Conflictoflaws

Written by Jack Wass, Stout Street Chambers, New Zealand

On 5 December 2019, the New Zealand Court of Appeal released a significant decision on jurisdiction over land in cross-border cases.

In Christie v Foster [2019] NZCA 623, the Court overturned the High Court’s decision that the Moçambique rule (named after British South Africa Co v Companhia de Moçambique [1893] AC 602) required that a dispute over New Zealand land be heard in New Zealand (for a case note on the High Court’s decision, see here). The plaintiff sought to reverse her late mother’s decision to sever their joint tenancy, the effect of which was to deprive the plaintiff of the right to inherit her mother’s share by survivorship. The Court found that the in personam exception to the Moçambique rule applied, since the crux of the plaintiff’s claim was a complaint of undue influence against her sister (for procuring their mother to sever the tenancy), and because any claim in rem arising out of the severance was precluded by New Zealand’s rules on indefensibility of title. As a consequence the Court declined jurisdiction and referred the whole case to Ireland, which was otherwise the appropriate forum.

In the course of its decision, the Court resolved a number of important points of law, some of which had not been addressed in any Commonwealth decisions:

First, it resolved a dispute that had arisen between High Court authorities about the scope of the in personam exception, resolving it in favour of a broad interpretation. In particular, the Court disagreed with High Court authority (Burt v Yiannakis [2015] NZHC 1174) that suggested an institutional constructive trust claim was in rem and thus outside the exception.

Second, it held (reversing the High Court) that the Moçambique rule does not have reflexive effect. The rule prevents the New Zealand court from taking jurisdiction over claims in rem involving foreign land out of comity to the foreign court, but does not require the New Zealand court to take jurisdiction over cases involving New Zealand land. Although New Zealand will often be the appropriate forum for a case involving New Zealand land, the court is free to send it overseas if the circumstances require, even if the claim asserts legal title in rem.

Third, the Court confirmed that there is a second exception to the Moçambique rule – where the claim arises incidentally in the administration of an estate. Dicey, Morris and Collins had suggested the existence of this exception for many editions, but it had to be inferred from earlier cases without being properly articulated. The Court expressly found such an exception to exist and that it would have applied in this case.

In the course of its analysis, the Court expressed sympathy for the arguments in favour of abolishing the Moçambique rule entirely. Although the Court did not go that far, it reinforced a trend of the courts restricting the application of the rule and suggested that in the right case, the courts might be prepared to abandon it entirely.

On 12 and 13 December 2019, the University of Ljubljana (Slovenia) is the destination of many experts and academics of different national and professional backgrounds who will join in the discussion about various legal aspects of the family property in cross-border situations in EU. The event titled “Best Practices in European Family and Succession Law” is the second public event within the Justice co-funded project PSEFS which stands for “Personalised Solution in Family and Succession Law”. Here is the programme of the event.

The news from the project and more are available at the PSEFS web page.

We are happy to officially announce that the European Association of Private International Law (EAPIL) has recently been founded!

An independent and non-partisan organization registered as a non-profit association under the laws of Luxembourg, EAPIL aims to promote the study and development of private international law by fostering the cooperation of academics and practitioners  as well as the exchange of information on the sources of the discipline, its scholarship and practice.

To learn more about EAPIL – and to become a member – please check out the Association’s website.

To learn about the EAPIL founding conference, to be held at the University of Aarhus (Denmark) in May 2020, please visit the official conference website.

The case Monasky v. Taglieri will be argued on Wednesday 11 December 2019 at 10:00 a.m. before the US Supreme Court. As you may remember, this case deals with the determination of habitual residence under the HCCH Child Abduction Convention and may be pivotal in resolving the split in the US circuit courts. Our previous posts on this case are available here and here.

You will be able to read the transcript of the oral arguments this Wednesday and listen to the audio recording of the oral arguments soon thereafter.

As indicated on the US Supreme Court website, “The transcripts of oral arguments are posted on this website on the same day an argument is heard by the Court. Same-day transcripts are considered official but subject to final review. The audio recordings of all oral arguments heard by the Supreme Court of the United States are available to the public at the end of each argument week.”

A collection of essays titled Investment Arbitration in Central and Eastern Europe, edited by Csongor istván Nagy (University of Szeged, Hungary), has recently been published by Edward Elgar. See here for more information on the book, its contents and contributors.

As noted in the publisher’s blurb, Central and Eastern Europe (CEE) appears to be the testing ground for investment arbitration in Europe: the majority of the cases against EU Member States are proceedings launched against countries from the region. Despite their relevance, CEE experiences have not been analysed in a comprehensive manner. The book aims to fill this gap.

The introductory chapter, written by the editor, is titled Intra-EU BITs after Achmea: A Cross-Cutting Issue and can me downloaded via SSRN.

As noted earlier on this blog, we will celebrate the forthcoming establishment of the European Association of Private International Law (EAPIL) at a conference to  be held at Aarhus University, Denmark, from 14 to 16 May 2020.

The conference will bring together academics and practitioners from all over Europe and provide a unique opportunity to talk and think about European Private International Law in a pan-European fashion. Topics to be discussed will include the effects and the challenges of digitalization, the problems of fragmentation as well as other challenges the discipline is currently facing.

Early bird registration is still possible via the conference website. For questions, please get in touch with the local organizer, Morten M. Fogt (mmf@law.au.dk).

Stay tuned for more Information about the European Association of Private International Law (EAPIL) including information about how to join!

In November 2019, there were a couple of new signatory States to the HCCH Conventions. New Zealand signed the HCCH Child Support Convention and Austria did the same with respect to the HCCH Service Convention.

These HCCH Conventions are not yet in force for New Zealand and Austria as both States would need to ratify them pursuant to the relevant articles under each Convention. Nevertheless, by signing the Conventions both States have acquired the “obligation not to defeat the object and purpose of a treaty prior to its entry into force” in accordance with Article 18 of the Vienna Convention on the Law of Treaties.

With regard to Austria, and given the external competence of the European Union in these matters, it is important to note that the signature was made pursuant to the Council Decision (EU) 2016/414 of 10 March 2016 authorising the Republic of Austria to sign and ratify, and Malta to accede to, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, in the interest of the European Union. Interestingly, this decision requires that the ratification to the Service Convention be made by 31 December 2017 at the latest. I am unaware of any updates with respect to this decision.

The HCCH news items are available here (New Zealand) and here (Austria).

