Flux des sites DIP

The Court of Justice (Grand Chamber) delivered on 22 February 2022 its judgment in case C‑430/21 (RS), which is about the Rule of Law, the principle of primacy of EU law and the protection of judges from disciplinary proceedings in their application of EU Law:

«  The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which the ordinary courts of a Member State have no jurisdiction to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law.

2. The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=254384&mode=req&pageIndex=7&dir=&occ=first&part=1&text=&doclang=EN&cid=730419

Kadir Has University Climate Change and Law Laboratory (CCLLAB), continues its series of events on legal aspects of Climate Change. At the sixth session of Climate Change and Law Seminars, Kadir Has University Climate Change and Law Laboratory (CCLLAB) will be honored by the lecture of Prof. Dr. Sam Fankhauser on Trends in Climate Legislation. Event is open to public via Zoom. No formal registration required; we would appreciate however if you confirm your participation by sending an e-mail to ccllab@khas.edu.tr. To find out more about our lab, please visit https://ccllab.khas.edu.tr/

Sam Fankhauser is Professor of Climate Economics and Policy at the University of Oxford, where he is affiliated with the Smith School of Enterprise and the Environment and the School of Geography and the Environment. He is also Research Director of Oxford Net Zero. Before moving to Oxford, Sam was Director of the Grantham Research Institute on Climate Change and the Environment at the London School of Economics, where he remains a Visiting Professor. He has also worked at the European Bank for Reconstruction and Development (EBRD), the World Bank and the Global Environment Facility.

The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain M/T “PRESTIGE” (No. 5) [2022] EWCA Civ 238 is an appeal against The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain [2020] EWHC 1920 which I reported on here.

The issue on this appeal (tag ‘Prestige’ on this blog and ‘Prestige(@GAVClaw)’ on Twitter search will give you plenty of returns) is the very reference of the judge to the CJEU. At Kirchberg the case is known under reference C-700/20 and the hearing was held a few weeks back.

At issue is essentially whether the judge should have made reference to the CJEU at all, hence querying the ‘necessity’ of a reference to the CJEU including in this particular context of Brexit (with the Court of Appeal now longer being able to refer to Luxembourg by the time the case would have reached it).

Phillips LJ holds [47] that the reference was not necessary in light of CJEU authority on that element of necessity and that the judge should not have made it. Yet under the EU rule of law, a Court of Appeal cannot set aside the reference: [56] all the CA can do is ask the judge to reconsider, with [60] a call for fast-tracking in the event the CJEU might  rule before the judge withdraws the reference: if that latter is what he would be minded to do.

An interesting EU institutional law issue.

Geert.

1/2 EU rule of law
LDN Steam-Ship Owners' Mutual Insurance v Spain re Prestige [2022] EWCA Civ 238
Held CJEU referral should not have been made and judge must reconsider his reference to Luxembourghttps://t.co/tIAj7hmU8o
For judgment appealed see https://t.co/LgOFOXsRmo

— Geert Van Calster (@GAVClaw) March 4, 2022

You are kindly invited to the online conference on “Cross-border portability of refugees’ personal and family status – a plea for better interplay between private international law and migration law” by Prof. Dr. Jinske Verhellen on March 16, 2022, Wednesday between 12.30-13.30 (GMT+3). The conference is organized by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge. Please contact us (Jmmigration@bilkent.edu.tr) for participation.

Biography:
Jinske Verhellen is a Professor of Private International Law and Head of the Institute for Private International Law at the Faculty of Law and Criminology of Ghent University (Belgium). She is a member of the Ghent University Interfaculty Research Group CESSMIR (Centre for the Social Study of Migration and Refugees) and of the Ghent University Human Rights Research Network. She has published on various aspects of private international law, international family law, migration law, and nationality law.
Abstract:
The lecture will address several legal problems encountered by refugees with regard to their personal and family status acquired in one country and transferred to another country (such as the absence of documentary evidence, the issue of limping legal relationships). It will focus on the interactions between international refugee law (relating to the rights and obligations of States regarding the protection of refugees) and private international law (dealing with private relationships in a cross-border context). These two sets of rules still operate in very different and even separated universes. The following issues will be covered: specific private international law hurdles that refugees have to take, the concept of personal status (age, parental status, marital status) in international refugee law, and the role of private international law conventions in the international protection of refugees.

On 1 January 2021, the divorce between the United Kingdom and the European Union became effective. Where do we stand one year later?

The Spanish journal La Ley-Unión Europea chose this topic to celebrate its number 100 issue, published last February. Under the title “La Unión Europea tras el primer año del brexit” (The European Union one year after Brexit), this monograph gathers the analysis of almost 40 reputed Spanish law professors and professionals.

It is therefore marked by the wide range of subjects covered, all pertaining to legal areas affected by the withdrawal: transport, the world of business, international cooperation against tax fraud, VAT, social security of temporarily posted workers, environmental policies, intellectual property or cybersecurity…, and, of course, cross-border civil and commercial matters.

A timely topic, well chosen for a well-deserved celebration; and a widely shared conclusion to my question above. In a nutshell: first, although Brexit has by no means gone unnoticed (my experience: buy now a scientific book, have it shipped from the UK, and look at the custom fees), in many respects its consequences are still far from being ascertainable. Second, as regards legal production in areas not regulated by the Withdrawal Agreement, there is not much to report.

International cooperation in civil and commercial matters has undergone a substantial transformation since the UK left the European Union. Nonetheless, as Sixto Sánchez Lorenzo points out, to this day the practical impact of Brexit in cross-border relationships looks rather limited. At the same time, the lack, in the negotiating process, of a serious treatment of the issues raised by the breaking off of judicial cooperation in civil matters foretells a future scenario of “conventional patches and legal poultices” (my translation of the, most probably, non-translatable expression of the author: “remiendos convencionales y cataplasmas jurídicas”). The Supreme Court’s magistrate Juan María Díaz Fraile confirms, listing in detail EU instruments no longer applicable in the relations UK/EU, together with their replacements: international conventions or national law, as the case may be.

Further contributions provide illustrations in line with Professor Lorenzo’s views, mapping the muddled legal landscape academics have described and deplored since June 2016. No one can claim lack of knowledge of the risks, for cross-border commercial and personal relationships, of a Brexit without some kind of cooperation agreement. To no avail. Nothing has happened during 2021 to put a remedy, though it would be wrong to pretend nothing has happened: as we know, the “Lugano” way is over.

In terms of legal certainty, and for obvious reasons, the status quo post-Brexit appear at first sight less desperate where an already existing multilateral convention fills the gap. That is why Ángel Espiniella Menéndez describes post-Brexit cross-border insolvency as a “leap in the dark”, and regrets the absence of an international convention to make up for the loss of the European Insolvency Regulation.

