EAPIL blog

Between 24 and 27 October 2022, an international congress on the impacts of the war in Ukraine will take place at the University of Barcelona, organized by Cristina González Beilfuss and Xabier Fernández Pons.

On the face of the program, it looks as if most of the interventions are devoted to public law-related aspects of the war. There is nevertheless an open call for papers which may be taken up to present a couple of specific private law problems likely (unfortunately) to result from the war.

In a wider perspective, the event may be an occasion to reflect on cross-border cooperation in civil and commercial matters, family and successions included, in relation to Ukraine. I definitely think it worth to explore the landscape as far as the European Union is concerned, not only with a view to a possible accession in the future. This being said, I fear that many of us (scholars of EU Member States) are not in a position to conduct a deep research, lacking the necessary language skills.

Having this in mind, the purpose of this post is to draw the attention of Ukrainian scholars staying in Europe (let’s hope on-going funding programs will not stop) to address the topic, that is, to walk us into the PIL of a country to which the EU is already linked by projects and conventions.

This can perfectly be done through contributions to this blog. In this sense, by way of example I would like to propose two topics that could be briefly addressed.

The first one would delve into the civil cooperation aspects of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part. The original document was signed on March 21 and 27 June 2014; it has been amended several times, the last consolidated version being of 22 November, 2021. It appears that only one provision of the Agreement focuses directly on judicial cooperation on civil matters, namely Article 24 paragraphs 1 and 2 in Title III, ‘Justice, Freedom and Security’:

‘Legal cooperation

1. The Parties agree to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial.
2. The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children.’

Research could be done on the actual scope of the provision, its background, whether it has already crystallized on specific proposals or, simply, on how much judicial cooperation in civil and commercial matters is already covered by Hague conventions.

In addition to this topic, another one of narrower scope is suggested by the case of OKR, C-387/20, a preliminary reference submitted to the Court in 2020 on the Succession Regulation. The second question referred to the Court read

‘Must Article 75, in conjunction with Article 22, of [the Succession Regulation] be interpreted as meaning that, in the case where a bilateral agreement between a Member State and a third country does not govern the choice of law applicable to a case involving succession but indicates the law applicable to that case involving succession, a national of that third country residing in a Member State bound by that bilateral agreement may make a choice of law?

and in particular:

–        must a bilateral agreement with a third country expressly exclude the choice of a specific law and not merely govern the lex successionis using objective connecting factors in order for its provisions to take precedence over Article 22 of [the Succession Regulation]?

–        is the freedom to choose the law governing succession and to make the applicable law uniform by making a choice of law – at least to the extent determined by the EU legislature in Article 22 of [the Succession Regulation] – one of the principles underlying judicial cooperation in civil and commercial matters in the European Union, which may not be infringed even where bilateral agreements with third countries apply which take precedence over [the Succession Regulation]?’

The ’third country’ was the Ukraine; at stake was whether a Polish notary could draw up a notarial will with a clause stipulating that the law applicable to the succession would be Ukrainian law, i.e., the national law of the grantor. The request was declared inadmissible on 21 September 2021 under Article 53(2) of the Rules of Procedure of the Court, after the Court got from the notary an explanation in relation to his duties in the context of the procedure in order to determine whether or not he had, in the present case, the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU. The substantive question remains thus to be answered – and it probably will, for the request is back before the Court, this time sent by the Sąd Okręgowy w Opolu. While Ukrania is, for obvious reasons, not a country presenting observations, nor can scholar Ukranian views of the problem be determinant , it is not without interest to learn how Article 75 of the Succession Regulation is seen from the non-EU signatory countries to the bilateral agreement.

José Angelo Estrella Faria (UNCITRAL) has published his Hague Lectures on the protection of religious cultural property in public international law and private international law (La protection des biens culturels d’intérêt religieux en droit international public et en droit international privé) in the Collected Courses of The Hague Academy of International Law (volume 421). 

The author has kindly provided the following English abstract:

The protection of religious cultural property has three dimensions: physical conservation and preservation of the property (material protection); measures aimed at guaranteeing access to cultural property and maintaining their religious or liturgical function (intangible protection); and finally, protection against dissipation and dispersion (localization and physical attachment). Public law protects these three dimensions through various preventive and repressive measures, which are supplemented by rules of private law governing the conditions of circulation of these goods. The course addresses certain aspects of the legal treatment of cultural property with implications for religious cultural property, both at the international and national level, and the way in which national law takes the specific rules and needs of religious communities into consideration. The course is divided in two chapters: the first focusing on the protection of “religious cultural property” under public international law; the second part dealing with their treatment under private international law. 

After an introduction that discusses the notion of “cultural property” and “religious cultural property”, the first section of chapter I summarizes the evolution of the relevant rules of public international law from the first codifications of the law of war until the development of a framework for the protection of “world heritage”.  The chapter explains the protection of “historical monuments”, “works of art” and other cultural property in the customary law of armed conflict and in the special regime of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.  It then focuses on the special treatment of “places of worship” in the customary law of armed conflict, in international humanitarian law and in international criminal law as reflected in the case law of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. The second section of chapter I deals with the international framework for the protection of religious cultural property in times of peace.  It begins by discussing the place of religious cultural property in the 1972 UNESCO Convention on Concerning the Protection of the World Cultural and Natural Heritage and the possible tension between obligations to preserve cultural heritage and the worship or liturgical use of religious cultural heritage.  The role of the protection of religious cultural property in bilateral agreements is also considered, notably from the in the practice of concordats of the Holy See.  The section concludes with an analysis of the territorial attachment of religious cultural property within the framework of the 1970 UNESCO Convention on the Means of Prohibiting and of Ownership of Cultural Property, preventing the illicit import, export and transfer and the mechanisms for repatriation following wrongful removal.

The first section of chapter II examines the law applicable to the circulation of religious cultural property in private law and considers, in particular:  limits to the application abroad of mandatory rules concerning religious property and to the extraterritorial effect of export restrictions; the inalienability of cultural property religions; international application of the lex originis and the legal effect of internal rules of religious communities governing the management of their cultural heritage. The course concludes in the second section of chapter II discussing the conditions for a civil restitution or return action, including the right to sue and limitation periods, the law applicable to transfers of ownership and rules on good faith acquisition of religious cultural property. It presents several cases that illustrate the difficulty that religious communities and groups may face to obtain restitution of cultural property removed from places of worship and related premises in violation of rules governing their religious function and use. It also considers the conditions for the return of goods to the country of origin in the event of theft or illicit export and the effect of restitution on the right of ownership under the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 19995 and the European Union Directive 2014/60 on the return of cultural objects unlawfully removed from the territory of a Member State.

More details, including the table of contents, can be found here.

The Journal of Private International Law will be holding its 9th Conference at the Singapore Management University from 3 to 5 August 2023.

All those interested in making a presentation at the conference and in producing a final paper to be submitted for publication in the Journal are invited to provide for an abstract that should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s). Abstracts can fall within any subject matter the Journal deal with and can be offered by people at any stage of their career, including postgraduate students.

Since there will be a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning), it is to be indicated on the abstract whether you are willing to present in either or are only willing to do so in one or the other.