On 13-14 February 2020, ERA (Academy of European Law) will host a Seminar in Strasbourg to present the major judgments related to family matters issued by the European Court of Human Rights (ECtHR) in 2019. The focus of the presentations will be mainly on:

• Children in European migration law
• Parental rights, pre-adoption foster care and adoption
• Parental child abduction
• Reproductive rights and surrogacy
• LGBTQI rights and gender identity

The Seminar, organised by Dr Angelika Fuchs, will provide participants with a detailed understanding of this recent jurisprudence. The focus will be placed, in particular, on Article 8 ECHR (respect for private and family life) and the analysis of the case law of the ECtHR will tackle the legal implications but it will also extend to social, emotional and biological factors.

The opening speech will be given by Ksenija Turkovi?, Judge at the European Court of Human Rights in Strasbourg.

More information on the event and on registration is available here.

This event is organised with the support of the Erasmus+ programme of the European Union

The Hague Conference on Private International Law (HCCH) has posted the Conclusions & Recommendations of the “International Seminar on the Protection of Children Across Borders: The 1996 HCCH Convention on the Protection of Children” that took place in Rabat, Morocco, in mid-November 2019.

The seminar focused on discussing ways to improve the protection of children across borders in West Africa, in North Africa and in Europe. Two topics of particular interest were discussed: kafala and unaccompanied minors.

With regard to the institution of kafala, the participants “welcomed the opportunity to share information and experiences concerning crossborder kafala cases; in particular, the participants noted that, in States where it is unknown under domestic law, kafala may be recognised or, at the very least and depending on the circumstances, its effects would correspond to the delegation of parental responsibility, guardianship or curatorship, in order to ensure its legal effectiveness across borders. Participants also recognised that kafala and adoption are two very different concepts” (C&R No 9).

The HCCH Child Protection Convention makes explicit reference to the institution of Kafala in Articles 3(e) and 33. Paragraph 3.27 of the Practical Handbook on the Operation of the 1996 Child Protection Convention explains what is understood by Kafala: “The institution of kafala is widely used in some States as a form of care for children when they cannot be cared for by their parents. Under kafala, children are cared for by new families or relatives but the legal link with their birth parents is generally not severed. Kafala can take place across borders but since it is an arrangement which does not constitute an adoption it is not within the scope of the 1993 Hague Intercountry Adoption Convention. However, where used, the institution of kafala clearly constitutes a measure of protection in respect of a child and is therefore expressly within the scope of the 1996 Convention.”

With regard to the protection of unaccompanied and separated children, the participants “recognised the need to implement the “Guidelines for the Alternative Care of Children” resulting from Resolution 64/142 adopted by the United Nations General Assembly” (C&R No 11).

The Permanent Bureau of the Hague Conference is also working on this topic. In fact, in 2018 the governance body of the Hague Conference mandated to prioritise work on the finalisation of the revisions to a preliminary document relating to the application of the 1996 HCCH Child Protection Convention to unaccompanied and separated children (referred to as Preliminary Document No 7 of the Seventh Meeting of the Special Commission of 2017 on the 1980 and 1996 Conventions). To the best of my knowledge, this document has not yet been released.

Currently only two African States are States parties to the HCCH Child Protection Convention: Lesotho and Morocco. Only Morocco was present at the seminar probably due to its geographic scope.

The HCCH news items is available here.

The Italian Independent Authority for Children and Adolescents (Autorità garante per l’infanzia e l’adolescenza) has just published a book to celebrate the 30th anniversary of the United Nations Convention on the Rights of Child (CRC).

The book, in Italian, is titled La Convenzione delle Nazioni Unite sui diritti dell’infanzia e dell’adolescenza: conquiste e prospettive a 30 anni dall’adozione (“The 30th Anniversary of the UN Convention on the Rights of the Child: Achievements and Perspectives”). It consists of chapters dealing with a range of issues surrounding the Convention.

Some of the chapters discuss the relevance of the Convention to the rules of private international law regarding children.

Christophe Bernasconi and Philippe Lortie, respectively Secretary General and First Secretary of the Hague Conference on Private International Law, analysed the impact of the CRC on the work of the Hague Conference in the field of child protection.

Olivia Lopes Pegna, of the University of Florence, wrote a chapter on the techniques used by private international law rules to realise the best interests of the child.

Ester di Napoli discussed the synergies between migration law and private international law, in particular as regards the protection of unaccompanied minors.

The book can be downloaded here for free. The English abstracts of each chapter, kindly provided by Ester di Napoli, are available here.

The First Edition of the Milan Investment Arbitration Pre-Moot  will take place in Milan on February 14-15, 2020, within the frame of the Frankfurt Investment Arbitration Moot Court (FIAC).

For more information, click here.

Written by Chukwuma Okoli, TMC Asser Institute, The Hague

About a decade ago, Oppong lamented a “stagnation” in the development of private international law in Africa. That position is no longer as true as it was then – there is progress. Though the African private international law community is small, the scholarship can no longer be described as minimal (see the bibliograhy at the end of this post). There is a growing interest in the study of private international law in Africa. Why is recent interest on the study of private international law [in Africa] important to Africa? What lessons can be learn’t from other non-African jurisdictions on the study of private international law?

With increased international business transactions and trade with Africa, private international law is a subject that deserves a special place in the continent. Where disputes arise between international business persons connected with Africa, issues such as what court should have jurisdiction, what law should apply, and whether a foreign judgment can be recognized and enforced are keys aspects of private international law. Thus, private international law is indispensable in regulating international commercial transactions.

Currently, there is no such thing as an “African private international law” or “African Union private international law” that is akin to, for example, “EU private international law”. It could, however, be argued that there is such a thing as “private international law in Africa”. The current private international law in Africa is complicated as a consequence of a history of foreign rule, and the fact that Africa has diverse legal traditions (common law, Roman-Dutch law, civil law, customary law and religious law). Many countries in Africa still hang on to what they inherited during the period of colonialism. As colonialism breeds dependence, there has not been sufficient conscious intellectual effort to generate a private international law system that responds to the socio-economic, cultural, and political interests of countries in Africa.

Drawing from comparative experiences, it is opined that a systematic academic study of private international law might create the required strong political will and institutional support (which is absent at the moment) that is necessary to give private international law its true place in Africa.

There has always been private international law in Africa from time immemorial. Africans, like any other persons, migrated from one territory to another (especially within Africa), where the clash of socio-cultural, political, and economic interests among persons in Africa gave rise to private international law problems as we know them today. Some of these disputes between private parties of different nation states may have likely been resolved through war or diplomacy.

