Conflictoflaws

This note has been kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), University of Freiburg (Germany).

On 8 June 2023, the Swiss Federal Supreme Court (Bundesgericht) pronounced a judgment on the removal of gender markers of a person according to German Law and denied the recognition of this removal in Switzerland.

Background of the judgment is the legal and effective removal 2019 of the gender information of a person with swiss nationality living in Germany. Such removal is possible by a declaration of the affected person (accompanied by a medical certificate) towards the Registry Office in accordance with Sect. 45b para. 1 of the German Civil Status Act (Personenstandsgesetz, PStG). The claimant of the present judgment sought to have the removal recognized in Switzerland and made a corresponding application to the competent local Swiss Office of the Canton of Aargau. As the Office refused to grant the recognition, the applicant at the time filed a successful claim to the High Court of the Canton of Aargau, which ordered the removal of the gender markers in the Swiss civil and birth register.

The Swiss Federal Office of Justice contested this decision before the Federal Supreme Court. The highest federal Court of Switzerland revoked the judgment of the High Court of the Canton of Aargau and denied the possibility of removing gender information in Switzerland as it is not compatible with Swiss federal law.

According to Swiss private international law, the modification of the gender indications which has taken place abroad should be registered in Switzerland according to the Swiss principles regarding the civil registry (Art. 32 of the Swiss Federal Act on the Private International Law, IPRG). Article 30b para. 1 of the Swiss Civil Code (ZGB), introduced in 2022, provides the possibility of changing gender. The Federal Supreme Court notes that the legislature explicitly refused to permit a complete removal of gender information and wanted to maintain a binary alternative (male/female). Furthermore, the Supreme Court notes that the legislature, by the introduction in 2020 of Art. 40a IPRG, neither wanted to permit the recognition of a third gender nor the complete removal of the gender information.

Based on these grounds, the Federal Supreme Court did not see the possibility of the judiciary to issue a judgment contra legem. A modification of the current law shall be the sole responsibility of the legislature. Nevertheless, the Supreme Court pointed out that, due to the particular situation of the affected persons, the European Court of Human Rights requires a continual review of the corresponding legal rules, particularly regarding social developments. The Supreme Court, however, left open the question of whether the recognition of the removal of gender information could be a violation of Swiss public policy. The creation of a limping legal relationship (no gender marker in Germany; male or female gender marker in Switzerland) has not been yet addressed in the press release.

Currently, only the press release of the Federal Supreme Court is available to the public (in French, German and Italian). As soon as the written grounds will be accessible, a deeper comment of the implications of this judgment will be made on ConflictOfLaws.

This year’s annual meeting of the German Branch of the International Law Association will take place at the Goethe-University in Frankfurt (Main) on Friday, 7 July 2023. The subject will be “Regional Developments in International Law in Africa and Latin America”. The list of distinguished speakers includes Prof. Dr. Thoko Kaime, University of Bayreuth, Alan Diego Vogelfanger, LL.M., University of Bonn/Universidad de Buenos Aires, Kholofelo Kugler, LL.B., M.A., University of Lucerne (Switzerland), and Priv.-Doz. Dr. Jan Peter Schmidt, Max-Planck-Institute for Comparative and International Private Law. The full program can be found here. For registration, please click here. A passive attendance via Zoom will be possible.

On 19-20 October 2023 the Conference Sustaining Access to Justice in Europe: New Avenues for Costs and Funding will take place at Erasmus University Rotterdam. Speakers from academia, policy, business and consumer associations from Europe, the US and Asia will discuss developments in funding, including third-party litigation funding and crowdfunding, collective actions, public interest litigation, ADR and ODR and entrepreneurial lawyering.

Description

Access to civil justice is of paramount importance for enforcing citizens’ rights. At the heart access to civil justice lies litigation funding and cost management. Yet, over the past decades, access to justice has been increasingly put under pressure due to retrenching governments, high costs of procedure, and inefficiency of courts and justice systems. Within this context, the funding of litigation in Europe seems to be shifting from public to private sources. Private actors and innovative business models have emerged to provide new solutions to the old problem of financial barriers to access to justice.

With the participation of academics, policymakers, practitioners, academics and representatives of civil society from all over Europe and beyond, the conference seeks to delve deeper into the financial implications of access to justice and the different ways to achieve sustainable civil justice systems in Europe. The topics addressed in this international academic conference include different methods of financing dispute resolution and regulating costs, such as third-party funding, crowdfunding, blockchain technologies, public interest litigation, developments in ADR/ODR, new business models of legal professionals as well as law and economics perspectives on litigation funding.

Program, registration and call for papers

The full program is available here and further information and registration is available here.

A call for papers for early career researchers is available here; deadline is 7 July 2023.

This conference is organised by Erasmus School of Law in the context of the NWO Vici Project: ‘Affordable Access to Justice’, funded by the Dutch Research Council.

Written by Christina Shin, University of Sydney Law School

On 1 June 2023, International Children’s Day, the University of Sydney’s Centre for Asian and Pacific Law (CAPLUS) hosted an online webinar discussing the issue of children’s welfare and voices in private international law (PIL). In the first part of the webinar, five experts were invited to share their views on the status quo, challenges, and potential solutions to protect the welfare of children in the international and transnational context. The second part of the webinar involved a roundtable discussion among the experts. This event was moderated by Dr. Jeanne Huang, Associate Professor at the Sydney Law School and CAPLUS co-director. The guest speakers were as follows:

• Philippe Lortie, co-head of the International Family and Child Protection Law Division at the Hague Conference on Private International Law Permanent Bureau. Mr. Lortie has more than 30 years of experience in the field of child protection.
• Professor Lukas Rademacher, Professor of Private Law, Private International Law, and Comparative Law at Kiel University, Germany. Professor Rademacher read law in Düsseldorf and Oxford and obtained a PhD in Münster. He is currently habilitating in Cologne, Germany.
• Miranda Kaye, Senior Lecturer at the University of Technology Sydney. Ms. Kaye is a member of Hague Mothers, a project aiming to end the injustices created by the Hague Child Abduction Convention. She also has experience in public service (Law Commission of England and Wales) and as a practicing solicitor (family law in the UK).
• Anna Mary Coburn, former attorney for the US Government (USG) involving the Hague Children’s Conventions and a Regional Legal Advisor and Foreign Service Officer for USAID. Ms. Coburn now has her own legal practice in private international family law, focusing on children’s rights.
• Haitao Ye, lawyer at the Shanghai office of the Beijing Dacheng Law LLP specialising in marriage and family dispute resolution, as well as wealth inheritance and management. She is a former experienced judge in civil and commercial trials at the Shanghai Pudong New District People’s Court.

 

Mr. Lortie opened the webinar by introducing the Hague Conference on Private International Law (HCCH), an intergovernmental organisation with a mandate to develop conventions to progressively unify the rules of PIL in all areas, including children’s rights. Mr. Lortie’s presentation covered three matters: the future of parent surrogacy, the 1996 Convention on Parental Responsibility and Protection of Children, and the 2007 Convention on the International Recovery of Child Support. After 10 years of working on its Parentage/Surrogacy Project, the HCCH has implemented a working group of state representatives to voice their views on the laws and policies of their respective states. According to Mr. Lortie, the HCCH’s immediate mandate is to develop a single or two-instrument solution that applies to all children. Mr. Lortie explained that the recent US Supreme Court decision of Golan v. Saada emphasises the benefits of being a party to the 1996 Convention, as it allows judges to order protective measures in urgent circumstances under Art. 11 (such as returning a child post-abduction). The US is currently not a party to the 1996 Convention. Moreover, Mr. Lortie pointed out that Australia is not yet a party to the 2007 Convention, despite NZ, the US, EU, and UK being parties (and Canada having signed). This Convention allows applications for child support and communications to occur securely over the Internet and aims to keep procedural costs low for the benefit of member states.

 

Professor Rademacher’s presentation explored whether well-intentioned protective measures could cause more harm than good, by examining the German Constitutional Court’s (FCC) highly controversial recent decision declaring the unconstitutionality of Germany’s “Act to Combat Child Marriage”. Under that Act, passed in 2017 partly as a response to the large number of refugees seeking asylum in Germany, marriages made under foreign law were voidable if one spouse was under 18 at the time of marriage and null and void if they were under 16. It also prevented courts from applying the public policy doctrine of ordre public. The FCC found that the Act violated the German Constitution’s Article 6 on the basis that it disproportionately curtailed the freedom of marriage. Professor Rademacher explained that the FCC’s ruling has been subject to misinterpretation – rather than endorsing child marriage, it highlights the nuanced balancing act required when considering a child’s best interests. For example, the legislation did not regulate the consequences of a voided marriage – such as the minor spouse losing the legal protections of marriage, as well as rights arising from dissolution of the marriage (including financial claims). The FCC reasoned that these consequences ran counter to the purpose of protecting minors, as well as the protection of free choice. Professor Rademacher concluded that this FCC decision demonstrates that whilst legislatures may pass laws that delimit and regulate marriage, the most rigid laws may not necessarily be in best interests of protecting children.

 

Ms. Kaye presented on Australia’s recent amendment to the Family Law Act with respect to the Hague Abduction Convention (HAC), focusing on the potential unintended consequences of these changes on mothers fleeing the country due to domestic violence (DV). Under the HAC, children are generally returned to the left-behind parent with limited exceptions. Ms. Kaye focused on one exception, HAC Article 13(1)(b), which gives courts discretion not to order a child’s return where there is a ‘grave risk’ that it would ‘expose the child to physical or psychological harm’. Whilst there is no explicit reference to DV, Ms. Kaye explained that Article 13(1)(b) is most widely used in such cases. She went on to examine the new Reg 16 of the Family Law (Child Abduction Convention) Regulations 1986 which implements HAC Article 13(1)(b), expressing concern towards its wording that courts ‘may’ (not ‘must’) consider whether returning a child may expose them to family violence, giving courts a potentially detrimental discretion. Ms. Kaye also raised the issue of inequality of arms – in Australia, a HAC application is brought by a central authority, not the left-behind parent. With no means-testing, left-behind parents often have a considerable jurisdictional advantage with better legal advice at their disposal than taking parents, who rarely receive Legal Aid in HAC cases. Optimistically, the government recently allocated $18.4M of its Federal Budget to investing in children’s protection, with $7.4M dedicated to balancing legal representation. Finally, Ms. Kaye discussed the voice of the child, nothing that Reg 16(c)(3) imposes more onerous wording than the HAC, and additional evidential requirements. Ms. Kaye considered this in the context of a child’s right to culture and connection to land, which, whilst of paramount importance in matters involving First Nations children, has proved difficult to translate in Hague cases.

