EAPIL blog

On 31 May 2023, the European Commission has proposed new rules aimed to ensure that the protection of adults is maintained in cross-border cases, and that their right to individual autonomy, including the freedom to make their own choices as regards their person and future arrangements is respected when they move within the EU.

The proposals, based on Article 81(2) TFEU, cover adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their own interests (e.g., due to an age-related disease).

Specifically, In the context of a growing cross-border mobility of people in the EU, this gives rise to numerous challenges. For instance, individuals concerned or their representatives may need to manage assets or real estate in another country, seek medical care abroad, or relocate to a different EU-country. In such cross-border situations, they often face complex and sometimes conflicting laws of Member States, leading to legal uncertainty and lengthy proceedings.

The proposed Regulation, which is meant to apply 18 months after its adoption, introduces a streamlined set of rules that will apply within the EU, in particular to establish which court has jurisdiction, which law is applicable, under what conditions a foreign measure or foreign powers of representation should be given effect and how authorities can cooperate. It also proposes a set of practical tools, including the introduction of a European Certificate of Representation, which will make it easier for representatives to prove their powers in another Member State.

The proposal for a Council Decision provides for a uniform legal framework for protecting adults involving non-EU countries. It obliges all Member States to become or remain parties to the 2000 Protection of Adults Convention in the interest of the Unione. Once the Decision is adopted, the Member States that are not yet party to the Convention will have 2 years to join it. Actually, some Member States have already launched their own ratification process, with the latest to announce (or re-announce) such a move being Italy, just a few days ago.

The approach underlying the package – in short, ensuring that the Hague Adults Convention enters into force for all Member States, and adopting a Regulation aimed to strengthen the operation of the Convention in the relations between Member States – reflects the suggestions that were put forward, inter alia, by the European Law Institute and the European Association of Private International Law, notably through a position paper issued in April last year.

Further analysis of the two proposals will be provided through this blog in the coming weeks.

On 10 May 2023, UNIDROIT adopted the Principles on Digital Assets and Private Law. The Principles contain recommendations to national legislators on how to deal with the private law issues raised by digital assets, such as cryptocurrencies or tokens. The final text can be found here.

Principle 5 concerns the conflict of laws. A previous draft and online consultation by UNIDROIT (see this blogpost) led the European Association of Private International Law to create a Working Group on the Law Applicable to Digital Assets, which has provided special input on this provision. Some of the Working Group’s suggestions are reflected in the final version, which reads:

Principle 5: Applicable law

(1) Subject to paragraph (2), proprietary issues in respect of a digital asset are governed by:

(a) the domestic law of the State expressly specified in the digital asset, and those Principles (if any) expressly specified in the digital asset; or, failing that,

(b) the domestic law of the State expressly specified in the system on which the digital asset is recorded, and those Principles (if any) expressly specified in the system on which the digital asset is recorded; or, failing that,

(c) in relation to a digital asset of which there is an issuer, including digital assets of the same description of which there is an issuer, the domestic law of the State where the issuer has its statutory seat, provided that its statutory seat is readily ascertainable by the public; or

(d) if none of the above sub-paragraphs applies:

OPTION A:

(i) those aspects or provisions of the law of the forum State as specified by that State;

(ii) to the extent not addressed by sub-paragraph (d)(i), those Principles as specified by the forum State;

(iii) to the extent not addressed by sub-paragraphs (d)(i) or (d)(ii), the law applicable by virtue of the rules of private international law of the forum State.

OPTION B:

(i) those Principles as specified by the forum State;

(ii) to the extent not addressed by sub-paragraph (d)(i), the law applicable by virtue of the rules of private international law of the forum State.

(2) In the interpretation and application of paragraph (1), regard is to be had to the following:

(a) proprietary issues in respect of digital assets, and in particular their acquisition and disposition, are always a matter of law;

(b) in determining whether the applicable law is specified in a digital asset, or in a system on which the digital asset is recorded, consideration should be given to records attached to, or associated with, the digital asset, or the system, if such records are readily available for review by persons dealing with the relevant digital asset;

(c) by transferring, acquiring, or otherwise dealing with a digital asset a person consents to the law applicable under paragraph (1)(a), (1)(b) or (1)(c);

(d) the law applicable under paragraph (1) applies to all digital assets of the same description;

(e) if, after a digital asset is first issued or created, the applicable law changes by operation of paragraph (1)(a), (1)(b) or (1)(c), proprietary rights in the digital asset that have been established before that change are not affected by it;

(f) the ‘issuer’ referred to in paragraph (1)(c) means a legal person:

(i) who put the digital asset, or digital assets of the same description, in the stream of commerce for value; and

(ii) who, in a way that is readily ascertainable by the public,

(A) identifies itself as a named person;

(B) identifies its statutory seat; and

(C) identifies itself as the person who put the digital asset, or digital assets of the same description, into the stream of commerce for value.

(3) The law applicable to the issues addressed in Principles 10 to 13, including whether an agreement is a custody agreement, is the domestic law of the State expressly specified in that agreement as the law that governs the agreement, or if the agreement expressly provides that another law is applicable to all such issues, that other law.

(4) Paragraphs (1) and (2) are subject to paragraph (3).

(5) Other law applies to determine:

(a) the law applicable to the third-party effectiveness of a security right in a digital asset made effective against third parties by a method other than control;

(b) the law applicable to determine the priority between conflicting security rights made effective against third parties by a method other than control.

(6) Notwithstanding the opening of an insolvency-related proceeding and subject to paragraph (7), the law applicable in accordance with this Principle governs all proprietary issues in respect of digital assets with regard to any event that has occurred before the opening of that insolvency related proceeding.

(7) Paragraph (6) does not affect the application of any substantive or procedural rule of law applicable by virtue of an insolvency-related proceeding, such as any rule relating to:

(a) the ranking of categories of claims;

(b) the avoidance of a transaction as a preference or a transfer in fraud of creditors;

(c) the enforcement of rights to an asset that is under the control or supervision of the insolvency representative.

As one can see, the Principle is quite long and complex.

The starting point is that the law applicable to a digital asset may be chosen either in the digital asset itself (Principle 5(1)(a)) or in the system in which the digital asset is recorded (Principle 5(1)(b)). Thus, precedence is given to the principle of party autonomy. This remarkably resembles the recently adopted sec. 12-107 US Uniform Commercial Code (UCC).

In the absence of a choice of law, the law of the statutory seat of the issuer of the digital asset shall apply, provided that this seat is readily ascertainable to the public (Principle 5(1)(c)). This was one of the key proposals of the EA PIL Working Group. Yet the Principles define the issuer as the person who has put the asset “in the stream of commerce for value” and has identified itself as such as well as its statutory seat (Principle 5(2)(f)). This considerably reduces the provision’s significance. It would, for instance, not apply to those who distribute their assets via airdrop or those who choose not to identify their statutory seat.

If none of these rules apply, the Principles give the national legislator two options: Under Option A, it can submit digital assets to special rules of its national law, to be supplemented by the UNIDROIT Principles. Under Option B, it can directly refer to the UNIDROIT Principles as governing law. In both cases, any remaining gaps will be filled by the law that is applicable according to the conflict-of-laws rules of the forum state.

This latter technique, which effectively substitutes the law of the forum for the search for an applicable law, is known in French law as a substantive rule of PIL (règle materielle de droit international privé). It provides a simple solution to the conflict-of-laws conundrum. That the Principles suggest themselves as applicable law is novel, but well understandable given their goal of legal harmonisation.

Less harmonisation is the default rule, which refers to the conflict-of-laws rules of the forum. No indication whatsoever is given what these conflicts rules should look like. One might fear that this will lead to divergence between national laws. It is to be hoped that they can be overcome by the Joint Project of the Hague Conference on Private International Law and UNIDROIT on Digital Assets and Token, which was recently announced.