But, in fact, the existence of conventions is unlikely to suffice. In relation to choice of court agreements, Pedro de Miguel Asensio recalls that the 2005 Hague Convention is binding on the EU and the UK. Nonetheless, he immediately notices the shortcomings of the instrument when compared to the Brussels Regulations. Similarly, Pilar Jiménez Blanco states: “Brexit has weakened the effectiveness of the choice of the British courts. Whether the practical evolution of the 2005 Hague Convention will compensate for this weakening is uncertain but doubtful, due to the very limitations of the convention” (my translation). In the field of family law, Santiago Álvarez says, referring to Regulation 2201/2003: “Its void can hardly be filled by the 1980 Hague Convention on International Child Abduction and the 1996 Hague Convention on  Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which also bind all EU Member States. This change, despite some peculiar, very peculiar, opinions (…), is a step backwards, especially with regard to the illicit transfer or retention of a minor. The system of the Regulation is simply better than the one of the Convention” (my translation). Only in relation to the law applicable to contractual and non-contractual obligations is the impact of Brexit less harsh, according to Manuel Penadés Fons: conflict of law rules can operate unilaterally and universally; the Rome I and Rome II Regulations have “remained” in the UK through the European Union (Withdrawal) Act and the (EU Exit) Regulations 2019 No. 834.

While the outcome of the analysis conducted and published may deceive, the effort made by the authors is by no means worthless. The threat of Brexit kept all us busy; so did the Withdrawal Agreement. Now we are “there”; the challenge is following up, looking in as much as possible at the reactions of all sides (EU, the UK – England and Wales or Scotland-, the single Member States) .

The special issue of La Ley-Unión Europea is preceded by an editorial by Professor Fernández Rozas, editor-in chief almost from the foundation. To all those who can read Spanish, I recommend joining him in his journey along the thirty-seven years of the journal: the same period Spain has been a EU Member State. With his distinctive style, Professor Rozas presents the history and evolution of the periodical in parallel to the most relevant developments of the European Communities, later the Union. To my mind, a piece of specific interest, in particular, to the younger generations of Spanish academics.

La Ley-Unión Europea is nowadays a well-established journal, characterized by a rare combination: a quickness of reaction to the legal developments in the European Union (something that only monthly monthlies can achieve), which is not detrimental to the quality of the contributions. Congratulations, Professor Rozas; go for the next hundred issues.

This Thursday AG Pikamäe delivered his Opinion in the case LKW Walter, C-7/21. The request for a preliminary ruling originates in the proceedings on a litigation malpractice action, between a company established under Austrian law and the lawyers established in that Member State, who represented the said company in the proceedings in which it acted as a defendant.

By this request, the referring court seeks the interpretation of the Brussels I bis Regulation, of the Service Regulation and of the Article 18(1) TFEU (interdiction of discrimination on the grounds of nationality).

In litigation malpractice actions, a court seized with such action has usually to establish the hypothetical outcome of the litigation within which the malpractice allegedly had place, assuming that it did not happen. Thus, these actions have the potential of giving rise to a so-called “litigation within litigation” scenario.

The particularity of the case LKW Walter, C-17/21, results from the specific object of action brought before the Austrian courts. Here, the alleged malpractice is supposed to result from the negligence that, according to the claimant, have occurred in the proceedings pending before Slovenian courts.

In fact, a decision on enforcement, in Slovenian, adopted in these proceedings, has been served, by post, to the Austrian company. Under Slovenian law, a reasoned objection against such decision on enforcement must be lodged within eight days.

However, the lawyers – now the defendant lawyers – failed to lodge the reasoned objection within the time limit provided for in Slovenian law. It happened within twelve days of service of the decision. Ultimately, the Austrian company settled in full the debt established by the decision on enforcement.

The Austrian company brought the action against its lawyers before the courts of that Member State. Here, the defendant lawyers argue, in particular, that the time limit set by the Slovenian legislator is not compatible with EU law.

Faced with that line of defence, the Austrian court decided to request a preliminary ruling from the Court of Justice. As an outcome, by its preliminary questions, the referring court in the present case seeks the interpretation of EU law in order to benchmark against it the provisions of Slovenian law. That configuration may bring to mind the judgment of the Court in the case Werynski, C-283/09.

The referring court in the present case asks:

1) Are Articles 36 and 39 of [the Brussels I bis Regulation], read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and the principles of effectiveness and equivalence [principle of sincere cooperation under Article 4(3) TEU], to be interpreted as precluding a provision of a Member State [under which] an objection [against a decision of enforcement] must be lodged within eight days in the language of that Member State, even if the decision on enforcement is served in another Member State in a language which the addressee does not understand, and the objection is already rejected as being out of time if it is lodged within twelve days?

2) Is Article 8 of [the Service Regulation], read in conjunction with the principles of effectiveness and equivalence, to be interpreted as precluding a national measure which provides that, upon service of the standard form set out in Annex II informing the addressee of his or her right to refuse to accept the document within a period of one week, the period also begins to run in respect of bringing the appeal provided for against the decision on enforcement served at the same time, for which a period of eight days is laid down?

3) Is Article 18(1) TFEU to be interpreted as precluding a provision of a Member State which provides for, as the remedy against a decision on enforcement, an objection, which must be lodged within eight days, and that time limit also applies where the addressee of the decision on enforcement is established in another Member State and the decision on enforcement is not written either in the official language of the Member State in which the decision on enforcement is served or in a language which the addressee of the decision understands?

In his Opinion, AG Pikamäe proposes to the Court to address, in the first place, the second preliminary question on the interpretation of Article 8 of the Service Regulation.

In his view, Article 8(1) and (3) of the Service Regulation, read in conjunction with Article 47 of the Charter, does not preclude a provision of a Member Stater under which the time limit for lodging an objection against a decision embodied in a judicial document served in accordance with Service Regulation begins to run from the time of service of the document in question, and not only after the expiry of the one-week time limit provided for in Article 8(1) for refusing to accept the document (point 56).

As a reminder, Article 8(1) of the Regulation provides that it is possible to refuse to accept the document at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, a language which the addressee understands or the official language of the Member State addressed. The Austrian company, represented by the defendant lawyers, did not exercise such right of refusal after being served with the Slovenian decision on enforcement (see point 99).

Concerning the first preliminary question, AG debates the admissibility of the question. He considers that the Court should answer it: the question benefits from the presumption of its relevance and the referring court seeks the interpretation of EU law in order to pronounce itself on the line of defence put forward by the defendant lawyers (point 59). I can speculatively imagine that the defendant lawyers could argue that it was not necessary to satisfy the debt established by the decision on enforcement as it was not enforceable in Austria or, in the alternative, it was possible to contest its enforcement in that Member State (and, thus, in the extension of this logic, the Austrian company prematurely settled the debt and/or contributed to the damage it incurred).