 

Fourthly, Ms. Coburn shared her views on child participation in PIL proceedings. She began with an overview of the public international legal framework for children, for which the UN Convention on the Rights of the Child (UNCRC) and its Optional Protocols provide guiding principles. These three optional protocols concern children in armed conflict (OPAC), the sale of children, child prostitution and pornography (OPSC) and a communications procedure allowing direct child participation in individual cases (OPIC). Ms. Coburn noted that although the US has not ratified the UNCRC, its laws provide for child participation in proceedings involving parties from states that have ratified it. Child participation in Hague matters is relevant in two areas: 1) where a child has agency to express their views in proceedings that affect them, and 2) children’s direct involvement in the formation and implementation of instruments designed to protect their welfare. Ms Coburn noted that whilst the US is not party to the UNCRC nor OPIC, the Supreme Court in Golan v Saada appeared to apply a best interest standard in considering whether to return a child to their place of habitual residence under the HAC due to grave risk of harm. Ms. Coburn concluded that continued efforts amongst IGOs demonstrate a trend towards more forceful support for children’s rights and participation, such as the WHO–UNICEF–Lancet Commission which advocates for improving child participation in all countries.

 

Finally, Ms. Haitao Ye discussed the emerging issue of protecting children’s civil rights in cross-border surrogacy. Ms. Ye framed this issue in the context of rapid technological developments in the reproductive space, as well as the emotional stakes involved for interested parties. She began by discussing China’s first (ongoing) custody dispute, where a Chinese same-sex couple shared surrogate children who were born in the US but taken to China by one parent when the relationship deteriorated. Ms. Ye also discussed Balaz (2008) involving a German couple and an Indian surrogate mother, where neither country’s domestic laws allowed the surrogate twins to obtain citizenship of either country. These disputes raise concerns about the lack of uniformity amongst surrogacy legislation, conflicting PIL principles of children’s best interests and other domestic public interests and demonstrate the lag between current legislation and practical reality. Balaz illustrates the potential risk of surrogate children facing statelessness, which denies their access to certain rights such as welfare. Ms. Ye concluded by sharing her opinion that the current body of PIL is not ready to meet the challenges of transnational surrogacy, which poses the risk of commercial exploitation. Nonetheless, she suggested that joint efforts of the international community, such as establishing international and national central agencies to record, review and regulate transnational surrogacy should continue to further protect surrogate children.

 

In part two of the webinar, a roundtable discussion took place between the expert speakers on the core question: “How can we define the ‘best interest’ of a child?”

• Ye referred to a custody dispute case in the Shanghai No. 2 Intermediate People’s Court, involving a German father and Chinese mother. Ms. Ye demonstrated that Chinese courts place paramount importance on a child’s interests; in that case, the court considered factors such as the children’s living and educational environment, parental income, nationality, and the best care that could be received from either party.
• Coburn opined that the US’ failure to ratify UNCRC will become problematic as the PIL sector moves towards increasing child participation and their best interests. At a federal level, US courts are less likely to refer to children’s best interests and right to participate. Moreover, although state courts interpret child protection principles that are similar to the UNCRC, they will not necessarily order protections that are not entrenched in statute.
• Kaye emphasized the significant difference between Australian Family Court matters (where a child’s best interests are paramount) and Hague matters, where best interests are considered not in Australia, but in the country of habitual residence. She reiterated her concern that systematically, ‘best interests’ in Hague matters are not met in DV matters.
• Professor Rademacher drew attention to intersectional issues at play, noting that German court cases often implicate refugees and disproportionately impact young women. This is a Europe-wide issue that has resulted in stricter child marriage laws in countries like France and the Netherlands – however, he observed that these jurisdictions tend to have more flexible public policy approaches than Germany with respect to underage marriage.
• Lortie concluded the roundtable by agreeing with Ms. Kaye that DV adds difficulties to putting in practice the principles and protections under the HAC and UNCRC, resulting in wrongful removal and retention of children. He emphasised the importance of education and states’ responsibilities to implement solutions to combat DV on a domestic level.

On 6 June 2023, the Mexican National Code of Civil and Family Procedure has been passed by decree issued by the Mexican president Andrés Manuel López Obrador. Indeed, after many years of stagnation, the National Code has finally been published today in the Mexican Federal Official Gazette. See here. It will enter into force tomorrow (see article 1 of the transitory articles).

This development is ground-breaking because it will gradually replace the states codes of civil and family procedure in Mexico, harmonising procedural law in all 32 Mexican states. A specific procedure has been foreseen for the way in which it will be adopted in the Mexican states (see article 2 of the transitory articles).

There are many interesting provisions for Private International Law lawyers, we will be preparing a brief summary, which will be published here. By way of example, see the provisions on international child abduction: articles 1150-1161.

*** Sección Tercera De la Cooperación, cuando intervengan Niñas, Niños y Adolescentes Artículo 1150. El ejercicio del derecho de visita y custodia de niñas, niños o adolescentes cuyos padres radiquen en países diferentes de manera habitual, se regirá conforme a los instrumentos internacionales y se observarán las siguientes reglas: I.           Las autoridades nacionales ejecutarán las medidas necesarias a fin de lograr la plena convivencia de las niñas, niños o adolescentes con sus padres, incluyendo la utilización de medios telemáticos; II.          El derecho de visita de una niña, niño o adolescente a otro país diferente al del lugar de su residencia, implicará que el progenitor que lo reciba en visita en el Extranjero o en los Estados Unidos Mexicanos, asegure la restitución de la niña, niño o adolescente, y III.          La autoridad jurisdiccional fijará a cargo de qué persona correrán los gastos de desplazamiento, si es que no hubiese acuerdo entre los interesados. Artículo 1151. Las solicitudes de restitución internacional de niñas, niños o adolescentes se regirán de acuerdo con los tratados internacionales y en su defecto, por las siguientes disposiciones: I.           La autoridad jurisdiccional tendrá la facultad de ordenar las medidas precautorias y de aseguramiento, con el fin de asegurar el bienestar de las niñas, niños y adolescentes y prevenir que sean nuevamente trasladados indebidamente o retenidos. II.          Los procedimientos de restitución no podrán pronunciarse y decidir sobre el fondo de la guarda y custodia. III.          En los casos de retención o traslado ilícito de una niña, niño o adolescente, deberá procederse de inmediato y sin dilaciones a la restitución del mismo. IV.         Cuando la niña, niño o adolescente reclamado, no se encuentre en territorio mexicano, el órgano competente autorizado responderá a la solicitud informando el resultado de la búsqueda. Ninguna autoridad jurisdiccional de lugar diferente al de la residencia habitual de la niña, niño o adolescente, podrá declarar a favor de la persona que retiene o efectúe el traslado, algún derecho de custodia, salvo que el derecho convencional internacional lo permita. Si se encuentran en trámite procedimientos jurisdiccionales que resuelvan la custodia, éstos deberán suspenderse. Artículo 1152. La autoridad jurisdiccional nacional podrá rechazar una solicitud de restitución de una niña, niño o adolescente, cuando la persona que se oponga a la restitución compruebe que: I.           La persona, institución u organismo titulares de la solicitud de restitución, no ejercía de modo efectivo el derecho de custodia en el momento en que fue trasladado o retenido, o había consentido o posteriormente aceptado, dicho traslado o retención. II.          Existe un riesgo grave de que la restitución del menor lo exponga a un peligro físico o psicológico, o que de cualquier otra manera ponga al menor en una situación intolerable. III.          La niña, niño o adolescente, se oponga a la restitución, si ya alcanzó una edad y un grado demadurez suficiente en que resulte apropiado tener en cuenta su opinión. IV.         La restitución podría violentar los derechos humanos reconocidos en los Estados Unidos Mexicanos y las garantías que para ellos se otorguen. V.          Cuando la solicitud de restitución se hubiere presentado un año después de ocurrido el trasladoo la retención y se comprueba que la niña, niño o adolescente, ha quedado integrado a su nuevo medio ambiente. Artículo 1153. Los procedimientos de restitución deberán ser iniciados dentro del plazo máximo de un año contado a partir de la fecha en que la niña, niño o adolescente hubiere sido trasladado o retenido ilícitamente,por lo que corresponderá a la autoridad competente ordenar la restitución inmediata del menor. Respecto de menores cuyo paradero se desconozca, el plazo se computará a partir del momento en que fueren precisa y efectivamente localizados. Artículo 1154. Toda solicitud de restitución de una niña, niño o adolescente, proveniente del extranjero, se presentará, por conducto de la Secretaría de Relaciones Exteriores, la cual lo remitirá a la o las autoridades jurisdiccionales competentes. Si en los Estados Unidos Mexicanos se encuentra la niña, niño o el adolescente, deberán adoptarse todas las medidas adecuadas tendientes a obtener la restitución voluntaria de la niña, niño o adolescente. Las autoridades nacionales podrán propiciar una solución amigable, a través de la mediación. De no lograrse ésta en una única sesión, deberán iniciar procedimiento jurisdiccional o administrativo con el objeto de conseguir la restitución, o en su caso, permitir la regulación o ejercicio efectivo del derecho de visita. Artículo 1155. La solicitud de restitución deberá contener al menos lo siguiente: I.           Nombre y datos generales de la niña, niño o adolescente; II.          Nombre y datos del solicitante y el carácter con el que promueve respecto a la niña, niño o adolescente; III.          Antecedentes y los hechos relativos al traslado o sustracción; IV.         El nombre de la persona que se presume retuvo o traslado ilícitamente y el domicilio o ubicación donde se presume que se encuentra la niña, niño o adolescente, y V.          Cualquier información que sea necesaria o pertinente para su localización. Artículo 1156. La solicitud de restitución deberá estar acompañada de: I.           Copia documento que acredite la custodia de la niña, niño o adolescente solicitado; II.          Constancia de la residencia habitual de la niña, niño o adolescente solicitado; III.          Cualquier otro documento con el que se pueda probar el medio en el que se desarrolla habitualmente la niña, niño o adolescente; IV.         Fotografías y demás datos o elementos precisos de identificación de la niña, niño o adolescente en su caso, y V.          La traducción de los documentos que se presenten en un idioma distinto al del país al que se solicite la restitución. La autoridad competente podrá prescindir de algunos de estos requisitos si a su juicio se justifica la restitución. Artículo 1157. Toda petición de restitución será preferente y, salvo consideración especial de la autoridad jurisdiccional, deberá concluir dentro del plazo de seis semanas a partir de su presentación. Artículo 1158. Ningún procedimiento de custodia tramitado en los Estados Unidos Mexicanos suspenderála restitución ordenada. Artículo 1159. Presentada la solicitud de restitución, la autoridad jurisdiccional dispondrá de un plazo de veinticuatro horas para pronunciarse sobre su admisión. En caso de ser admitida, ordenará correr traslado a la parte de la que se presume ha retenido o trasladado ilícitamente a la niña, niño o adolescente para que, con los apercibimientos legales correspondientes, acuda ante la autoridad jurisdiccional dentro del término de tres días hábiles siguientes en compañía de la niña, niño o adolescente, así como todas las pruebas que considere necesarias para apoyar su objeción a la restitución, si fuera el caso. El auto que admita la solicitud deberá disponer las medidas cautelares necesarias, y en su caso, ordenará la entrevista con la niña, niño o adolescente solicitado, en términos de este Código Nacional. Artículo 1160. En la audiencia única la autoridad jurisdiccional intentará conciliar a las partes para su restitución voluntaria y la parte requerida deberá manifestar si acepta restituir voluntariamente a la niña, niño o adolescente; en caso de que así sea, se levantará el acta correspondiente con las condiciones que las partes concedan, debiendo ser dicho acuerdo sancionado por la autoridad jurisdiccional. En caso de que haya objeción en la restitución, quien se oponga deberá hacer valer las excepciones aplicables y ofrecer las pruebas correspondientes que las acrediten. En esa audiencia, la autoridad jurisdiccional realizará la entrevista a la niña, niño o adolescente. Hecho lo anterior, admitirá o no las pruebas ofrecidas y enseguida procederá a su desahogo, en términos de este Código Nacional. Artículo 1161. Concluido el desahogo, la autoridad jurisdiccional deberá resolver sobre la restitución,dentro de la misma audiencia. En caso de que se otorgue la restitución, la autoridad jurisdiccional dictará las medidas adecuadas y eficaces para garantizar el retorno seguro de la niña, niño o adolescente. La autoridad jurisdiccional deberá informar de dicha decisión a la Secretaría de Relaciones Exteriores.