Presentation at the conference will depend on whether your abstract is selected by the Editors of the Journal (Jonathan Harris KC, King’s College, and Paul Beaumont FRSE, University of Stirling) and the Conference Organiser (Adeline Chong, Singapore Management University). The subsequent article should be submitted to either of the editors of the Journal before the end of 2023. Publication in the Journal will be subject to the usual system of refereeing by two experts in the field.

Abstract shall be submitted by 16 December 2022 at jpil2023@smu.edu.sg.

More information on the conference and the related registration can be found here.

A quick update related to the public consultation launched by the French Ministry of Justice last June on the draft code of private international law to gather feedback from all stakeholders (announced here).

The deadline has been extended to 30 November 2022.

More information is available here.

Various posts have been published on this blog regarding the draft: see here for some general remarks, and here as regards specifically renvoi, foreign law, the recognition of marriages and companies. A German perspective on the draft is offered here.

All private international law events at the Court of Justice this month will take place on the same day, namely on 20 October.

To begin with, we will get to know AG Szpunar’s opinion on C-423/21, Grand Production.

The Oberster Gerichtshof (Austria) has lodged a request for a preliminary ruling with two questions on Directive 2001/29/CE (on the harmonisation of certain aspects of copyright and related rights in the information society) alone, and another one on the combined interpretation of provisions of said Directive and of Article 7(2) of the Brussels I bis Regulation, in a claim for injunctive relief of worldwide scope:

I. Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29/EC (…) to be interpreted as meaning that such communication is made by the direct operator (not established in the EU in this case) of a streaming platform, whereby that operator

– alone decides on the content and blacking out of TV programmes broadcast by it and implements them from a technical point of view,

– has sole administrator rights for the streaming platform,

– an influence which TV programmes can be received by the end user via the service, but cannot influence the content of the programmes,

– and is the sole point of control as regards which programmes and content can be watched in which territories and when,

where, in each case,

– the user is provided with access not only to broadcasting content whose online use has been authorised by the respective rightholders, but also to protected content for which rights clearance has not been obtained, and

– the direct operator of the streaming platform is aware that its service also enables the reception of protected broadcasting content without the consent of the rightholders by virtue of the fact that the end customers use VPN services which give the impression that the IP address and device of the end customers are located in areas for which the consent of the rightholder has been obtained, but

– the reception of protected broadcasting content via the streaming platform without the consent of the rightholders was in fact possible for several weeks even without VPN tunnelling?

II. If Question I is answered in the affirmative:

Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29/EC to be interpreted as meaning that such communication is also carried out by third parties (having, in this case, their registered offices in the EU) which are related, contractually and/or under company law, to the platform operator described in Question I., and which, without themselves having any influence on the blackouts and on the programmes and content of the broadcasts brought to the streaming platform,

– advertise the operator’s streaming platform and its services, and/or

– offer trial subscriptions to customers that automatically end after 15 days, and/or

– support the customers of the streaming platform as a customer service provider, and/or

– offer on their website paid subscriptions to the streaming platform of the direct operator and then act as the contracting partner of the customers and as the recipient of payment, whereby the paid subscriptions are created in such a way that an express reference to the fact that certain programmes are not available is made only if a customer explicitly indicates at the time of conclusion of the contract that he or she wishes to see those programmes, but, if customers do not express that wish or specifically enquire about such programmes, they are not informed of that fact in advance?

III. Are Article 2(a) and (e) and Article 3(1) of Directive 2001/29/EC, read in conjunction with Article 7(2) of Regulation (EU) No 1215/2012 (…) to be interpreted as meaning that, in the event of an allegation of infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs – because the territoriality principle precludes domestic courts from having competence to determine and examine the facts in relation to foreign acts of infringement – or can or must that court also rule on offences committed outside that territory (worldwide), as alleged by the infringed author?

In a nutshell, the third question seeks clarification regarding the principle of territoriality, in accordance with which the protection claimed by an applicant under Austrian copyright law relates only to Austria, and the applicant can therefore only claim injunctive relief which is limited to Austria.

Two further opinions are scheduled on the same day, one from AG Szpunar and the other from P. Pikamäe.

In C-291/21, Starkinvest, the Tribunal de première instance of Liège is asking the Court of Justice to interpret Articles 4, 7 and 8 of Regulation No 655/2014 establishing a European Account Preservation Order procedure.

In the case at hand, in 2015 the Court of Appeal of Liège had ordered a company incorporated under Irish law, subject to a penalty payment, to stop committing trademark infringements. Some years after the judgement was handed down and (allegedly) served, the claimant issued an order for payment in the sum of EUR 86 694.22, which included EUR 85 000 in penalty payments. Now, he has asked a first instance court to make a European Account Preservation Order in the principal amount of EUR 85 000, over such sums as may be held in the French bank account of the defendant. The claim is based on penalty payments alleged to be due from the defendant pursuant to the 2015 judgment delivered by the Court of Appeal of Liège.

The national court refers the following questions to the Court of Justice of the European Union for a preliminary ruling:

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 decision 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 1215/12 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?’

In case C-393/21, Lufthansa Technik AERO Alzey, AG Pikamäe has been asked to give an opinion on a request for a preliminary ruling by the Lietuvos Aukščiausiasis Teismas (Lithuania). Four out of five questions concern the notion of ‘exceptional circumstances’ under Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims. The fifth question focuses on the relationship between Regulation Brussels Ibis and Regulation No 805/2004 as regards the suspension of enforcement proceedings when the enforceability of a court decision is suspended in the Member State of origin:

‘1.  How, taking into account the objectives of Regulation No 805/2004 (…), inter alia the objective of accelerating and simplifying the enforcement of judgments of Member States and effective safeguarding of the right to a fair trial, must the term ‘exceptional circumstances’ in Article 23(c) of Regulation No 805/2004 be interpreted? What is the discretion that the competent authorities of the Member State of enforcement have to interpret the term ‘exceptional circumstances’?

2. Are circumstances, such as those in the present case, related to judicial proceedings in the State of origin which decide a question regarding the setting aside of the judgment on the basis of which a European Enforcement Order was issued to be regarded as relevant when deciding on the application of Article 23(c) of Regulation No 805/2004? According to what criteria must the appeal proceedings in the Member State of origin be assessed and how comprehensive must the assessment of the proceedings taking place in the Member State of origin that is carried out by the competent authorities of the Member State of enforcement be?

3. What is the subject matter of the assessment when deciding on the application of the term ‘exceptional circumstances’ in Article 23 of Regulation No 805/2004: must the impact of the respective circumstances of the dispute when the judgment of the State of origin is challenged in the State of origin be assessed, must the possible potential benefit or harm of the respective measure specified in Article 23 of the regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?

4. Under Article 23 of Regulation No 805/2004, is the simultaneous application of several measures specified in that article possible? If the answer to this question is in the affirmative, what criteria must the competent authorities of the State of enforcement rely on when deciding on the merits and proportionality of the application of several of those measures?

5. Is the legal regime laid down in Article 36(1) of Regulation (EU) No 1215/2012 (…) to be applied to a judgment of the State of origin regarding the suspension (or cancellation) of enforceability, or is a legal regime similar to that specified in Article 44(2) of that regulation applicable?

The facts of the case can be summarized as follows.

In enforcement proceedings, a bailiff operating in Lithuania is executing an order of the Amtsgericht Hünfeld (Local Court, Hünfeld, Germany), on the basis of which an enforcement order and a European Enforcement Order certificate had been issued regarding the recovery of a debt of the debtor for the benefit of the party seeking enforcement.