The systematic study of private international law as we know it today has largely been academically developed by the Member States of the European Union (EU) and the United States of America (“USA”). The period of industrialization in the 19th century, and the rise of capitalism gave birth to a variety of solutions that could respond to globalization. Indeed, the firm entrenchment of the principle of party autonomy in international dispute settlement in the 20th century was a way of securing the interest of the international merchant who does their business in many jurisdictions. The privatization of international law dispute settlement is what gave birth to the name private international law.

In the international scene, the study of private international law is currently dominated by two major powers: the EU and the US, but the EU wields more influence internationally. The EU operates an integrated private international law system with its judicial capital in Luxembourg. The EU can be described as a super-power of private international law in the world, with The Hague as its intellectual capital. Many of the ideas in the Hague instruments (a very important international instrument on private international law) were originally inspired by the thinking of European continental scholars. As a result of colonization, many countries around the world currently apply the private international law methodology of some Member States of the EU. The common law methodology is applied by many Commonwealth countries that were formerly colonized by the United Kingdom; the civil law methodology is applied by many countries (especially in French-speaking parts of Africa) that were formerly colonized by France and Belgium; and the Roman-Dutch law methodology is applied by many countries that were formerly colonized by Netherlands.

Asia appears to have learnt from the EU and USA experience. Since 2015 till date, private international academics from Asia and other regions around the world have held many conferences and meetings with the purpose of drawing up the principles of private international law on civil and commercial matters, known as “Asian Principles of Private International Law”). The purpose of the principles is to serve as a non-binding model that legislators and judges (or decision makers) in the Asian region can use in supplementing or reforming their private international law rules.

It is important to stress that it is the systematic study of private international law by scholars over the years in the US and Member States in the EU and Asia that created the required political will and institutional support to give private international law it’s proper place in these countries. In Africa, such systematic study becomes especially important in an environment of growing international transactions both personal and commercial. This is what propels the study of private international. It is seldom an abstract academic endeavor given the nature and objectives of the subject

Professor Oppong – a leading authority on the subject of private international law in Africa – has rightly submitted in some of his works that private international law can play a significant role in Africa in addressing issues such as: “regional economic integration, the promotion of international trade and investment, immigration, globalization and legal pluralism.” A systematic study of private international law in Africa will address these some of these challenges that are significant to Africa. Indeed, a solid private international law system in African States can create competition among countries on how to attract litigation and arbitration. This in turn can lead to economic development and the strengthening of the legal systems of such African countries

What should private international law in Africa look like in the future?  Is it possible to have a future “African Union private international law” comparable to that of the European Union? Should it operate in an intra-African way to the exclusion of international goals such as conflicts between non-African countries, and the joint membership or ratification of international instruments such as The Hague Conventions? Should it take into account internal conflicts in individual African states, where different applicable customary or religious laws may clash with an enabling statute or the constitution, or different applicable religious or customary laws may clash in cross-border transactions? In the alternative, should it focus primarily on diverse solutions among countries in Africa, and promote international commercial goals, with less attention placed on African integration?

These questions are not easy to answer. It is opined that private international law in Africa deserves to be systematically studied, and solutions advanced on how the current framework of private international law in Africa can be improved. If such study is devoted to this topic, the required political will and institutional support can be created to give [private international law] proper significance in Africa.

For recent monographs on the subject see generally
CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020- forthcoming)
P Okoli, Promoting Foreign Judgments; Lessons in Legal Convergence from South Africa and Nigeria (Wolters Kluwer, Alphen aan den Rijn, 2019)
AJ Moran and AJ Kennedy, Commercial Litigation in Anglophone Africa: The law relating to civil jurisdiction, enforcement of foreign judgments, and interim remedies (Juta, Cape Town, 2018)
RF Oppong, Private International Law in Ghana (Wolters Kluwer Online, Alphen aan den Rijn, 2017)
M Rossouw, The Harmonisation of Rules on the Recognition and Enforcment of Foreign Judgments in Southern African Customs Union (Pretoria University Law Press, Pretoria, 2016)
E Schoeman et. al., Private International Law in South Africa (Wolters Kluwer Online, Alphen aan den Rijn, 2014)
RF Oppong, Private International Law in Commonwealth Africa (Cambridge University Press, Cambridge, 2013)
C Forsyth, Private International Law – the Modern Roman Dutch Law including the Jurisdiction of the High Courts (5th edition, Juta, Landsowne, 2012).

Written by Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen

Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen published an article on how the implementation of the HCCH Judgments Convention would impact Australian private international law: ‘The HCCH Judgments Convention in Australian Law’ (2019) 47(3) Federal Law Review 420. This post briefly considers Australia’s engagement with the HCCH, and the value of the Judgments Convention for Australia.

Australia’s engagement with the HCCH

Australia has had a longstanding engagement with the work of the Hague Conference since it joined in 1973. In 1975, Dr Peter Nygh, a Dutch-Australian judge and academic, led Australia’s first delegation. His legacy with the HCCH continues through the Nygh Internship, which contributes to the regular flow of Aussie interns at the Permanent Bureau, some of whom have gone on to work in the PB. Since Nygh’s time, many Australian delegations and experts have contributed to the work of the HCCH. For example, in recent years, Professor Richard Garnett contributed to various expert groups which informed the development of the Judgments Project. Today, Andrew Walter is Chair of the Council on General Affairs and Policy.

Australia has acceded to 11 HCCH instruments, especially in family law where its implementation of HCCH conventions leads the Conference. However, with respect to recent significant instruments, it has lagged behind. For example, in 2016, Australia’s Commonwealth Attorney-General’s Department (‘AGD’) recommended accession to the 2005 HCCH Choice of Court Convention through an ‘International Civil Law Act’; it also recommended that the proposed legislation should give effect to the HCCH’s Principles on Choice of Law in International Commercial Contracts. In November 2016, the Australian Parliament’s Joint Standing Committee on Treaties supported both recommendations. Despite those recommendations, we are yet to see the introduction of a Bill into Parliament. We remain hopeful that 2020 will see progress.

Australia actively participated in the negotiation of the HCCH Judgments Convention and agreed to the final act. However, it is not a signatory. The mood within the Australian private international law community is that Australia will accede—the question is when. When it does, what would that mean? That is the focus of the article by Douglas, Keyes, McKibbin and Mortensen, who argue that accession ought to be welcomed.

