European Union based on Article 81 of the Treaty on the Functioning of the European Union. According to this provision, the EU has the competence to develop judicial cooperation in civil matters having cross-border implications. The main goals are to encourage accessibility to justice for European citizens, to offer a predictable justice based on clear articulation of national provisions and to achieve international harmony of solutions. In this context, the European regulations applicable to conflict-of-laws are adopted to ensure that the same national law is designated irrespective of the national court hearing the case. Thus, EU choice-of-law rules have a functional nature. To achieve their goal, they need to be applied uniformly. Yet, there is no common procedural framework along with the European regulations in conflict-of-laws matter. Their uniform application depends on various national procedural provisions of the Member States.

According to the Latin maxim forum regit processum, the procedural status of choice-of-law rules depends on the national law of the court hearing the case. Several studies, including the study conducting by the Swiss institute of comparative law, have shown the diversity of national procedural provisions. The French system is particularly complex because it requires that courts distinguish between rights according to their availability (i.e. whether the parties may dispose of their rights). On 26 may 2021, the French supreme court for private and criminal matters added a new criterion that requires to apply ex officio EU choice-of-law rules when they are mandatory. For the first time (to the best of our knowledge), a national court made a distinction between conflict-of-law rules according to their European origin. If this ruling has to be welcomed according the EU principles of primacy and effectiveness to which the French court referred, the regime of the conflict-of-laws rules becomes more complex : only the choice-of -law rules which do not allow a derogation shall be applied ex officio. Yet, the vast majority of EU choice-of-law rules may be derogated from.

The French system reflects the complexity to define the procedural status of the European conflict-of-laws. More broadly, according to the national court hearing the case, the application of EU choice-of-law rules become unpredictable. The ex officio implementation of EU law directly depends on the competent court. This seems to be in complete contradiction with the purpose of EU choice-of-law rules. The unpredictable nature of the choice-of-law rule is strengthened by the lack of a European corrective mechanism.

The principle of procedural autonomy of EU Member States allows them to adopt procedural provisions to implement EU law. However, this principle is bounded by two conditions : equivalence and effectiveness ( see the Comet and SpA San Giorgio cases). These requirements are generally used by the European Court of justice to limit the autonomy of Member States. Regarding the ex officio application of EU provisions, the Court provides for a flexible approach. In its Van Schijndel case, the Court of justice held

Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim.

In other words, national courts shall apply ex officio the European provision only if the parties ask for it. An exception is made for certain provisions in consumer law (see the Pannon case). The Court justifies this specific position by the public interest attached to European consumer provisions.

Against this background, the control of the procedural autonomy of the Members States led by the ECJ is not sufficient to establish an efficient system of conflict-of-laws. The intervention of the EU is clearly incomplete to pursue the goal of a European civil justice area. Therefore, how can EU choice-of-law rules achieve international harmony of solutions if there is no common provisions to support their application ? In this context, a new framework should be drawn up to ensure a uniform application of EU choice-of-law rules.

Firstly, it is necessary to analyse the EU acquis regarding the application of choice-of-law rules, in particular the overriding mandatory provisions, in cross-border situations and the parties’ freedom to choose the applicable law. The application of national mandatory rules is generally strictly controlled by the European Court of justice (see the Nikiforidis case). At the same time, the identification of EU mandatory provisions is confusing (see the Unamar and Da silva cases). Then, the possibility for the parties to choose the applicable law is widely accepted by European conflict of laws rules (in contractual and non-contractual matters) – except for articles 6-4 and 8 of the Rome II Regulation. EU choice-of-law rules become optional for both the parties and courts. Indeed, if the European provisions allow a derogation, they are not compulsory for the judge according to national procedural systems. These two examples illustrate that EU law is already influencing the national application of EU choice-of-law rules. However, this influence is incomplete and flawed. The procedural status of the European rule depends on the interpretation by national courts of the mandatory nature of a law or of the existence of a choice of law agreement by the parties.

EU choice-of-law rules must be applied consistently. They should have a uniform procedural status. The latter can depend neither on the substantive nature of the respective rights, nor on the national interpretation of the mandatory nature of the rule. EU choice-of-law rule must be mandatory for national courts. This solution may be seen as radical in particular since the freedom of the parties is a key component of civil procedure. It could also generate an increase of procedural costs because of the recurrent application of foreign laws. That is why this obligation to apply the choice of law rule ex officio should be limited. Party autonomy wit respect to the applicable law should be maintained but it should be exercised after the ex officio application of the choice of law rule by the court. This private choice must also be strictly framed by the choice-of-law rules themselves. The material scope of the procedural choice should comply with the individual choice allowed by the EU regulations and the procedural choice should be express. In other words, the EU choice-of-law rules should be applied automatically by the Court and parties should be informed of the potential application of foreign law.

This proposition can be loudly criticised according to the civilian procedural system. National courts cannot be a substitute for negligent litigants and several questions arise. How much litigation will cost ? How long it will last ? Are national courts well trained in European private international law ? Can they have an easy access to foreign law ?

At the same time, these arguments seem outdated. EU law is now part of national law in the Member State. The rise of international disputes requires full awareness of EU provisions and a close collaboration between EU judicial systems.

The uniform application of EU choice-of-law rules is the only way to achieve the objective of a European civil justice area. In this context, the PhD dissertation concludes by providing a proposal for a European regulation on a common procedural frame in choice of law. This proposal – based on Article 81-1 and Article 81-2 c), e) and f) of the Treaty on the functioning of the European Union – could be included into the existing regulations on choice of law. It could also appear in a future European code of private international law or in a regulation on procedural aspects of choice of law rules.

This proposal finally requires an inevitable adaptation in practice. Judicial practitioners, such as judges and lawyers, must be trained in European private international law. The ex officio application of EU conflict-of-law rule would be a revolution for many national procedural systems. But it seems to be a necessary evolution for the European judicial system.