The debtor applied to the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) for withdrawal of the European Enforcement Order certificate and termination of enforcement. It claimed that the certificate had been issued unlawfully because the procedural documents of the Local Court, Hünfeld, had not been duly served on it. He also requested the bailiff to stay the enforcement proceedings in the Republic of Lithuania until its claims for withdrawal of the European Enforcement Order certificate and termination of enforcement had been examined in a final procedural decision of the court in Germany.

The bailiff refused to stay the enforcement proceedings, on the basis that the Lithuanian Code of Civil Procedure do not provide for a stay of the enforcement of a final judgment on the ground that claims for withdrawal have been made before a court of the State of origin. The District Court of Kaunas, Lithuania, before which an action regarding this refusal was brought, did not upheld the action. The Regional Court of Kaunas, exercising appellate jurisdiction, set aside the order of the court of first instance, upheld the action brought by the debtor and ordered the stay of the enforcement proceedings pending a full examination of the debtor’s claims by a final judgment of the German competent court.

The other party brought an appeal on a point of law before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania).

Finally, the Court of Justice will hand down its judgment in case C-604/20, ROI Land Investments, also on 20 October. The Bundesarbeitsgericht (Germany) has requested the interpretation of rules on jurisdiction under the Brussels I bis Regulation, as well as of conflict of law provisions in Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I):

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of Regulation (EU) No 1215/2012 (…) to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the Brussels I Regulation but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?

2. Is Article 6(1) of the Brussels I Regulation to be interpreted as meaning that the reservation in respect of Article 21(2) of the Brussels I Regulation precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the Brussels I Regulation?

3. If the first question is answered in the negative and the second question in the affirmative:

(a)  Is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b)  If so, is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a)   Is Article 6(1) of Regulation (EC) No 593/2008 (…) to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b)   If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

I reported here on the facts of the case. Interestingly, AG Richard de la Tour’s opinion of April 28, 2022, not yet available in English, offers the Court two possibilities. My translation for the first one would be:

1) Article 21, sections 1 and 2, of Regulation (EU) No. 1215/2012 (…) must  be interpreted in the sense that a natural or legal person, whether or not domiciled in the territory of a Member State, with whom an employee has concluded, not his employment contract, but an agreement that forms an integral part of said contract, by virtue of which said person is responsible for fulfilling the obligations of the employer towards the employee, can be classified as “employer” when it has a direct interest in the correct execution of the contract. The referring court must assess the existence of this direct interest globally, taking into account all the considerations of the case at hand.

2) Article 6(1) of Regulation No 1215/2012 must be interpreted as meaning that the application of the jurisdictional rules of national law must be excluded when the conditions of application of Article 21(2) of said Regulation are met.

In the event that the Court of Justice considers the dispute does not fall within the scope of application of Article 21(2) of Regulation No. 1215/2012, Mr. Richard de la Tour suggests answering that:

3) Article 17, paragraph 1, of Regulation No. 1215/2012 and article 6, paragraph 1, of Regulation (EC) No. 593/2008, must be interpreted in the sense that the concept of “professional activity” includes work for another’s account in an employment relationship.

4) Article 17(1) of Regulation No. 1215/2012 and Article 6(1) of Regulation No. 593/2008 must be interpreted as meaning that a letter of comfort that forms an integral part of a employment contract, by virtue of which a person is responsible for fulfilling the obligations of the employer towards the worker, is included in the concept of “professional activity”.

The decision will be delivered by the 3rd Chamber with M. Safjan reporting, sitting together with Ms. Jürimäe, M. Jääskinen, M. Piçarra and M. Gavalec.

Priskila Pratita Penasthika (Assistant Professor in Private International Law at the Faculty of Law, Universitas Indonesia) has just published her PhD dissertation with Eleven under the title Unravelling Choice of Law in International Commercial Contracts. Indonesia as an Illustrative Case Study.

The abstract reads as follows:

Despite the paramount role of choice of law in international contractual relationships, its implementation in various countries remains disparate. Many countries have acknowledged and given effect to choice of law, but some other countries persist in opposing it. The lingering reluctance in enforcing choice of law remains a challenging impediment to cross-border commercial relationships.

Strict adherence to the territoriality principle, absence of special provisions or clear guidelines of choice of law, and difficulties in confirming the content of the chosen foreign law are among the reasons for the reluctance to give effect to choice of law. These circumstances are encountered by some countries, including Indonesia.

This book not only unravels the reasons for Indonesia’s reluctance and its subsequent lack of advancement on choice of law, but also examines possible solutions to the problem. Building on in-depth doctrinal research, supported by qualitative interviews, this research will serve as an essential point of reference for academics, practitioners, and policymakers interested in private international law and cross-border commercial litigation.

The book offers a thorough analysis into why and to what extent Indonesia deviates from applying choice of law in international commercial contracts and identifies related factors to this situation. The study makes use of various research methods to analyse in-depth the situation of choice of law in international commercial contracts. The doctrinal method allows the scholar to explore and describe the theoretical and regulatory frameworks of choice of law that are available at the global, regional, and national levels. This is complemented by an empirical part based on qualitative interviews carried out with practitioners and experts in Indonesia, and a detailed analysis of national case law after 2002 concerning contracts where parties made use of a choice of law clause. The interviews allowed the researcher to gain a better understanding of the problems and difficulties facing the Indonesian judicial practice with regard to choice of law.

This publication could not have been more timely given that it has taken Indonesia around 55 years since its independence to finally have a statutory provision that acknowledges the freedom of the parties to choose the law applicable to a contract.

Nevertheless, the prevailing provisions appear insufficient to deal with the complexity of international commercial transactions. The academic discussion on the topic has been rather sluggish for a long period in Indonesia.

With the ongoing reforms and the national policy vision (Visi Indonesia 2045) aiming to encourage international trade, this book has the potential to bring back into the arena advanced discussions on the topic. It is certainly a valuable study for international readers interested in choice of law who would otherwise not be able to easily access decisions of Indonesian courts in this area of private international law as well as gaining a detailed understanding of the complexity of the national system.

Additionally, it is a useful tool for Indonesian policymakers, practitioners, and scholars as it highlights a number of improvements that could be embarked upon in the future. This will also assist courts to secure parties’ access to justice, and promote certainty and predictability in the settling of international commercial contract disputes.

The second issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features two essays and one shorter paper

Costanza Honorati, Giovanna Ricciardi, Violenza domestica e protezione cross-border (Domestic Violence and Cross-Border Protection)

Domestic violence has drawn increasing attention both from the lawmaker and legal scholars. Legal means to prevent domestic violence and protect women have been promoted and implemented at the national and supranational levels. This article concentrates on seeking and enforcing civil protection measures in cross-border family conflicts. Protective measures are often sought and taken in the State where the prospective victim (and often also the tortfeasor) is habitually resident. PIL issues are however rarely addressed. Regulation (EU) No 606/2013 on mutual recognition of protection measures in civil matters provides a useful instrument when the need for recognition and enforcement in a different Member State arises at a later stage. Less dealt with is the issue of selecting an appropriate ground for jurisdiction, which is not governed by the mentioned Regulation. The latter issue becomes especially relevant in the very peculiar case of protection measures to be issued in the so-called State of refuge when a mother challenges a situation of domestic violence as a ground for leaving the State of a child’s habitual residence and searches for protection elsewhere. The interplay between domestic violence and abduction cases, a situation quite frequent in practice but rarely addressed in legal literature, is further explored and dealt with.