— Thanks to Felix Krysa and Amy Held for contributing to this post.

In June 2022, this blog posted about a joint webinar between the Singapore-based Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) on the Choice-of-Court and Judgments Conventions. The two organizations return this year with their third joint session, this time on the 1965 Service Convention. ABLI has been engaging in work related to judgments recognition and enforcement in Asia for some time.

Titled Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention, the webinar will take place on 27 June 2023 between 4 to 5:10pm (Singapore time) or 10 to 11:10am (CEST), and is expected to discuss, among others, the actual operation of the Service Convention in practice, how the Service Convention works with the other HCCH Conventions for cross-border dispute resolution, and Singapore’s accession to and upcoming implementation of the Service Convention.

Invited speakers include Sara Chisholm-Batten (Partner, Michelmores LLP), Melissa Ford (Secretary, HCCH), Delphia Lim (2Director, International Legal Division, Ministry of Law, Singapore), Professor Yeo Tiong Min (Singapore Management University), and Professor Yun Zhao (University of Hong Kong and Representative of Regional Office for Asia and the Pacific, HCCH).

For more information or to register, click here. Queries about the webinar can be directed to ABLI at info@abli.asia.

On 17 May 2023, the CJEU delivered its judgment in Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions (FGTI) v. Victoria Seguros SA (Case C‑264/22).

This is a case on the delineation of the respective scopes of the law governing torts and the law governing subrogation. The answer given by the Court seems obvious, and one wonders why the question was asked in the first place, at least in such terms.

One interesting issue (possibly the only one) is whether the existence of a French judgment could have changed the answer of the Court, but the question was not asked.

Background

On 4 August 2010, while swimming and snorkelling in the sea off the beach at Alvor (Portugal), a person of French nationality was struck by the propeller of a boat registered in Portugal and suffered serious physical injuries.

The victim brought a claim for compensation in France against Fonds de garantie des victimes des actes de terrorisme et d’autres infractions (FGTI), a public fund which can compensate victims of certain torts. After compensating victims, FGTI is subrogated in their rights that it can exercise against tortfeasors.

FGTI settled in 2014. The settlement was approved by a French court, and FGTI paid the victim in April 2014, which triggered the subrogation.

At the end of November 2016, FGTI brought proceedings against Victoria Seguros, the insurance company of the alleged tortfeasor, in Portuguese courts.

Victoria Seguros argued that the claim brought by FGTI was governed by Portuguese law and thus time-barred. FGTI replied that French law applied and that the claim was not time-barred.

Lex loci delicti or lex subrogationis?

The issue before the court was whether the time limit was governed by the law of the tort or the law governing the subrogation.

Victoria Seguros argued that the law of the tort applied. As the damage was suffered in Portugal, it was thus Portuguese law (Rome II Regulation, Article 4), and the starting point of the limitation period was the day of the accident, i.e. 10 August 2010. Under Portuguese law, the applicable time limit was 3 years.

FGTI argued that the law of the subrogation applied (Rome II Regulation, art. 19). As the duty of the Fund arose under French law, this was French law, which provides for a 10 year limitation period starting in 2014.

Article 19 of the Rome II Regulation reads:

Where a person (the creditor) has a non-contractual claim upon another (the debtor), and a third person has a duty to satisfy the creditor, or has in fact satisfied the creditor in discharge of that duty, the law which governs the third person’s duty to satisfy the creditor shall determine whether, and the extent to which, the third person is entitled to exercise against the debtor the rights which the creditor had against the debtor under the law governing their relationship.

This provision establishes in complex terms a pretty simple distinction. The law governing the obligation of a person (here, the Fund) to compensate a victim determines whether this person is subrogated in the rights of this victim, and to which extent (for instance, only to the extent of the actual payment made to that victim). But the result of the subrogation is clearly to transfer to the Fund the rights of the victims. Subrogation does not establish new rights. It merely transfers existing rights from one person (the victim) to another (here the Fund).

Thus, the answer to the question referred to the CJEU seemed pretty obvious, and one can understand that no opinion of an Advocate General was requested. FGTI was exercising the victim’s rights against the (alleged) tortfeasor. These rights were governed by the lex loci delicti, and as clarified by Article 15, this included the limitation period for exercising those rights.

This is what the CJEU rules:

Article 4(1), Article 15(h) and Article 19 of Regulation No 864/2007 must be interpreted as meaning that the law which governs the action of a third party subrogated to the rights of an injured party against the person who caused the damage and which determines, in particular, the rules on limitation in respect of that action is, in principle, that of the country in which that damage occurs.

The Court offers quite an impressive number of reasons to justify such an obvious solution.

The French Judgment

In Portuguese courts, FGTI argued that French law provides “for a limitation period of 10 years from the date of the judicial decision at issue, which, in the present case, was made in March 2014“.

It is difficult to assess this argument without any further information.

There is no doubt that there is no special time limit for subrogation under French law. The French supreme court rules regularly that subrogation does not trigger any new time limit, and that it is always the time limit applicable to the right of the victim which applies, which is of 10 years for personal injury cases, starting on the date of the damage. Maybe this is the rule FGTI relied upon (though the starting point should not have been the 2014 judgment then).

There is, however, a special time limit of 10 years applicable to the enforcement of judgments.  In this case, FGTI referred to a time limit starting on the day of the French judgment approving the settlement, i.e. March 2014.

From a PIL perspective, this raises the issue of whether this judgment could have been the basis for an action in Portugal. Clearly, the insurer of the alleged tortfeasor was not a party to the French proceedings, and the French judgment had not ruled on whether the alleged tortfeasor was liable. But maybe an argument could have been made that the judgment could be recognised in Portugal to the extent that it might have declared that FGTI was subrogated (I do not know that it did). From the perspective of Portugal, it could then have raised the issue of whether a new right was created by the judgment (novatio), or whether Portugal would still have recognised the pre-existing right of the victim.

Registration is open for the 9th Journal of Private International Law Conference.

The conference will be held on 3 to 5 August 2023 at the Yong Pung How School of Law at the Singapore Management University. The keynote address will be delivered by Philip Jeyaretnam, President of the Singapore International Commercial Court.

The deadline for speakers to register is 30 May 2023. The deadline for other registrants is 25 June 2023.

Registration is complimentary for speakers, Journal of Private International Law editorial board members and SMU faculty, staff and students. Preferential rates apply for academics, government officials, SMU alumni and non-SMU students – register with your institutional e-mail to enjoy the preferential rate.

More information, including the draft programme and link to register, can be found here.

A Summer School on Cross-border litigation and international arbitration will take place between 17 and 22 July 2023 both on-site at the Ravenna Campus of the University of Bologna and on-line, under the direction of Michele Angelo Lupoi (University of Bologna) and Marco Farina (LUISS, Rome).

The course will address a broad range of issues relating to transnational litigation, as they arise in contexts as diverse as climate change litigation, commercial and maritime litigation, and family and succession disputes. International arbitration will also be covered.

The lecturers include Apostolos Anthimos, Giovanni Chiapponi, Elena D’Alessandro, David Estrin, Francesca Ferrari, Chris Helmer, Albert Henke, Emma Roberts, Marco Torsello, Stefano Alberto Villata, and Anna Wysocka-Bar.

The Summer School is aimed at law students as well as law graduates and practitioners.

Registrations are open until 6 July 2023. Further information are found here.

Hanoch Dagan (Tel Aviv University) and Sagi Peari (University of Western Australia) have posted on Choice of Law Meets Private Law Theory on SSRN.

Choice of law can, and often should, be an important feature of an autonomy-enhancing law as it expands the possible frameworks within which people can govern their affairs. The theory of choice of law we develop in this article builds on three core notions that dominate existing doctrine — states, party autonomy, and what we loosely refer to as ‘limitations’; but it releases choice of law from its subordination to private international law (or its inter-state equivalent in federal contexts). As a freestanding concept, choice of law belongs to private law’s empowering sections and thus participates in the obligation of liberal states to proactively promote people’s self-determination. This foundation of the field refines its three fundamental notions in a way that facilitates their peaceable cohabitation. It also recalibrates the boundaries of choice of law doctrine, clarifies its prescriptions, and offers grounds for its reform.