 

Written by Professor Eric Clive

The Secretary of State for Scotland, a Minister of the United Kingdom government, has made an order under section 35 of the Scotland Act 1998 blocking Royal Assent to the Gender Recognition Reform (Scotland) Bill 2022, a Bill passed by the Scottish Parliament by a large majority. The Scottish government has challenged the order by means of a petition for judicial review. The case is constitutionally important and may well go to the United Kingdom Supreme court. It also raises interesting questions of private international law.

At present the rules on obtaining a gender recognition certificate, which has the effect of changing the applicant’s legal gender, are more or less the same in England and Wales, Scotland and Northern Ireland. The Scottish Bill would replace the rules for Scotland by less restrictive, de-medicalised rules. An unfortunate side effect is that Scottish certificates would no longer have automatic effect by statute in other parts of the United Kingdom. The United Kingdom government could remedy this by legislation but there is no indication that it intends to do so. Its position is that it does not like the Scottish Bill.

One of the reasons given by the Secretary of State for making the order is that having two different systems for issuing gender recognition certificates within the United Kingdom would cause serious problems. A person, he assumes, might be legally of one gender in England and another in Scotland. There would therefore be difficulties for some organisations operating at United Kingdom level – for example, in the fields of tax, benefits and pensions. This immediately strikes a private lawyer as odd. Scotland and England have had different systems in the law of persons for centuries – in the laws on marriage, divorce, legitimacy, incapacity and other matters of personal status – and they have not given rise to serious problems. This is because the rules of private international law, even in the absence of statutory provision, did not allow them to.

In a paper on Recognition in England of change of gender in Scotland: a note on private international law aspects[1] I suggest that gender is a personal status, that there is authority for a general rule that a personal status validly acquired in one country will, subject to a few qualifications, be recognised in others and that there is no reason why this rule should not apply to a change of gender under the new Scottish rules.

The general rule is referred to at international level. In article 10 of its Resolution of September 2021 on Human Rights and Private International Law, the Institute of International Law says that:

Respect for the rights to family and private life requires the recognition of personal status established in a foreign State, provided that the person concerned has had a sufficient connection with the State of origin … as well as with the State whose law has been applied, and that there is no manifest violation of the international public policy of the requested State ….

So far as the laws of England and Scotland are concerned, there are authoritative decisions and dicta which clearly support such a general rule. Cases can be found in relation to marriage, divorce, nullity of marriage, legitimacy and legitimation. A significant feature is that the judges have often reasoned from status to particular rules. It cannot be said that there are just isolated rules for particular life events. And the rules were developed at common law, before there were any statutory provisions on the subject.

Possible exceptions to the general rule – public policy, no sufficient connection, contrary statutory provision, impediment going to a matter of substance rather than procedure – are likely to be of little if any practical importance in relation to the recognition in England of changes of gender established under the proposed new Scottish rules.

If the above arguments are sound then a major part of the Secretary of State’s reasons for blocking the Scottish Bill falls away. There would be no significant problem of people being legally male in Scotland but legally female in England, just as there is no significant problem of people being legally married in Scotland but unmarried in England. Private international law would handle the dual system, as it has handled other dual systems in the past. Whether the Supreme Court will get an opportunity to consider the private international law aspects of the case remains to be seen: both sides have other arguments. It would be extremely interesting if it did.

From the point of view of private international law, it would be a pity if the Secretary of State’s blocking order were allowed to stand. The rules in the Scottish Bill are more principled than those in the Gender Recognition Act 2004, which contains the existing law. The Scottish Bill has rational rules on sufficient connection (essentially birth registered in Scotland or ordinary residence in Scotland). The 2004 Act has none. The Scottish Bill has a provision on the recognition of changes of gender under the laws of other parts of the United Kingdom which is drafted in readily understandable form. The corresponding provisions in the 2004 Act are over-specific and opaque. The Scottish Bill has a rule on the recognition of overseas changes of gender which is in accordance with internationally recognised principles.

The 2004 Act has the reverse. It provides in section 21 that: A person’s gender is not to be regarded as having changed by reason only that it has changed under the law of a country or territory outside the United Kingdom. This is alleviated by provisions which allow those who have changed gender under the law of an approved overseas country to use a simpler procedure for obtaining a certificate under the Act but still seems, quite apart from any human rights aspects, to be unfriendly, insular and likely to produce avoidable difficulties for individuals.

 

[1] Clive, Eric, Recognition in England of change of gender in Scotland: A note on private international law aspects (May 30, 2023). Edinburgh School of Law Research Paper No. 2023/06, Available at SSRN: https://ssrn.com/abstract=4463935 or http://dx.doi.org/10.2139/ssrn.4463935

On September 1st, 2023, the 2019 Hague Judgments Convention will enter into force for the Member States of the EU and Ukraine. According to the HCCH, the Convention is “a true gamechanger in international dispute resolution”, which will “reduce transactional and litigation costs, facilitate rule-based multilateral trade and investment, increase certainty and predictability” and “promote effective justice for all”. The international conference taking place in Bonn later this week will likely strike an equally celebratory tone.

This sentiment is not shared universally, though. In a scathing article just published in Zeitschrift für Europäisches Privatrecht (ZEuP) entitled ‘Judgments Convention: No Thanks!‘, Haimo Schack (University of Kiel) labels the Convention as “evidently worthless”.

Schack comes to this damning conclusion in three steps. First, he argues that the 2005 Choice of Court Convention, the first outcome of the decades-long HCCH Jurisdiction Project, has been of minimal use for the EU and only benefited Singapore and London. Second, he points out the limited scope of the 2019 Convention, which is not only (inherently) unable to limit the exorbitant exercise of jurisdiction or avoid, let alone coordinate parallel proceedings, but also contains a long list of excluded areas of law in its Art. 2 (including, most significantly, the entire field of intellectual property: Art. 2(1)(m)). Schack argues that combined with the equally long list of bases for recognition and enforcement in Art. 5, the Convention will make recognition and enforcement of foreign judgments significantly more complicated. This effect is exacerbated, third, by a range of options for contracting states to further reduce the scope of application of the Convention, of which Art. 29 is particularly “deadly”, according to Schack. The provision allows contracting states to opt out of the effect of the Convention vis-à-vis specific other contracting states, which Schack fears will lead to a ‘bilateralisation’ similar to what prevented the 1971 Convention from ever getting off the ground, which will reduce the 2019 Convention to a mere model law. All in all, Schack considers the Convention to do more harm than good for the EU, which he fears to also lose an important bargaining chip in view of a potential bilateral agreement with the US.