Ilaria Viarengo, The Coordination of Jurisdiction and Applicable Law in Proceedings Related to Economic Aspects of Family Law

This article addresses the complex features and problems arising from the combined application of all European and international instruments dealing with divorce and the economic aspects of family law. The need to avoid litigation proceedings in different jurisdictions, entailing the duplication of proceedings and costs and the need to have divorce and all the financial aspects governed by the same law are of central importance from a practical point of view. This article provides an analysis of whether and to what extent these two needs can be satisfied with the combined application of the EU family law regulations at issue. Firstly, it deals with some general issues whose solution could have an impact on the coordination among all these instruments. Consequently, it examines the interplay among rules on jurisdiction and applicable law, including the role of party autonomy in pursuing coordination.

Curzio Fossati, La residenza abituale nei regolamenti europei di diritto internazionale privato della famiglia alla luce della giurisprudenza della Corte di giustizia (Habitual Residence in EU Private International Law Regulations in Family Matters in View of the Case-Law of the Court of Justice)

This article deals with the concept of habitual residence, which is in widespread use in the EU Regulations in the field of family law. Firstly, the article gives an overview of these Regulations, and then it analyses the case-law of the CJEU on the criterion of habitual residence referred to children, deceased persons, and spouses. The contribution examines two fundamental elements of the concept of habitual residence identified both by CJEU and scholars: the objective element, i.e. a sufficiently stable presence of a person in a Member State, and the subjective element, i.e. the intention of the person concerned to establish the permanent or habitual centre of his or her interests in that place. The article also tries to identify the most suitable method of interpretation of the concept of habitual residence and, in particular, it investigates which approach is more desirable between a uniform approach (which fosters a uniform definition of habitual residence in EU law) and a functional one (which implies an interpretation that takes into account the aim of the disposition in which the concept is used). Ultimately, the Author endorses the solution adopted by the CJEU in the IB case, which combines the aforementioned approaches.

Perry Dane (Rutgers) law schools has posted Party Autonomy and the Challenge of Choice of Law on SSRN.

The abstract reads:

A perennial question in choice of law is whether parties to a contract can select the jurisdiction whose law will govern their contract. This so-called “party autonomy” problem is vexing and intriguing, in part because contemporary discussions often overlook in contemporary discussions.

The party autonomy problem is more consequential than most issues in choice of law. But it is also important as a singular window into the intellectual fabric of choice of law and as a leading edge for new and potentially subversive insights.

This essay is a chapter in an Oxford University Press volume on the “Philosophical Foundations of Conflict of Laws.” The essay argues that party autonomy does not have one comprehensive justification, but that it might be justified by a set of distinct if overlapping arguments that point to vital ideas often overlooked in the contemporary conversation. If choice of law doctrine embraces party autonomy, it might be in part because its shapers instinctively and inchoately recognize those considerations.

The most speculative and problematic argument is based on a version of natural law. Another argument relies on an important distinction between what I have called second-order and first-order choice of law. Yet another builds on an effort at a more sophisticated understanding of what it means for persons to be attached (or to attach themselves) to the legitimate governance of a legal system. The last argument is grounded in legal pluralism, though not of the usual sort.

These distinct bases for party autonomy are not only of theoretical interest. They also generate different answers to some of the material subsidiary questions that arise in any doctrinal consideration of party autonomy. That in turn suggests that the doctrine of party autonomy might require more nuance and fine-grained distinctions than most current treatments have given it.

The paper is forthcoming in Philosophical Foundations of Conflict of Laws (Oxford University Press, Roxana Banu, Michael Green, Ralf Michaels, eds., 2022).

In a judgment of 12 January 2022, the French Supreme Court for civil and criminal matters (Cour de cassation) ruled again that foreign judgments ordering the payment of disproportionate financial awards violate French public policy and will be denied enforcement on this ground.

The case was concerned with a loan made by a Russian bank to two Russian spouses who were both domiciled in Russia. The purpose of the loan, it seems, was to purchase immovables in Russia. The lender sought repayment of the loan in Russian courts, and a court of St Petersburg eventually the borrowers to repay. The contract provided for the payment of various interests, including an interest ranging from 30 to 50% in case of default.

The bank sought to enforce the Russian judgment in France, aiming at a home of the borrowers on the French Riviera

The spouses resisted enforcement of the judgment on the ground that the interest rate was contrary to French public policy.

The Paris Court of Appeal has initially declared enforceable the Russian judgment on the ground that the French rules prohibiting that interest rates go beyond a certain level (usury) were not internationally mandatory.

In a judgment of 17 October 2018, the Cour de cassation allowed an appeal against this decision by ruling that the court of appeal should have concretely assessed whether the interest rate applied by the foreign court might violate French public policy.

The case was remanded to another chamber of the Paris court of appeal which denied enforcement to the Russian judgments. The court relied on the caselaw of the Cour de cassation which has ruled since 2010 that, while punitive damages are not, per se, contrary to French public policy, they can be if they are disproportionate.

The appeal of the bank to the Cour de cassation was dismissed. The French supreme court held that the court of appeal had rightly ruled that, while punitive damages are not, per se, a violation of French public policy, financial awards are contrary to public policy when the financial award was disproportionate considering 1) the harm suffered and 2) the contractual breach.

The court concluded that the application of the interest rate violated French public policy, as informed by the fundamental right to property.

The judgment is merely a confirmation of a clear trend in the case law of the Cour de cassation to assess the proportionality of financial awards granted by foreign courts. Although the first judgment of the court was concerned with punitive damages, the scope of the rule is much broader, as confirmed by this judgment. The Paris court of appeal has also suggested that it would apply it in the context of enforcement of arbitral awards.

The appeal had made an interesting, and to my knowledge, novel argument. It insisted that proportionality should also be assessed with respect to the wealth of the debtors. It is unknown whether the debtors were oligarchs with other properties throughout western Europe, but should it matter for the analysis? The argument is rejected, but only on the basis that it had not been made before the court of appeal.

Finally, an interesting aspect of the case is that it had so few connections with France. Decades ago, this would have been perceived as critical, under the doctrine of effet attenué de l’ordre public: situations created abroad should not be scrutinised as closely (read: not scrutinised at all) as situations to be created in France. But the Cour de cassation has not applied or referred to this doctrine in decades. The judgment does not even care to respond to the argument, which confirms that the doctrine has become obsolete under French law.

A collection of essays in honour of Haimo Schack (Ius Vivum: Kunst – Internationales – Persönlichkeit: Festschrift für Haimo Schack zum 70. Geburtstag) has just been published by Mohr Siebeck, edited by Sebastian Kubis, Karl-Nikolaus Peifer, Benjamin Raue and Malte Stieper.

The book brings together more than ninety contributions, mostly in German, grouped under six headings: art law and the law of culture; intellectual property law; private international law; international civil procedure; the law of personality; civil law, civil procedure and comparative law.

The section devoted to private international law features essays by Christine Budzikiewicz, Morten M. Fogt, Susanne Gössl, Jan von Hein, Christian Heinze, Peter Huber, Claudia Mayer, Joachim Münch, Dennis Solomon and Astrid Stadler.