In any case, according to AG, the second preliminary question calls for its reformulation. He considers that the referring court in actuality seeks the interpretation of Articles 45(1)(b) and 46 of the Brussels I bis Regulation (ground for refusal of enforcement, based on the improper service of the decision), read in conjunction with Article 47 of the Charter (point 62). In essence, he proposes to consider that these provisions call for a refusal of enforcement of the decision in circumstances such as those of the present case (point 93).

Finally, as to the third preliminary question, AG takes that view that Article 18(1) TFEU does not apply to a situation in which the addressee of a judicial document has waived his (her) right to refuse service of that document in accordance with Article 8(1) of the Service Regulation (point 101).

The Opinion can be consulted here (no English version yet).

The EAPIL Board has been closely monitoring the evolving situation in Ukraine during the past two weeks and established contact with the Ukrainian members of EAPIL. Some members have left the country, others are still in Ukraine. All are in need of support.

Several academic institutions in Europe offer funding or have established scholarships for refugee scholars and scientists. The funding is either available for refugee scholars from any country, for refugee scholars from Ukraine only, or for refugee scholars from Ukraine, Russia and Belarus. The EAPIL Board has collected information on those funding opportunities, which appear below. The list is certainly not complete. We, therefore, invite all readers of the blog to let us know if there are further funding opportunities not yet mentioned.

In addition, the EAPIL wishes to communicate that some members are looking for a way to finance their living through remunerated work. If you know of any opportunities (notably work that can be done remotely from Ukraine or other places) please let us know.

The list below is reproduced (and will be updated, as the case may be) here.

For all further details and information please get in touch with the Secretary General at secretary.general@eapil.org.

• ASEES
• The Ukraine Network
• Lviv Center
• German Funding for Researchers
• Israeli Universities’ Emergency Fellowships for Ukrainians

• Philipp Schwartz Initiative
  • Funding for refugee scholars and scientists from all countries
  • 24 (+12) months fellowship in Germany

• Volkswagen Stiftung
  • Funding for refugee scholars and scientists from Ukraine
  • Nomination for Ukrainian scholars due March 18

• Gerda Henkel Foundation
  • Grants totalling 2 million euros for Ukrainian (Belarussian and Russian) scholars

• DAFI (Albert Einstein German Academic Refugee Initiative) Scholarship programme
• Leibniz Institute for educational media fellowship (Braunschweig)
• Universität Bremen/Forschungsstelle Osteuropa
  • Funding for scholars from Ukraine, Belarus and Russia (Hans Koschnick Stipendien)

• HessenFonds for refugees and researchers at risk
  • Funding for researchers at risk for 12 months
  • Nomination due by 23 March

• LMU Munich
  • Emergency funding for Ukrainian researchers at LMU

• University of Tübingen
  • 10 Research@Tübingen scholarships for Ukrainian scholars (for up to 12 months)

• Austrian Academy of Sciences (Austria)
  • Emergency funding for Ukrainian researchers

• University of Graz (Austria)
  • Emergency funding for Ukrainian researchers

• Le Collège de France PAUSE Solidarity with Ukraine (France)
  • Emergency funding for Ukrainian researchers

• Swiss National Science Foundation (Switzerland)
  • Emergency funding for Ukrainian researchers

• KU Leuven (Belgium)
  • KU Leuven is setting up a fund for the accommodation of Ukrainian students and researchers looking for shelter, or for necessary extensions of stay for those already at KU Leuven; contact: ukraine@kuleuven.be
• University of Reading (UK)
  • Sanctuary scholarships for refugee scholars

• Aarhus Institute for Advanced Studies (Denmark)
  • Emergency funding for Ukrainian researchers

• Swedish Foundation for Strategic Research (Sweden)
  • Emergency funding for Ukrainian researchers

• Polish Academy of Sciences (Poland)
• Polish Young Academy PAS(Poland)
  • Help for scholars from Ukraine arriving in Poland

• Polish Sociological Association(Poland)
  • Organizes accommodation and transportation from the Polish border for Ukrainian scholars and others.

• NEP4DISSENT
  • EU-funded, international scholarly network dedicated to research on resistance and dissent in former socialist countries
  • Emergency Funding for Ukrainian scholars

• Threatened Scholars Integration Initiative (TSI)
  • Emergency funding for Ukrainian scholars

• Tel Aviv University Emergency Fund (Israel)
  • Emergency funding for Ukrainian students

• Scholars at Risk
  • Assists with placement, doesn’t fund scholars
• Article 26 Backpack at UC Davis
  • Provides digital storage of important academic documents for displaced scholars and students
• NAFSA Immigration Resources: Ukraine

Meeting of the Council on General Affairs and Policy

The Council on General Affairs and Policy of the HCCH met online from 28 February to 4 March 2022, with over 450 participants. Over the course of five days, HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

Several important developments relating to Membership and HCCH Conventions occurred during the meeting:

• El Salvador deposited its instrument of acceptance of the Statute, becoming the 91stMember of the HCCH.
• Ecuador signed the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol and deposited its instrument of ratification of both instruments, which will enter into force on 1 July 2022.
• The United States of America signed the 2019 Judgments Convention, becoming its sixth signatory.

More information on these developments is available here.

Other developments

Conventions & Instruments

On 1 January 2022, the HCCH 1965 Service Convention entered into force for Georgia. It currently has 79 Contracting Parties. More information is available here.

On 18 February 2022, the Philippines signed the 2007 Child Support Convention. The Convention will enter into force for the Philippines further to the deposit of its instrument of ratification. More information is available here.

Meetings & Events

From 11 to 20 January 2022, the International Hague Network of Judges (IHNJ) met via videoconference, with the participation of judges from 35 States. Established in 1998, the IHNJ facilitates international cooperation and communication between judges on the cross-border protection of children. More information is available here.

On 28 January 2022, the HCCH participated in the panel discussion “Thailand and the HCCH Core Conventions: Connecting Possibility and Approach”, organised by the Ministry of Justice of Thailand.

From 7 to 9 February 2022, the International Transfer of Maintenance Funds Experts’ Group met via videoconference. The Group continued its work discussing good practices and identifying possible future improvements in relation to the cross-border transfer of child support payments, with a view to facilitating the most cost-effective, transparent, prompt, efficient and accessible cross-border transfer of funds. More information is available here.

From 14 to 18 February 2022, the second meeting of the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation was held via videoconference. The Group made further progress on the development of draft provisions on parallel litigation in civil or commercial matters, which may occur when separate proceedings are instituted before the courts of different States. More information is available here.

Publications and Documentation

On 22 February 2022, the Permanent Bureau launched consultations on the draft Practical Handbook on the Operation of the 2000 Protection of Adults Convention. More information is available here.

On 28 February 2022, the Permanent Bureau announced the publication of the HCCH 2021 Annual Report. More information is available here.

Vacancies

Applications are now open for three- to six-month legal internships from July to December 2022. The deadline for the submission of applications is 17 March 2022 (18:00 CET). More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. As always, it contains a number of articles and case comments on issues of jurisdiction and applicable law (including one by me). The table of contents of the issue is available here. The following abstracts have been kindly provided to us.