The value of the HCCH Judgments Convention for Australia

Accession to the Judgments Convention would be a positive development for Australia. The Convention expands the grounds for recognising foreign judgments in Australia, especially in the recognition of foreign courts to exercise special jurisdictions giving rise to an enforceable judgment, and the enforcement of non-money judgments.  The proposed grounds for refusal of recognition and enforcement broadly align to the current treatment of the defences to recognition and enforcement, and the bases for setting aside registration of foreign judgments, under Australian law. By harmonising Australia’s private international law with that of other Contracting States, the Judgments Convention should provide greater certainty to Australian enterprises engaging in international business transactions with entities from other Contracting States. As an island nation, ensuring certainty for cross-border business is essential to the Australian economy.

For Australia, the primary advantage of the Judgments Convention is the capacity to enforce Australian judgments overseas. A party to cross-border litigation who obtains the benefit of an Australian judgment will have a clearer pathway to obtaining meaningful relief.  The ability to enforce an Australian civil or commercial judgment internationally is extremely limited, with the exception of New Zealand. The Judgments Convention, if implemented in Australia, would both expand and reposition the ability to project Australian judicial power beyond New Zealand. Certainly, the Convention would enhance the ability to enforce judgments of the courts of the other Contracting States to the Convention in Australia. Equally, as a multilateral Convention, the Judgments Convention would enable Australian judgments to circulate among the other Contracting States to the Convention. That would be a most attractive outcome for the Australian judicial system. Non-money judgments, which currently have almost no extraterritorial reach, would become enforceable through the Convention. The recognition of judgments that emerge when Australian courts exercise special jurisdictions dealing with contractual, non-contractual and trust obligations is also a long overdue reform and would see the law relating to the international enforcement of judgments align more closely with the nature of modern commercial litigation. If adopted widely, the Judgments Convention will provide better access to the assets of judgment debtors and to defendants themselves. This will reduce the risks associated with cross-border litigation, and so with it, the risks to cross-border business.

A secondary effect of the implementation of the Judgments Convention is the pressure it may apply to the Australian rules of adjudicative jurisdiction that allow Australian courts to deal with international litigation. There remains a very substantial disparity between the extremely broad adjudicative jurisdictions claimed by Australian courts and the narrow jurisdictions that are allowed to foreign courts by Australian courts considering whether to recognise foreign judgments. The Judgments Convention does not address this disparity, although the recognition of foreign judgments made when courts of origin exercise special jurisdictions somewhat narrows it. Unless the Australian rules of adjudicative jurisdiction are reformed, the enforceability of an Australian judgment in cross-border litigation will require a litigant’s consideration of both the Australian rules of adjudicative jurisdiction and the different Judgments Convention rules of indirect jurisdiction. Ultimately, though, to get an internationally enforceable judgment, it would only be compliance with the Judgments Convention that counted.

In short, this article strongly recommends that Australia should accede to the Judgments Convention in order to modernise and improve Australian law, and to provide better outcomes for Australian judgment creditors. It would be timely for Australia also to refocus and continue its efforts on accession to the Choice of Court Convention.

The Maastricht Journal of European and Comparative Law warmly invites for submitting a proposal for a special issue to be published in the upcoming year’s Volume of the Maastricht Journal. The Maastricht Journal announces deadlines each year for the submission of proposals for a special issue, the next one is on:

20 January 2020

A special issue in the Maastricht Journal can contain up to eight articles plus an introduction and/or conclusion. Each paper is up to 8.000 words in length, including footnotes.

Proposals shall include:

• an introduction to the special issue providing a description of the topic and a motivation why the issue should be published in the Maastricht Journal (up to 4 pages);
• a list of content;
• the confirmation of all authors involved;
• short abstracts (150-200 words) for each paper.

The guest editor(s) should provide for a peer review of the papers. In addition, the members of the Editorial Committee of the Maastricht Journal will review all papers and reserve the right to provide comments or to reject papers.

Please send the relevant documents and/or any questions to the Executive Editors at: maastricht.journal@maastrichtuniversity.nl

 About the Maastricht Journal

The Maastricht Journal is a unique peer refereed journal publishing six issues per year, serving academics and legal practitioners who want to stay informed regarding developments and challenges within the Ius Commune Europaeum. The journal publishes articles, case notes, legal debates, legal developments, commentaries and book reviews by leading academics and professionals in the areas of European and Comparative Law and covers areas of interest in both European Law and in the comparative laws of European states.

More Information: http://journals.sagepub.com/home/maa

Call for papers
Introducing the “European Family” Study on EU family law
2020 Annual Conference of the French Association for European Studies (AFEE) 11 and 12 June 2020
Polytechnic University of Hauts-de-France (Valenciennes)

Summary

Family law, with its civil law tradition, and strong roots in the national cultures of the Member States, does not normally fall within the scope of European law. However, it is no longer possible to argue that Family Law is outside European law entirely. There are many aspects of the family which are subject to European influence, to the point that the outlines of a “European family” are starting to emerge. Union law therefore contains a form of “special” family law which is shared between the Member States and supplements their national family laws. What are the sources and outlines of this special family law and what tools is the Union’s legal order using to construct it? How should this movement towards the Europeanisation of the family be regarded with respect to a civil and sociological approach to the family and the political and legal integration of the Union? And what is the future for the European family law which is being created? All these questions require collective research as part of a multidisciplinary study (the institutional and substantive law of the Union, civil family law, international private law, comparative law, sociology, history, political sciences etc.) on how this special law of the family is gradually becoming part of the Union’s legal order. A call for papers, supplemented by invitations to reputed speakers will bring researchers and practitioners from different disciplines together to throw new light on European family law. There will also be a competition for the best “Letter to the European family” involving proposing a European vision of the family, for junior researchers.

The Scientific Board
• Pr. Elsa Bernard, University of Lille elsa.bernard@univ-lille.fr
• Dr. Marie Cresp, University of Bordeaux marie.cresp@iut.u-bordeaux-montaigne.fr
• Dr. Marion Ho-Dac, Polytechnic University of Hauts-de-France marion.hodac@uphfr.fr

The Scientific Committee
• Pr. Elsa Bernard, University of Lille
• Dr. Marie Cresp, University of Bordeaux
• Pr. Marc Fallon, University of Louvain (UCLouvain)
• Pr. Geoffrey Willems, University of Louvain (UCLouvain)
• Dr. Marion Ho-Dac, Polytechnic University of Hauts-de-France (UPHF)
• Pr. Anastasia Illiopoulou, University of Créteil (UPEC)
• Pr. Sandrine Sana, University of Bordeaux, in delegation at University of French Polynesia

I. Argument
Firstly, the research is intended to highlight the European experience of Family Law and its substantive and private international law aspects. Union family law as a special law side-byside with the diversity of national family laws must then be identified. Secondly the existence of this special family law must be considered: its theoretical and political importance in the Union of today and its future in the Union of tomorrow. Will this special family law remain fragmented alongside the national laws of Member states or will it densify to offer European citizens and residents a common family law?
Two areas of study are recommended, which could be used as a benchmark by researchers by prioritising one of them in their papers.