On 31 March 2022, 4-7pm CEST, the German Association of International organizes an online panel, in German, on question of public and private international law regarding the Russian invasion of Ukraine: The topics are as follows:

• Public international law questions of armed conflict (Paulina Starski)
• Public international law questions “off the battlefield” (Markus Krajewski)
• The enforcement of claims from Russian government bonds: potential scenarios (Peter Kindler)
• The status of Ukrainian refugees in private international law (Jan von Hein)

More information here.

In 2019 in Würzburg a group of young researchers from several EU Member States met for a comparative Private International Law project and to create what later became the EAPIL Young Research Network.

The first project, initiated by Susanne Lilian Gössl (Germany) and  Martina Melcher (Austria), dealt with the national implementation of the CJEU/ECtHR case law regarding the so-called “recognition of status”.

The results, a comparative report and most of the national reports, of this project have now been published in the latest issue of the open-access journal Cuadernos de Derecho Transnacional.

The issue comes with national reports from Austria (Florian Heindler and Martina Melcher), Belgium (Sarah Den Haese), Baltic States (Katažyna Bogdzevič and Natalja Žitkevitš), Croatia (Tena Hoško), France (Marion Ho-Dac), Germany (Susanne Lilian Gössl), Hungary (Tamás Szabados), Italy (Marta Giacomini and Martina Vivirito Pellegrino), the Netherlands (Tess Bens and Mirella Peereboom-Van Drunick), Poland (Natalja Žitkevitš) and Spain (María Asunción Cebrián Salvat and Isabel Lorente Martínez)

A report from Sweden, by Laima Vaige, will be published in the forthcoming issue, in Autumn 2022.

I have reported on conflict of laws (jurisdictional and applicable law) angles to the EP’s draft proposals on Corporate Sustainability Due Diligence before. As I discuss in those posts (more analysis is on NOVA’s site here), many of the suggested routes created more difficulties than they solved. In the eventual February proposal (with 71 recitals: that is poor legislative drafting), the conflict of laws ambitions are much reduced. Leigh Day have a good summary of the issues here. Thank you Jorian Hamster for poking me to put my thoughts to paper.

The jurisdictional ambition is now merely expressed in terms of regulatory scope. On p.15 under the proportionality assessment, the proposal justifies its public international scope using the effects doctrine:

The EU turnover criterion for third-country companies creates a link to the EU. Including only turnover generated in the Union is justified since such a threshold, appropriately calibrated, creates a territorial connection between the third-country companies and the Union by the effects that the activities of these companies may have on the EU internal market, which is sufficient for the Union law to apply to third-country companies.

Proposed A2(1) focuses on ‘EU corporations’ (“companies which are formed in accordance with the legislation of a Member State) and proposed A2(2) looks at non-EU corporations (“companies which are formed in accordance with the legislation of a third country”), each with relevant thresholds distinguishing between quantitative (turnover) and qualitative (risk sectors: textiles, agriculture, extractive industries) criteria.

I am not sure why the lex incorporationis is preferred as the trigger criterion. Domicile as defined in Brussels Ia‘s Article 63 could be more attractive, seeing as it captures corporations with statutory seat outside of the EU but with their central administration or principal place of business here.

‘Turnover generated in the EU’ is bound to provoke some discussions however experience from in particular competition law should be able to help here.

The most obvious anchor point for applicable law is proposed A22. This sets out the requirement for Member States to define rules governing the civil
liability of the company for damages arising due to its failure to comply with the due diligence requirements, and then suggests in (5)

Member States shall ensure that the liability provided for in provisions of national law transposing this Article is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.

The intention of this Article is to make the national civil liability rules which Member States are due to ensure in follow-up of the future Directive, so-called ‘overriding mandatory law’ aka ‘lois de police’ aka ‘lois d’application immédiate’ under A16 Rome II. The challenge for the EU to harmonise private law, such as civil liability rules, shows in this formulation. The EC makes recourse to a Directive, not a Regulation, since (p.17)

The proposed instrument is a Directive, since Article 50 TFEU is the legal basis for company law legislation regarding the protection of the interests of companies’ members and others with a view to making such protection equivalent throughout the Union. Article 50 TFEU requires the European Parliament and the Council to act by means of directives.

Hence rather than formulating the future Directive’s liability provisions itself as of overriding EU law nature (a possibility expressly foreseen in Rome I’s rules on applicable law for contracts, but not impossible I believe within Rome II), the Directive will oblige Member States to ensure the lois de police character of their future rules implementing the Directive. I understand the difficulty yet I think the proposal could shortcut the discussion (and avoid difficulties in case a Member State fails to declare the lois de police nature) by declaring ‘Member States’ provisions of national liability law transposing this Article are of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.’

(the latter part I believe is simply redundant).

In claims based on tortious liability, the Directive is most likely to be used to help establish fault (by action or omission). The remainder of the action (solidarity between various tortfeasors, damage calculation etc) will remain subject to the lex causae otherwise applicable. In claims based on unjust enrichment (a business and human rights route much worth exploring for supply chain cases) the Directive will most likely remain of smaller use seeing as these claims do not aim to establish liability, however the  paper trail which the Directive will ensure, may be of documentary use here, too.

Geert.

At first sight few conflict of laws anchors in EU's proposed due diligence law
EU turnover as threshold is reminiscent of EU competition law
Registered office as compliance anchor
A22 qualifies the Dir as lois de police viz Rome I, II
71 recitals – yukhttps://t.co/JV1dip9gfW pic.twitter.com/Obhkn3qXR8

— Geert Van Calster (@GAVClaw) February 23, 2022

Several French learned societies (International Arbitration Institute, Comité français de l’arbitrage, Comité français de droit international privé, French Branch of the International Law Association, Société de législation comparée) will pay a tribute to Emmanuel Gaillard in a conference held in the Grand Amphithéâtre of the Sorbonne in Paris on 15 April 2022.

The conference Emmanuel Gaillard Theory in Action will feature testimonials of a variety of professionals and discussions of some of the theories promoted by Emmanuel Gaillard, including the arbitral legal order and the boundaries of private international law.