The international civil procedure section comes with essays by Jürgen Basedow, Dagmar Coester-Waltjen, Gilles Cuniberti, Masahisa Deguchi, Tanja Domej, Anatol Dutta, Martin Gebauer, Reinhold Geimer, Wolfgang Hau, Peter Hay, Burkhard Hess, Jan Felix Hoffmann, Abbo Junker, Eva-Maria Kieninger, Christian Kohler, Herbert Kronke, Sebastian Kubis, Stefan Leible, Felix M. Wilke, Dieter Leipold, Luís de Lima Pinheiro, Volker Lipp, Mark Makowsky, the late Peter Mankowski, Peter G. Mayr, Pedro A. De Miguel Asensio, Thomas Pfeiffer, Oliver Remien, Herbert Roth, Rolf A. Schütze, Michael Stürner, Rolf Stürner, Christoph Thole, Dimitrios Tsikrikas, Rolf Wagner and Markus Würdinger.

Issues related to private international law and international litigation are also dealt with in contributions found in other sections.

The full table of contents is available here.

This post was written by Robert Vogelauer, Vienna.

In a decision of 27 January 2022 the Austrian Supreme Court ruled on how Brexit affects a British Private Limited Company (Ltd.) that was incorporated in England but conducted all of its business operations in Austria (OGH 9 Ob 74/21d). It did so only a couple of months after a German court denied a Berlin-based Ltd. legal capacity in a similar case (OLG München, 29 U 2411/21 Kart), though the Austrian court came to a different conclusion.

In 2016, a UK Ltd. based in Styria (Austria) sued one of its clients for payment of outstanding debt before an Austrian court. The legal proceedings dragged on for several years. In February 2021, the defendant filed to have the lawsuit dismissed, arguing that the Ltd. had lost its legal capacity due to Brexit and could therefore no longer be party to the proceedings. In response, the claimant petitioned the court to change its party designation to that of an Austrian civil law partnership (GesbR) – a strange choice, since a GesbR also lacks legal capacity. The courts of first and second instance agreed with the defendant and dismissed the lawsuit. The Austrian Supreme Court, however, decided that the proceedings could continue, though the claimant’s party designation would have to be changed to the name of the Ltd.’s sole shareholder.

The court stated that since the claimant was no longer incorporated in an EU Member State, Austrian international company law would determine the company’s legal capacity. The court then applied the real seat theory according to § 10 of the Austrian Private International Law Act, which states that a company’s legal capacity is to be assessed under the law of the country where its headquarters are located. Since the headquarters were undoubtedly located in Styria, the court applied Austrian company law.

The court ruled that the Ltd. had lost its legal capacity because Austrian company law only grants legal personhood to an exhaustive list of corporate forms (numerus clausus), with the Ltd. not being one of them.

Despite this, it did not dismiss the lawsuit. According to the court, a Ltd. with headquarters in Austria was not legally inexistent, but would rather need to be viewed “through the lense of Austrian company law”. The court ruled that the sole shareholder of the Ltd. had become its universal successor by analogously applying § 142 of the Austrian Business Code (usually referred to for dissolving partnerships) and was now to be considered a merchant under Austrian law. As the universal successor of the Ltd., the sole shareholder could continue the proceedings in place of the Ltd., though the party designation would have to be changed.

The decision from the Austrian Supreme Court came only months after the Higher Regional Court of Munich (OLG Munich) dismissed the lawsuit of a UK Ltd. based in Berlin for lack of legal capacity. Though the courts reach different conclusions, their reasoning is quite similar for the most part. Both courts agree that the UK-EU Trade and Cooperation Agreement cannot be invoked to avoid the application of the real seat theory and that the Ltd. as such cannot remain party to the proceedings. They also agree it would go against creditors’ and public interest to treat the Ltd. as legally inexistent. The OLG Munich then applies what it calls the “mild” real seat theory and states a Ltd. will have to be categorized as a merchant or a partnership under German law. The Austrian Supreme Court reaches the same result by looking at the Ltd. “through the lense of Austrian company law”.

The OLG Munich’s decision leaves something to be desired from a procedural standpoint. It dismissed the lawsuit without answering whether or not it considered the Ltd. and its shareholder(s) to be the same procedural party. This is of crucial importance because by dismissing the lawsuit for lack of legal capacity, the Ltd – or rather, its shareholders – retroactively lost lis pendens status for their claim, meaning even if they filed the lawsuit again under their own names, statutory limitation periods would apply as if the previous lawsuit had ended the day after Brexit. If the court had ruled that the Ltd. and its shareholders were the same party from a procedural standpoint, then the proceedings could have continued with a changed party designation. Furthermore, the court would technically be required to order a change of party designation ex officio if it believed the Ltd.’s shareholder(s) to be the same party. The Austrian Supreme Court avoided this issue by declaring the sole shareholder to be the Ltd.’s universal successor, which meant they also succeeded the Ltd. in the proceedings.

Shareholders of UK Ltds. based in Austria have effectively lost the protection of their corporate entity and can now personally be held liable for their company’s debts. It would have been desirable if the court had at least shielded shareholders from liability for debts incurred before Brexit – though this would have required a bit of a methodological stretch.

Austria-based Ltds. face further legal uncertainty because the UK – like many other countries – assesses legal capacity for companies based on the place of incorporation. This means UK Ltds. only operating in Austria are still recognized as legal entities by the UK and other countries that also follow the incorporation theory. This may result in situations where a contract with the Ltd. is considered valid before a foreign court, but in Austria it would be considered void or – even if it was not – it would be unclear who the parties to that contract were. Austrian courts will have to deal with these issues in future rulings.

In a decision (“views”) adopted on 1 June 2022 (CRC/C/90/D/121/2020), the UN Child Rights Committee (CRC) held that the best interest of a child must be taken into consideration before a child is returned after an unlawful retention.

The CRC primarily monitors compliance with the Convention on the Rights of the Child (Child Convention). In a decision regarding a Chilean child abduction case pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (1980 Hague Convention), the committee made a statement on the interplay of the Child Convention and the 1980 Hague Convention. It is the first time ever that the CRC makes a statement regarding the 1980 Hague Convention.

The background to the case was that a mother and her child had not returned to the father in Spain from a stay in Chile. The father initiated a restitution request in Chile for unlawful retention according to the 1980 Hague Convention. A family court of first instance rejected the father’s request with reference to, among other things, the best interest of the child and the fact that the father had consented to the child being in Chile. The case was overturned by the Chilean Supreme Court, that held that the child should return to the father in Spain.

In the CRC decision, the Chilean Supreme Court judgment is criticized for not considering the best interest of the child. The critique in the CRC decision does not question the conclusion that the child should be returned to Spain. Instead, the essence of the critique was that the Supreme Court did not take the best interest of the child into consideration in the right way.

First, the CRC held that the Supreme Court decision did not indicate how the return of the child should be made. Second, the CRC criticized the Supreme Court procedure. Before the Supreme Court, there was an interlocutory hearing which was limited to the enforcement of the return of order. According to the CRC, this limitation did not give enough remedy for the possible exceptions to immediate return set out in the 1980 Hague Convention.

The new issue of the Revue Critique de Droit International Privé (3/2022) is out.