1.UNDERSTANDING EU FAMILY LAW
As a rule, the family in its material dimension falls outside the scope of Union law because the civil law of the family is not subject to the European courts. Only the rules of international private law expressly enable European lawmakers to pass laws concerning “cross-border” family law (article 81 TFEU). These rules therefore exist for international separation matters and international property law of the family. However, over the years a development has gradually been seen and the basis for a substantive law of the family of a European origin has appeared.

1.1.Content
The aspects of European family law which are shared by the Member States therefore supplement the multiplicity of national laws. They play a role as a special law, which varies depending on its area of intervention (Freedom of Movements, European Civil Service, European Immigration Law, Social Law of the Union, International Private Law etc.).The aim is to present its content in a dynamic and comparative way, not only to gauge its extent and characteristics but also its degree of originality compared to the internal laws of the Member states.

1.2.Tools
The emergence of this special law of the Union, which is still fragmentary and dispersed, is the result of the combination of several factors which must be considered. There is a family dimension within Union law because it structures and regulates numerous aspects of the lives of people on a given territory. Thus the Union’s traditional areas of competence in economic matters affect the lives of Europeans. This influence has increased with the rapid growth in the freedom of movement of people and more globally, the European Area of Freedom, Security and Justice as well as with the growing influence of fundamental rights through the case law of the European Court of Human Rights and the recent application of the union’s Charter of Fundamental Rights. As a consequence, the tools used by the Union and its different players are contributing, day by day, to shaping the contours of this EU Family Law.

2. ASSESSING EU FAMILY LAW
European law only affects the family in a fragmented and dispersed way at the present time. European family law is therefore random, because its existence depends on the political choices made by the actors implementing European tools. It is also incomplete because it does not govern all the sociological and legal realities covering the concept and the law of the family. Finally, it is variable because its content differs depending on whether it concerns the family of a European citizen, of a citizen of a third-party state or of a worker, or the family considered from an international private law perspective, giving rise to questions about the relationship between the standards and methods inside the Union’s legal order.

2.1. Significance
The question of significance is then raised i.e. the usefulness, the need but also perhaps the effectiveness of this family law of the Union which is being constructed in the European area. Further clarification of the European conception of the family or families might also be required. The analysis of the significance of European family law will inevitably vary depending on which point of view is adopted: the point of view of national peoples, mobile European citizens, nationals of third-party states living in the Union or aspiring to live there, States or the Union …. Reconciling these points of view also enriches the considerations.

2.2. The future
The development of the family law of the Union in a quantitative (enlarging its area of intervention, relationships with States) and, perhaps above all, qualitative (coordination, harmonization, unification, rationalization, articulation) way would have a certain number of benefits. However, this development would inevitably come up against serious difficulties of a political and a technical nature. The research on the possible deepening of European family law would therefore be twofold: the prospective content of European family law, and its relationship with national family laws.

II. Methods of submission and publication
Legal researchers and practitioners interested in this research project are invited to send their contribution to the members of the Scientific Board (see email addresses above). Collective contributions from researchers in different specialities and/or from different legal cultures are particularly welcome.

Contributions must be in the form of a summary (a maximum of 10,000 characters, spaces included) written in French or English, presenting the chosen theme, the goals and interest of the contribution, the plan and main references (normative, bibliographic etc.) at the heart of the analysis. The contributions will be subject of a selection process by Scientific Committee after they have been anonymized by the Scientific Board.

The contribution may be accompanied by a quick presentation of the writer (maximum 3000 characters spaces included).

The papers will be published in the autumn of 2020.

Contributors are informed that written contributions must be written (in English or French) and sent to the members of the Scientific Board before the conference on 11 and 12 June. Writers will, if they wish, have a short time after the conference in which to make slight adjustments to their original contributions to incorporate new aspects highlighted by other presentations or during the debates.

III. Timetable
Submission of contributions: by 13 January 2020
Reply to contributors: week of 2 March 2020
Delivery of the written contribution: 28 May 2020
Conference dates: 11 and 12 June 2020
Delivery of the final contribution: 22 June 2020
Publication: Autumn 2020

IV. Junior researchers and the competition
Junior researchers are asked to examine the relationship between European law and the family from a new, critical and prospective stand point. The call for papers is therefore open to PhD students, doctors and post-docs under the same conditions.
There is also a competition for the best “Letter to the European Family”, where a short text (maximum 6000 characters including spaces), beginning with “Dear European family” and giving a European vision of the family will be proposed. At a time when the direction European construction should take is constantly being questioned, considerations about the European family could offer a path for political renewal for Europe. The best i.e. the most convincing letter will be read at the end of the conference, and the letter will be published in the conference papers.

The letters received will be submitted to the Scientific Committee for selection after they have been anonymised by the Scientific Board.

The same timetable (see above) applies to contributions to the conference and the same “junior” researcher can submit a contribution as well as a letter.

Appel à communication
Connaissez-vous la « famille européenne » ?
Étude du droit de la famille de l’Union européenne
* * * *
Congrès annuel 2020 de l’Association Française d’Études Européennes (AFEE) 11 & 12 juin 2020
Université Polytechnique Hauts-de-France (Valenciennes)

Résumé
Le droit de la famille, dans sa dimension civiliste, fortement ancrée dans les cultures nationales des États membres, est une matière qui ne relève pas en principe du droit de l’Union européenne. Pourtant, il n’est plus possible d’affirmer que la matière échappe dans son entier au droit de l’Union. De nombreux aspects de la famille sont sous influence européenne, au point que l’on voit se dessiner les contours d’une « famille européenne ». En ce sens, le droit de l’Union contient une forme de « droit spécial » de la famille, partagé par les États membres, qui complète les droits nationaux de la famille.

Quels sont les sources et les contours de ce droit spécial de la famille et quels outils mobilise l’ordre juridique de l’Union pour le construire ? Comment apprécier ce mouvement d’européanisation de la famille au regard tant d’une approche civiliste et sociologique de la famille, que du sens de l’intégration politique et juridique de l’Union ? Et au-delà, quel avenir imaginer pour ce droit européen de la famille en construction ?

Autant de questions qui nécessitent un travail de recherche collective permettant de conduire une réflexion pluridisciplinaire (droit institutionnel et matériel de l’Union, droit civil de la famille, droit international privé, droit comparé, sociologie, histoire, sciences politiques…) sur l’élaboration progressive de ce droit spécial de la famille dans l’ordre juridique de l’Union.