The sudden passing of Professor Emmanuel Gaillard on 1 April 2021 came as a shock for the legal world. One year later, five learned societies, of which Professor Gaillard had been an active member, on whose governing board he had served or which he had founded, are endeavouring to pay tribute to his manifold contributions to the world of law as well as the depth of his thinking, in arbitration law and beyond. The testimonials, analyses and discussions that will be shared during this event will highlight Professor Gaillard’s ability to combine theory and practice. Though he is no longer with us, he will forever remain an inspiration to generations of lawyers, as they strive to carry forth his legacy: theory in action.

The full programme of the conference is available here. Registration to the conference is possible here.

Gaillard was a prolific author, who wrote many books and articles. He also liked to draw, and made some drawings which aptly summarise some of his theories.

The war in Ukraine has also affected the lives of legal researchers. The Max Planck Institute for Comparative and International Private Law is extending support to these individuals.

The Institute would like to assist scholars who have had to discontinue their research activities because of the war in Ukraine. Towards this end, the Institute is offering scholarships supporting a stay in Hamburg for research in the field of private law. In addition to office space and access to our library, we can also provide assistance in locating housing.

Affected researchers can contact the Institute’s Welcome Center. The offer is directed at doctoral candidates as well as individuals who have already earned their doctorates.

© shutterstock / MAKSIM ANKUDA

Under the Insolvency Regulation 2015, a transfer of the centre of main interests (COMI) of the debtor after lodging of the request for opening of insolvency proceedings affects the exclusive jurisdiction of the court seised with that application prior to the transfer?

This is the legal issue that the Court addresses in the judgement delivered this morning in the case Galapagos BidCo, C-723/20.

A holding having its registered office in Luxembourg since 2014 contemplates, in June 2019, to move its actual centre of administration to England. In August 2019, its directors lodge a request before the High Court to have insolvency proceedings opened in respect of the debtor’s assets.

The following day the directors are replaced by a new one, who sets up an office for the holding in Germany.

The request to have insolvency proceedings opened before the High Court is not withdrawn. Quite to the contrary, they seem to continue although a decision opening these proceedings has not yet been delivered.

That being said, a request for the opening of insolvency proceedings is lodged by the holding also with a German court.

This court orders preservation measures and appoints a temporary insolvency administrator. The capital market and bondholders are informed that the centre of administration of the holding have been move to Germany. However, the second instance court ruling on an appeal introduced by the creditors reverses the order of the first instance and dismisses the debtor’s request to have insolvency proceedings opened, due to the lack of international jurisdiction.

Next, the creditors request to have insolvency proceedings opened, still in Germany, in respect of the debtor’s assets. The German court considers that it has jurisdiction to rule on the request as the centre of main interests of the holding is situated in Germany. It orders preservation measures and appoints a temporary insolvency administrator.

A subsidiary of the holding brings an appeal against the order. It argues that the German courts lack jurisdiction as the centre of administration of the holding has been moved to England in June 2019. The appeal is dismissed by the second instance court.

An appeal on a point of law is brought before the Bundesgerichtshof, which lodges a request for a preliminary ruling before the Court of Justice.

Is Article 3(1) of [the Insolvency Regulation 2015] to be interpreted as meaning that a debtor company the statutory seat of which is situated in a Member State does not have the centre of its main interests in a second Member State in which the place of its central administration is situated, as can be determined on the basis of objective factors ascertainable by third parties, in the case where, in circumstances such as those in the main proceedings, the debtor company has moved that place of central administration from a third Member State to the second Member State at a time when a request to have the main insolvency proceedings opened in respect of its assets has been lodged in the third Member State and a decision on that request has not yet been delivered?

If Question 1 is answered in the negative:

Is Article 3(1) of [the Insolvency Regulation 2015] to be interpreted as meaning that: the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated at the time when the debtor lodges the request to have insolvency proceedings opened retain international jurisdiction to open those proceedings if the debtor moves the centre of its main interests to the territory of another Member State after lodging the request but before the decision opening insolvency proceedings is delivered, and such continuing international jurisdiction of the courts of one Member State excludes the jurisdiction of the courts of another Member State in respect of further requests to have the main insolvency proceedings opened received by a court of that other Member State after the debtor has moved its centre of main interests to that other Member State?

The Court decided to answer the preliminary question without first requesting its Advocate General to present an Opinion.

In its judgement, the Court focuses its attention on the second preliminary question.

Its considers that, by this question, which it is appropriate to examine first, the referring court seeks to establish, in substance, whether Article 3(1) of the Insolvency Regulation 2015 is to be interpreted as meaning that the court of a Member State to which an application for the opening of main insolvency proceedings has been made retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is transferred to another Member State after that application has been lodged but before that court has given a decision on it (paragraph 24).

The Court answers in the sense that the court of a Member State seised of an application for the opening of main insolvency proceedings retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is transferred to another Member State after the application has been lodged but before that court has given a ruling on it. Consequently, and insofar as that Regulation remains applicable to that application, the court of another Member State subsequently seised of an application made for the same purpose may not, in principle, assume jurisdiction to open main insolvency proceedings until the first court has given judgement and declined jurisdiction (paragraph 40).

Having in mind the specificity of the case which concerns the UK, the Court makes some additional remarks as to the implications of Brexit. Indeed, the aforementioned passage relating to the fact that “the Regulation remains applicable to the application” echoes this issue.

In essence, the Court clarifies that if on the date of expiry of this transitional period (31 December 2020), High Court had still not ruled on the application for the opening of main insolvency proceedings (it seems that it is not clear whether this was the case), it would follow that Insolvency Regulation 2015 would no longer require that, as a result of this application, a court of a Member State, on the territory of which debtor’s centre of main interests would be located, should refrain from declaring itself competent for the purposes of opening such proceedings (paragraphs 38 and 39)

Given the answer to the second question and having in mind that at least potentially the court seized first with the request for the opening of main insolvency proceedings may have retained its exclusive jurisdiction, the Court deems it not necessary to address the first preliminary question  (paragraphs 41 to 43)

The judgement can be consulted here.