Leaving his additional criticism of the HCCH’s ongoing efforts to address the problem of parallel proceedings aside, Schack certainly has a point in that the 2019 Convention will not be easy to apply for the national courts. Whether it will be more complicated than a myriad of rarely applied bilateral conventions may be subject to debate, though. It also seems worth pointing out that the 1971 Convention contained a significantly more cumbersome mechanism of bilateralisation that required all contracting states to conclude additional (!) bilateral agreements to enter into force between any given pair of them, which is quite different from the opt-out mechanism of Art. 29. In fact, it seems at least arguable that the different ways in which contracting states can tailor their accession to the Convention to their specific needs and concerns, up to the exclusion of any treaty relations with a specific other contracting state, may not be the proverbial nail in the coffin as much as it might be a key to the Convention’s success. While it is true that these mechanisms appear to undermine the internationally binding nature of the Convention, bringing it closer to a model law than a binding treaty, they also make it possible to accommodate different degrees of mutual trust within a single legal framework. The fact that the 2005 Convention has preserved some degree of judicial cooperation between the EU Member States and the UK in an area now otherwise devoid of it may be testimony to the important purpose still served by international conventions in the area of international civil procedure despite – but maybe also as a result of – their increasingly limited, tailor-made scope(s).

On 31 May 2023, the European Commission presented a proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults (in the following: EU Adult Protection Regulation – EUAPR). This proposal is a response to significant demographic and social changes in the EU: Many Member States face enormous challenges posed by an increasingly aging population. Due to considerable improvements in medical care in recent decades, people grow much older than they used to, and this lengthening of the average lifespan in turn leads to an increase in age-related illnesses such as Alzheimer’s disease. This demographic change creates problems for private international law, because the mobility of natural persons has increased within the EU where borders may, in principle, be crossed without restrictions. Many people who have left their state of origin in search for work elsewhere in their youth or middle age do not return to their home state after retirement, but rather spend the last part of their lives where they have established a new habitual residence. Besides, more and more people decide to leave their home state once they have reached the age of retirement. Such processes of migration at a late stage in life may have different reasons: Some old-age movers may want to avoid a heavy taxation of their estates that would put a burden on their heirs, some may wish to circumvent other restrictions of domestic inheritance laws (e.g. the right to a compulsory portion), others may simply wish to spend the remaining parts of their lives in milder climates, e.g. the Mediterranean, or look for a place to stay where the cost of living is lower, e.g. in some parts of Eastern Europe. When these persons begin to suffer from an impairment or an insufficiency of their personal faculties which no longer allows them to protect their interests themselves, however, intricate conflict of laws problems may arise: The authorities or courts of which state shall have jurisdiction to take protective measures concerning vulnerable adults or their property? Which law is to be applied to such measures? Under which conditions may protective measures taken in one state be recognised and enforced in other states?

The EUAPR is meant to solve these problems. It is in many parts based on proposals made by two working groups set up by the European Law Institute and the European Association of Private International Law, respectively. The Regulation will partially supersede and complement the Hague Convention on the International Protection of Adults (in the following: Hague Adult Protection Convention – HAPC), a derogation which is permitted by Art. 49(2) and (3) HAPC. The Hague Convention was concluded on 13 January 2000 and entered into force on 1 January 2009 between France, Germany and the United Kingdom (restricted to Scotland, however). Today, the Convention is in force as well in Switzerland, Finland, Estonia, the Czech Republic, Austria, Monaco, Latvia, Portugal, Cyprus, Belgium, Greece, and Malta. The Netherlands, Ireland, Italy, Luxembourg, and Poland have signed the Convention, but have not ratified it yet. In the Netherlands, however, the Convention is already applied by the courts as a part of Dutch autonomous law (see Hoge Raad 2 February 2018, ECLI:NL:HR:2018:147). Thus, more than 23 years after the HAPC was concluded, the status of ratifications is rather unsatisfactory, as only 12 EU Member States have ratified the Convention so far. In order to speed up this process, the Regulation shall be accompanied by a Council Decision authorising Member States to become or remain parties, in the interest of the EU, to the HAPC.

For a long time, it was controversial whether the EUAPR could be based on the EU’s general competence in PIL matters (Art. 81(2) TFEU) or whether such a measure ought to be classified as concerning family law within the meaning of Art. 81(3) TFEU. On the one hand, adult protection is traditionally codified in the family law sections of many Member States’ civil codes (e.g. in Germany), and people will frequently benefit from the protection of family members (see COM(2023) 280 final, p. 4). On the other hand, a guardian, curator or a person endowed with a power of representation does not necessarily have to be a relative of the vulnerable adult. Following the example set by the EU Succession Regulation, the Commission eschews the cumbersome special procedure envisioned for family law matters and bases its proposal on Art. 81(2) TFEU instead.

As far as the spatial scope of the EUAPR is concerned, Art. 59 EUAPR contains detailed rules on the relation between the Regulation and the HAPC. The basic factor that triggers the application of the EUAPR is the vulnerable adult’s habitual residence in the territory of a Member State (Art. 59(1)(a) EUAPR).  There are some exceptions to this rule, however, in order to ensure a smooth coordination with the Contracting States of the HAPC which are not Member States of the EUAPR (see Art. 59(1)(b) and (2) EUAPR). The substantive scope of the EUAPR is broadly similar to that of the HAPC, although it should be noted that Art. 2(2) EUAPR speaks of “matters” to which the Regulation shall apply, whereas Art. 3 HAPC uses the narrower term “measures”. This may allow the inclusion of ex-lege powers of representation which are not directly covered by the HAPC. The Regulation’s personal scope is defined in Art. 3(1), which states that, for the purposes of the EUAPR, an adult is a person who has reached the age of 18 years. Although the Regulation is largely a response to problems created by an aging population, it must be borne in mind that its scope is not restricted to elderly people, but encompasses all adults above the age of 18, and, if the exceptional condition of Art. 2(2) EUAPR is met, even younger people.

With regard to the rules on jurisdiction, the Regulation largely refers to the HAPC, with one significant divergence, though. The Convention does not permit a direct prorogation of jurisdiction, because it was feared that an uncontrolled freedom of prorogating the authorities of another state could be abused to the detriment of the adult concerned. Art. 8(2)(d) HAPC merely gives the authorities of a Contracting State having jurisdiction under Art. 5 or 6 HAPC the possibility of requesting the authorities of another Contracting State designated by the adult concerned to take protective measures. Contrary to this restrictive approach, Art. 6(1) EUAPR provides that the authorities of a Member State other than the Member State in which the adult is habitually resident shall have jurisdiction where all of the following conditions are met:

• the adult chose the authorities of that Member State, when he or she was still in a position to protect his or her interest;
• the exercise of jurisdiction is in the interest of the adult;
• the authorities of a Member State having jurisdiction under Art. 5 to 8 HAPC have not exercised their jurisdiction.

The following paragraphs 2 to 3 of Art. 6 EUAPR concern formal requirements and the integration of the adult’s choice of court into the HAPC’s jurisdictional framework. The possibility of choosing the competent authorities is a welcome addition to the choice-of-law provision on powers of representation in Art. 15 HAPC.

In order to determine the applicable law, Art. 8 EUAPR refers to Chapter III of the HAPC. As in the HAPC, there are no specific conflicts rules for ex-lege powers of representation. Moreover, advance medical directives that are not combined with a power of representation (Art. 15 HAPC) are neither covered by the HAPC nor the EUAPR. Since the authorities exercising their jurisdiction under the HAPC usually apply their own law pursuant to Art. 13(1) HAPC, the spatial scope of the Convention’s jurisdictional rules also indirectly determines the reach of its conflicts rules. This will lead to a new round of the debate that we are familiar with in the context of the relationship between the Hague Child Protection Convention and the Brussels IIb Regulation, i.e. whether the intended parallelism only works if at least a hypothetical jurisdiction under the respective Convention’s rules can be established, or whether it suffices that jurisdiction is established according to a provision that is only found in the respective Regulation. Within the framework of the EUAPR, this problem will arise with regard to a choice of court pursuant to Art. 6 EUAPR, an option that is not provided for by the HAPC. Applying Art. 13(1) HAPC in this context as well seems to be the preferable solution, which leads to an indirect choice of law by the vulnerable adult even in cases where no voluntary power of representation is established under Art. 15 HAPC.

The recognition of measures taken in other Member States is governed by Art. 9 and 10 EUAPR. Notwithstanding mutual trust – and, in this particular area of law, with good reason – , the Regulation still contains a public policy clause (Art. 10(b) EUAPR). For the purpose of enforcement, Art. 11 EUAPR abolishes the declaration of enforceability (exequatur) that is still required under Art. 25 HAPC, thus allowing for simplified enforcement procedures within the EU.

A major innovation is found in Chapter VII. The Regulation will introduce a European Certificate of Representation (Art. 34 EUAPR) which will supersede the certificate under Art. 38 HAPC. The Certificate shall be issued for use by representatives, who, in another Member State, need to invoke their powers to represent a vulnerable adult (Art. 35(1) EUAPR). The Certificate may be used to demonstrate that the representative is authorised, on the basis of a measure or confirmed power of representation, to represent the adult in various matters defined in Art. 35(2) EUAPR.

Apart from those substantive achievements, the Regulation contains necessary rules on rather procedural and technical subjects, such as the cooperation between the competent authorities (Chapter VI EUAPR), the establishment and interconnection of protection registers (Chapter VIII EUAPR), digital communication (Chapter IX EUAPR), and data protection (Chapter X EUAPR). These rules will also lead to a major modernisation compared with the older rules of the HAPC.

In sum, the proposal of the EUAPR will considerably strengthen the international protection of vulnerable adults within the EU.

“Recognition” and “enforcement” are fundamental concepts when dealing with the international circulation of foreign judgments. Although they are often used interchangeably, it is generally agreed that these two notions have different purposes and, ultimately, different procedures (depending on whether the principle of de plano recognition is accepted or not. See Béligh Elbalti, “Spontaneous Harmonization and the Liberalization of the Recognition and Enforcement of Foreign Judgments, Japanese Yearbook of Private International Law, Vol. 16, 2014, p. 269).

However, in legal systems where this fundamental distinction is not well established, the amalgamation of the two notions may give rise to unnecessary complications that are likely to jeopardize the legitimate rights of the parties. The following case, very recently decided by the Dubai Supreme Court, is nothing but one of many examples which show how misconceptions and confusion regarding the notion of “recognition” would lead to unpredictable results (cf. e.g., Béligh Elbalti, “Perspective of Arab Countries”, in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (Hart, 2023) pp. 1983-184ff).