Un appel à communication, complété par l’invitation de personnalités reconnues, permettra de réunir des chercheurs et praticiens d’horizons divers, porteurs d’éclairages renouvelés et innovants en droit européen de la famille. Un concours de la meilleure « Lettre à la famille européenne » consistant à proposer une vision européenne de la famille sera, par ailleurs, ouvert aux jeunes chercheurs.

Direction scientifique
• Elsa Bernard, Professeure de droit public, Université de Lille elsa.bernard@univ-lille.fr
• Marie Cresp, Maître de conférences de droit privé, Université de Bordeaux marie.cresp@iut.u-bordeaux-montaigne.fr
• Marion Ho-Dac, Maître de conférences HDR de droit privé, Université Polytechnique Hauts-de-France marion.hodac@uphfr.fr

Comité scientifique
• Pr. Elsa Bernard, Université de Lille
• Dr. Marie Cresp, Université de Bordeaux
• Pr. Marc Fallon, Université de Louvain (UCLouvain)
• Pr. Geoffrey Willems, Université de Louvain (UCLouvain)
• Dr. Marion Ho-Dac, Université Polytechnique Hauts-de-France (UPHF)
• Pr. Anastasia Illiopoulou, Université de Créteil (UPEC)
• Pr. Sandrine Sana, Université de Bordeaux, en délégation à l’Université de Polynésie française

I. Argumentaire
La recherche vise, dans un premier temps, à mettre en lumière l’acquis européen en matière de droit de la famille, dans ses aspects de droit matériel comme de droit international privé. Le droit de la famille de l’Union, comme droit spécial, à côté de la diversité des droits nationaux de la famille, doit ainsi être identifié. Dans un second temps, c’est l’essence d’un tel droit spécial de la famille qu’il faudra questionner : sa signification théorique et politique dans l’Union d’aujourd’hui, autant que son devenir dans l’Union de demain. Ce droit spécial de la famille a-t-il vocation à demeurer fragmentaire à côté des droits nationaux des États membres ou, au contraire, à se densifier pour offrir aux citoyens et résidents européens un droit commun de la famille ?
Deux axes de réflexion sont suggérés pour mener à bien la recherche ; ils pourraient utilement servir de repère pour les chercheurs proposant une communication, en mentionnant l’axe dans lequel ils entendent s’inscrire prioritairement.

1. Appréhender
le droit de la famille de l’Union La famille, dans sa dimension matérielle, échappe, en principe, au droit de l’Union dans la mesure où le droit civil de la famille ne relève pas des compétences européennes. Seules les règles de droit international privé permettent explicitement aujourd’hui au législateur de l’Union d’adopter des textes relatifs au droit de la famille « transfrontière » (article 81 TFUE). De telles règles existent ainsi en matière de désunion internationale et de droit patrimonial international de la famille. Pourtant, au fil des années, un constat s’est peu à peu imposé : les prémices d’un droit matériel de la famille, de source européenne, sont apparues.

1.1. Contenu
Ces éléments de droit européen de la famille, partagés par les États membres, complètent ainsi la multiplicité des droits nationaux. Ils jouent le rôle d’un droit spécial, à géométrie variable selon ses domaines d’interventions (libertés de circulation, fonction publique de l’Union, droit européen de l’immigration, droit social de l’Union, droit international privé…). L’objectif est alors, dans une perspective dynamique et comparative, de présenter son contenu et de mesurer non seulement son étendue et ses caractéristiques, mais aussi son degré d’originalité par rapport aux droits internes des États membres.

1.2. Outils
L’apparition de ce droit spécial de l’Union, encore parcellaire et éclaté, s’explique par la combinaison de plusieurs facteurs qu’il est proposé d’étudier. Le droit de l’Union recèle en luimême une dimension familiale, en ce sens qu’il structure et règlemente de nombreux aspects de la vie des personnes sur un territoire donné. C’est ainsi, notamment, que les compétences traditionnelles de l’Union en matière économique ont rejailli sur la vie familiale des Européens. L’essor de la libre circulation des personnes et, plus globalement, de l’espace de liberté, de sécurité et de justice, n’a fait qu’accroître ce constat, de même que l’influence croissante des droits fondamentaux, à travers tant la jurisprudence de la Cour EDH que l’application plus récente de la Charte des droits fondamentaux de l’Union. Partant, les différents outils mis en œuvre par l’Union et ses différents acteurs contribuent, jour après jour, à façonner les contours de ce droit de la famille de l’Union.

2. Apprécier le droit de la famille de l’Union
La famille n’est, à ce jour, saisie par le droit de l’Union que de manière ponctuelle et fragmentée. Il en résulte que le droit européen de la famille est aléatoire : son existence dépend des choix politiques des acteurs mettant en œuvre les outils européens. Il est également incomplet puisqu’il ne régit pas l’intégralité des réalités sociologiques et juridiques que recouvrent respectivement la notion et le droit de la famille. Il est, enfin, à géométrie variable car le contenu donné à ce droit n’est pas le même selon qu’il s’agit de la famille du citoyen européen, du ressortissant d’État tiers ou du travailleur, ou encore de la famille appréhendée par les mécanismes de droit international privé… Il en résulte par là même un questionnement relatif à l’articulation des normes et des méthodes, en matière familiale, au sein de l’ordre juridique de l’Union.

2.1. Sens
Dans ce contexte, se pose la question du sens, c’est-à-dire de l’utilité, du besoin mais aussi peut-être de l’efficience, de ce droit de la famille de l’Union en construction dans l’espace européen. Pour y répondre, il pourrait être nécessaire de préciser davantage la conception européenne de la famille ou des familles. L’analyse du sens du droit européen de la famille variera nécessairement selon le point de vue adopté : celui des peuples nationaux, des citoyens européens mobiles, des ressortissants d’États tiers vivant dans l’Union ou aspirant à y vivre, des États ou encore de l’Union… La question de la conciliation de ces points de vue s’ajoute alors à la réflexion.

2.2. Devenir
L’évolution future du droit de la famille de l’Union dans un sens quantitatif (élargissement de son domaine d’intervention, rapports avec les États), et peut-être surtout qualitatif (coordination, harmonisation, unification, rationalisation, articulation…) présenterait un certain nombre d’avantages. Dans le même temps, une telle tendance ne manquerait pas de se heurter à de sérieuses difficultés d’abord politiques, puis techniques. S’agissant d’un possible approfondissement du droit européen de famille, la recherche serait double : le contenu prospectif de la matière et son articulation avec les droits nationaux de la famille.