Guillaume Laganière – Professor of Law at the Université du Québec à Montréal – has recently published a monograph (based on his doctoral dissertation) titled Liability for Transboundary Pollution at the Intersection of Public and Private International Law. The book was published by Hart Publishing within its series Hart Monographs in Transnational and International Law.

The publisher informs that:

This book focuses on how public and private international law address civil liability for transboundary pollution. In public international law, civil liability treaties promote the implementation of minimum procedural standards in domestic tort law. This approach implicitly relies on private international law to facilitate civil litigation against transboundary polluters. Yet this connection remains poorly understood. Filling the gap, this book engages in a meaningful dialogue between the two areas and explores how domestic private international law can reflect the policies developed in international environmental law. It begins with an investigation of civil liability in international environmental law. It then identifies preferable rules of civil jurisdiction, foreign judgments and choice of law for environmental damage, using Canadian private international law as a case study and making extensive references to European law. Liability for transboundary pollution is a contentious issue of the law, both in scholarship and practice: international lawyers both private and public as well as environmental lawyers will welcome this important work.

Table of contents may be consulted here.

Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) shows the way many claims involving EU Member States facts or defendants are likely to go, until the novelty of newly found forum non freedom wears off perhaps: with intensive forum non conveniens-based jurisdictional challenges.

The defendant is domiciled in England and Wales. The claimants are the settlors of 2 Cypriot trusts who claim for the losses suffered in connection with the trusts’ investments. The trusts were both established under the International Trusts Law of the Republic of Cyprus.

As in Klifa v Slater, the forum non test, following Spiliada and VTB v Nutritek, [12] involves two limbs: Under limb 1 of the test, the Defendant must establish that the courts of Cyprus are both (i) “available” and (ii) are clearly or distinctly more appropriate than the English courts as a forum for determining the dispute. If the Defendant can establish that limb 1 of Spiliada is satisfied, it becomes necessary to consider limb 2. Limb 2 requires a consideration of whether, even if the courts of Cyprus are an available forum that is clearly or distinctly more appropriate for the trial of the action than the courts of England, justice nevertheless requires that a stay of the English proceedings should not be granted.

On availability, there is a bit of to and fro and each other’s Cypriot law legal experts, particularly on the territorial jurisdiction under residual Cypriot rules. However the conclusion [26] is that the Cypriot courts are ‘available’.

Obiter, Richards DJ discusses whether if there is no availability under Cypriot law, there might be availability if there is a submission to jurisdiction and/or an agreement /choice of court.

Discussion here was first whether A26 Brussels Ia could remedy the lack of territorial jurisdiction under Cypriot law. Unlike A25 choice of court, A26 does not include language making the defendant’s domicile in the EU a precondition for its application. At [32] the conclusion for the purpose of these proceedings is that there is a real risk that the Cypriot courts will not have jurisdiction on the basis of A26.

The discussion then [33ff] turns to the Cypriot courts being the clearly or distinctly a more appropriate forum with the conclusion being in the negative.

Helpfully, and suggested by counsel, the judge puts the following structure to the analysis:

a) personal connections ([39]: defendant’s residence in England remains a relevant factor pointing towards the English courts being the appropriate forum);

b) factual connections (held: correspondence between the parties will be of more relevance than the physical location of parties in Cyprus);

c) evidence/convenience/expense (conflicting factors here but none leading overwhelmingly to Cyprus);

d) applicable law (most likely Cypriot law for many of the claims however ia given the similarity with English law, this is not an overwhelmingly relevant issue [56] and some Swiss law will have to be applied anyways); and

e) the “overall shape of the litigation”, held [59] not to be Cypriot.

Limb 2, the requirements of justice, is considered obiter under two angles [61]: delays and the possibility of statutes of limitation kicking in. On the delays, [67] comity and caution to express chauvinistic views upon a friendly jurisdiction argue against a finding of unavailability of justice on this ground, particularly as the experts’ views on this were inconclusive; the possibility of statute of limitation is held [68] largely to be of the claimants’ own making (ia because they had started but discontinued proceedings in Cyprus. Limb 2 therefore, had it mattered, would not have been satisfied and had limb 1 been met, a stay of the proceedings in England would have been ordered.

Geert.

Defendant domiciled in E&W. Claimants (settlors of 2 Cypriot trusts sue for losses suffered in connection with Trusts' investments. Forum non argument dismissed. Another lengthy discussion following Brexit

Al Assam ea v Tsouvelekakis [2022] EWHC 451 (Ch) https://t.co/Sd7TJSkG3k

— Geert Van Calster (@GAVClaw) March 8, 2022

Many thanks indeed Hélène Péroz for flagging Sherpa & Les Amis de la terre France v Perenco ECLI:FR:CCASS:2022:C100199. The issue concerns what law applies to the issue of standing of NGOs in making recourse to France’s action for preserving evidence, in this case evidence relating to a future claim that France’s Perenco is liable for environmental damage in Congo.

The Court of Appeal had held that the issue of standing is subject to lex causae, which under the Rome II Regulation it had identified as the laws of Congo (whether this judgment included discussion of Article 7 Rome II on environmental damage, I do not know) and had declared the claim inadmissible.

The SC correctly in my mind holds that the issue of standing falls under the evidence and procedure carve-out of Rome II and is subject to lex fori, French law. However seeing as that law in the case of public interest litigation such as here requires the claimant to have included the broad purpose of the sector at issue within its scope of activities under its by-laws, the SC also holds that whether a particular claim is within the NGO’s scope, needs to be determined in accordance with its lex societatis.  This leads to the interesting conclusion (of little relevance in casu) that a foreign NGO’s action remit will have to be determined by foreign lex societatis, and that those foreign laws which have a less broad view of corporate scope, may put a spanner in the works of cross-border business and human rights litigation. (Quite easily circumvented one assumes by involving NGOs of an ‘attractive’ jurisdiction).

The SC nota bene does not specify whether its views on corporate (here: NGO) action radius are a result of the corporate carve-out in Rome II.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.79 ff.