The paper is forthcoming in the Oxford Journal of Legal Studies.

The author of this post is Lydia Lundstedt, Senior Lecturer at the Stockholm University.

Under Swedish copyright law, broadcasting organizations are granted certain exclusive rights over their broadcasts (“signal right”). A signal right is one of the “related” or “neighboring” rights to copyright along with the rights of performers and producers of phonograms. Pursuant to Section 48 of the Swedish Act (1960:729) on Copyright in Literary and Artistic Works (Swedish Copyright Act) broadcasting organizations have an exclusive right to inter alia authorize the rebroadcast or a communication to the public in places accessible to the public against the payment of an entrance fee. This section incorporates Sweden’s obligations under Article 8(3) of the EU Rental and Lending Directive 2006/115/EC.

As a general rule, the Swedish Copyright Act applies in relation to other countries only on condition of reciprocity, or if it follows from an international treaty. Article 6(1) of the 1961 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) requires that Sweden grant national treatment to foreign broadcasting organizations if (1) they are established in another contracting State; or (2) if the broadcast was transmitted from a transmitter situated in another contracting State. This treaty obligation is incorporated into Section 12 of the Swedish International Copyright Regulation (1994:193) (International Copyright Regulation). The second point of attachment is formulated slightly differently in the International Copyright Regulation. It refers to “broadcasts which have been made” but does not include the words “from a transmitter situated”.

In a case before the Swedish courts, the question arose of the interpretation of this point of attachment when a satellite broadcasting chain of transmission spans several States. On 12 May 2023, the Swedish Supreme Court held that a satellite broadcast should normally be considered to take place in the state where the transmission of the programme-carrying signals was initiated.

Facts

Two persons, acting in their capacity as representatives for a company established in Sweden, were prosecuted for intentionally or through gross negligence, retransmitting television broadcasts produced by another company established in Qatar. The Swedish company had retransmitted via IPTV the Qatari company’s broadcasts to its own customers all over the world without obtaining the Qatari company’s consent. The Qatari company brought a civil claim for damages in connection with the prosecution. A prerequisite for finding the two persons guilty of the offense of unlawful retransmission and liable for damages was that the Qatari company’s broadcasts were eligible for protection under Swedish law.

It is important to distinguish the question whether the Qatari company was eligible for protection under Swedish law, which deals with the rights of foreigners, from the traditional private international law question concerning the applicable law. In this case, the applicable law question did not arise. First, nationals courts only apply their own criminal law so it is clear that Swedish law applies in a Swedish criminal proceeding. Second, with respect to the Qatari company’s claim for damages, which it a private law question, the Qatari company claimed protection for Sweden so Swedish law was applicable under Article 8(1) Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II). As said, however, the application of Swedish law was never questioned. Instead, the question was whether the Qatari company was eligible for protection under Swedish law.

Qatar was not a contracting state to the Rome Convention at the time that the broadcasts took place. Although the Qatari company produced its television programmes in Qatar, it sent the programme signals via fibre cable to a related company in France and then to the United Kingdom and Spain. Via uplink stations in the United Kingdom and Spain, the signals were sent to satellites to be received by the public in the Middle East and Northern Africa.

The Swedish Patent and Market Court (PMD) found that the Qatari company’s broadcasts were made “at least” in the United Kingdom and Spain, which are both contracting states to the Rome Convention. On appeal, however, the Patent and Market Court of Appeal (PMÖD) reversed and held that the broadcast took place only in Qatar. The Supreme Court affirmed the decision of the PMÖD.

Swedish Supreme Court

Article 3(f) of the Rome Convention defines broadcasting as “the transmission by wireless means for public reception of sounds or of images and sounds”. Although the Rome Convention was drafted before the time of satellite broadcasts, the Court stated that such broadcasts could nonetheless be considered to fall under its scope.

The Court then observed that section 61 a of the Copyright Act deals specifically with satellite broadcasting and localizes the “copyright relevant act” “in the country where the broadcasting organization, under its control and its responsibility, introduces the subject matter into an uninterrupted chain of communication to the satellite and from there down towards the earth.” Section 61 a implements Article 1(2)(b) of the EU Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (SatCab Directive). The Court noted that the aim of this rule is to enable a broadcasting company that uses other people’s protected subject matters, to easily identify for which Member State it needs to obtain a license. The Court pointed out that the application of this rule presupposes that the subject matter (e.g. a broadcast) is protected under the Copyright Act. The Court therefore observed that this rule “had no immediate significance for the assessment of whether the broadcast as such is protected by that Act”.

The Court observed that neither Article 6 of the Rome Convention nor section 12 of the International Copyright Regulation contain specific provisions on where a broadcast is deemed to take place when the chain of transmission spans several different states. The Court noted however that “in a related context”, the Court of Justice of the European Union (CJEU) held that customary technical activities to prepare signals for their introduction into a satellite communication uplink cannot be regarded as interruptions in the transmission in the meaning of Article 1(2) of the SatCab Directive (see Airfield and Canal Digitaal (C-431/09 and C-432/09).

The Court found that this approach was consistent with the text of the Rome Convention and the International Copyright Regulation. The Court stated therefore that in the case of a broadcast involving several intermediate technical steps, the broadcast “was transmitted” (within the meaning of the Rome Convention) and “was made” (within the meaning of the International Copyright Regulation) in the state where the transmission of the signals was initiated. The Court added that the fact that the chain of transmission includes elements which, individually, are not covered by the rules of the Rome Convention, e.g. because the signals at one stage are not transmitted by wireless means, does not preclude such a reading of the provisions.

The Court also found that this interpretation was in line with the aim of protecting broadcasting organizations against the unauthorized exploitation of their broadcasts. The Court reasoned that broadcasting companies make their primary investments in the state from which the broadcast is initially generated and using the state of uplink or where other intermediate technical steps are taken would not satisfy this aim to the same extent.

Thus, the Court held that the entire chain of transmission starting with the transmission of the signals via fibre cable from Qatar and ending with their reception on the ground to subscribers was one single broadcast which must be regarded as having been made in Qatar. This meant that the Qatari company was not eligible for protection under Swedish law and the prosecution against the two individuals for a violation of the Copyright Act and the Qatari company’s damage claim were rejected.

Analysis

It is a bit surprising that the Court first states that section 61 a of the Swedish Copyright Act and the SatCab Directive “had no immediate significance” for the question of whether a broadcast is eligible for protection but then applies the approach set out in the SatCab Directive to determine whether a broadcast is eligible for protection. It can be questioned whether the situation regulated in the SatCab Directive really can be said to be “a related context” as the SatCab Directive regulates a different situation than the Rome Convention and the International Copyright Regulation.

As noted above, the SatCab Directive deals with cross-border licensing of protected subject matter and Article 1(2)(b) localizes where a user is said to exploit another person’s protected subject matter when the subject matter is transmitted to a satellite from one Member State but received by the public on the ground in several other Member States. In contrast, Article 6 of the Rome Convention and the corresponding provision in the International Copyright Regulation deal with the protection of foreign broadcasters and lay down the conditions for affording national treatment to their signals.

Moreover, the SatCab Directive has a different aim than the Rome Convention and the International Copyright Regulation. The SatCab Diective aims to promote pan-European broadcasting by localizing the copyright relevant act in a single Member State while at the same time requiring a minimum level of harmonization to ensure that the protection level is sufficiently high in all Member States. This facilitates cross-border licensing because users of protected subject matters only need to clear the rights in one Member State as opposed to all Member States where the subject matters can be received. In line with this aim of avoiding the cumulative application of several national laws to one single act of broadcasting, normal technical procedures relating to the programme-carrying signals are not to be considered as interruptions to the chain of broadcasting (see recital 14 SatCab Directive).