II. Modalités de soumission et de publication
Les chercheurs et praticiens du droit intéressés par ce projet de recherche sont invités à envoyer leur proposition de contribution aux membres de la Direction scientifique (v. adresses e-mails mentionnées ci-dessus). Seront accueillies avec un intérêt particulier les contributions collectives proposées par deux ou trois chercheurs de spécialités et/ou de culture juridique différentes.

Les contributions prendront la forme d’un résumé (max. 10 000 caractères, espaces compris) rédigé en français ou en anglais, présentant le thème retenu, les objectifs et l’intérêt de la contribution, le plan envisagé et les principales références (normatives, bibliographiques…) au cœur de l’analyse.

Les contributions reçues feront l’objet d’une sélection par le Comité scientifique après avoir été anonymisées par la Direction scientifique.

L’envoi de la contribution pourra, à titre facultatif, être accompagné d’une rapide présentation de leur auteur (max. 3 000 caractères espaces compris).

Les actes du colloque sont destinés à être publiés à l’automne 2020.

L’attention des contributeurs est attirée sur le fait que les contributions écrites devront être rédigées (en anglais ou en français) et envoyées aux membres de la Direction scientifique avant le congrès des 11 et 12 juin. Un bref délai sera laissé aux auteurs à l’issue du congrès pour, s’ils le souhaitent, apporter de légères modifications à leur contribution originale afin d’intégrer des éléments nouveaux mis en lumière par d’autres présentations ou lors des débats.

III. Calendrier
Date limite d’envoi des propositions de contribution : 13 janvier 2020
Réponse aux intervenants : semaine du 2 mars 2020
Remise de la contribution écrite : 28 mai 2020
Dates du colloque : 11 et 12 juin 2020
Remise des contributions finales : 22 juin 2020
Publication : automne 2020

IV. Jeune doctrine et concours
La jeune doctrine est invitée à apporter un regard neuf, critique et prospectif sur les relations entre Union européenne et famille. L’appel à communication est ainsi ouvert, aux mêmes conditions (v. ci-dessus), aux doctorants, docteurs et post-doctorants.

Un concours de la meilleure « Lettre à la famille européenne » est également lancé. Il s’agit de proposer un texte court (max. 6000 signes, espaces compris) commençant par « Chère famille européenne », consistant à proposer une vision européenne de la famille. A l’heure où l’on ne cesse de s’interroger sur le sens de la construction européenne, penser la famille européenne pourrait offrir une voie de renouvellement politique pour l’Europe. Une lecture de la meilleure lettre, c’est-à-dire de la plus convaincante et originale, est prévue en clôture du colloque et la lettre sera publiée dans les actes du colloque.

Les lettres reçues seront soumises au processus de sélection par le Comité scientifique après avoir été anonymisées par la Direction scientifique.

Le même calendrier (v. ci-dessus) que pour les contributions au congrès s’applique et un même chercheur « jeune doctrine » peut proposer tout à la fois une contribution et une lettre.

Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India (NHAI) 2019 SCC OnLine SC 677

By- Mohak Kapoor

The recent decision of the apex court of Ssangyong Engineering & Construction Co. Ltd. v. NHAI, has led to three notable developments: (1) it clarifies the scope of the “public policy” ground for setting aside an award as amended by the Arbitration and Conciliation (Amendment) Act 2015, (2) affirms the  prospective applicability of the act and (3) adopts a peculiar approach towards recognition of minority decisions.

FACTS

The dispute arose out of a contract concerning the construction of a four-lane bypass on a National Highway in the State of Madhya Pradesh, that was entered into by the parties. Under the terms of the contract, the appellant, Ssangyong Engineering, was to be compensated for inflation in prices of the materials that were required for the project. The agreed method of compensation for inflated prices was the Wholesale Price Index (“WPI”) following 1993 – 1994 as the base year. However, by way of a circular, the National Highways Authority of India (“NHAI”) changed the WPI to follow 2004 – 2005 as the base year for calculating the inflated cost to the dismay of Ssangyong. Hence, leading to the said dispute. .

After the issue was not resolved, the dispute was referred to a three member arbitral tribunal. The majority award upheld the revision of WPI as being within the terms of the contract. The minority decision opined otherwise, and held that the revision was out of the scope the said contract. Due to this, Ssangyong challenged the award as being against public policy before Delhi High Court and upon the dismissal of the same, the matter was brought in front of the apex court by way of an appeal.

LEGAL FINDINGS 

The Supreme Court ruled on various issues that were discussed during the proceedings of the matter. The Court held that an award would be against justice and morality when it shocks the conscience of the court. However, the same would be determined on a case to case basis.

The apex court interpreted and discussed the principles stipulated under the New York convention. Under Para 54 of the judgement, the apex court has discussed the necessity of providing the party with the appropriate opportunity to review the evidence against them and the material is taken behind the back of a party, such an instance would lead to arising of grounds under section 34(2)(a)(iii) of the Arbitration and Conciliation (Amendment) Act, 2015. In this case, the SC applied the principles under the New York convention of due process to set aside an award on grounds that one of the parties was not given proper chance of hearing. The court held that if the award suffers from patent illegality, such an award has to be set aside.

However, this ground may be invoked if (a) no reasons are given for an award, (b) the view taken by an arbitrator is an impossible view while construing a contract, (c) an arbitrator decides questions beyond a contract or his terms of reference, and (d) if a perverse finding is arrived at based on no evidence, or overlooking vital evidence, or based on documents taken as evidence without notice of the parties.

Today UNICEF is celebrating the 30th anniversary of the UN Convention of 20 November of 1989 on the Rights of the Child (UN Convention) with many events worldwide. While it is not a private international law instrument per se, many of the modern family law Conventions of the Hague Conference on Private International Law (HCCH) give effect to several human rights contained therein. For example, the HCCH Abduction Convention gives effect to Articles 10(2) and 11 of the UN Convention and the HCCH Intercountry Adoption Convention does the same with regard to Article 21 of the UN Convention. Another Hague Convention that contributes to this undertaking is the HCCH Protection of Children Convention.

Others are also joining in the celebrations, such as the European Parliament.

PAX Moot is a specialized moot court competition focused on Transnational Law and Private International Law issues. In this competition, participants will be able to learn and apply first-hand the complexities and nuances of how international Conventions and Regulations interact in the context of globalization. Without pleading on the merits of the case, PAX Moot participants will be given a case geared towards jurisdictional and choice of law disputes. Clear goals will be given to each team as to which preliminary ruling they will be striving to achieve, which will form the primary contention of the moot.