Must read this properly tomorrow for currently on cooking duty. (All under control. Nothing burning).
Potentially quite exciting. French SC on the applicable law for capacity to represent a (Congolese) NGO re a #bizhumanrights environmental claim. https://t.co/ZP4IxXAzWi

— Geert Van Calster (@GAVClaw) March 9, 2022

In Klifa v Slater & Anor [2022] EWHC 427 (QB), concerning a ski accident in Courchevel, France, the Claim Form was issued on 14 January 2021, just within the three year limitation period of England and Wales but just after the Brexit “Exit Day” also know as IP day (Brexit implementation day) (of 31 December 2020). Defendants take advantage of that to argue a forum non conveniens defence (which readers will know would have been impossible under Brussels Ia). France is suggested to be the ‘most appropriate forum’.

The skiing accident took place on 27 January 2018 and when (and as still is the case) the Claimant was domiciled and resident and habitually resident in France, the First Defendant was domiciled and resident (they being on holiday) in England & Wales, and the Second Defendant (the insurance company) was domiciled in England & Wales. Under Rome II, French law is the applicable law, other than for procedural law, including as to recovery of legal and other costs of the litigation, which is subject to English law, lex fori.

That latter element returns (with reference to ia Wall v Mutuelle de Poitiers) [25] as part of the forum non conveniens assessment, seeing as (Dagnall M) ‘in consequence of the difference in their methods of adducing expert evidence, the English & Welsh jurisdiction procedural approach is likely to be considerably more expensive than that in France, and which is reflected in the costs rules and approach of each country.’

At [40] Master Dagnall sums up the many issues leading to the case being very ‘French’ in nature, deciding on balance however [42] that the defendants have not met the (high hurdle) of proving that France is “distinctly” or “clearly” the more appropriate forum.

At [44] ff he holds obiter that even if they had met that test, a stay in favour of proceedings in France would not assist with “achieving the ends of justice”L the second part of the forum non test. At [48] two factors are singled out: enforcement will have to take place in England; and a lot of work prior to the claim form being issued was carried out prior to IP day, when forum non was not an issue. Recovering those costs would be impossible in France.

The point has been made ad nauseam by many and this case is a good illustration: post Brexit, forum non is back with a vengeance and it is a time-consuming and costly business.

Geert.

Evidence & procedure, quantification of damages under French law, impact on forum non conveniens (denied on the facts) in case of tort which occurred whilst Brussels Ia applied but with claim brought after Brexit
Klifa v Slater & Anor [2022] EWHC 427 (QB) https://t.co/xCfJYJws2f

— Geert Van Calster (@GAVClaw) March 8, 2022

The EAPIL founding conference is fast approaching! The conference will take place onsite in Aarhus on 2, 3 and 4 June 2022.

Those wishing to attend, are invited to register by 14 April 2022 at the latest. Please do so by filling the form available here. 

Registration fee is 100 Euros. Furthermore, you are very welcome to sign up for the conference dinner.

Law students without a final master degree in law can participate at a fee of 30 Euros (conference, including lunch and reception) and must register on the above link. If students wish to participate in the conference dinner, the separate conference dinner fee applies (see the registration link).

Participants who have previously chosen to transfer their registration/fee to the 2021 conference have been contacted directly by e-mail and offered to transfer their registration to 2022 or be reimbursed.

As there are other events in Aarhus during the days of the conference, it is strongly recommended that hotel reservations are made soon. Here are some suggestions in this regard.

The Max Planck Institute for Comparative Public Law and International Law (Heidelberg) and the Max Planck Institute for Comparative and International Private Law (Hamburg) are pleased to announce an intensive three- day seminar on “Populism and the New Foreign Relations Law: Between Public International Law, ‘External Public Law, and Conflict of Laws.”

The seminar will take place in Heidelberg on June 18-20, 2022, and will be co-directed by Prof. Anne Peters, Director, MPIL Heidelberg; Prof. Ralf Michaels, Director, MPI Hamburg; and Prof. Karen Knop, University of Toronto and Max Planck Law Fellow.

Costs for transportation (economy train or flight in Europe, lump sum for overseas), accommodation and meals in Heidelberg will be provided.

The seminar will host 20 Doctoral, Post-Doctoral and graduate researchers in law or other related fields. Application deadline: April 24, 2022

More information here.

Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 9th CPLJ Webinar on 1 April 2022, 3:00 – 5:00 pm (CET).

The programme reads as follows:

Russell Miller – Senior Research Fellow and Head of Max Planck Law, J.B. Stombock Professor of Law (W&L University – Virginia)

          Comparing Comparisons: A Survey of Approaches to Comparative Law

The webinar is an open event. For more information and to register see here.

(Image credits:  Rijksmuseum, Amsterdam)

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

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

H.-P Mansel/K. Thorn/R. Wagner: European Conflict of Law 2021: The Challenge of Digital Transformation

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2021 until December 2021. It gives information on newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

H. Wais: The Applicable Law in Cases of Collective Redress

Both the European and the German legislator have recently passed legislation aimed at establishing access to collective redress for consumers. As European conflict of law rules do not contain any specific rules on the applicable law in cases of collective redress, the existing rules should be applied in a way that enables consumers to effectively pursue collective actions. To that aim, Art. 4 (3) 1st S. Rome II-Regulation provides for the possibility to rely on the place of the event that has given rise to the damages as a connecting-factor for collective redress cases in which mass damages have occurred in different states. As a consequence of its application, all claims are governed by the same applicable law, thereby fostering the effectiveness of collective redress.

M. Lehmann: Locating Financial Loss and Collective Actions in Case of Defective Investor Information: The CJEU’s Judgment in VEB v BP

For the first time, the CJEU has ruled in VEB v BP on the court competent for deciding liability suits regarding misinformation on the secondary securities market. The judgment is also of utmost importance for the jurisdiction over collective actions. This contribution analyses the decision, puts it into larger context, and discusses its repercussions for future cases.