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.

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.

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.

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).

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.

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.

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.

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.

Suppipat & Ors v Siam Commercial Bank Public Company Ltd & Ors [2022] EWHC 381 (Comm) repeats (and indeed refers to) the inadequate discussion of applicable law and privilege in PJSC Tatneft v Bogolyubov which I discuss here.

The application is for an order prohibiting respondents from using or deploying in these proceedings certain documents covered by legal professional privilege and/or containing confidential information, copies of which the respondents obtained pursuant to subpoenas in Thailand.

It is not in dispute apparently [26] and in any event Pelling J would have concluded that whether a document is capable of being privileged is a question to be determined as a matter of English conflicts law by the lex fori, which in this case is English law. That follows not undisputedly from the Rome Regulation which applies to the proceedings as either acquired or retained EU law (it is not clear when the claim form was issued).

The next question that arises is whether the Documents should be treated as privileged in this litigation notwithstanding that they have been obtained by the respondents lawfully by operation of an order of a court of competent jurisdiction in Thailand. This question is discussed as one of an alleged breach of an obligation of confidence (the subpoena in Thailand does not mean that the documents have entered the public domain) and the law that should apply to that obligation which both parties suggest must be discussed under Rome II. Thai law according to the defendants ([38-39] an unjust enrichment /restitution claim under Article 10; alternatively locus damni under the general rule of Article 4 with Thailand as the locus damni, it being the place of disclosure) , however claimants maintain that the issue is to be resolved applying English law for essentially all the reasons set out in the authorities deciding that English law applies to the question whether a particular document is privileged or not.

Pelling J [40] ff agrees with the claimants and holds that even if Rome II were to apply, both A16 Rome II’s overriding mandatory law rule and A26’s ordre public rule would trump Thai law given the robust nature of legal advice privilege in English law. That statement leads to an incorrect application of both Articles (for starters, A26 requires case-specific, not generic application).

The Rome II discussion cuts many corners and is certainly appealable. The judge’s views put the horse before the cart. Neither Article 16 nor Article 26 are meant to blow a proper Rome II analysis out off the water. Nor as I flagged, does the judgment do justice to the proper application of A16 and 26.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.81.

Documents must be treated as privileged under English lex fori notwithstanding they were obtained lawfully by court order of competent jurisdiction in Thailand
Considers comity and extraterritoriality

Suppipat v Siam Commercial Bank [2022] EWHC 381 (Comm)https://t.co/dJivtUuef4

— Geert Van Calster (@GAVClaw) March 4, 2022

Lord Justice Coulson the other week refused [PGI Group Ltd v Thomas & Ors (Application for Permission to Appeal) [2022] EWCA Civ 233] permission to appeal against the High Court’s refusal to grant a capped cost order – CCO in the Malawi exploitation and abuse case.

Coulson LJ firstly grants that the judge may have expressed himself more clearly on some of the technical aspects of the costs in the case however did not misapply relevant CPR rules. Secondly, on the more substantive element of the case the Court of Appeal held that the judge was right to ignore the much lower cost implications of possible Malawi proceedings for to do so, as I flagged in my post on the High Court judgment, would bring in a forum non conveniens defence via the back door of cost orders: [45]:

The costs of pursuing the claim in Malawi must be irrelevant to the making of a CCO in the UK. If a claim is validly brought in the UK, then that brings with it the reasonable/proportionate costs of pursuing those proceedings in the UK.

A good judgment.

Geert.

Lord Justice Coulson refusing permission to appeal against judgment rejecting CCO Capped Cost Order in Malawi #bizhumanrights case

PGI Group v Thomas & Ors (Application for PTO) [2022] EWCA Civ 233 https://t.co/EpGrJi6Smq

For first instance judgment see https://t.co/Em5jyZADeM pic.twitter.com/C7M8ENEETa

— Geert Van Calster (@GAVClaw) February 25, 2022

Mahmood v The Big Bus Company [2021] EWHC 3395 (QB) is a good illustration of the applicable law process under the 1980 Rome Convention and its inclusion on the blog is mostly for pedagogic /teaching purposes. It even might be a good illustration of the bootstrap principle (meaning an issue on the very existence of the contract needs to be determined by the putative lex contractus) except [94] parties agree that whatever the conclusion as to the applicable law, UAE law can be deemed to be the same as English law in relation to the validity, construction, and effect of the Heads of Terms.

On 27 July 2001, during discussions in London regarding a possible joint venture to operate tour buses in Dubai, the parties signed a document entitled “Heads of Terms”.

Claimant says the Heads of Terms gave rise to a binding contract between the parties, which the Defendant subsequently breached.  The claim is resisted by the Defendant, arguing that, whether assessed under the law of England and Wales or under the law of the UAE, the claim is time-barred.  In the alternative, the Defendant contends there was no binding contract between the parties, or, if there was, that it was superseded by events that took place in 2002, or that the Claimant acted in repudiatory breach of any such contract, whereas the Defendant itself did not breach a contractual obligation owed to the Claimant.  It further disputes that there is any basis for the damages claimed by the Claimant in these proceedings.

The blog’s interest in in the first Q only and this is where [65] ff Eady J does a good job at applying the Convention without verbosity. Reference is best made to the judgment itself.

Geert.

Mahmood v The Big Bus Company [2021] EWHC 3395 (QB)
Ia choice of law for English or UAE law under 1980 Rome Convention
Held EN law expressly chosen, alternatively characteristic performance leading to same result, ditto proper law of the contracthttps://t.co/jizbet52aR

— Geert Van Calster (@GAVClaw) December 16, 2021

The webinar What Measures Should the EU Adopt to Enhance the Protection of Adults in Europe? announced earlier on this blog, will take place, as scheduled, on 10 March 2022 from 5 pm to 7 pm.

The webinar has been organised by a Working Group charged by EAPIL with drafting a response to the public consultation that the European Commission has recently launched regarding an EU-wide protection of vulnerable adults. The purpose of the webinar is to present a preliminary draft response and receive feedback from interested experts, practitioners and stakeholders.

An e-mail with the details for joining the webinar has already been sent to the registered participants. If you have registered, but haven’t received this e-mail, please check your spam folder. If you need assistance, please write to pietro.franzina@unicatt.it.

I am in blog queue clear-out mode today. Thank you Maxime Barba for flagging the French SC’s December judgment on the application of Rome I’s (in fact the Rome Convention but the provisions have not materially changed) protective regime for employees. At issue is a contract for which parties had chosen Moroccan law, with the Court of Appeal setting aside that choice under A6 Rome Convention, now A8 Rome I, in favour of the French law’s provisions for dismissal, binding upon the employer by virtue of a collective labour agreement.

As Maxime notes, an interesting reference is the SC’s view on what law has to be considered ‘more favourable’. This weighing is a consequence of A6 stipulating

in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice.