The moot court competition comprises a written round and oral round. The oral round will be scheduled as a 2 full-day event on 27-29 May 2020. The first day of the competition (general rounds) will be held at the University of Antwerp. On the second day, the participating teams will be invited to the EU Commission in Brussels, where the semi-finals and final rounds will be held.  Registration will open on 13 January 2020, and the case will be published at around the same time. The Registration fee is set at 100 Euros per Team.

The organisers, thanks to the JUDGTRUST project co-funded by the European Commission, are able to offer some financial support covering transportation and accommodation costs relating to the oral round for a number of participating teams.

For further information please visit www.paxmoot.com. or email us at info@paxmoot.com.

Sincerely,

PAX Moot Team

The Max Planck Institute Luxembourg is currently recruiting new members for its team. Two types of positions are currently open:

I. Research Fellow in EU and Comparative Procedural Law (PhD candidate)

The Max Planck Institute Luxembourg would like to appoint highly qualified candidates for two open positions as Research Fellow (PhD candidate) for the Research Department of European and Comparative Procedural Law

• Fixed-term contract for 24 months, a contract extension is possible, 40 hrs/week

Your tasks

The Research Fellow will conduct legal research (contribution to common research projects and own publications), particularly in the field of European and Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute and in partnership with international collaborators.

The successful candidate will have the opportunity to contribute to the development of the Department of European and Comparative Procedural Law led by Prof. Burkhard Hess and, in parallel, work on her/his PhD project.

The Research Fellow is expected to write her/his PhD thesis and perform the major part of her/his PhD research work in the premises of the Institute in Luxembourg, but also in close collaboration with her/his external supervisor and with the university or institution delivering her/his PhD diploma. Supervision of the PhD-thesis by Prof. Burkhard Hess will also be possible.

Your profile

The applicants are required to have obtained at least a Master degree in Law with outstanding results and to have a deep knowledge of domestic and EU procedural law. According to the academic grades already received, candidates must rank within the top 5-10%.

The successful candidate should demonstrate a great interest and curiosity for fundamental research and have a high potential to develop excellence in academic research. Proficiency in English is compulsory (written and oral); further language skills (in French and German notably) are an advantage.

Documents required

Documents required: a detailed CV incl. list of publications; copies of academic records; a PhD project description of no more than 1-2 pages with the name of the foreseen PhD supervisor and the name of the institution awarding the PhD certificate; the name and contact details of two referees.

Please apply online until 31 December 2019.

Contact: recruitment@mpi.lu

II. Senior Research Fellow in Procedural Law (Postdoc)

The Max Planck Institute Luxembourg would like to appoint a highly qualified candidate for one open position as Senior Research Fellow for the Research Department of European and Comparative Procedural Law.

• Fixed-term contract for 36 months, a contract extension is possible, 40 hrs/week

Your tasks

The Senior Research Fellow will conduct postdoctoral research (own publications and contribution to common research projects), in the field of Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute and in partnership with international collaborators.

The position is open to candidates interested in acquiring a postdoctoral academic qualification in the form of a postdoctoral thesis (or a German Habilitation) or other publications. Teaching at law faculties is accepted.

Your profile

Applicants must have earned a degree in law and hold a PhD degree by the time they join the MPI, preferably in a topic falling within the scope of Procedural and/or Civil Law. The successful candidate shall possess a strong interest and aptitude for legal research and have a high potential to develop excellence in academic research.

Her/his CV must portray a consolidated background in Procedural and/or Civil Law. Prior publications in this field of the law shall be highly regarded in the selection process. A solid background in German law will be positively considered. Full proficiency in English (and other foreign languages) is compulsory (written and oral).

Documents required

Documents required: detailed CV incl. list of publications, one to two own legal manuscripts with no more than approx. 50 pages in total, such as one chapter of the PhD thesis or a scholarly paper; a research project description of no more than 1-2 pages; the name and contact details of two referees.

Please apply online until 30 November 2019

Contact: recruitment@mpi.lu

For additional information on all the positions listed, see here.

The Max Planck Institute Luxembourg is an equal opportunity employer.

Written by Mayela Celis

The sixth meeting of the Experts’ Group on Parentage / Surrogacy took place early November in The Hague, the Netherlands, and focused on proposing provisions for developing two instruments:

• a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
• a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement.

As indicated in the HCCH news item, the Experts’ Group also discussed the feasibility of making provisions in relation to applicable law rules and public documents.

At the outset, experts underlined “the pressing need for common internationally-agreed solutions to avoid limping legal parentage. The aim of any future instrument would be to provide predictability, certainty and continuity of legal parentage in international situations for all individual concerned, taking into account their rights, the United Nations Convention on the Rights of the Child and in particular the best interests of the child.”

The Group studied both indirect grounds of jurisdiction (such as the child’s habitual residence) and grounds for refusal of recognition (such as public policy and providing the child with an opportunity to be heard, which seems to me of paramount importance). Other Private International Law techniques were also studied such as applicable law, a presumption of validity of legal parentage recorded in a public instrument issued by a designated competent authority, and direct grounds of jurisdiction.

In particular, to facilitate the recognition of foreign judgments on legal parentage in international surrogacy arrangements, “the Group discussed the possibility of certification (for example, by way of a model form) to verify that conditions under the Protocol have been met.” There was no consensus on who should provide this certification in the State of origin.

Given the controversial nature of international surrogacy arrangements, the Group stressed that any future protocol on this issue should not be understood as supporting or opposing surrogacy. The question of course remains whether States would be willing to join such an instrument and whether the international act of consenting to be bound by such an instrument on the international plane would signal a positive or negative approach to surrogacy arrangements by a specific State (and possibly result in a potential imbalance between national and international surrogacy arrangements i.e. the former being refused effect and the latter being recognised). The issue of domestic surrogacy arrangements still needs to be explored further by the Group (see para No 26 of the Report).

Moreover, an important feature of the work is the future relationship between the two draft instruments. In this regard, the Group noted that “In principle, the Group favoured an approach whereby States could choose to become a party to both instruments or only one of them. Some Experts proposed that consideration be given to possible mechanisms to serve as a bridge between the two instruments. Experts agreed that, at this time, the Group should continue its work by considering the draft instruments in parallel.”

The Group will continue its work on these issues and will report to the governance body of the Hague Conference (HCCH) in March 2022 so that this body can make a final decision on whether to proceed with this project.

The Report of the Experts’ Group is available here.

The HCCH news item is available here.