The case

The parties, in this case, are (1) A British Virgin Islands company (hereinafter ‘X1’) and its judicial liquidator (hereinafter ‘X2’, collectively “Xs”) and (2) four companies having considerable estates in Dubai (hereinafter ‘Y’).

In 2021, Xs brought an action before the Dubai Court of First Instance (hereinafter “DCFI”) seeking a ‘declaration of validity’ of a decision of the British Virgin Islands Supreme Court declaring the dissolution of X1 and appointing X2 as its judicial liquidator (hereinafter “the foreign judgment”). Xs justified their action by stating that they intended to bring legal actions against Y for the recovery of due sums of money that they were entitled to and, eventually, would avoid their actions being dismissed for lack of standing.

The DCFI dismissed the action on the ground that Xs had failed to show that service had been duly effected and that the foreign judgment had become final according to the law of the state of origin (DCFI, Case No. 338/2021 of 27 October 2021). Xs appealed to the Dubai Court of Appeal (hereinafter “DCA”) arguing, inter alia, that legal notification to the X1’s creditors had been duly served through two newspapers and that, therefore, the foreign judgment should be given effect. However, without addressing the issue of the recognizability of the foreign judgment, the DCA dismissed the appeal holding that Xs had failed to prove their case (DCA, Appeal No. 3174/2021 of 27 January 2022).

Instead of appealing to the Supreme Court, Xs returned to the DCFI to try again to have the foreign judgment be given effect. Having learned from their first unsuccessful attempt, Xs this time ensured that they had all the necessary evidence to show that service had been duly effected, that the foreign judgment had been rendered following regular procedure, and that it had become final and no longer subject to appeal. The DCFI, however, dismissed the action considering that its subject matter concerned, in fact, the “enforcement” of the foreign judgment and, therefore, applications for enforcement should be made by filing a petition to the Execution Court and not by initiating an ordinary action before the DCFI (DCFI, Case No. 329/2022 of 14 November 2022).

Xs appealed to the DCA before which they argued that the foreign judgment did not order Y to perform any obligation but simply declared the dissolution of X1 and appointed X2 as judicial liquidator. Xs also argued that the DCFI had erred in characterizing their claim as a request for “enforcement” as they were not seeking to enforce the foreign judgment. Therefore, it would have been inappropriate to pursue their claim following the prescribed procedure for enforcement where the main purpose of their action is to “recognize” the foreign judgment. The DCA dismissed the appeal holding that the Xs’ action lacked legal basis. According to the DCA, Xs’ request for the foreign judgment to be “declared valid” was not within the jurisdiction of the UAE courts, which was limited to “enforcing” foreign judgments and not declaring them “valid”. As for the enforcement procedure, the DCA considered that it was subject to the jurisdiction of the Execution Court in accordance with the procedure prescribed to that effect (DCA, Appeal No. 2684 of 25 January 2023). Dissatisfied with the outcome, Xs appealed to the Supreme Court (hereinafter “DSC”).

Before the DSC, Xs made the same argument as before the DCA, insisting that the purpose of their action was not to “enforce” the foreign judgment but to “recognize” it so that they could rely on it in subsequent actions against Y. The DSC rejected this argument and dismissed the appeal on the basis that the UAE courts’ jurisdiction was limited only to “enforce” foreign judgments in accordance with the prescribed rules of procedure, which were of a public policy nature. The DSC also held that the lower courts were not bound by the legal characterization made by the litigants but should independently give the correct legal characterization to the actions brought before them in accordance with the rules of law in force in the State (DSC, Appeal No. 375 of 23 May 2023).

 

Comments 

The case reported here is particularly interesting. It illustrates the difficulty that Dubai courts (and UAE courts in general) have in dealing with some fundamental concepts of private international law.

Unlike the international conventions ratified by the UAE, which generally distinguish between “recognition” and “enforcement” of foreign judgments”, UAE domestic law refers mainly to “enforcement” but not “recognition”. Moreover, as mentioned in a previous post, the procedure for enforcement has recently undergone an important change, as the former procedure based on bringing an ordinary action before the DCFI has been replaced by a more another procedure consisting of filing a petition for an “order on motion” before the Execution Court (new Art. 222 of the New Federal Civil Procedure Act [FCPA]). However, the current legislation in force says nothing about the “recognition” of foreign judgments.

If one looks at the practice of the courts, one can observe two different tendencies. One tendency, which seems to be prevailing, consists in denying effect (notably res judicata effect) to foreign judgments that were not declared enforceable. In some cases, UAE courts considered that foreign judgments could not be relied upon because there was no proof that they had been declared enforceable (See, e.g., Federal Supreme Court, Appeal No 320/16 of 18 April 1995; Appeal No. 326/28 of 27 June 2006) or that foreign judgments could only have legal authority (hujjia) after being declared enforceable and consistent with public policy (Abu Dhabi Supreme Court, Appeal No. 31/2016 of 7 December 2016).

Another tendency consist in admitting that foreign judgment could be granted effect. Some cases, indeed, suggest that recognition can be incidentally admitted if certain conditions are met. These include, in particular, the following: (1) that the foreign judgment is final and conclusive according to the law of the rendering state, and (2) the foreign judgment was rendered between the same parties on the same subject matter and cause of action (see, e.g., Federal Supreme Court, Appeal No. 208/2015 of 7 October 2015; DSC, Appeal No. 276/2008 of 7 April 2009; Abu Dhabi Supreme Court, Appeal No. 106/2016 of 11 May 2016; Appeal No. 536/2019 of 11 December 2019. In all these cases, recognition was not granted). Only in a few cases have the UAE courts (in particular Dubai courts) exceptionally recognized foreign judgments (DSC, Appeal No. 16/2009 of 14 April 2009; Appeal No. 415/2021 of 30 December 2021 upholding the conclusions of DCFI accepting the res judicata effect of a foreign judgment.)

 

Unlike the cases cited above, the case reported here is one of the rare cases in which the parties sought to recognize a foreign judgment by way of action. The arguments of the Xs, in this case, were particularly convincing. According to Xs, since the foreign judgment did not order the defendants to perform any obligation and since Xs merely sought formal recognition of the foreign judgment, there was no need to have the foreign judgment declared “enforceable” in accordance with the enforcement procedure provided for in Art. 222 FCPA.

However, the decisions of the Dubai courts that UAE courts are only entitled to “enforce” foreign judgments are particularly problematic. First, it demonstrates a serious confusion of basic fundamental notions of private international law. The fact that Xs sought to have the foreign judgment “declared valid” does not mean that Dubai courts were required to consider the foreign judgment’s validity as such but rather to consider whether the foreign judgment could be given effect in the UAE, and this is a matter of “recognition”. Secondly, the courts seem to have forgotten that – as indicated above – they did consider whether a foreign judgment could be given effect in the UAE, albeit incidentally. The fact that such an examination is brought before the court by way of action does not change in anything the nature of the problem in any way. Finally, in the absence of any specific provision on the recognition of foreign judgments, particularly where a party seeks to do so by way of action, there would appear to be nothing to prevent the courts from allowing an interested party to proceed by way of an ordinary action before the court of first instance since the ultimate purpose is not to declare the foreign judgment “enforceable”, as this, indeed, would require compliance with the special procedure set out in Art. 222 FCPA. (For a discussion of the issue from the 2019 HCCH Judgments Conventions, see Béligh Elbalti, “Perspective of Arab Countries”, op.cit., pp. 183, 202, 205).

Conventions & Instruments

On 12 May 2023, Canada deposited its instrument of accession to the 1961 Apostille Convention. This accession marked a historical milestone: the 1000th treaty action relating to an HCCH Convention or Protocol. The 1961 Apostille Convention, which now has 125 Contracting Parties, will enter into force for Canada on 11 January 2024. More information is available here.

On 16 May 2023, North Macedonia signed the 2019 Judgments Convention. The Convention, which currently has 28 Contracting Parties, will enter into force in September 2023, and for North Macedonia only after the deposit of an instrument of ratification (pursuant to Art. 28(2) of the Convention). More information is available here.

On 16 May 2023, Singapore deposited its instrument of accession to the 1965 Service Convention. The Convention, which now has 81 Contracting Parties, will enter into force for Singapore on 1 December 2023 subject to the Article 28 procedure. More information is available here.

On 25 May 2023, Georgia signed the 2007 Child Support Convention and the 2007 Maintenance Obligations Protocol. The Convention and the Protocol will enter into force for Georgia further to the deposit of instruments of ratification. More information is available here.

Meetings & Events

On 15 and 16 May 2023, the seminar “Recognition and Enforcement of Foreign Judgments in the Western Balkan Region: HCCH 2019 Judgments Convention”, co-organised by the Center for International Legal Cooperation (CILC) and the HCCH, was held in The Hague. More information is available here.

On 31 May 2023, the Permanent Bureau of the HCCH organised an online event on the occasion of the 30th anniversary of the 1993 Adoption Convention. More information is available here.

Upcoming Events

Registrations are open for the conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, organised by the HCCH and the University of Bonn. The conference will be held in person on 9 and 10 June 2023 in Bonn, Germany. More information is available here.

Registrations are open for the webinar “Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention”, organised by the HCCH and the Asian Business Law Institute. The webinar will be held on 27 June 2023, 10:00 a.m. to 11:10 CEST. More information is available here.

Other

On 11 May 2023, the Permanent Bureau of the HCCH announced the formal approval of the HCCH-UNIDROIT Joint Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens. 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.

Just a quick note to assure you that last minute registration is welcome. All information is available here.

Written by Veerle Van Den Eeckhout, working at the Research and Documentation Directorate of the CJEU

On 29 April 2023, Veerle Van Den Eeckhout gave a presentation on recent case law of the Court of Justice of the European Union. The presentation, now available online, was entitled “CJEU case-law. A Few Observations on Recent CJEU Case Law with Attention for Some Aspects of Logic and Argumentation Theory.” The presentation was given during the Dialog Internationales Familienrecht 2023 at the University of Münster. This presentation builds upon a previous presentation of the Author, “Harmonized interpretation of regimes of judicial cooperation in civil matters?”, which is now also available online.