In contrast, as the Court itself notes, the aim of the Rome Convention is to protect broadcasting organizations against the unauthorized exploitation of their broadcasts. To fulfil this aim, the Rome Convention contains alternative points of attachment (i.e. the broadcaster’s state of establishment or the state where a transmitter that transmits the broadcast is situated). It would be consistent with the aim of the Rome Convention to localize a broadcast in all states with which the broadcast has a significant connection such as a transmitter, or in a cascade-like fashion stopping at the first contracting state that has a significant connection to the broadcast.

It can be noted that the Court did not seem to place any emphasis on the wording “from a transmitter situated in another Contracting State” that appears in the Rome Convention, although not in the International Copyright Regulation. Normally, this point of attachment allows a broadcasting organization that is established outside a Rome contracting state to enjoy protection if its transmitter is situated in a contracting state. While a contracting state may declare that they will apply both points of attachment cumulatively, Sweden has not done so. Still, the practical effect of the ruling seems to require this as it is likely that signals will usually be initiated from the state where the broadcaster is established.

One can make an analogy with the Berne Convention that allows authors who are not nationals of a contracting state to the Berne Union to be eligible for protection under the Convention by publishing their works first in a contracting state to the Berne Union, or simultaneously in a state outside the Berne Union and in a state of the Berne Union. That said, one might view the right of foreign broadcasters in their signals as less deserving of protection than the right of authors in their works. Moreover, non-contracting states would not have any incentive to join the Rome Convention if their broadcasters could secure protection by sending their signal through contracting states.

A question could be raised whether the Court should have referred a question to the CJEU on the interpretation of the Rental and Lending Directive. As noted above, section 48 of the Swedish Copyright Act fulfills Sweden’s obligation under the Rental and Lending Directive to afford broadcasting organizations the exclusive right to authorize or prohibit the communication to the public of their broadcasts against payment of an entrance fee. While the Directive itself does not define who is considered to be a broadcasting organization eligible for protection under the Directive, the concept should be interpreted consistently with the EU’s international treaty obligations. See Recorded Artists Actors Performers (C-265/19). In this case, however, the relevant obligation was under the Rome Convention and the EU is not itself a contracting party.

Article 3 of the TRIPS Agreement, which is an international convention concluded by the EU, obligates the EU to accord national treatment to the nationals of other Members in respect of the rights provided under the Agreement. Article 14.3 TRIPS provides broadcasting organizations a signal right, albeit to a more limited extent than the Rome Convention. Importantly, Article 1.3 of TRIPS incorporates the criteria for eligibility for protection in the Rome Convention to determine who is eligible for protection under TRIPS. Thus, the question concerning the interpretation of Article 6 of the Rome Convention arguably falls indirectly within the CJEU’s adjudicative competence, notwithstanding that the EU is not itself a contracting party, when the right claimed is one that implements Article 14.3 TRIPS. This is because the CJEU may need to interpret the rules in Article 6 of the Rome Convention to establish the EU and its Member States’ obligations under TRIPS. Thus, it is possible that the CJEU will have the opportunity in the future to have its say about where a satellite broadcasting chain of transmission that spans several different states takes place for the purpose of determining its eligibility for protection under TRIPS.

As noted earlier on this blog, on 24 May 2023, from 6 pm to 8 pm CEST, the forth and last webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Steve Heylen, will deal with the following relations:  Authentic documents and
parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: A passport for parents and children? (Ilaria Pretelli).

Those wishing to attend have time until 23 May 2023 at noon to register. The registration form is available here.

Registered participants will receive the details to join the webinar by e-mail (please note the e-mails with these details occasionally end up in the spam folder).

The updated and final version of the program is available here.

On 30 June 2023, the second edition of the Austrian Private International Law Workshop will take place in Innsbruck. The organisers cordially invite all interested researchers and practitioners to participate and register via evip@uibk.ac.at. Participation is free of charge. The workshop will be conducted in German and will consist of two sessions, chaired by Florian Heindler and Andreas Schwartze, respectively.

Presentations will discuss, inter alia: Current trends in the case law of the CJEU on conflict of laws (Marlene Brosch, ECJ); The EU Succession Regulation and the Austrian Supreme Court – where it should have applied for a preliminary ruling (Gottfried Musger, Austrian Supreme Court); Parent in one country, parent in every country: The proposal for an EU Parenthood Regulation (Martina Melcher, University of Graz); International enforcement of legal rules on social networks (Brigitta Lurger, University of Graz); The corporation seat theory between connecting factor and domestic nexus (Chris Thomale, University of Vienna); Crypto assets in private international law (Matthias Lehmann, University of Vienna/Radboud University Nijmegen).

A forum chaired by Bernhard A. Koch (University of Innsbruck) and Simon Laimer (University of Innsbruck) on the the most pressing challenges for private international law in the coming years and decades will conclude the event.

The updated and final version of the program is available here.

This post was written by Carlos Santaló Goris (Lecturer at the European Institute of Public Administration in Luxembourg).

On 20 April 2023, the Court of Justice of the European Union (CJEU) rendered its second judgment on Regulation 655/2014, establishing a European Account Preservation Order (‘EAPO Regulation’). In C-291/21, Starkinvest, the Court assessed whether an EAPO could be used to secure a claim resulting from a penalty payment, and if so, under what conditions.  

Background of the Case

C-291/21, Starkinvest, has its roots in a 2016 judgment rendered by the Court of Appeals of Liège (Cour d’appel de Liège) rendered in favor of Starkinvest SRL ordering Soft Paris and Soft Paris Parties, ‘to cease all sales of their goods and services under the word mark SOFT PARIS in the Benelux countries’ (para. 18). The judgment established a periodic penalty payment in the event the order to cease sales was not respected.

In 2021, Starkinvest SRL applied for an EAPO to attach Soft Paris’ French bank accounts for € 86 694.22. Of that amount, € 85.000 corresponded to the penalty payments resulting from Soft Paris’ infringement of the order to cease the sale of goods. Starkinvest used the referred judgment rendered by the Court of Appeals of Liège (Cour d’appel de Liège) as the title to obtain the EAPO.

At this point, it should be noted that the regime to obtain an EAPO varies depending on whether the creditor has an enforceable judgment or not. All creditors have to prove that ‘there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult’ (Article 7(1) EAPO Regulation. This first prerequisite corresponds to the periculum in mora. Creditors without an enforceable judgment ‘shall also submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor’ (Article 7(2) EAPO Regulation). This second condition corresponds to another common prerequisite for obtaining a national interim measure, the fumus boni iuris.

For the Court of Appeals of Liège (Cour d’appel de Liège), it was not clear whether the judgment establishing the penalty payment but not specifying the amount the claim arising from that penalty payment was valid a judgment that would exempt creditors from satisfying the fumus boni iuris. In this regard, Belgian legislation does not require the prior quantification of the claim arising from a penalty payment to request a preservation order ‘provided that the decision ordering penalty payments is enforceable and has been serving’ (para. 23). Conversely, the Belgian court also acknowledges that Article 55 of the Brussels I bis Regulation establishes that ‘a judgment that ”orders a payment by way of a penalty” can only benefit from the simplified scheme of enforcement the amount of the payment has been finally determined by the court of origin.’ Having no answer to such inquiry, the Court of Appeal of Liège (Cour d’appel de Liège) decided to submit the following questions to the CJEU:

(1) Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a [judgment] requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of [Regulation No 655/2014]?

(2) Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of “judgment” in Article 4 of [Regulation No 655/2014] where there has been no final determination of the amount in accordance with Article 55 of [Regulation No 1215/2012]?