Clearly setting aside only occurs when the default law (the one that applies in the absence of choice) is more favourable to the employee. How though does one assess that more protective character? Piecemeal, checking every part of the employment relationship? Or more ‘global’, which would mean the exercise might let the employee down on some of the consequences. And once the comparison made, how much of the offending law does one set aside? The SC first of all notes that

[12] D’abord, la détermination du caractère plus favorable d’une loi doit résulter d’une appréciation globale des dispositions de cette loi ayant le même objet ou se rapportant à la même cause.

The judge’s exercise must limit itself to those parts of labour law which are at issue in the dispute: not an overall comparison, in other words. However as I understand the judgment, the employer had argued that once the comparison made (here: French law including a longer list of dismissal without cause than Moroccan law), the judge must only give sectional priority to the default law: here: the judge, it is argued, must treat the end of the relationship as one without cause, but must then resurrect Moroccan law’s consequences to such dismissal without cause. The SC on the other hand puts a fork in the road: once the road to French ‘dismissal without cause’ taken, French consequences for same apply. (The SC does in the end annul on the basis of a wrong calculation of the severance package, under French law).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 3.2.5.

French SC on mandatory default employment law under Rome I trumping choice of law made. https://t.co/jFHE9ZQPol

— Geert Van Calster (@GAVClaw) December 9, 2021

A posting that is long overdue but over at GAVC law  we have lots of things coming our way and the inevitable consequence is a bit of a queue on the blog. Open Rights Group & Anor, R (On the Application Of) v Secretary of State for the Home Department & Anor [2021] EWCA Civ 1573 was held end of October and discussed remedies for breach of retained EU law, that is in essence, EU law which has force in law in the UK by virtue of the Government’s copy /paste exercise following Brexit.

In April 2021 the CA had held that that the “Immigration Exemption” (which disapplies some data protection rights where their application would be likely to prejudice immigration control) of the UK Data Protection Act 2018 is contrary to Article 23 GDPR and Article 23 of the UK GDPR: [2021] EWCA Civ 800.  However in that judgment the CA had not specified at that stage what form of relief should be granted. It does now.

The claim form sought a declaratory order, the effect of which would be to “disapply” the Immigration Exemption. The Government argue it be granted a grace period to make regulations adding to or varying the provisions. The complicating factor is that even retained EU law enjoys supremacy (not by virtue of EU law but by virtue of the Government’s choice to do so). That means that any conflict between the GDPR and domestic legislation (including primary legislation) must be resolved in favour of the former: the domestic legislation must be overridden, treated as invalid or, in the conventional language, disapplied.

[15] A quashing order would not meet with the UK constitutional understanding and its limits to the rule of judges. However must supremacy, post Brexit, mean the courts must inevitably make an immediately binding order? Warby LJ sets out the principles of EU retained law as they follow from domestic legislation (the ‘EUWA’) at [23]:

(1) A UK court must now decide any question as to the validity, meaning or effect of any retained EU law for itself: it is no longer possible to refer any matter to the CJEU: EUWA s 6(1)(b).

(2) But the general rule is that the court must decide any such question in accordance with any retained case law and any retained general principles of EU law that are relevant: EUWA s 6(3). “Retained EU case law” and “retained general principles” mean principles laid down and decisions made by the CJEU before IP completion day.

(3) When it comes to principles laid down or decisions made by the CJEU after IP completion day, the court is not bound (EUWA s 6(1)) but “may have regard” to them (EUWA s 6(2)).

(4) The position is different in a “relevant court”, which includes the Court of Appeal. Subject to an exception that does not apply here, a relevant court is not absolutely bound by any retained EU case law: EUWA s 6(4)(ba) and Regulations 1 and 4. It can depart from that law; but the test to be applied in deciding whether to do so is “the same test as the Supreme Court would apply in deciding whether to depart from the case law of the Supreme Court”: EUWA 6(5A)(c) and Regulation 5.

(5) The test the Supreme Court applies is the one laid down by the House of Lords in its Practice Statement [1966] 1 WLR 1234, when Lord Gardiner LC said

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House.”

Relevant CJEU authority is Liberty: La Quadrature, A v Gewestelijke Stedenbouwkundige Ambtenaar van het Department ruimte Vlaanderen (Case C-24/19) (“Gewestelijke”), and B v Latvijas Republikas Saeima Case C-439/19, EU-C-2021-504 (“B v Latvia”). [24] Gewestelijke was decided before IP completion day. We are not absolutely bound by them, but we should decide this case in accordance with the principles they set out, unless we think it right to depart from those cases for the reasons set out by Lord Gardiner. B v Latvia was decided after IP completion day, so we can “have regard” to it.

[26] Warby LJ suggests 3 options:

One is to hold that since the power to suspend relief in respect of substantive laws that is identified in Gewestelijke is one that can only be exercised by the CJEU, it cannot be exercised at all in E&W. This is rejected [27] as an unduly mechanistic and literal approach, tending to subvert rather than promote the legal policy that underlies this aspect of the CJEU jurisprudence: it would remove from the judicial armoury a power that is, by definition, essential. 

An alternative would be what Warby LJ called “the Regulation 5 approach”: to apply the principles laid down in the 1966 HoL Practice Statement and depart from the CJEU case-law, holding that the power which, in that jurisprudence, is reserved to the CJEU should now be treated as available to at least some UK Courts. This [28] enable a court to perform one of its essential tasks: averting legal disorder and is an option which Warby LJ suggests is open to the Court of Appeal.

A third option is to follow and apply the CJEU jurisprudence as to the existence and limits of the power to suspend, but not that aspect of the case-law that reserves the exercise of that power to the European Court. That [31] is Warby LJ’s preferred route however he decides (and the other LJs agree) that there is at this time no need to choose between both options for in essence they lead to the same result in the case at issue. The Court concludes that the Government were given time until 31 January 2022 for the Data Protection Act 2018 to be amended so as to remedy the incompatibility. Whether the Government have done so, I leave to data privacy lawyers to verify.

Underhill LJ emphasises one point [57] ‘that, as Warby LJ says at para. 13 of his judgment, our power to suspend our declaration – in practice, to suspend the disapplication of the Immigration Exemption – derives entirely from retained EU law. It was not argued that the Court had any equivalent power at common law.’

This is an important judgment viz the application of retained EU law but also wider, viz the consequences of judicial review which is a hot topic at the moment in more than just the UK.

Geert.

Important Court of Appeal judgment on retained EU law and its effet utile (here: in the context of the 'UK' #GDPR).
What kind of remedies are available under UK law after a finding that retained EU law has been breached?
Open Rights Group https://t.co/4QVGVNA1NJ pic.twitter.com/p74inLB6MT

— Geert Van Calster (@GAVClaw) October 29, 2021

From March 15 to May 19, 2022, as part of the three-year European project called Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe, will take place the 2nd edition of the cycle of online seminars on transnational civil and commercial litigation in Europe. Among the novelties of this edition, the participation of professionals from the European Court of Human Rights, the European Central Bank, the World Intellectual Property Organization and the Sabin Center for Climate Change Law, Columbia Law School, New York. The initiative has received the patronage of the Chamber of International Lawyers, the Italian National Council of Notaries, the European Union of Judicial Officers, the Transnational Dispute Management network and the DEuTraDiS Research Center.