 

CJEU case-law. A Few Observations on Recent CJEU Case Law with Attention for Some Aspects of Logic and Argumentation Theory

The presentation focuses on case law of the CJEU regarding international family law, but adopts a broad view, particularly by taking into account also case law outside the field of international family law – especially when issues arise both in the context of international family law and in the context of PIL outside the field of international family law – , and by paying attention to case law of the CJEU outside the pure interpretation of PIL regulations – where a national court  is not asking in its question referred for a preliminary ruling, as such, for an interpretation of a PIL regulation, but the case might, possibly, affect PIL or interrelate with PIL; thus, for example, a recent judgment such as Belgische Staat (Réfugiée mineure mariée), Case C-230/21, regarding a right to family reunification based on Directive 2003/86 was also considered in the analysis.

While presenting case law of the CJEU in PIL matters, the presentation  particularly aimed to explore some aspects of methodology, reasoning, deductions and “consistency”. The research thus presents some aspects of methodology of interpretation of European law by the CJEU – regarding methods the CJEU is using to interpret European law -, as well as some issues of analysis of case law of the CJEU – whereby a case of the CJEU subsequently raises questions regarding its content and reasoning -, and some questions regarding possible further deductions based on the case law of the CJEU. The presentation does not pretend any exhaustiveness in this regard, but rather explores and presents some of these aspects, looking at recent cases of the CJEU.

The PowerPoint of the presentation is available here. A version of this PowerPoint including also an extended version thereof is available here.

 

Harmonized interpretation of regimes of judicial cooperation in civil matters?

The presentation of 29 April 2023 continued on some aspects that were presented in a discussion of case law of the CJEU at the “Lugano Experts Meeting” in June 2022. The  Lugano Experts Meeting 2022 was organised in Bern. The previous Lugano Experts Meeting had taken place in 2017.

The presentation at the Lugano Experts Meeting 2022, on 1 June 2022, essentially concerns case law of the CJEU between 2017 and 2022. It discusses issues of harmonised interpretation of regimes of judicial cooperation in civil matters. It includes some notes on case law of the CJEU regarding the Lugano convention 2007, the Brussels 1 bis regulation, and several second generation regulations such as the European Enforcement Order Regulation, the European Order for Payment Procedure Regulation, and the European Small Claims Procedure Regulation.

As a matter of fact, one may observe a wide range of instruments that are indicated as instruments of “Judicial cooperation in civil matters” (Chapter 3 of Title V of the Treaty on the Functioning on the European Union), interpreted in a continuous stream of decisions (judgments and orders) by the CJEU. The presentation of case law of the CJEU at the Lugano experts meeting offers, inter alia, a discussion of issues of (in)consistency and influence/interaction between regimes, of giving or not a harmonised interpretation, of making possible deductions from a judgment in one context to another context. The relevance thereof is presented particularly in light of preliminary questions to the CJEU, with attention for article 53, paragraph 2, and article 99 of the Rules of Procedure of the Court. Issues and questions arising thereby include, inter alia, the following: what are national judges “supposed to know already” when reflecting about asking a preliminary question to the CJEU; how wide should the CJEU’s field of vision be when assessing whether a question should be answered by order of by judgment, and when deciding about the content of the judgment – taking thereby or not into account the interpretation that has already been given in the context of another instrument.

The PowerPoint of this presentation is available here.

 

*Any view expressed in these presentations is the personal opinion of the author.

This is a friendly reminder to our co-organised event on next Thursday, free admissions can be registered here.

Online event

When making decisions, adults should think about how their decisions will affect children. Recent years have witnessed, in private international law cases and legislation, the protection of children is increasingly mingled with gender, indigenous issues, refugees, violence, war, surrogacy technology, etc. This is evidenced by the US Supreme Court 2022 judgment Golan v. Saada, the Australian case Secretary, Department of Communities & Justice v Bamfield, the 2023 German Constitutional Court decision, the Chinese Civil Code, the Australia Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022, and developments at the Hague Conference on Private International Law (HCCH Children Conventions) and the United Nations (Convention on the Rights of the Child and its additional Protocols).

On this International Children’s Day, let us join this CAPLUS webinar in cooperation with conflictoflaws.net and American Society of International Law Private International Law Interest Group to hear voices of children in private international law.

Speakers

• Ms. Anna Mary Coburn

After 22-years of public service as a U.S. Department of State Attorney-Advisor for Children’s Issues as well as a USAID Regional Legal Advisor/Senior Advisor for Children/Youth in Conflict, Anna has transitioned to practicing international family law with a focus on child rights cases and issues.

• Mr. Philippe Lortie

Philippe is co-head of the International Family and Child Protection Law Division at the Hague Conference on Private International Law Permanent Bureau and has more than 30 years’ experience in the field of child protection.

• Dr. Miranda Kaye

Dr Miranda Kaye is an academic at the Faculty of Law in the University of Technology Sydney in Australia and a member of Hague Mothers, a project aiming to end the injustices created by the Hague Child Abduction Convention. She also has experience in the public service (Law Commission of England and Wales) and as a practicing solicitor (family law in the UK).

• Professor Lukas Rademacher

Lukas is a Professor of Private Law, Private International Law, and Comparative Law in Kiel, Germany. He studied law at the Universities of Düsseldorf and Oxford, and received his PhD at the University of Münster. He wrote his postdoctoral thesis at the University of Cologne.

• Ms. Haitao Ye

Haitao is a lawyer at the Shanghai Office of the Beijing Dacheng Law LLP specializing in marriage and family dispute resolution, family wealth inheritance and management. She is a former experienced judge in civil and commercial trials at the Shanghai Pudong New District People’s Court in China.

Moderators/commentators

• Dr. Jie (Jeanne) Huang (Associate Professor at Sydney Law School, University of Sydney)

 

Thursday 1 June, 6-7.30pm AEST

(4-5.30am Washington D.C./9-10:30am London/10-11.30am the Hague/4-5.30pm Beijing)

RSVP now your free ticket here.

 

This event is proudly co-presented by the Centre for Asian and Pacific Law at the University of Sydney, conflictoflaws.net and the American Society of International Law Private International Law Interest Group.

In a recent decision, the Dubai Supreme Court (DSC) confirmed that enforcing foreign judgments in the Emirate could be particularly challenging. In this case, the DSC ruled against the enforcement of an English judgment on the ground that the case had already been decided by Dubai courts by a judgment that became final and conclusive (DSC, Appeal No. 419/2023 of 17 May 2023). The case presents many peculiarities and deserves a closer look as it reinforces the general sentiment that enforcing foreign judgments – especially those rendered in non-treaty jurisdictions – is fraught with many challenges that render the enforcement process very long … and uncertain. One needs also to consider whether some of the recent legal developments are likely to have an impact on the enforcement practice in Dubai and the UAE in general.

 

The case

 1) Facts 

The case’s underlying facts show that a dispute arose out of a contractual relationship concerning the investment and subscription of shares in the purchase of a site located in London for development and resale. The original English decision shows that the parties were, on the one hand, two Saudi nationals (defendants in the UAE proceedings; hereinafter, “Y1 and 2”), and, on the other hand, six companies incorporated in Saudi Arabia, Anguilla, and England (plaintiffs in the UAE proceedings, hereinafter “X et al.”). The English decision also indicates that it was Y1 and 2 who brought the action against X et al. but lost the case. According to the Emirati records, in 2013, X et al. were successful in obtaining (1) a judgment from the English High Court ordering Y1 and 2 to pay a certain amount of money, including interests and litigation costs, and, in 2015, (2) an order from the same court ordering the payment of the some additional accumulated interests (hereinafter collectively “English judgment”). In 2017, X et al. sought the enforcement of the English judgment in Dubai.

 

2) The Enforcement Odyssey…

a) First Failed Attempt

i) Dubai Court of First Instance (DCFI)

First, X et al. brought an action to enforce the English judgment before the DCFI in accordance with the applicable rules in force at the time of the action (former art. 235 of the 1992 Federal Civil Procedure Act [“1992 FCPA”]). Based on well-established case law, the DCFI rules as follows: (i) in the absence of an applicable treaty, reciprocity should be established (interestingly, in casu, the DCFI considered that the UAE-UK bilateral convention on judicial assistance could not serve as a basis for enforcement since it lacked provisions on mutual recognition and enforcement); (ii) reciprocity can be established by showing that the enforcement requirements in the rendering State are “the same (identical) or less restrictive” compared to those found in the UAE; (iii) it was incumbent on the party seeking enforcement to submit proof of the content of the foreign law pursuant to the methods of proof admitted in the UAE so that the court addressed could compare the enforcement requirements in both countries. Considering that X et al. had failed to establish reciprocity with the United Kingdom (UK), the DCFI refused the enforcement of the English judgment (DCFI, Case No. 574/2017 of 28 November 2017).

X et al. appealed to the Dubai Court of Appeal.

 

ii) Dubai Court of Appeal (DCA)

Before the DCA, X et al. sought to establish reciprocity with the UK by submitting evidence on the procedural rules applicable in England. However, the DCA dismissed the appeal on the ground that the English court did not have jurisdiction. The DCA started first by confirming a longstanding position of Dubai courts, according to which the foreign court’s jurisdiction should be denied if it is established that the UAE courts had international jurisdiction, even when the jurisdiction of the rendering court could be justified based on its own rules; and that any agreement to the contrary should be declared null and void. Applying these principles to the case, the DCA found that Y1 and 2 were domiciled in Dubai. Therefore, since the international jurisdiction of Dubai courts was established, the DCA found that the English court lacked indirect jurisdiction (DCA, Appeal No. 10/2018 of 27 November 2018).

Dissatisfied with the result, X et al. appealed to the Supreme Court.

 

iii) Dubai Supreme Court (DSC)

Before the DSC, X et al. argued that English courts had jurisdiction since the contractual relationship originated in England; the case concerned contracts entered into and performed in England; the parties had agreed on the exclusive jurisdiction of English court and that it was Y1 and 2 who initially brought the action against them in England. However, the DSC, particularly insensitive to the arguments put forward by X et al., reiterated its longstanding position that the rendering court’s indirect jurisdiction would be denied whenever the direct jurisdiction of UAE courts could be justified on any ground admitted under UAE law (DSC, Appeal No. 52/2019 of 18 April 2019).