The CJEU’s Answer

In essence, the CJEU was asked whether the judgment that established the penalty payment was a valid judgment that would exempt the creditor from proving the fumus boni iuris. More concretely, whether or not the claim amount had to be specified in the judgment as a condition to consider the judgment a valid title. In this regard, neither Article 4(5), which contains the definition of judgment, nor Article 7(2), the provision on the fumus boni iuris, does not state anything about the quantification of the claim in the judgment (paras 42 – 43). Nonetheless, other provisions do so. Article 6 refers to the ‘amount specified in the judgment’, while Article 8(2)(g) states that creditors can apply for an EAPO in ‘the amount of the principal claim as specified in the judgment’ (paras 46 – 47). Therefore, a systematic interpretation suggests that the judgment would have to contain the precise amount of claim.

The CJEU found that the specification of the amount of the claim is also a guarantee to maintain an adequate balance between the creditor’s and debtor’s interests in the EAPO procedure (para. 50). If a judgment establishing the penalty payment without having specified the amount of the claim is considered a valid title to circumvent the fumus boni iuris, that would undermine the debtor’s position. The court’s examination of fumus boni iuris is both a condition for creditor to access the EAPO and a guarantee for the debtor against abusive applications when there is no title acknowledging the claim. When the amount of penalty payment is not quantified, courts should have the discretion to assess whether there is a basis for the amount the creditor requested the EAPO for. Interestingly, AG Szpunar added, in his opinion, that while the judgment establishing penalty payment would not constitute a valid title, it is not ‘is meaningless for the creditor’. Creditors could use it, along ‘with documents provided by a court official in which the court official declares the breaches of the prohibitory order’, to prove the fumus boni iuris (paras. 82 – 83). Creditors willing to secure a penalty payment through an EAPO can find a practical tip here.

Lastly, the CJEU addressed the enforcement regime of judgments ordering penalty payments under the Brussels I bis Regulation. In this regard, the Court clarified that even if the EAPO does not have an equivalent provision, that does not imply that the ‘intention of the EU legislature was to exclude penalty payments from the scope of that regulation’ (para. 55). Therefore, the EAPO could be used to secure penalty payments. However, the judgment ordering the penalty payment without quantifying the claim is insufficient to overcome the fumus boni iuris.

Overall Assessment of the Judgment

The main contribution of the C-291/21 judgment is that it shows that the EAPO can be used to secure penalty payments. In this regard, it aligned the EAPO Regulation with the Brussels I bis Regulation, which expressly acknowledges the possibility of recognizing and enforcing penalty payment judgments. Creditors can combine both instruments. While using the Brussels I bis Regulation to enforce the penalty payment, they can rely on the EAPO to secure its enforcement. Whether the EAPO can be used to secure a penalty payment might seem for many pretty obvious, the Cologne Higher Regional Court (Oberlandesgericht Köln) once rejected an EAPO request on the basis of a penalty payment under German law (Zwangsgeld), because it considered that such kind of claim fell outside the scope of the EAPO Regulation. The creditor requested a preliminary reference be submitted to CJEU, but the German court rejected such a possibility. This case came to the author’s knowledge through an interview with a German lawyer in the empirical conducted in the context of his Ph.D. dissertation.

This decision also sheds light on the autonomous notion of judgment under the EAPO Regulation (in this regard, see also Tobias Lutzi’s post on this judgment), more precisely, concerning the prerequisite that the claim has to be quantified.

As in C-555/18, the first CJEU judgment on the EAPO, the Court’s reasoning of this second judgment again pivots on the need to ‘strike an appropriate balance between the interest of the creditor in obtaining an Order and the interest of the debtor in preventing abuse of the Order’ (Recital 14). This is a recurring hermeneutic tool used by the CJEU when it comes to interpreting the EAPO and the EPO. It seems that the CJEU’s approach is to counterweight the pro-creditore spirit that underpinned the creation of the EAPO and EPO, reinforcing the debtor’s position.

At the request of the Committee on Petitions of the European Parliament, the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs commissioned  a study titled Cross-Border Legal Recognition of Parenthood in the EU. It is available here.

Authored by Alina Tryfonidou (Neapolis University of Pafos), the study examines the problem of non-recognition of parenthood between Member States and its causes, the current legal framework and the (partial) solutions it offers to this problem, the background of the Commission proposal for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, and the text of the proposal. It also provides a critical assessment of the proposal and issues policy recommendations for its improvement.

A group of German scholars, consisting of Christine Budzikiewicz (University of Marburg), Konrad Duden (University of Leipzig), Anatol Dutta (Ludwig Maximilian University of Munich), Tobias Helms (University of Marburg) and Claudia Mayer (University of Regensburg), collectively the Marburg Group, reviewed the European Commission’s proposal of 7 December 2022 for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood.

The Group, while welcoming the initiative of the Commission issued a paper to suggest some fundamental changes, apart from technical amendments.

The Group’s comment can be found here.

Ralf Michaels (Max Planck Institute Hamburg) has posted Private International Law and the Legal Pluriverse on SSRN.

The abstract reads:

Private international law responds to the plurality of existing normative orders, and at the same time, as domestic law, it partakes in that plurality. As a consequence, private international law does not overcome legal plurality, nor does it provide a metanormativity shared between the regimes; it merely adds a second level to the plurality of substantive laws and conflicts regimes. This makes a legal ontology necessary that avoids oneness and embraces plurality. The chapter suggests pluriversality as such an ontology. Drawing on different theories – Carl Schmitt, William James, and decolonial theory – such an ontology is developed and analyzed. Private international law is not an add-on in such an ontology; instead it is a constitutive element.​

The paper is forthcoming in Philosophical Foundations of Private International Law, OUP, Roxana Banu, Michael Green, Ralf Michaels, eds.

As noted earlier on this blog, on 17 May 2023, from 6 pm to 8 pm CEST, the third webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Nadia Rusinova, will deal with the following relations: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Tryfonidou), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi).

Those wishing to attend have time until 16 May 2023 at noon to register. The registration form is available here.

Registered participants will receive the details to join the webinar by e-mail (please note the e-mails with these details occasionally end up in the spam folder).

The form, then, will remain open for registration for the last webinar of the series.

The updated and final version of the program is available here.

The first issue of 2023 of the Journal of Private International Law is out. It contains the following articles:

David McClean, The transfer of proceedings in international family cases

There is general agreement that jurisdiction over issues concerning children or vulnerable adults should lie with the court of their habitual residence. There are particular circumstances in which that is not wholly satisfactory and four international instruments have provided, using rather different language, the possibility of jurisdiction being transferred to a court better placed to decide the case. They include Brussels IIb applying in EU Member States since August 2022 and the Hague Child Protection Convention of growing importance in the UK. This paper examines that transfer possibility with a detailed comparison of the relevant instruments.

Matthias Lehmann, Incremental international law-making: The Hague Jurisdiction Project in context

The Hague Conference on Private International Law is currently working towards a new instrument on jurisdiction and parallel proceedings. But critics ask if we need another instrument, in addition to the Hague Choice of Court Convention of 2005 and the Hague Judgments Convention of 2019. This article gives reasoned arguments for a “yes” and explores possibilities for the substantive content of the new instrument. It does so by looking back and contextualising the new instrument with regard to the two preceding Conventions, and by looking forward to what is still to come, ie the interpretation and application of all three instruments. On this basis, it argues that a holistic approach is required to avoid the risk of a piecemeal result. Only such a holistic approach will avoid contradictions between the three instruments and allow for their coherent interpretation. If this advice is heeded, incremental law-making may well become a success and perhaps even a model for future negotiations.