Deadline for registration: March 15, 2022.

Here the registration form and the official flyer.

This post was contributed by Christine Bidaud, who is Professor at the University Jean Moulin – Lyon 3, co-director of the Family Law Center and member of the Research team Louis Josserand.

If there is one subject that divides not only jurists but also States, it is certainly surrogacy. Legal in some countries, prohibited in others, and unregulated in still others, each State develops its own law according to the social mores, values, and history of its society. But it is one thing to prohibit the practice of surrogacy on one’s own territory and another to consider the parenthood of a child born abroad by surrogacy. The French Cour de Cassation has well understood this.

Without going back over the details of the evolution of its case-law, it should be remembered that at first, the Cour de cassation refused to recognise or authorise the recognition in France of the parenthood of children born abroad by surrogacy (see Cour de Cassation, 1st Civil Chamber, 6 April 2011, n° 10-19053, Mennesson, n°09-66486, Labassée & n° 09-17130 and Cour de cassation, 13 September 2013, n°12-18315 & n°12-30138). The Court then accepted the partial transcription of the child’s foreign birth certificate in French civil status registers by limiting it to the biological parent (see Cour de Cassation, Plenary session, 3 July 2015, n°14-21323 & n°15-50002). The second parent, whether a man or a woman, had to adopt the child to establish his or her parenthood. Until the law of 21 February 2022, a requirement for such adoption was that the couple be married.

The Cour de Cassation then decided to go further. Even if in its opinion of 10 April 2019, the ECtHR did not require it, the Cour de Cassation decided to authorise the full transcription of the child’s foreign birth certificate in the French civil status registers. Initially presented as an exceptional solution justified by the circumstances of the Mennesson case, the Cour de Cassation finally generalised this solution (see Cour de cassation, 1st Civil Chamber, 18 December 2019, n° 18-11815 & n° 18-12337 and recently Cour de cassation, 1st Civil Chamber, 13 January 2021, n° 19-17929). The French case law seemed to be well established and yet…

The law on bioethics of 2 August 2021 reformed Article 47 of the Civil Code, which governs the evidentiary value of foreign civil status documents. Even if the evidentiary value of foreign civil status documents must be distinguished from the recognition of parenthood, the two issues are “dangerously” intertwined in the case-law and obviously in the mind of the legislator too. Wishing to put a stop to the case law of the Cour de Cassation, the French Senate had proposed an amendment to introduce a new Article 47-1 into the Civil Code. In essence, the text provided for a return to the previous case law of the Cour de Cassation: partial transcription of the biological parenthood link and adoption of the child by the other parent.

The French National Assembly rejected this amendment and instead amended Article 47 of the Civil Code. The text, which already provided that

‘All civil status records of French citizens and foreigners made in a foreign country and drawn up in the forms used in that country are considered as proof unless other records or documents held, external data, or elements drawn from the record itself establish, if necessary after all useful verifications, that this record is irregular, falsified, or that the facts declared therein do not correspond to reality’,

has been supplemented by the precision that

‘This (reality) is assessed in the light of French law.

The change seems minor at first glance, but it nevertheless calls for a whole series of observations.

The Senate amendment only concerned the transcription of birth certificates of children born abroad by surrogacy into French civil status registers. The new version of Article 47 of the Civil Code does not concern the transcription, but the evidentiary value of all foreign civil status records: birth certificates, as well as others (e.g. marriage, recognition, death, and certificates of stillborn babies). The text introduces a problematic confusion between evidentiary value and transcription of foreign civil status records. A foreign civil-status record does not need to be transcribed into French registers to have evidentiary value. It must only have been established following “the usual forms” of the foreign country (as laid down by the first sentence of Article 47 of the Civil Code). Moreover, it is impossible to require transcription in all cases because transcription of foreign records is only possible when the person(s) concerned by the record have French nationality.

The amendment proposed by the Senate was expressly aimed at surrogacy, which is a bioethical issue. However, Article 47 of the Civil Code relates to the evidentiary value of all foreign civil status records, whether they relate to French citizens or to persons of foreign nationality. What is thus the legitimacy of a new law relating to bioethics to reform this provision? For example, what link can exist between bioethics and a foreign marriage record?

In our opinion, the legal context of the reform of Article 47 is therefore inappropriate and even instrumentalised.

There is still one condition for foreign documents to be evidentiary: they must have been drawn up following the local rules of form. And there are still three grounds for overturning this presumption of evidentiary value: irregularity, falsification, and inconsistency of the facts contained in the document to reality. There is no change for the first two grounds of challenge pursuant to the new version of Article 47. “Irregularity” means that the act respects the foreign local forms. The “absence of falsification” implies that there must be no documentary fraud (e.g. erasure, pasting, or fraud carried out with different computer software), but also more elaborate fraud, sometimes carried out with the complicity of local authorities (one can think of ‘true-false’ records drawn up deceptively and inserted into foreign registers by unscrupulous foreign civil registrars).

The third ground for challenging the evidentiary value – “the lack of conformity of the facts with reality” – has been completed by the strange precision that this reality must be “assessed in the light of French law”. Until now, this condition was interpreted in terms of accuracy or inaccuracy: was the person born in that town? Did the person die on that date? It is logical, facts are true or false. What sense can be given to the requirement that the facts must be conform with reality “assessed in the light of French law”?

Keeping in mind that the goal of the text was to put an end to the case law of the French Cour de Cassation, we can only observe that the legislator makes a confusion between what is a fact and what is not. Parenthood is not a fact: it may result from the effect of the law, from a recognition act, from a possession of status, or from a judicial decision. The new version of Article 47, therefore, invites reasoning in terms of equivalence between what French law allows and what it does not allow. It is no longer a question of factual reality but of legal reality.

Reasoning in terms of legal reality means that we must check if the element of personal status established or constituted abroad has an equivalent in French law. And that must be done for each element that may compose the status of a person: facts such as dates and place of birth, but also everything else, i.e. marriage and parenthood. And how far should this research of equivalence be pushed? Should we, for example, require that marriages celebrated abroad have a civil form because it is the only one that exists in France? Such research would not make sense because it would be the same as considering that a foreign record relating to a marriage celebrated only in the religious form has no evidentiary value in France, even though this marriage would be considered valid. Since 1955, French case law has considered that this question belongs to the conditions of form of marriage and is therefore governed by foreign law (see Cour de cassation, 22 June 1955, Caraslanis). This rule is now written into the Civil Code.