It contains three articles relating to the French project of PIL codification (of which readers of the blog are well informed, see here and here), as well as numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (De codice ferendo ?)

In the first article, Dominique Foussard (Avocat au Conseil d’Etat et à la Cour de cassation, Paris Bar), Marie-Laure Niboyet (University of Paris-Nanterre) and Cyril Nourissat (University of Lyon 3), all members of the working group on the (French) PIL codification, present the main results of the draft code under a methodological perspective (Réflexions méthodologiques sur le projet de code de droit international privé). 

On March 31, a draft code of private international law (of 207 articles) was submitted to the French Minister of Justice. It was drawn up by a working group, headed by President Jean-Pierre Ancel. The French Ministry of Justice has now decided to submit the draft code for public consultation. The editorial staff of the Revue critique has opened its columns to three members of this group, to supplement with methodological reflections the analysis of the main provisions of the draft which can already be found in the accompanying explanatory report. These reflections are based on four observations : large parts of the discipline are still governed by national law ; conversely, when it is attested, the growth of international conventions and European Union law reveals the need for national norms of reference or adaptation to facilitate their application ; many rules of positive law should be reformed or completed in an overall vision of the discipline, and not on a piecemeal basis, on the occasion of a special law ; the increase in the international movement of persons accentuates the need for practitioners to have a complete corpus for the exercise of their activities, both as litigators and as advisors. Based on these findings, the draft has endeavored to respond to three essential challenges, namely the synergy of the sources of the subject-matter, the predictability of the rules enacted and the satisfaction of the objectives of private international law.

In the second article, Stefan Leible (University of Bayreuth) and Felix M. Wilke (University of Bayreuth) analyse the French draft PIL code from a German perspective (Le Projet de code de Droit International Privé. Une vue d’Allemagne, soon available in English on Dalloz website). Some elements of this analysis have already been shared with the readers of this blog here.

From a German perspective, there is much in the French Draft Code of Private International Law (“Draft Code”) to be appreciated ; in part, one can even be envious. Not only is there still room for a national PIL codification, but it can also enhance legal clarity, even where it only refers to applicable EU regulations. It is user-friendly to combine rules on procedure with conflict-of-laws provisions in one instrument and sensible to devote one part of the Draft Code to general provisions. The rules of the Draft Code on the PIL of contractual and non-contractual obligations as well as on companies in particular by and large could serve as models for German legislation. Conversely, here and there, German PIL rules might provide some inspiration for (minor) adjustments of and additions to the Draft Code. Some of the proposed rules, however, seem less than ideal. To allow renvoi only where at least one of the parties so demands neither serves legal clarity nor always makes life easier for the judge. The rule on lois de police could cause or perpetuate misunderstandings about their legal nature. It is doubtful whether a provision on fraude à la loi is truly necessary. To keep nationality as a connecting factor for jurisdiction can be considered particularly exorbitant. Yet all of this should not detract from the impressive and thought-provoking achievement that is the Draft Code.

In the third article, Paul Lagarde brings his extensive transnational experience and expertise to develop a challenging analysis of the draft PIL code (Quelques remarques sur le projet de codification du droit international privé français).

At a time when private international law in force in France comprises, for the most part, European law, whether it be European Union Regulations or the case law of the European Court of justice and sometimes indeed the European Court of Human Rights, the notion that French private international law should be codified independently of these other sources is both a source of astonishment and the cause for regret for the lost opportunity of a systemization of European conflicts of laws.This criticism is of particular relevance, moreover, in respect of what is known in continental legal terms as the general part of our discipline, such as the provisions on the duties of the court with regard to foreign law or the sanction applicable to various abusive strategies (playing the system or “fraude à la loi”). Furthermore, independently of any value judgment on the proposed texts, they are likely to be difficult to handle for the very non-specialists for whose benefit the project was intended.

More information is available here.

The author of this post is Francesca Maoli, who is a Researcher at the University of Genova.

The Brussels II ter Regulation on matrimonial matters, matters of parental responsibility and child abduction has become fully applicable on 1 August 2022, meaning that legal proceedings instituted on or after that date, as well as authentic instruments and agreements registered on that date or afterwards, must, in all EU Member States (excluding Denmark), be dealt with in accordance with the Recast Regulation, rather than its predecessor, the Brussels II bis Regulation

The process that eventually resulted in the adoption of the Recast Brussels II Regulation was launched on the assumption that, overall, the old Brussels II bis Regulation had functioned reasonably well. The 2014 European Commission’s Report on the operation of the latter Regulation stressed that the system was in need of improvement, rather than radical change.

The existing rules have undergone several changes. Some amount to simple refinements and fixings. Others are more meaningful.

The most prominent innovation brought about by the Brussels II ter Regulation is, arguably, the abolition of exequatur for all decisions on parental responsibility. The two-track system envisaged in Brussels II bis, however, remains in place. While the general discipline is now contained in Article 30 and following of the Brussels II ter regulation, ‘override’ return orders and access orders (which the old regime already regarded as ‘privileged’ decisions) keep on benefiting from a special regime. Recognition and enforcement of the latter orders can be refused if they are irreconcilable with a later decision relating to parental responsibility concerning the same child, provided that such a later decision was given (i) in the Member State where recognition is invoked, or (ii) in another Member State or in the non-Member State of the habitual residence of the child, provided that the conditions necessary for its recognition in the Member State are met.

This post does not purport to analyse the new rules in details (a wealth of literature has been produced on the topic: see here for some references). It merely intends to ‘zoom in’ a selection of issues of special practical importance.

The European Commission set itself the object of retaining the status quo as concerns matrimonial matters (this was, actually, the preferred policy according to the 2016 Recast Proposal). The Recast Regulation has nevertheless introduced, also in this area, some significant innovations.

One such innovation is about ‘private divorces’, i.e., divorces that fundamentally occur out of court, based on an agreement between the spouses.

The Brussels II ter Regulation comes with a definition of authentic instruments and agreements, respectively in Article 2(2) and (3). Authentic instruments and agreements in matrimonial matters, if they are given binding legal effects in the Member State of origin, benefit from recognition ‘without any special procedure being required’ (Article 65(1)), unless one of the grounds for refusal of recognition provided by Article 68(1) apply. The same is true of authentic instruments and agreements in matters of parental responsibility (Article 65(2)).

In practice, as clarified in Recital 70, authentic instruments and agreements are to be treated as equivalent to decisions. For this, they must have been formally drawn up or concluded in a Member State that would have had jurisdiction according to the regulation (Article 64). Where this is not the case, they may still circulate across Member States under domestic PIL provisions, or otherwise.

The EU decided to adopt rules on private divorces in light of developments that have arisen, recently, in domestic legislations. When the Brussels II bis Regulation was adopted, the laws of the Member States did not contemplate out-of-court divorces. This is why the Regulation itself failed to include provisions in this regard. This state of affairs has proved problematic. A case is currently pending before the ECJ (C‑646/20, Senatsverwaltung für Inneres und Sport), concerning a dissolution of marriage by joint declaration of the spouses before an Italian civil registrar, whose duty is to assess whether the conditions for an out-of-court divorce are met (Article 12 of the Italian Decree Law No 132/2014 requires, inter alia, that the spouses do not have minor children). While noting that ‘Regulation No 2019/1111 is inapplicable to the present case ratione temporis’, being therefore ‘not possible to draw any conclusions from it for the purposes of interpreting Regulation No 2201/2003’, AG Collins suggested in its Opinion that Articles 2 and 21(1) of the Brussels II bis Regulation be given a broad interpretation, thereby concluding that Italian private divorces should be treated as ‘divorce judgments’ for the purpose of the Brussels II bis Regulation (just like they will do under the Recast Regulation).