Ben Köhler, Blaming the middleman? Refusal of relief for mediator misconduct under the Singapore Convention

The discussion surrounding the Singapore Convention on Mediation 2018 has gathered steam. In particular, the refusal of enforcement based on mediator misconduct as prescribed in Article 5(1)(e) and (f) has been the focus of debate and is widely perceived to be the Convention’s Achilles heel. These two provisions, already highly controversial in the drafting process, have been criticised as ill-suited to a voluntary process and likely to provoke ancillary dispute. This article defends these grounds for refusal, arguing that they play an indispensable role in guaranteeing the legitimacy of mediated settlements enforced under the Convention. It addresses some of the interpretative challenges within Article 5(1)(e) and (f) before discussing the tension between the provisions on mediator misconduct and the confidentiality of the mediation. The article then offers some guidance on how parties may limit the effects of the provisions, concluding with a brief outlook for the future.

Abubakri Yekini, The effectiveness of foreign jurisdiction clauses in Nigeria: an empirical inquiry

Business entities do not often include terms in commercial agreements unless those terms are relevant and are designed to maximise the gains of the parties to the agreement. To realise their reasonable and legitimate expectations, they expect that contractual terms and promises would be respected by the parties and courts. There is a growing body of literature suggesting that Nigerian courts are not giving maximum effects to foreign jurisdiction clauses (FJC). What is largely missing from the scholarly contributions is that no one has worked out a principled solution to overcome this conundrum. This article significantly contributes to the existing literature through an empirical analysis of Nigerian appellate court decisions on FJCs with a view to gaining deeper insights into the attitude of Nigerian courts to FJCs. Compared to the US where the national average of enforcement is 74%, a 40% rate for Nigeria does not project Nigeria as a pro-business forum. This outlook can potentially disincentivise cross-border trade and commerce between Nigeria and the rest of the world. To address this problem, the paper proceeds by presenting a normative framework, built principally on economic and contract theories, for enforcing FJCs. As most of the cases are B2B transactions, the paper invites the courts to treat FJCs and arbitration clauses equally and to replace forum non conveniens considerations with a more principled approach which limits non-enforcement to overriding policy, and a strong cause that is defined by reasonableness and foreseeability.

Mohammed Mjed Kabry and Azam Ansari, The enforcement of jurisdiction agreements in Iran

Parties to a contract may designate the court or courts of a particular country to decide their disputes which have arisen or may arise from a particular legal relationship. Many countries give party autonomy its binding effect in selecting the competent court and enforcing jurisdiction agreements. There is complete silence in Iranian law regarding the enforcement of jurisdiction agreements. The current study examines the enforcement of jurisdiction agreements under Iranian law. This study investigates whether parties in international disputes can agree to confer jurisdiction to Iranian non-competent courts and whether they can agree to exclude the jurisdiction of competent Iranian courts in favour of foreign courts. The study contends that parties can agree to grant jurisdiction to Iran’s non-competent courts unless the excluded foreign court has exclusive jurisdiction to hear the dispute. On the other hand, parties may agree to exclude the jurisdiction of the competent Iranian courts in favour of foreign courts unless the Iranian courts assert exclusive jurisdiction over the dispute.

Alexander A. Kostin and Daria D. Kuraksa, International treaties on assistance in civil matters and their applicability to recognition of foreign judgments on the opening of insolvency proceedings (reflections regarding the Russian national and international experience)

The article examines the question of admissibility of recognition of foreign judgments on commencement of bankruptcy proceedings on the basis of international treaties on legal assistance. It examines the background of these international treaties, as well as the practice of their application in respect of this category of foreign judgments. The authors conclude that foreign court decisions on opening of insolvency (bankruptcy) proceedings should be regarded as “judgments in civil matters” for the purpose of the international treaties on legal assistance. This category of foreign judgments should be recognised on the basis of international treaties in the Russian Federation, despite the existing approach of Russian courts (including the Judgment of the Arbitrazh (Commercial) Court of the Ural District of 09.10.2019 in case No. A60-29115/2019).

In this post, Sandrine Brachotte presents her doctoral work on private international law and so-called “conflicts of worldviews”, which she undertook at Sciences Po Law School (Paris), in English, under the supervision of Horatia Muir Watt. The PhD Dissertation, entitled ‘The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion’, offers an alternative theory of party autonomy, public policy and international jurisdiction that aims to be more inclusive of postcolonial claims at the global level.

Introduction

This doctoral work connects the discipline of private international law with an intellectual movement that has found its way into several branches of law but remains marginal in this discipline, that is decolonial theory (called “decolonial legal studies” when focused on law). To put it in a nutshell, this movement calls for an alternative production of knowledge that would follow non-Western sources and processes. It also asks for the re-empowerment of non-Western ways of living and seeing the world, which are here called “worldviews”. It does not only target postcolonial contexts but aspires to be embraced at the global level. There, it does not demand that Western productions of knowledge and worldviews be replaced by their non-Western equivalents but instead that the latter be recognised as equal to the former. Such pluralisation requires departing from the ‘modern episteme of universalism’ to endorse the paradigm of pluriversality, i.e., to acknowledge that ‘several worlds, and not only the Western world, have world visions that they aspire to be universal’.

In this regard, the dissertation seeks to contribute to the decolonisation of private international law by proposing an alternative theory of several paramount concepts of the field, to make them more inclusive of non-Western worldviews. To do so, as further explained below, the PhD dissertation starts from three Western court cases involving postcolonial claims brought before Western state courts, to show that the latter are poorly addressed under conventional legal reasoning. The reason thereof is that the said claims relate to worldviews that conflict with the worldviews underlying Western state law – hence the expression “conflict of worldviews”.  Then, the dissertation links these conflicts of worldviews to the most relevant pillars of Western private international law.

The Case Studies: Religious Arbitration, Sacred Land and Faith-Based Politics

The decolonial approach does not only involve substantive requirements (simplistically summarised above) but also methodological requirements, which are to enable the researcher to think outside of the conventional legal framework (that is considered as reflecting Western worldviews). Therefore, the dissertation starts from cases that do not especially involve questions of private international law. What matters is that they involve postcolonial claims that challenge state law’s worldviews because they reflect postcolonial ways of living and understanding the world. More concretely:

(i) Jivraj v. Hashwani ([2011] UKSC 40) (hereafter “Jivraj”) confronts state law with a religious form of arbitration, i.e. Ismaili arbitration, where the collective interests of the Ismaili community are central to the resolution of the dispute, in line with the religious ethos. This conception of arbitration contrasts with the legal, “secular”, conception of arbitration, which is to reflect the materialistic and individual interests of the parties. This disparity justifies distinct understandings, in Ismaili arbitration and in “secular” arbitration respectively, of the fact to choose arbitration – a question that was at the heart of the Jivraj case. In “secular” arbitration, an arbitration clause reflects a choice limited to the specific contract or business relationship concerned, which is to better serve the interests of the parties than court litigation (which is the “by default” dispute resolution process). Differently, an arbitration clause in favour of Ismaili arbitration corresponds to the normal way to proceed in intra-Ismaili disputes. It reflects the parties’ Ismaili ethos, which is to solve disputes to safeguard the peace in the Ismaili community.

(ii) Ktunaxa v. British Columbia (2017 SCC 54) (hereafter “Ktunaxa”) confronts state law with Indigenous ways of living, especially the notion of sacred land, which is based on a conception of the land as a living thing that is the source of Indigenous spirituality. This conception can hardly be recognised within legal categories, including freedom of religion, which the Ktunaxa (an Indigenous People in Canada) claimed was violated by a ski resort project to be built on land sacred to them. Indeed, freedom of religion, like other legal categories, is grounded on a material conception of land, according to which the claim of a relationship with the land must be grounded on sovereignty or on private ownership. As a result, freedom of religion can lead to protecting a religious belief or practice, but not a sacred land, unless the believers have ownership thereof. However, under Indigenous ways of living, the right to private property of sacred land is a non-sense, since the land is “God” (who they often call “Mother Earth”).