M. Pika: Letters of Comfort and Alternative Obligations under the Brussels I and Rome I Regulations

In its judgment of 25 November 2020 (7 U 147/19), the Higher Regional Court of Brandenburg ruled on special jurisdiction regarding letters of comfort under Article 7 No. 1 Brussels I Regulation. While the court left the decision between lit. a and lit. b of that Article open, it ruled that either way, the courts at the domicile of the creditor of the letter of comfort (in this case: the subsidiary) have no special jurisdiction. This article supports the court’s final conclusion. In addition, it assesses that Article 7 No. 1 lit. b Brussels I Regulation on services may apply to letters of comforts given the CJEU’s decision in Kareda (C-249/16).

B. Hess/A.J. Wille: Russian default interests before the District Court of Frankfort

In its judgment of February 2021, the Landgericht Frankfurt a.M., applying Russian law, awarded a three-month interest rate of 37% to a defendant domiciled in Germany. When examining public policy, the regional court assumed that there was little domestic connection (Inlandsbezug), as the case was about the repayment of a loan issued in Moscow for an investment in Russia. However, the authors point out that the debtor’s registered office in Hesse established a clear domestic connection. In addition, the case law of German courts interpreting public policy under Article 6 EGBGB should not be directly applied to the interpretation of Articles 9 and 21 of the Rome I Regulation.

D. Looschelders: Implied choice of law under the EU Succession Regulation – not just a transitional problem in connection with joint wills

The decision of the German Federal Supreme Court focuses on the question, under which conditions an implied choice of law may be assumed within the framework of the EU Succession Regulation (Regulation No 650/2012). In this particular case, an implied choice of German law as the law governing the binding effect of the joint will drawn up by the German testator and her predeceased Austrian husband was affirmed by reference to recital 39(2) of the EU Succession Regulation. Actually, the joint will of the spouses stipulated the binding effect as intended by German law. As the spouses had drawn up their will before the Regulation became applicable, the question of an implied choice of law arose in the context of transition. However, the decision of the German Federal Supreme Court will gain fundamental importance regarding future cases of implied choices of law for all types of dispositions of property upon death, too. Nevertheless, since the solution of the interpretation problem is not clear and unambiguous, a submission to the ECJ would have been necessary.

M. Reimann: Human Rights Litigation Beyond the Alien Tort Claims Act: The Crucial Role of the Act of State Doctrine

The Kashef case currently before the federal courts in New York shows that human rights litigation against corporate defendants in the United States is alive and well. Even after the Supreme Court’s dismantling of the Alien Tort Claims Act jurisdiction remains possible, though everything depends on the circumstances. And even after the Supreme Court’s virtual elimination of federal common law causes of action claims under state or foreign law remain possible, though they may entail complex choice-of-law issues.

Yet, so far, the most momentous decision in this litigation is the Court of Appeals’ rejection of the defendants’ potentially most powerful argument: the Court denied them shelter under the act of state doctrine. It did so most importantly because the alleged human rights abuses amounted to violations of jus cogens.

Coming from one of the most influential courts in the United States, the Second Circuit’s Kashef decision adds significant weight to the jus cogens argument against the act of state doctrine. As long as the Supreme Court remains silent on the issue, Kashef will stand as a prominent reference point for future cases. This is bad news for corporate defendants, good news for plaintiffs, and excellent news for the enforcement of human rights through civil litigation.

J. Samtleben: Paraguay: Choice of Law in international contracts

To date, Paraguay is the only country to have implemented into its national law the Hague Principles on Choice of Law in International Commercial Contracts. Law No. 5393 of 2015, which closely follows the Hague model, owes its creation primarily to the fact that the Paraguayan delegate to the Hague was actively involved in drafting the Principles. Unlike the Principles, however, Law No. 5393 also regulates the law governing the contract in the absence of a choice of law, following the 1994 Inter-American Convention on the Law Applicable to International Contracts of Mexico. Contrary to the traditional rejection of party autonomy in Latin America, several Latin American countries have recently permitted choice of law in their international contract law. Paraguay has joined this trend with its new law, but it continues to maintain in procedural law that the jurisdiction of Paraguayan courts cannot be waived by party agreement.

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features the following articles on private international and comparative law:

Werner F. Ebke: Prüfungs- und Beratungsnetzwerke und die Unabhängigkeit des Abschlussprüfers: Versuch einer europarechtskonformen Konturierung des § 319b Abs. 1 Satz 3 HGB

Independence is the cornerstone of the law requiring corporations to have their annual financial statements and consolidated statements audited by independent accountants. To ensure confidence in the audit function, EU Directive 2006/43/EC and EU Directive 2014/56/EU emphasize that statutory auditors and audit firms should be independent when carrying out statutory audits. Accordingly, Member States are required to ensure that an auditor or an audit firm shall not carry out a statutory audit if there is any direct or indirect financial, business, employment or other relationship – including the provision of additional non-audit services – between the statutory auditor, audit firm or network and the audited entity from which an objective, reasonable and informed third party would conclude that the statutory auditor’s or audit firm’s independence is compromised. Building on these two Directives, Regulation (EU) 537/2014 states that a statutory auditor or an audit firm carrying out the statutory audit of a public-interest entity (PIE), or any member of the network to which the statutory auditor or the audit firm belongs, shall not directly or indirectly provide to the audited entity, to its parent company or to its controlled companies within the EU any of the prohibited non-audit services listed in its Article 5. The reference to a “network” takes account of the fact that, since the 1980ies, audit firms are increasingly cooperating with each other, both nationally and internationally, to provide audit and consulting services pursuant to (worldwide) uniform standards close to their clients with highly qualified personell at reasonable costs (economies of scale; regional or global presence). Article 2 No. 7 of EU Directive 2006/43/EC contains a broad defintion of the term “network” which is also applicable within the ambit of Regulation (EU) 537/2014. The German legislature has implemented the definition in § 319b of the Commercial Code (HGB), although not verbatim. After a short desciption of the rules requiring the auditor’s independence (II.), we shall illuminate the legal environment within which § 319b operates (III.). Thereafter, the present essay analyses the term “network”, using the classic means of interpretation of statutes and secondary European law in light of the jurisprudence of the ECJ (IV.). Against this backdrop, the application of § 319b will be examined (V.). A brief summary of the findings will conclude the essay (VI.).