The most significant changes brought about by the Brussels II ter Regulation concern children. One key goal of the Regulation is to enhance the protection of their fundamental rights, as enshrined in the UN Convention on the Rights of the Child (UNCRC), the European Convention on Human Rights (ECHR) and the Charter oof Fundamental Rights of the European Union. Specifically, Article 24 of the Charter creates a link between children’s rights – as protected by universal and regional systems – and the EU legal order.

The Regulation fosters the principle of the best interests of the child, which underlies both the general ground of jurisdiction of the habitual residence of the child (Recital 20) and the rules on the recognition and enforcement of judgments (Recital 55).

While the overall regime of jurisdiction in parental responsibility matters is left substantially unaltered, some significant revision occurred concerning choice of court. Article 10 of the Brussels II ter Regulation provides the formal and substantial condition that an agreement of the parties must fulfil to be effective: those conditions reflect, in general, a concern for the best interests of the child. Among the other requisites, a ‘substantial connection’ must exist between the child and the State of the chosen forum. The new provision expands the cases in which the aforementioned connection is deemed to exists, thus creating more possibilities to exercise party autonomy. In addition, the choice of court results now disconnected from the existence of a proceeding concerning the dissolution of marriage (even if Recital 23 still mentions this circumstance). Finally, ‘persons who become parties to the proceedings after the court was seised may express their agreement after the court was seised’, with the specification that such acceptance of jurisdiction during the proceedings may also be implicit (Article 10(2)).

Child participation is another key issue. Recital 2 states that the Regulation ‘clarifies the child’s right to be provided with an opportunity to express his or her views in proceedings to which he or she is subject’, thus recognizing the already existing obligations stemming from international and EU law. The hearing of the child finds a comprehensive discipline in Article 21, which sets out a general obligation to hear the child in all proceedings on parental responsibility, in line with Article 12 UNCRC. The same obligation is stated in Article 26 in the context of child abduction proceedings.

All in all, a decision relating to a child may not be enforced if the child concerned was not given the opportunity to express their views in accordance with Article 21 (unless specific circumstances occur, as specified by Article 39(2)). As to ‘privileged decisions’, namely, overriding orders and orders concerning the rights of access, the violation of Article 21 prevents the issuance of the certificate aimed at facilitating recognition and enforcement (Article 47(3)(b)).

In spite of the foregoing, the opportunity for the child to be heard is still subject to ‘the national law and procedure’. Therefore, it remains unclear to what extent national practices of the Member States will be affected by the new provisions. The importance of the described innovations should, however, not be underestimated. The Regulation has built a solid link between EU proceedings on parental responsibility, on the one hand, and the obligations arising from international texts in this area. Against this background, in order for the child to be given a ‘genuine and effective opportunity to be heard’ (Articles 21 and 26), other aspects should be considered, such as the right of the child to receive adequate information, as suggested, inter alia, by the Guidelines of the Council of Europe on Child-Friendly Justice and the recent work of the Committee of experts on the rights and the best interests of the child in parental separation and in care proceedings (CJ/ENF-ISE).

The focus on the child’s best interests is further witnessed by Article 56 of the Recast Regulation. This provides that the enforcement of a decision may be suspended if it ‘would expose the child to a grave risk of physical or psychological harm due to temporary impediments which have arisen after the decision was given, or by virtue of any other significant change of circumstances’. According to Recital 69, this may take the form of a manifest and strong objection of the child voiced after the adoption of the decision (Recital 69).

Chapter III of Brussels II ter is about international child abduction. The new instrument confirms the intention to enhance the operation of the 1980 Hague Convention with respect to intra-EU abductions. The overriding mechanism or trumping order, which consents the court of the Member State of habitual residence of the child before the abduction to the return of the child despite a contrary decision issued in the State of refuge, is still operating. However, the recourse to the overriding mechanism is permitted only when the decision of non-return has been issued pursuant Article 13(1)(b) (grave risk of harm) and 13(2) (objection of the child) of the 1980 Hague Convention. Moreover, the court of the child’s habitual residence can issue such a decision only in the context of a proceedings on the merits of parental responsibility, thus reaching a stable assessment on the future of the child. Therefore, the risk of multiple transfers is mitigated.

On other aspects, the discipline is more detailed. Some innovations, inspired to the will to give substantial content to the child’s best interests, are to be welcomed.

The whole Article 24 of the Regulation is dedicated to the celerity of return proceedings: a term of six week after the lodgment of the application is prescribed at each instance, unless ‘exceptional circumstances’ make it impossible to respect this time limit. As concerns appeal proceedings, the term starts to run at the moment in which ‘the required procedural steps have been taken and the court is in a position to examine the appeal’. Similar obligations are placed upon Central Authorities, which shall act expeditiously in processing return applications. The same purpose inspires the possibility to declare return orders provisionally enforceable, notwithstanding any appeal (Article 27(5)). The enforcement proceedings themselves must be fast (Article 28).

The Regulation also provides that the requested court may invite the parties to consider mediation or other ADRs, unless it would result contrary to the best interests of the child, not appropriate in the particular case or would unduly delay the proceedings (Article 25). The explicit mention of this possibility follows the specific attention that the family law scholars and practitioners are devoting to mediation, the potentialities of which are undoubtful. For this reason, the recast could have devoted even more structured discipline to mediation, currently mentioned only in the Chapter dedicated to international child abduction.

The best interests of the child also play a crucial role when it comes to provisional measures aimed at ensuring a contact between the child and the person seeking the return of the child (Article 27(2)). The requested court, while deciding on the return, may also adopt provisional, including protective, measures that are  recognized and enforced in all other Member States until the court with jurisdiction as to the substance intervenes (as results from Articles 27(5), 35(2) and 36(1)(c), as well as Recitals 30, 44-46 and 59).

Overall, the approach of the EU lawmaker with the Brussels II ter Regulation has resulted in the will to balance the enhancement of party autonomy, the need to grant judicial and non-judicial authority a certain degree of flexibility and the protection of the fundamental rights of the child.

As already mentioned, the latter has inspired some detailed obligations concerning, inter alia, the hearing of the child and a specific attention towards the discipline of international child abduction proceedings. While party autonomy has been empowered also in the context of parental responsibility, through the new discipline on choice of court agreements and implicit acceptance of jurisdiction, those rules have been surrounded by safeguards aimed at protecting the child’s best interests. The same reasoning applies to authentic instruments and agreements circulating according to Article 65(2) of the regulation, which are subject to the grounds for refusal of recognition or enforcement provided by Article 68(2) and (3). Specific reference is made to the possibility for the child to express his or her own views, which may result compressed in the context of out-of-court proceedings or private arrangements.

At the same time, the objective of protect children and their best interests has sustained the introduction of a certain degree of flexibility to national authorities: for instance, the possibility to issue cross-border protective orders pending an international child abduction proceedings, or to suspend the enforcement of a decision when the physical or the psychological wellbeing of the child is at risk.