(iii) SMUG v. Scott Lively (254 F. Supp. 3d 262 (D. Mass. 2017); No. 17-1593 (1st Cir. 2018)) (hereafter “SMUG”) confronts state law with the American Evangelical “anti-gay” propaganda in Africa, which constitutes a form of faith-based politics that places African LGBTQIA+  people in an even more vulnerable position. Yet, this phenomenon cannot be considered under the principle of state territorial jurisdiction and the doctrine of international comity that ground international jurisdiction in the United States (US). These legal concepts rely on the assumption that states govern society, not transnational economic or religious actors. Yet, in the case at hand, an American Evangelical was sued before US courts by African LGBTQIA+ rights defenders, for its active participation in the prosecution of LGBTQIA+ people in Uganda. In this context, Ugandan law appeared instrumentalised by a transnational religious actor, since the defendant had initiated and supported the drafting of a legislative proposal reinforcing the criminalisation of activism in favour of LGBTQIA+ rights.

Lessons Learned to Decolonise Private International Law: Another Theory of Party Autonomy, Public Policy and International Jurisdiction

The PhD dissertation links the conflict of worldviews at play in the cases presented above to one pillar of private international law that they resonate with or directly concern. It further shows that the conventional theory of these paramount concepts cannot make sense of the postcolonial claims involved in the cases, because they, unsurprisingly, reflect Western worldviews. Then, alternative theory are proposed that would better include the non-Western worldviews concerned in the case studied. Hence, the following research findings are proposed:

(i) The notion of choice of arbitration at stake in Jivraj is linked to the notions of choice of court and choice of law. All these notions rely on the principle of party autonomy, which justifies a secular and individualistic understanding of choice of court or arbitration and choice of law, which fit secular worldviews but not Ismaili (and other religious) worldviews. Therefore, the PhD. dissertation proposes a more politically engaged understanding of party autonomy, understood as a form of self-determination, which would entail courts’ enquiry about the motivations underlying the court, arbitration and law choices made by the parties.

(ii) The claim at the origin of Ktunaxa consists of a demand for the protection of Indigenous sacred land, irrespective of property and sovereignty issues. This notably requires prioritising ecology and spirituality over these issues, which is generally not reflected in the current private-international-law rules. More broadly, the claim made in Ktunaxa is an example of the rising claim for the recognition of Indigenous ways of living at the global level, which asks for the inclusion of Indigenous perspectives in law in general, and not only via the granting of “special Indigenous rights”. In these regards, the Ktunaxa case calls for an alternative theory of the exception of public policy. This notion would then not be to safeguard the core values of the forum, but instead to prioritise the respect of “eco-spirituality” over national laws and judgments that would be contrary thereto, including those of the forum.

(iii) The issue brought before US courts in the SMUG case boils down to unbalanced power relations at play in a postcolonial context, which are grounded on the map of state jurisdictions. Especially, transnational actors like Global North-based religious missionaries and multinational corporations strategize around this map, while vulnerable postcolonial communities are submitted to it – a situation that human rights NGOs try to counterbalance, notably via transnational human rights litigation. In this context, the theory of international jurisdiction appears crucial, especially regarding the practice of forum shopping, which can be notably used both by illiberal or economically overpowerful transnational actors and by human rights NGOs conveying the voice of vulnerable postcolonial communities. This circumstance is however not part of the considerations that underly the usual regulation of international jurisdiction. In this respect, the PhD dissertation advocates for the adoption of a theory of international jurisdiction that would consider global welfare and intersectional discrimination, opening the door to a case-by-case approach to forum shopping that targets the political recognition of postcolonial states’ vulnerable communities.

After the  completion of  three research projects, the chairs of the EAPIL Young Research Network (Tobias Lutzi, Ennio Piovesani and Dora Zgabrljić Rotar) are happy to announce the next endeavor.

The Network is ready to start working on the national rules of the Member States governing the recognition and enforcement of non-EU judgements in civil and commercial matters.

The aim of the project is to enable a comparison of the above-mentioned national rules, which, in turn, will allow a broader comparison between the latter rules and those of the 2019 Hague Judgments Convention.

The fourth project – like the previous and third one – will consist in the drafting of national reports, based on a questionnaire, by rapporteurs. Each national report will be expected to be roughly between 5,000 and 12,000 words (including footnotes). A first draft of the report will need to be sent to the heads of the project by the end of September 2023. Chairs are confident that the reports will be published (together with other materials) in a volume similar to the one from the third project.

Chairs are warmly inviting young researchers (see here for the notion) to provide a national report on the legal framework of the Member State they are based in (or which they are otherwise qualified to provide).

In particular, reports are currently requested from the following Member States: Cyprus, Czechia, Denmark, Estonia, Ireland, Lithuania, Portugal, Rumania, Slovakia, Slovenia and Sweden.

If you are interested in providing a national report – with respect to the Member States listed above – chairs would be grateful if you could come back to them at youngresearch@eapil.org by 21 May 2023.

This post was written by Nadia Rusinova (Hague University of Applied Sciences).

The judgment of the Court of Justice of the EU in the Pancharevo case (C-490/20) drew the attention of the legal community across Europe (see post on this blog here), as it analyzed the compatibility with the EU law of the refusal to issue a Bulgarian birth certificate indicating two persons of the same sex as parents. Following this judgment, the legal proceedings in Bulgaria continued and final Supreme Court judgment was issued on 1 March 2023. This final court act is important for the further developments in regard to the free movement and cross-border recognition of parenthood.

The Facts

To recall the facts, the Bulgarian V.M.A. and the British K.D.K. – both women – are married and have been living together in Spain since 2015. In December 2019, the couple had a daughter, S.D.K.A., who was born and lives in Spain. The Spanish authorities issued a birth certificate for S.D.K.A. which names V.M.A. and K.D.K. as her mothers. V.M.A. also applied to the Bulgarian authorities for a birth certificate for the child, which is needed to secure a Bulgarian identity document. Sofia municipality instructed V.М.А. to disclose the identity of the child’s biological mother. V.М.А. did not do so. Sofia municipality then refused to issue the birth certificate.

V.M.A. appealed before the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia), which in turn referred to the Court of Justice of the EU. In its judgment, delivered by the Grand Chamber, the CJEU held that a child, who is an EU citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates two persons of the same sex as the child’s parents, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the right to move and reside freely within the territory of the Member States.

Following the CJEU judgment in Pancharevo, the referring court obliged Sofia municipality to issue a birth certificate for the child noting V.M.A. and K.D.K as her parents. After an appeal the Bulgarian Supreme Administrative Court (Supreme Court) overruled this decision, upholding the refusal to issue a birth certificate for the child, stating that the child is not a Bulgarian citizen (author’s unofficial translation of the judgment into English here)

What are the Facts and was is the Law?

To answer this question, it is important to review the initial application: the request is to draw up a birth certificate for the child, a prerequisite for Bulgarian identity documents to be issued. As noted, CJEU explicitly points that the obligation of the Member State under Article 4, § 3 Directive 2004/38/EC is to issue an identity card or passport to its citizens. In this sense, the question of the nationality of the child becomes crucial: if the child does not have Bulgarian nationality, then the Republic of Bulgaria is under no obligation to draw up a birth certificate, and in this case the refusal would be fully in accordance with the law.

The CJEU confirms what is obvious, finding that it is for each Member State, having due regard to international law, to lay down the conditions for acquisition and loss of nationality. Then it stated that “according to the findings of the referring court, which alone has jurisdiction in that regard, S.D.K.A. has Bulgarian nationality by birth”. Therefore, the entire CJEU judgment is rendered under the initial assumption that the child has acquired Bulgarian nationality at birth, stating in § 44 that “since S.D.K.A. is a Bulgarian national, the Bulgarian authorities are required to issue to her an identity card”. Following the CJEU judgment, the referring court imposed an obligation on the Bulgarian authority to issue a birth certificate for the child, again assuming that the child is a Bulgarian citizen.