 

b) Second Failed Attempt

The disappointing outcome of the case did not discourage X et al. from trying their luck again, knowing that the enforcement regime had since been (slightly) amended. Indeed, in 2018, the applicable rules – originally found in the 1992 FCPA – were moved to the 2018 Executive Regulation No. 57 of the 1992 FCPA (as subsequently amended notably by the 2021 Cabinet Decision No. 75. Later, the enforcement rules were reintroduced in the new FCPA enacted in 2022 and entered into effect in January 2023 [“2022 FCPA”]). The new rules did not fundamentally modify the existing enforcement regime but introduced two important changes.

The first concerns the enforcement procedure. According to old rules (former Art. 235 of the 1992 FCPA), the party seeking to enforce a foreign judgment needed to bring an ordinary action before the DCFI.  This procedure was replaced by a more expeditious one consisting in filing a petition for an “order on motion” to the newly created Execution Court (Art. 85(2) of the 2018 Executive Regulation, now the new Art. 222(2) of the 2022 FCPA).

The second concerns indirect jurisdiction. According to the old rules (former Art. 235 of the 1992 FCPA), the enforcement of a foreign judgment should be denied if (1) UAE courts had international jurisdiction over the dispute; and (2) the rendering court did not have jurisdiction according to (a) its own rules of international jurisdiction and (b) its rules on domestic/internal jurisdiction. Now, Art. 85(2)(a) of the 2018 Executive Regulation (new Art. 222(2)(a) of the 2022 FCPA) explicitly provides that the enforcement of the foreign judgment will be refused if the UAE courts have “exclusive” jurisdiction.

Based on these new rules, X et al. applied in 2022 to the Execution Court for an order to enforce the English judgment, but the application was rejected. X et al. appealed before the DCA. However, unexpectedly, the DCA ruled in their favour and declared the English judgment enforceable. Eventually, Y1 and 2 appealed to DSC. They argued, inter alia, that X et al. had already brought an enforcement action that was dismissed by a judgment that is no longer subject to any form of appeal. The DSC agreed. It considered that X et al. had already brought the same action against the same parties and having the same object and that the said action was dismissed by an irrevocable judgment. Therefore, X et al. should be prevented from bringing a new action, the purpose of which was the re-examination of what had already been decided (DSC, Appeal No. 419/2023 of 17 May 2023).

 

Comments

1) The case is interesting in many regards. First, it demonstrates the difficulty of enforcing foreign judgments in the UAE in general and Dubai in particular. Indeed, UAE courts (notably Dubai courts) have often refused to enforce foreign judgments, in particular those rendered in non-treaty jurisdictions, based on the following grounds:

i) Reciprocity (see, e.g., DSC, Appeal No. 269/2005 of 26 February 2006 [English judgment]; DSC, Appeal No. 92/2015 of 9 July 2015 [Dutch judgment (custody)]; DSC, Appeal No. 279/2015 of 25 February 2016 [English judgment (dissolution of marriage)]; DSC, Appeal No. 517/2015 of 28 August 2016 [US. Californian judgment]);

ii) Indirect jurisdiction (see, e.g., DSC, Appeal No. 114/1993 of 26 September 1993 [Hong Kong judgment]; DSC, Appeal No. 240/2017 of 27 July 2017 [Congo judgment]); and

iii) Public policy, especially in the field of family law, and usually based on the incompatibility of the foreign judgment with Sharia principles (see, e.g., DSC, Appeal No. 131/2020 of 13 August 2020 [English judgment ordering the distribution of matrimonial property based on the principle of community of property]. See also, Federal Supreme Court, Appeal No. 193/24 of 10 April 2004 [English judgment conferring the custody of a Muslim child to a non-Muslim mother]; Abu Dhabi Supreme Court, Appeal No. 764/2011 of 14 December 2011 [English judgment order the payment of life maintenance after divorce]). Outside the field of family law, the issue of public policy was raised in particular with respect to the consistency of interests with Sharia principles, especially in the context of arbitration (see, e.g., DSC, Appeal No. 132/2012 of 18 September 2012 finding that compound and simple interests awarded by an LCIA arbitral award did not violate Sharia. But, c.f. Federal Supreme Court, Appeal No. 57/24 of 21 March 2006, allowing the payment of simple interests only, but not compound interests.).

 

Second, the case shows that the enforcement process in the UAE, in general, and in Dubai, in particular, is challenging, and the outcome is unpredictable. This can be confirmed by comparing this case with some other similar cases. For example, in one case, the party seeking enforcement (hereinafter “X”) unsuccessfully sought the enforcement of an American (Nevada) judgment against the judgment debtor (hereinafter “Y”). The DCFI first refused to enforce the American judgment for lack of jurisdiction (Y’s domicile was in Dubai). The decision was confirmed on appeal, but on the ground that X failed to establish reciprocity. Instead of appealing to the DSC, X decided to bring a new action on the merits based on the foreign judgment. The lower courts (DCFI and DCA) dismissed the action on the ground that it was, in fact, an action for the enforcement of a foreign judgment that had already been rejected by an irrevocable judgment. However, DSC quashed the appealed decision with remand, considering that the object of the two actions was different. Insisting on its position, the DCA (as a court of remand) dismissed the action again. However, on a second appeal, the DSC overturned the contested decision, holding that the foreign judgment was sufficient proof of the existence of Y’s debt. The DSC finally ordered Y to pay the full amount indicated in the foreign judgment with interests (DSC, Appeal No. 125/2017 of 27 April 2017).

However, such an approach is not always easy to pursue, as another case concerning the enforcement of a Singaporean judgment clearly shows. In this case, X (judgment creditor) applied for an enforcement order of a Singaporean judgment. The judgment was rendered in X’s favour in a counterclaim to an action brought in Singapore by Y (the judgment debtor). The Execution Court, however, refused to issue the enforcement order on the ground that there was no treaty between Singapore and the UAE. Instead of filing an appeal, X brought a new action on the merits before the DCFI, using the Singaporean judgment as evidence. Not without surprise, DCFI dismissed the action accepting Y’s argument that the case had already been decided by a competent court in Singapore and, therefore, the foreign judgment was conclusive (DCFI, Case No. 968/2020 of 7 April 2021). Steadfastly determined to obtain satisfaction, X filed a new petition to enforce the Singaporean judgment before the Execution Court, which – this time – was accepted and later upheld on appeal. Y decided to appeal to the DSC. Before the DSC, Y changed strategy and argued that the enforcement of the Singaporean judgment should be refused on the ground that the rendering foreign court lacked jurisdiction! According to Y, Dubai courts had “exclusive” jurisdiction over the subject matter of X’s counterclaim because its domicile (place of business) was in Dubai. However, the DSC rejected this argument and ruled in favour of the enforcement of the Singaporean judgment (DSC, Appeal No. 415/2021 of 30 December 2021).

 

2) From a different perspective, one would wonder whether the recent developments observed in the UAE could alleviate the rigor of the existing practice. These developments concern, in particular, (i) the standard based on which the jurisdiction of the foreign should be examined and (ii) reciprocity.

(i) Regarding the jurisdiction of the foreign court, the new article 222(2)(a) of the 2022 FCPA (which reproduces the formulation of article 85(2)(a) of the 2018 Executive Regulation introduced in 2018) explicitly states that foreign judgments should be refused enforcement if UAE courts “have exclusive jurisdiction over the dispute in which the foreign judgment was rendered” (emphasis added). The new wording suggests that the foreign court’s indirect jurisdiction would be denied only if UAE courts claim “exclusive” jurisdiction over the dispute. Whether this change would have any impact on the enforcement practice remains to be seen. But one can be quite sceptical since, traditionally, UAE law ignores the distinction between “exclusive” and “concurrent” jurisdiction. In addition, UAE courts have traditionally considered the jurisdiction conferred to them as “mandatory”, thus rendering virtually all grounds of international jurisdiction “exclusive” in nature. (See, e.g., the decision of the Abu Dhabi Supreme Court, Appeal No. 71/2019 of 15 April 2019, in which the Court interpreted the word “exclusive” in a traditional fashion and rejected the recognition of a foreign judgment despite the fact that the rendering court’s jurisdiction was justified based on the treaty applicable to the case. But see contra. DCFI, Case No. 968/2020 of 7 April 2021 op. cit. which announces that a change can be expected in the future).

(ii) Regarding reciprocity, it has been widely reported that on 13 September 2022, the UAE Ministry of Justice (MOJ) sent a letter to Dubai Courts (i.e. the department responsible for the judiciary in the Emirate of Dubai) concerning the application of the reciprocity rule. According to this letter, the MOJ considered that reciprocity with the UK could be admitted since English courts had accepted to enforce UAE judgments (de facto reciprocity). Although this letter – which lacks legal force – has been widely hailed as announcing a turning point for the enforcement of foreign judgments in general and English judgments in particular, its practical values remain to be seen. Indeed, one should not lose sight that, according to the traditional position of Dubai courts, reciprocity can be established if the party seeking enforcement shows that the rendering State’s enforcement rules are identical to those found in the UAE or less restrictive (see DSC, Appeal No. 517/2015 of 28 August 2016, op. cit.). For this, the party seeking enforcement needs to prove the content of the rendering Stat’s law on the enforcement of foreign judgments so that the court can compare the enforcement requirement in the state of origin and in the UAE. Dubai courts usually require the submission of a complete copy of the foreign provisions applicable in the State of origin duly certified and authenticated. The submission of expert opinions (e.g., King’s Counsel opinion) or other documents showing that the enforcement of UAE judgments is possible was considered insufficient to establish reciprocity (see DSC, Appeal No. 269/2005 of 26 February 2006, op. cit.). The fact that the courts of the rendering State accepted to enforce a UAE judgment does not seem to be relevant as the courts usually do not mention it as a possible way to establish reciprocity. Future developments will show whether Dubai courts will admit de facto reciprocity and under which conditions.