Francesco A. Schurr/Angelika Layr: Emission und Übertragung von DLT-Wertrechten im internationalen Privatrecht Liechtensteins und der Schweiz

The legal scholarly discussion of the last decade has brought to the establishment of various models in the fields of contract law, property law, company law, securities law etc. Thus, various legal problems in these fields of law could be solved. On the contrary, many legal questions regarding the tension between DLT and the conflict of law rules still need to be answered. The present paper intends to contribute to finding answers to these questions and analyses the progressive legislation of Liechtenstein and Switzerland in the fields of Blockchain. In most scenarios analysed in the paper there is a need to rely on a choice of law clause in order to achieve the desired legal certainty.

Marco Lettenbichler: Die Generalversammlung der liechtensteinischen Aktiengesellschaft und die Übertragung von deren Befugnissen auf andere Organe

This article deals with the question whether powers of a general meeting of a Liechtenstein stock corporation are transferable to other organs. According to Art. 338 (3) PGR, the flexible Liechtenstein Persons and Companies Act allows for transferring all tasks assigned by law and by the articles of association to another body. This norm is the subject of this article. It is to be examined whether a full transfer of tasks is compatible with the Liechtenstein legal system. After a legal comparison with Austrian, German and Swiss stock corporation law, it is concluded that there is an inalienable and non-transferable core area of tasks of the general meeting.

WANG Qiang: Optimiert oder nur halbherzig geändert? – Die Erbenhaftung für Nachlassverbindlichkeiten in Chinas neuem Erbrecht im rechtswissenschaftlichen und -terminologischen Vergleich zum deutschen Erbrecht

On May 28th 2020, the People’s Republic of China witnessed the promulgation of its Civil Code after having it put on high political and legislative agenda in the past years. Since its founding in 1949, the PRC have undertaken numerous endeavors to codify its civil law, which finally culminated in this codification. A landmark law of the PRC, the new Civil Code embodies furthermore a significant milestone in China’s legal history, especially of civil law legislation, which, in contrast to its long and turbulent history, had not started until the late Qing-Dynasty (1911). With the Civil Code’s implementation on January 1st, 2021, the leges speciales, which had been drawn upon as essential basis for the seven books of the Civil Code, were replaced by the latter. Expecting comprehensive law renewals fulfilled in the course of the codification, legal scholars in the PRC, especially those of the inheritance law, set great hope on the newly codified inheritance law as an initiative to thoroughly update and improve the old one, which had been in force as lex specialis ever since 1985 and needed urgent reform in numerous aspects. However, the long-expected substantial reform of the outdated inheritance law has failed to materialize. First and foremost, the regulations on the heirs’ liabilities for obligations of the estate, which are comprehensive in content and therefore complicated, but at the same time highly important in legal practice, still remain extremely cursory. The article aims at providing an in-depth analysis of the afore-mentioned regulations stipulated in the newly codified inheritance law in comparing them with those of the German inheritance law. Shedding light nevertheless on the reform achievement of the new inheritance law in certain aspects, this article will probe into the roots of the relevant problems while exploring potential solutions mainly from the legal-technical, legal-systematic and legal-terminological perspective.

This post was contributed by Guillaume Payan, who is Law Professor at the University of Toulon.

Under the direction of its president, Marc Schmitz, the International Union of Judicial Officers (UIHJ) has edited a code, published by Bruylant, on digital enforcement (Global Code of Digital Enforcement). This Global Code was officially presented at the 24th World Congress of this organisation, held in Dubai in November 2021 (as announced here).

The result of the work of the Scientific Council of the UIHJ, this Global Code is an extension of the Global Code of Enforcement published in 2015, dealing with very current issues related to the dematerialization of debtors’ assets.

As designed by the UIHJ, the Global Code of Digital Enforcement is not legally binding. Nevertheless, there is reason to think that it will have concrete consequences in national law and on the work of intergovernmental organisations. It promotes a balanced enforcement system, by defining global enforcement standards that respect fundamental rights.

Although it essentially provides for substantive rules, the issues of private international law are not ignored, in particular regarding the applicable law to enforcement and the international jurisdiction of enforcement agents.

One of the great interests of this publication is to address the interaction between enforcement procedures and the digitalisation of Justice from all its angles. Thus, not only are dematerialised enforcement procedures considered, but also the use of enforcement procedures on digital assets. As such, the issue of the seizure of crypto-assets is dealt with in a very timely manner.

Available in both French and English, the Global Code of Digital Enforcement is structured in 7 parts, which are preceded by a Preamble which clearly sets out the context of the work (“Enforcement in the digital age”).

The first two articles relate to “respect for fundamental rights” and respect for “the ethical principles of digital use”, such as respect for human dignity, non-discrimination or even respect for personal data. This choice must be approved because digitalisation should only be considered as a tool in the service of rights that are prior and superior to it. In other words, this digitalisation should not be an end in itself and can only be conceived with respect for human rights. There are also a series of guarantees aimed at protecting against the risks associated with the use of artificial intelligence. For example, the code establishes a right to appeal to a judge in order to sanction an irregularity, to control the proportionality of an enforcement measure or to compensate a damage. In addition, there are obligations imposed on various parties (e.g. foreign enforcement agents, debtors, third parties) to cooperate in enforcement.

The principle is that identified and accessible digital assets are seized in accordance with the law of their location, in compliance with the principle of territoriality of enforceability. With regard to unidentified or inaccessible digital assets, it is recommended to apply the law of the State that controls or ordered the enforcement.

The main idea here is to allow enforcement agents to use digital tools to carry out their activities. With good reason, the question of access to information on the debtor’s assets is considered in a comprehensive manner (in particular, access to dematerialised registers and the use of drones).

After outlining the general principles (such as the creation of dematerialised seizures, while maintaining physical non-digital seizures), the focus here is also on electronic access to data. To ensure efficiency, the possibility of electronic auctions is established. The rights of the parties are nevertheless preserved based on provisions relating to the security of digital procedures (e.g. secure cross-border communication).