The Supreme Court as a last instance court has the power to reassess the facts. The Supreme Court then starts the assessment of the requirements de novo and notes that for a child to acquire Bulgarian nationality by birth, at least one of the parents must be a Bulgarian national, and points that “of importance in this case (…) is the presence of filiation with the Bulgarian citizen”. Indeed, Article 25 of the Bulgarian Constitution and Article 8 of the Law on Bulgarian Citizenship state that a Bulgarian citizen is anyone whose at least one parent is a Bulgarian citizen. How then can it be established who has the capacity of “parent” in this situation, and is it decisive that in the Spanish birth certificate the child has two (same-sex) parents?

In their plea to the first instance court, the applicants referred to the provisions of the Bulgarian Private International Law (PIL) Code. They essentially argued that the Spanish law is applicable to the establishment of parenthood and since both mothers have validly acquired the status of parent of the child in Spain, thus filiation with the Bulgarian mother is established and leads to acquisition of Bulgarian nationality. It is however questionable if these PIL provisions can be applied for the purpose of nationality determination, which is traditionally purely domestic issue. According to the Article 83 § 1 of the PIL Code, establishment of a parent-child relationship is governed by the law of the State whose nationality the child acquired at the time of birth. It is true that if the child has Spanish nationality by birth, then parenthood should be established according to the Spanish law. If it is stateless Article 83, para. 2 and 3 of the PIL Code would again point to the Spanish law as applicable law as more favorable to the child. However, for these provisions to be applicable, the child first needs to be found to be a Spanish citizen by birth or stateless, both logically following a determination of its nationality.

To initially determine whether the child has Bulgarian nationality under Article 25 of the Constitution, the parenthood would therefore inevitably be established under the Bulgarian law. Pursuant to Article 60, paras. 1 and 2 of the Family Code the origin from the mother is determined by birth. The child’s mother is the woman who gave birth, including in instances of assisted reproduction. It was therefore necessary in the present case to identify the woman who gave birth, information the couple concerned refused to disclose. This refusal led to the result that filiation with the Bulgarian mother cannot be established. The Supreme Court then held that “After it was established in the case that the child (…) is not a Bulgarian citizen, in the sense of the applicable law, there is no obligation for the Republic of Bulgaria (…) to draw up a birth certificate”.

The conclusion concerning the nationality of the child, and the judgment in this part, are technically correct. They are also very convenient in that they provide the ideal setting for the Bulgarian authorities to achieve the result they need to achieve, that is, to not recognise same-sex parenthood under the Bulgarian legal order. This approach allowed a formally accurate judgment and released the Supreme Court from an obligation to rule on several decidedly inconvenient issues, the first and most important one being the thorny question on the same-sex parenthood.

In addition, no danger of statelessness is present because the child is entitled to Spanish nationality. When Bulgarian nationality by birth is not possible, no other ground for acquisition can be applied to the present case. The Supreme Court notes also that the child did not acquire British nationality by birth because the British mother, who was born in Gibraltar to a parent who was a British national, cannot pass on her nationality to a child when that child is born outside the territory of the United Kingdom (footnote 14 of the AG Opinion). Since concerns regarding potential statelessness were raised, the Supreme Court needed to examine whether a danger existed for the child to be stateless – an undesired outcome for the Bulgarian authorities as it would bring supranational response and potential accountability.

To exclude potential statelessness, after establishing that the child is not Bulgarian national, the Supreme Court referred to the Spanish law that Spanish citizens by origin are persons born in Spain when the national law of neither of their parents confers nationality on the child.

Given the facts established in the case, that the national legislation of either of the parents named in the child’s birth certificate drawn up in Spain, where it was born, does not grant citizenship, it [the child] should, by virtue of the said provision, be a citizen of Spain, member of the European Union. […] its applicability, in the present case, was expressly confirmed by the Spanish Government […] as the Advocate General points out, there is no danger of the child being stateless.

Essentially, by stating that the child is not a Bulgarian national, the Supreme Court provides the mothers with the only condition needed to claim the child’s right to Spanish nationality and shifts the responsibility for the current statelessness to them.

As a consequence, the child is also an EU citizen and therefore has the right to free movement. The Supreme Court mentions that because the child is not a Bulgarian citizen, she cannot invoke either the rights arising from 4, § 3 of Directive 2004/38/EC, or those arising from Articles 20 and 21 TFEU. But this would be true only if the child was not an EU citizen. Because the child’s right to Spanish nationality “upon request” is established, it is for the mothers to exercise the right and receive the protection of the rights of the child through the acquisition of Spanish citizenship.

Is Bulgaria in Violation of its Obligations under EU law?

In § 67 and 68 of the Pancharevo ruling, CJEU also considered the possibility that S.D.K.A. does not have Bulgarian nationality. In this case, it pointed out that regardless of their nationality and whether they themselves are EU citizens, K.D.K. and S.D.K.A. must be regarded by all Member States as being, respectively, the spouse and the direct descendant of an EU citizen – V.M.A., within the meaning of Article 2(2)(a) and (c) of Directive 2004/38, and therefore must be regarded as being V.M.A.’s family members “for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto”. Can we then say that Bulgaria refuses to recognize the parent-child relationship legally established between a child and both her (same-sex) parents in another Member State for the purpose of exercising EU free movement rights with both parents?

Such conclusion appears to be rushed. With the Supreme Court judgment Bulgaria does not create obstacles to the child’s freedom of movement because “to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU” is not at all what was requested from the Bulgarian authorities. The two mothers requested a Bulgarian birth certificate intended to be used to apply for a Bulgarian identity document (this is also established and noted in §15 of the Request for preliminary ruling) and the legal nature of this request inevitably triggered the application of Bulgarian law on nationality.

The Pancharevo ruling does not require the Member States to mutually recognize the contents of birth certificates in regard to matters that do not relate to free movement rights. If the request had concerned indeed the right to free movement on the basis of the child’s being a direct descendant and V.M.A.’s family member, the authorities would not have had grounds to refuse. However, this should have been anticipated at an earlier stage of the proceedings. It is not in the Court’s power to rule on an issue not raised in any of these administrative proceedings.

What Would be the Right Way to Proceed?

It perhaps remains true that if the applicants had asked the right question, they would have received the right answer. Adequate proceeding is currently available under the Law on the entry, residence and departure of the citizens of the European Union and their family members (it is worth to note that indeed before 2019 this avenue was not available for Bulgarian citizens as this instrument used to encompass the citizens of the European Union who are not Bulgarian citizens and their family members.) As an example, this same Supreme Court rendered not so long ago a judgment recognising same-sex marriage for the purposes of free movement, in line with the Coman ruling, by issuing a permit for a long-term residence of a family member of a citizen of the EU in Bulgaria. Indeed, Bulgarian law does not permit same-sex marriage, and the Bulgarian Constitution stipulates that marriage is a voluntary union between a man and a woman. The Court then rightly noted that the disputed issue in the case is not related to the conclusion or recognition of a same-sex civil marriage in Bulgaria, but to the presence or lack of the prerequisites for a family member of an EU citizen to reside lawfully in Bulgaria. In addition, the Court’s decision holds that

It follows that a Member State cannot invoke its national law to refuse to recognize on its territory, solely for the purpose of granting a derived right of residence to a third-country national, a marriage concluded by him/her with a Union citizen of the same sex in another Member State in accordance with its law.

Several EAPIL members have received over the last few days the same e-mail, allegedly sent by the President, asking them to help the association. Unsurprisingly, those who answered the e-mail have received in return a request to tranfer money to a vendor…

Nobody in the EAPIL Board has ever sent such an email. This is a fraud, please ignore it.

As I hope many will have noted, the e-mail address of the sender starts with ‘ppresidentt’. Board members might not be native English speakers, but we can spell ‘President’ properly.

Many thanks to those of you who have alerted me. This is not the first time this has happened. It will likely happen again. Please be careful.