The formulation of the text causes confusion between the evidentiary value of the records and the recognition of the status of persons. The civil status record is used to prove that an event concerning personal status occurred abroad, but this does not mean that this personal status will produce effects in France. With the new version of Article 47 of the Civil Code, everything is mixed up: the element of personal status is checked to ensure that it corresponds to the definition given by French law to give evidentiary value to the foreign civil status record.

The law on bioethics has opened up medically assisted procreation to women couples and single women (Art. 342-10 of the Civil Code). The new Article 342-11 of the Civil Code provides that “At the time of the consent [by the notary] provided in Article 342-10, the couple of women jointly recognises the child”. For the woman who gives birth, parenthood is established in accordance with Article 311-25 which lays down that “‘Regarding the mother, parenthood is established by her designation in the child’s birth certificate”. For the other woman, it is established by the joint acknowledgement provided in the first paragraph of this Article. This is given by one of the two women or, where applicable, by the person responsible for declaring the birth to the civil registrar, who indicates this in the birth certificate. Regarding the woman of the couple who is not carrying the child, she will therefore be the legal mother of the child from the moment of its birth because of prenatal recognition.

So today, it is possible under French law to be the legal mother of a child without having given birth to that child and without the need to use adoption.

When the couple who had recourse to surrogacy abroad is heterosexual, most of the time, the indications written in the foreign birth certificate will only specify “mother:…” and “father:…”. It will not mention whether the woman has or has not given birth. It will only give the identity of the mother. Therefore, the foreign record will not contain any factual inaccuracies. To check if the indications are in conformity with the legal reality assessed in the light of French law, it is then necessary to verify whether French law allows the registration of a woman as a mother without having given birth and without having adopted the child. And this is now possible since the Bioethics Law of 2 August 2021…

The Cour de Cassation is therefore not required to change its case law in this situation. It can continue to transcribe these birth certificates in the French civil status registers. The situation is more problematic regarding men’s couples. In this case, there will be two fathers in the foreign birth certificate. To ensure that this record corresponds to the legal reality assessed under the light of French law, the Civil Code should contain a provision that allows the establishment of a double link of paternal parenthood from the child’s birth, without using adoption. And this provision does not exist. Therefore, it should no longer be possible to transcribe these foreign birth certificates in French civil status registers!

The ECtHR does not systematically condemn States that do not allow the recognition or reconstruction of a parenthood link towards the non-biological parent who has had recourse to surrogacy abroad if the child has a family life with his or her parents. However, special circumstances are required and in its advisory opinion of 10 April 2019, the ECtHR stated that the parenthood link between the child and the intended mother must be established, including through adoption, but that there was no obligation for States to transcribe the child’s full birth certificate. This opinion was issued to surrogacy carried out by a different-sex couple but is perfectly transposable to same-sex couples.

If the French Cour de Cassation only allows the transcription of foreign birth certificates of children born from surrogacy when the parents are of different genders, there would certainly be discrimination between heterosexual and homosexual couples and even more between children who are all born abroad by surrogacy. It is difficult to see how France could not be condemned again by the ECtHR… And the recent Pancharevo Case of the CJEU (analysed here on the blog) can only add arguments in the direction of maintaining the current case law of the French Cour de Cassation.

On 7 March 2022, the Conclusions & Decisions of the governing body of the Hague Conference on Private International Law (HCCH), i.e. the Council on General Affairs and Policy (CGAP), were released. Click here for the English version and here for the French version.

For official information on the ceremony of signatures and ratifications of instruments, click here (HCCH news item). For our previous post on the signature of the USA of the 2019 Judgments Convention, click here.

Although a wide range of topics was discussed, I would like to focus on two: publications and future meetings.

1) Publications

This meeting was very fruitful in getting the necessary approval for HCCH publications. There were three publications approved, ranging from family law to access to justice for international tourists.

Family law

The Council adopted the following decision: “12. CGAP approved the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children, subject to editorial amendments, for publication.”

The Report of the Experts’ Group on Cross-Border Recognition and Enforcement of Agreements in Family Matters Involving Children (meetings of 14-15 September and 29-30 November 2021) is available here. The Chair of the Experts’ Group is Professor Paul Beaumont. The work of this Expert’s Group has ended.

The draft of the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children has been made available. For French, click here.

As some of you may be aware, this tool is an alternative to the drafting of a binding instrument in this area. In 2017, the Experts’ Group drafted the following Conclusion and Recommendation for the attention of the Council on General Affairs and Policy of March 2018:

“Therefore the Experts’ Group recommends to the Council to develop a new Hague Convention that would build on, and add value to, the 1980, 1996 and 2007 Hague Conventions, and be developed with a view to attracting as many States as possible.”

The reasoning of the Experts’ Group was the following:

While the existing Hague Family Conventions encourage the amicable resolution of disputes involving children, they do not contemplate the use of “package agreements” (i.e., family agreements related to custody, access, relocation and/or child support and which may include spousal support and other financial matters, such as property issues) and do not provide a simple, certain or efficient means for their enforcement. From the Group’s experience it is recognised that such agreements are increasingly frequently used. Very often the matters covered require the simultaneous application of more than one Hague Family Convention while some elements of those package agreements are not within the scope of any of the existing Hague Family Conventions. This creates difficulties for the enforcement of package agreements.

Unfortunately (or fortunately depending on how people may view this), this initiative was not taken on board by Council in 2018. See here.

Apostille

The Council adopted the following decision: “31. CGAP approved the second edition of the Practical Handbook on the Operation of the Apostille Convention, subject to editorial amendments, for publication.” This draft is not yet publically available.

The first edition of the Apostille Handbook is available here.

Access to Justice for international tourists and visitors

The Council adopted the following decision: “3. CGAP approved the Practical Guide to Access to Justice for International Tourists and Visitors, subject to editorial amendments, for publication on the HCCH website.”

The draft of the Practical Guide to Access to Justice for International Tourists and Visitors is available here.

As with the recognition and enforcement of agreements reached in the course of family matters, the initial proposal was the developing of a new instrument.

At its meeting in 2013, the CGAP took note of the suggestion by Brazil to undertake work on co-operation in respect of protection of tourists and visitors abroad. See in particular Prel. Doc. No 3 of February 2018 – Final report concerning a possible future Convention on Co-operation and Access to Justice for International Tourists drafted by Professor Emmanuelle Guinchard.

2) Meetings

With regard to future meetings, there are a few meetings in the pipeline:

Special Commission meetings (SC) in 2022 (basically, a global meeting of experts):

• Special Commission on the practical  operation  of  the  2007 Child Support Convention and its Protocol  – to be held from 17 to 19 May (in-person meeting) – This will be the first meeting ever of the SC on this topic
• Special Commission on the practical  operation  of  the  1993  Adoption  Convention – to be held from 4 to 8 July (online meeting)
• Special Commission on the practical  operation  of  the  2000 Protecion of Adults  Convention – to be held from 9 to 11 November – Tnis will be the first meeting ever of the SC on this topic

And finally, the Working Group on matters related to jurisdiction in transnational civil or commercial litigation – to hold “two further meetings before the 2023 meeting of CGAP, with intersessional work as required”.