In order to be able to carry out enforcement on digital assets, the procedures for locating and seizing them must be adapted. In this regard, it is specified, for example, that national laws should define seizure procedures adapted to digital assets and regulate their legal regime.

Artificial intelligence is intended to help enforcement agents to assess the appropriate enforcement measures. While guaranteeing the right to appeal to a judge to compensate any damage suffered during an automated enforcement, it is important to allow the enforcement agents the possibility of setting up a “smart enforcement” mechanism. The use of blockchain technology is also key for the enforcement agents, together with the debtor and the creditor, to set up an automated process of compulsory enforcement, particularly when payments are made by cryptocurrency.

Access to crypto-assets and the procedure for seize crypto-assets are successively detailed. For example, it is recommended to create a national crypto-assets register and an obligation for the debtor to declare his crypto-assets to the enforcement agent in charge of enforcement. In addition, a distinction is made between the seizure of crypto-assets in the hands of a third party (e.g. exchange platform) or the seizure in the hands of the debtor.

Written by Mayela Celis, UNED

The oral arguments of the case Golan v. Saada (20-1034) will take place tomorrow (Tuesday 22 March 2022) at 10 am Washington DC time before the US Supreme Court. For the argument transcripts and audio, click here. The live audio will be available here.

We have previously reported on this case here and here.

“QUESTION PRESENTED

The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is:

Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.” (our emphasis)

Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition). Also referred to as protective measures in other regions.

This case stems from the fact that there is a split in the US circuits (as well as state courts).

There were several amicus curiae briefs filed, three of which are worthy of note: the amicus brief of the United States, the amicus brief of Hague Conventions delegates Jamison Selby Borek & James Hergen and finally, the amicus brief filed by Linda J. Silberman, Robert G. Spector and Louise Ellen Teitz.

The amicus brief of the United States stated:

“Neither the Hague Convention on the Civil Aspects of International Child Abduction nor its implementing legislation requires a court to consider possible ameliorative measures upon finding under Article 13(b) that there is a grave risk that returning a child to his country of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Rather, the Convention and ICARA leave consideration of possible ameliorative measures to a court’s discretion.”

The amicus brief of the Hague Delegates coincide with this statement of the United States, while the brief of professors Silberman, Spector and Teitz holds the opposite view.

As is widely known, the US Executive Branch’s interpretation of a treaty is entitled to great weight. See Abbott vs. Abbott 560 U. S. _ (2010); Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176.

In my personal opinion, the position taken by the United States is the correct one.

The fact is that the Hague Abduction Convention is silent on the adoption of ameliorative measures. Article 13 indicates: “the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that […]” (our emphasis). The discretion of the court is thus key. Besides, and as we all aware, the Child Abduction Convention is not a treaty on recognition and enforcement of protective measures.

In some legal systems, this void has been supplemented with additional legislative measures such as the Brussels II ter Regulation (2019/1111) in the European Union. Importantly, this instrument provides for the seamless enforcement of  provisional – including protective – measures, which makes it a much more cogent system (see, for example, recitals 30, 45 and 46, and articles 2(1)(b), 15 – on jurisdiction-, 27(5), 35(2) and 36(1)). And not to mention the abolition of the declaration of enforceability or the registration for enforcement, which speeds up the process even more.

Furthermore, and particularly in the context of the United States, the onus that ameliorative measures exist or could be made available should be placed mainly on the parties requesting the return, and not on the court. See the amicus brief filed by former US judges where they stressed that “mandating judicial analysis of ameliorative measures forces US courts beyond their traditional jurisdiction and interactions with foreign law / civil law judges perform investigatory functions; common law judges do not.”

Arguably, the 13(1)(b) Guide to Good Practice may be read as supporting both views. See in particular:

See paragraph 36: “The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence.” (our emphasis).}

See paragraph 44: “Protective measures may be available and readily accessible in the State of habitual residence of the child or, in some cases, may need to be put in place in advance of the return of the child. In the latter case, specific protective measures should only be put in place where necessary strictly and directly to address the grave risk. They are not to be imposed as a matter of course and should be of a time-limited nature that ends when the State of habitual residence of the child is able to determine what, if any, protective measures are appropriate for the child. In certain circumstances, while available and accessible in the State of habitual residence, measures of protection may not be sufficient to address effectively the grave risk. An example may be where the left-behind parent has repeatedly violated protection orders.” (our emphasis)

But see in contrast paragraph 41 of the Guide, which was mentioned in the amicus brief of Child Abduction Lawyers Association (CALA).

Putting this legal argument aside, and in the context of the United States, there are several reasons why US courts should not be required to consider ameliorative measures (but may do so on a discretionary basis):

• The United States is not a Contracting Party to any global treaty that would allow the recognition and enforcement of protective measures (such as the 1996 Hague Protection of Children Convention – USA is only a signatory State);
• A great number of child abductions occur to and from the United States and Mexico. The Mexican legal system is not familiar with the recognition and enforcement of undertakings or with adopting mirror orders in the context of child abduction (or in any other context for that matter);
• Requiring courts to look into ameliorative measures in every single case would unduly delay abduction proceedings;
• Social studies have revealed that undertakings are very often breached once the child has been returned (usually with the primary carer, the mother), which has the direct result of leaving children and women in complete vulnerability. See Lindhorst, Taryn, and Jeffrey L Edleson. Battered Women, Their Children, and International Law : The Unintended Consequences of the Hague Child Abduction Convention. Northeastern Series on Gender, Crime, and Law. Boston, MA: Northeastern University Press, 2012.

In conclusion, I believe that we all agree that ameliorative measures (or undertakings) are important. But they must be adequate and effective and should not be adopted just for the sake of adopting them without any teeth, as this would not be in the best interests of the child (in concreto).

The VIII Congress of Private International Law of the University Carlos III of Madrid will take place on 12 and 13 May 2022. It will be devoted to Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction.

Those interested in presenting a paper are invited to submit the title of the paper and an abstract of a maximum of 800 words before 10 April 2022 at Congresodipr@uc3m.es.

The selected papers may also be published in the online journal Cuadernos de Derecho Transnacional.

Further information on the Congress is available here.