 

Finally, the complexity of the enforcement of foreign judgments in Dubai has led to the emergence of an original practice whereby foreign judgment holders are tempted to commence enforcement proceedings before the DIFC (Dubai International Financial Center) courts (AKA Dubai offshore courts) and then proceed with the execution of that judgment in Dubai (AKA onshore courts). However, this is a different aspect of the problem of enforcing foreign judgments in Dubai, which needs to be addressed in a separate post or paper. (On this issue, see, e.g., Harris Bor, “Conduit Enforcement”, in Rupert Reed & Tom Montagu-Smith, DIFC Courts Practice (Edward Elgar, 2020), pp. 30 ff; Joseph Chedrawe, “Enforcing Foreign Judgments in the UAE: The Uncertain Future of the DIFC Courts as a Conduit Jurisdiction”, Dispute Resolution International, Vol. 11(2), 2017, pp. 133 ff.)

Just late yesterday, Uniform Law Review  published an interesting article that is of significance and relevance to comparative law and conflict of laws. It is titled EE Clotilde, “The reception of OHADA Law in anglophone Cameroon: appraisals and proposals” The abstract reads as follows:

This article assesses the extent to which the law under the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) has been received in anglophone Cameroon after 26 years of existence, with specific focus on the Fako judicial division.1 With regard to the tenets of qualitative research, it is observed that, from the viewpoint of the legal reception technique, it is indisputable that OHADA law has been infused into the English-speaking legal system in Cameroon through legal techniques of transposition. Through the use of interviews and questionnaires as our research tools, it is revealed that this reception remains limited because most judicial actors still find it difficult to implement legislation that they have not yet mastered. Linguistic issues and the difficulties faced in accessing the Common Court of Justice and Arbitration based in Ivory Coast in Abidjan on OHADA-related matters are serious obstacles to its effective implementation. This situation has been worsened by the poor articulation of clichés that tend to radically oppose OHADA law compared to common law principles. This article tries to deconstruct the ideas received as it shows some of the similarities in the substantive law under the two systems and consequently advocates on this basis the idea that efforts be made to familiarize common law jurists with the content of OHADA law. The article recommends that linguistic issues be tackled by OHADA lawmakers right from the stage of legal drafting by using drafting techniques that will reduce the feeling that the common law is being neglected. For uniform acts yet to be translated, the translation process should associate experts in comparative law to enable the use of appropriate legal language in translation from French into English. Only such efforts will entice the common law African countries that are still hesitating to join OHADA law and, by so doing, will render investment in Africa more attractive.

On Tuesday, June 6, 2023, the Hamburg Max Planck Institute will host its 34th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 CEST. Holger Spamann  (Havard Law School) will speak, in English, about the topic

Law Matters – Less Than We Thought. Or: Do Judges Actually Follow Conflict of Law Directives

About the topic:
We conduct a randomized lab experiment with U.S. federal judges. The experiment puts the judges in the shoes of a judge deciding the applicable state law in a civil traffic accident case, which will determine whether a damage cap applies. We randomize the forum (with its choice of law directive) and the location of the accident in one state and the parties’ common domicile in another state.
One forum applies the traditional lex loci delicti rule, which calls for the application of the law of the state where the accident happened. The other forum applies the Restatement 2nd’s “most significant relationship” standard, which in our case calls for application of the law of common domicile. Judges’ decisions reflect this variation, but barely so. The data suggest that they tend to have a preference for lex loci delicti, and against damages caps. By contrast, we do not find that they are biased towards the more sympathetic party, which had been a third experimental treatment in our study.

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

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

To celebrate the 30th anniversary of the 1993 Adoption Convention, the Permanent Bureau of the HCCH will be hosting an online event on Wednesday, 31 May 2023, from 14:00 to 18:00 CEST.

The event will feature two round tables, one on “Learning from the Past” and one on “Looking to the Future”, composed of adoption experts from across the world. It will also feature a panel composed by a birth mother, an adoptive mother, and adopted persons, who will discuss their lived experiences.

During the event, panellists will present their views and will respond to selected questions sent in advance of the event.

 

To register, please visit: https://bit.ly/40Dnptk

For more information, please visit: https://bit.ly/3H8IV2j

 

 

Carlos Santaló Goris, Lecturer at the European Institute of Public Administration in Luxembourg, offers an analysis of an upcoming legislative reform in Montenegro concerning the European Account Preservation Order

In 2010, Montenegro formally became a candidate country to join the European Union. To reach that objective, Montenegro has been adopting several reforms to incorporate within its national legal system the acquis communautaire. These legislative reforms have also addressed civil judicial cooperation on civil matters within the EU. The Montenegrin Code of Civil Procedure (Zakon o parni?nom postupku) now includes specific provisions on the 2007 Service Regulation, the 2001 Evidence Regulation, the European Payment Order (‘EPO’), and the European Small Claims Procedure (‘ESCP’). Furthermore, the Act on Enforcement and Securing of Claims (Zakon o izvršenju I obezbe?enju) also contains provisions on the EPO, the ESCP, and the European Enforcement Order (‘EEO’). While none of the referred EU instruments require formal transposition into national law, the fact that it is now embedded within national legislation can facilitate its application and understanding in the context of the national civil procedural system.

Currently, the Montenegrin legislator is about to approve another amendment of the Act on Enforcement and Securing of Claims, this time concerning the European Account Preservation Order Regulation (‘EAPO Regulation’). This instrument, which entered into force in 2017, allows the provisional attachment of debtors’ bank accounts in cross-border civil and commercial claims. It also allows creditors  with a title at the time of application to apply for an EAPO. According to the Montenegrin legislator, the purpose of this reform is to harmonize the national legislation with the EAPO, as well as creating ‘the necessary conditions for its smooth application’.

In terms of substance, the specific provisions on the EAPO focus primarily on identifying the different authorities involved in the EAPO procedure from the moment it is granted to its enforcement. In broad terms, the content of the provisions corresponds to the information that Member States were required to provide to the Commission by 18 July 2016, and that can be found in Article 50. One provision establishes which are the competent courts to issue the EAPO and to decide on the appeal against a rejected EAPO application. Regarding the appeal procedure, it establishes that creditors have to submit their appeal within the five following days of the date the decision dismissing the EAPO application is rendered. Such a deadline contradicts the text of the EAPO Regulation, which sets a 30-day deadline to submit the appeal, which cannot be shortened by national legislation. This is an aspect that has been uniformly established by the EU legislator, thus it does not depend on national law (Article 46(1)).

Regarding the debtors’ remedies to revoke, modify or terminate the enforcement of an EAPO contained Articles 33, 34 and 35, the reform contains a specific provision to determine which are the competent courts. Interestingly, it also establishes  a 5-day deadline to appeal the decision resulting from the request for a remedy. In this case, the EAPO Regulation does not establish any deadline, giving Member States discretion to establish such deadline. The short deadline chosen contrasts with the 15 days established in Luxembourg (Article 685-5(6) Nouveau Code de Procedure Civile), the one-month deadline chosen by the German legislator (Section 956 Zivilprozessordnung).

Concerning the enforcement phase of the EAPO, it determines which are the authorities responsible for the enforcement. It also acknowledges that there are certain amounts exempted from attachment of an EAPO under Montenegrin law.

Last but not least, the reform also tackles the information mechanism to trace the debtors’ bank accounts. The information authority will be Montenegro’s Central Bank (Centralna Banka). The method that will be employed to trace the debtors’ bank accounts consists of asking banks to disclose whether they hold the bank accounts. This method corresponds to the first of the methods listed in Article 14(5) that information authorities can use to trace the debtors’ bank accounts.

The entry into force of these new EAPO provisions is postponed until Montenegro joins the EU.  While these provisions might seem rather generic, they clearly reveal Montenegro’s commitment to facilitate the application of the EAPO within its legal system and make it more familiar for national judges and practitioners that will have to deal with it.

 

This is a special moment for us after a long way, and forgive us for highlighting it in a special edition of our Repository: Our book on the HCCH 2019 Judgments Convention that we have worked on over the last years has come out! Big thanks to all involved, including Hart Publishing who made this possible.

The HCCH 2019 Judgments Convention
Cornerstones, Prospects, Outlook

 

As kindly highlighted in the Series Editor’s Preface, the book is enriched by the diverse perspectives not only of distinguished legal scholars from around the world, but also experienced practitioners from the HCCH, UNCITRAL and the EU who are familiar with the intricacies of negotiating within the HCCH framework. Furthermore, the volume does not limit itself to examining the legal cornerstones of the convention (Part I) but also strives to illuminate its prospects in leading regions of the world (Part II) and, finally, ventures – based on the insights gained from the judgments project’s genesis – an outlook on future developments (Part III). Hence, the book provides a truly global appraisal of the HCCH 2019 Judgments Convention and is therefore likely to become a major point of reference for legislators, judges, legal scholars and lawyers in the field of Private International Law.

We are happy to announce that the volume will be available at special rates to the conference participants in Bonn on 9 and 10 June 2023. If you are interested in discussing the latest advancements in global judicial cooperation with our learned authors, please be invited to register with sekretariat.weller(at)jura.uni-bonn.de. We will be able to handle last minute registrations …

Today the Hague Academy of International Law begins its celebrations to mark its centenary.

As indicated on its website: “Tirelessly since 1923, the Academy works, in The Hague, rightly named the International City of Peace and Justice, on “the teaching, study, dissemination and wider appreciation of international law”, to take the words of the United Nations General Assembly. After 100 years, it is time to make a short pause, at the occasion of a Solemn Sitting on 24 May, and look at what has been, what is, and also what, beyond the Centenary, must be accomplished by the Academy.”

There are two main events organised:

On Wednesday 24 May a solemn sitting will take place, the agenda is available here.

On Thursday 25 May  and Friday 26 May a colloquium will be held, the agenda is available here. Some of the interesting sessions in our area are “public interest in international law”, “public interest in litigation”, “humanization of private international law” and “the law applicable to international arbitration”.

Both events will be streamed online but only accessible to registered participants.

We (and I am sure all of its alumni) rejoice with the Hague Academy in celebrating this important milestone.