A research seminar on the topic “Hard Legal Problems and Comparative Legal Analysis: The case of parental child abduction in international and Islamic law” is organised by the Aberdeen Centre for Private International Law under the auspices of the Aberdeen Law School Research Seminar Series. The seminar will be delivered by Professor Anver Emon from the Faculty of Law of the University of Toronto, Canada, and will be held on Friday 11 March 2022, 5-6.30 p.m. (UK time), through MS Teams. For more information, click here.

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

In a recent decision, the Austrian Supreme Court dealt with the interpretation of Article 10(2) of the Succession Regulation. It found that the latter provision does not establish an obligation to initiate probate proceedings ex officio in states having subsidiary jurisdiction. A national Austrian provision concerning the issue of these assets to third countries was thus considered in conformity with EU law, although Article 10(2) explicitly provides that the Member State shall have “jurisdiction to rule on those assets”. The court’s apparent classification of these questions as an acte clair is doubtful.

The Austrian courts were seized by a Canadian company. It was tasked by the Canadian courts to manage the estate of a German citizen, who had moved to Toronto where he established his habitual residence and eventually died in 2017. The deceased had a bank account in Austria where he and his son had jointly rented two safes containing gold “of substantial value”. The Canadian company then brought a request that the gold and the savings should be transferred to it so that it may become part of the general estate in Canada. However, the son opposed this request with regard to the gold on the basis that it was in fact in his own property and not in the deceased’s.

The court of first instance decided to transfer the money and the gold to the Canadian company, which was to hand it to the heirs as assessed in Canada. Concerning jurisdiction, the court based its decision on Article 10(2) of the Succession Regulation. The fact that it simply transferred the assets and did not conduct substantive probate proceedings was based on § 150 AußStrG (Austrian Non-Contentious Civil Procedure Act) – prescribing exactly this course of action in cases of Article 10(2) of the Succession Regulation. Appealing this decision, the son desired a full rejection of the claim on the grounds that § 150 AußStrG would be contrary to Article 10(2) and is thus not to be applied. The gold and the money should be handed to the heirs by Austrian courts themselves and not simply be transferred to the Canadian authorities (i.e. the authorised company).

The Supreme Court ruled that issuing assets of the estate located in Austria, as long as no probate proceedings have been requested, does not violate Article 10(2) of the Regulation. This is laid down in § 150 AußStrG, which prescribes that upon request of a legitimised party, the assets must be transferred to the state in which the deceased had their last habitual residence. Its main argument was that the Succession Regulation does not oblige the competent Member States to initiate proceedings ex officio (para 31; also citing Hertel in Rauscher, EuZPR-EuIPR [2016] Art 23 EuErbVO para 49).

Furthermore, the objective of Article 10(2) of the Succession Regulation would not be thwarted by the Austrian provision, since § 150 AußStrG provides for the issue of assets only if no application for probate proceedings in Austria had been filed. Thus, the legal interests of the parties are protected and the subsidiary jurisdiction stipulated in Article 10(2) is respected. Issuing the assets would be a mere recognition of the foreign (Canadian) decision which legitimised the company to demand their transfer. As this decision originates in a third country, neither the Succession Regulation nor other acts of EU law are inapplicable to such a recognition (para 21).

The Supreme Court considered this assessment of the legal situation and the conformity with EU law to be sufficiently evident, so that a request for a preliminary ruling to the CJEU was not deemed necessary.

To the extent that the jurisdiction established by Article 10(2) of the Succession Regulation is not combined with an obligation to initiate probate proceedings ex officio, the Supreme Court’s decision is to be followed.

In this respect, the procedural autonomy of the Member States is not restricted by EU law, thus the Regulation does not specify whether proceedings ought to be initiated either of the court’s own motion or upon application. The Regulation recognises the different procedural treatment of succession cases in the Member States, which is explicitly outlined, e.g., in Recital 29 (“Where succession proceedings are not opened by a court of its own motion”) and Article 14(c) (“if the proceedings are opened of the court’s own motion”) of the Succession Regulation. Hence, in contrast to probate proceedings in Austria, which are always initiated ex officio, other Member States (such as e.g. Germany, Belgium or Sweden) provide for the transfer of assets to the heirs ex lege without any proceedings being necessary. Therefore, a provision which prescribes that probate proceedings are initiated only on application in all cases where jurisdiction is based on Article 10(2) of the Succession Regulation (such as § 143 AußStrG in Austria) does indeed not violate EU law.

However, by issuing the gold and the savings to Canada, the Austrian authorities effectively transfer the jurisdiction for substantive probate proceedings over these assets to the Canadian authorities. This rejection of the Austrian jurisdiction over the assets located in its territory would happen outside the system of the Succession Regulation – which provides a transfer of jurisdiction in the cases listed in Article 6, but not whenever the court chooses to do so.

While the Succession Regulation does not prescribe how jurisdiction shall be exercised by a particular Member State, it does indeed prescribe that it must be exercised. The Austrian Supreme Court reasons that such a transfer is permissible because it does not interfere with the objectives of the regulation, as the alleged heirs could have brought a request to hold probate proceedings in Austria before anyway (para 27, 33). Yet, it thereby neglects that the transfer of jurisdiction would be final and thus deprives the heirs of the possibility to request proceedings in Austria at a later point in time. The Austrian courts may well choose to remain inactive until proceedings are requested, but then they have to remain exactly that – inactive. Hence, § 150 AußStrG – prescribing the opposite – is incompatible with EU law. While there might well be a case to see this differently, these arguments and the extensive criticism that has justly been raised about this issue by numerous respected Austrian scholars would have at least required a preliminary reference and leave the issue for the CJEU to decide.

The other reason given by the Supreme Court in support of its decision is the fact that it is bound by the recognition of the Canadian (third-state) judgment, which as such falls outside the scope of the Succession Regulation. Yet even when starting from the premise that the Canadian decision needs to be recognised, this will not necessarily result in an obligation of the Austrian authorities to transfer to the assets to Canada.

The decision of the Canadian Court confers upon the company the right (and duty) to collect the deceased’s assets as the estate trustee (para 2) – which is the standard for succession cases in Ontario. However, it did not directly decide on how the succession affects the assets. Recognising the company’s authorisation to receive the assets (i.e. its right of action) is only one of the requirements that need to be fulfilled so that the assets can be transferred to Canada. Yet, the Austrian courts still have to assess whether issuing the assets to a third state is consistent with Austrian law (including EU law).

The analysis shows that the legal question is far from clear and a preliminary reference to the CJEU would therefore have been necessary. While the Supreme Court was correct in its assessment that an ex officio initiation of probate proceedings is not required by the succession regulation, the rest of its judgment cannot be followed from this premise.