In this context – and with a view to those objectives – the new provisions of the regulation dedicated to cooperation are of particular interests. Direct cooperation and communication between courts and between Central Authorities are now subject to a more detailed discipline and, therefore, encouraged. Chapter V is entirely dedicated to the role and obligations of Central Authorities, when cooperating between themselves and with courts. Other provisions are to be found in other parts of the regulation. Article 86 concerns direct judicial communication and provides that courts from different Member States should cooperate and communicate directly in all cases that are appropriate (for instance, when a court takes provisional or protective measures, it shall inform the court of another Member State having jurisdiction). The dialogue between judicial authorities can effectively contribute to the good administration of cross-border situations, as well as support swifter procedures, with positive repercussions on children. Of course, it could provide specialized training for judges, who need to be acquainted with this possibility and perhaps acquire new skills.

Those and other provisions contribute to a more fragmented discipline compared to the Brussels II bis regulation. On the other hand, if well applied, they may contribute to a better enhancement of the child’s best interests in the EU judicial space. As always, the application of the tool in practice will show its fruits.

A monograph titled Cross-Border Recognition of Formalized Same-Sex Relationships. The role of ordre public, written by Laima Vaige, a senior lecturer in law at Örebro University (Sweden),  was published recently by Intersentia. It is included, as volume 53, within the renowned European Family Law series.

The abstract of the monograph reads as follows:

Same-sex relationships have successively qualified for formalization through marriage or registered partnership in many European countries. However, some EU Member States still refuse to give them any form of recognition or only allow very limited legal effects. The irregular speed of development in domestic family laws in EU Member States results in “limping family” relations, that is, family relations that are recognised as creating a formal civil status in many EU Member States, but not in all of them. The ordre public safeguard of private international law has widely been used to justify why a same-sex marriage or registered partnership cannot be recognised. The pretext tends to be that national identity, allegedly, becomes threatened. Nevertheless, the case-law of the European Court of Human Rights and the Court of Justice of European Union provides new standards for recognition, which create legal obligations for EU Member States.

The author focuses on the interaction between human rights standards and private international law, carrying out a deft investigation of the impact of “Europeanization” on this interaction, analysing legal effects of same-sex marriages and registered partnerships in the Baltic States and Poland in a cross-border context. The central theme in this book is the elusive and ever-changing concept of ordre public, and the interplay between its understanding(s) at the national and European levels.

The aim of this book is to evaluate the impact of culture in this area of study, within the context of the analysed States’ recent histories, societal developments, and religions. This book is published at a time of clashes between traditional family values and gender equality in Europe. In States like Lithuania and Poland, the heterosexual nature of marriage is considered to be a fundamental component of the State’s national identity and public policy. Nevertheless, the book reveals how different legal understandings of national identity, ordre public, and the family can co-exist in parallel.

Table of contents is available here, and the book, also as an e-book, may be purchased here.

Private international lawyers and the ECJ are bound by a love-hate relationship: one single judgment delivered by the latter may sometimes give rise to a fully-fledged conference where, at the end of a lively discussions, the former express harsh criticisms, tepid approval or high praise towards the solution shaped by the Luxembourg Court. But while PIL scholars usually tend to dissect every substantive aspect of the Court’s ruling, little attention is usually paid to the ‘procedural’ context in which such decision has been reached. I admit that, before coming to Luxembourg, I myself took little notice of details such as the existence (or lack of) an AG’s Opinion, the reporting judge assigned to the case or the judicial formation having rendered the decision. However, these arguably are important indicators of the way in which a question concerning EUPIL is treated – both procedurally and substantively – by the Luxembourg Court.

Against this backdrop, it could be interesting, if not useful, to take a broader look at the relationship between the ECJ and EUPIL, going beyond the individual judgment and aimed at assessing preliminary rulings on this subject as a systemic phenomenon. The purpose of this analysis is twofold.

Firstly, it serves to disprove the belief – still held dear by some scholars – that PIL issues are ‘merely technical’ in nature. In fact, these are seldom treated as such in Luxembourg, as evidenced by the overwhelming majority of cases assigned to Chambers of five rather than to a Chamber of three. Moreover, since an Opinion of the AG is delivered in more than half of PIL cases, these often raise ‘new questions of law’, in the sense of Article 20 of the ECJ’s Statute. This finding holds true also with respect to instruments – such as the Brussels Regulations – that are of long-standing application in national courts and frequently interpreted in Luxembourg, thus confirming that, in PIL cases, facts and legal rules tend to combine in ever-changing constellations of interactions.

Secondly, the discussion may be useful in view of eventual future reforms of the ECJ’s internal structure and/or working methods. This Institution is presently coming under growing pressure owing to the ever-increasing number of cases introduced before it on a yearly basis. In 2021, this rise was deemed ‘significant’ and affected mostly the Court of Justice (see the Report ‘Year in Review’, p. 28). The reasons behind this surge of cases are, on the one hand, an increase in the appeals brought against rulings of the General Court (ibid, p. 28) and, on the other hand, the ever-growing number of preliminary references filed by national courts (in 2021, they accounted for the largest share (68%) of new cases brought before the Court: Management Report 2021, p. 6). According to President Lenaerts, the Court is currently engaged in ‘a reflection on how to achieve a rebalancing of the workload between the Court of Justice, composed of one judge per Member State, and the General Court, which, since September, has two judges per Member State’ (Report ‘Year in Review’, p. 5). Since the Court has already tackled – at least partially – the ‘appeals problem’ by introducing a filtering mechanism, this further ‘rebalancing’ might include, in theory, the transfer to the latter of some of the functions currently performed by the former, such has the delivery of preliminary rulings, following a sectoral approach limited to certain subject-matters. The question (purely hypothetical at present) as to whether – and to what extent – the field of civil cooperation in civil matters should be touched by this eventual ‘rebalancing’ should be addressed based on said systemic analysis of the relationship between the ECJ and EUPIL. Its aim is to identify trends – if any – in the adjudication of these cases and to decipher their meaning.

The two objectives stated above can be best served with the assistance of empirical legal research. To my knowledge, there is no existing data (institutional or otherwise) that specifically concerns PIL cases brought before the ECJ. The Charts appearing in the following sections are therefore drawn from a repository of cases I compiled myself based on the information which is publicly available on EUR-LEX and Curia, or was made public at the hearing. This repository puts together the requests for preliminary rulings filed and/or decided with respect to EUPIL instruments from January 2015 to August 2022.

For the purposes of this research, ‘EUPIL’ is understood as encompassing the Brussels-Lugano Regime (Regulations 44/2001 and 1215/2012 as well as the Lugano II Convention), the Brussels II Regime (limited to Regulation 2201/2003, since there are presently no cases on Brussels II-ter), the Rome Regulations (593/2008, 864/2007 and 1259/2010); the Succession Regulation and the ‘smaller’ Regulations (EAPO, EPO, EEO, ESC, Service and Evidence I Regulations). The Regulations on matrimonial and registered partnership property issues have been taken into account, but there is currently no request for interpretation concerning them.

The selected time-frame (2015-2022) has been identified based on the (debatable) assumption that the last 7 years could provide for ‘meaningful’ empirical evidence concerning the application of all the above mentioned instruments, including the eldest, the Brussels I Regulation (which still applies to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded until 9 January 2015).

The numerical labels appearing in the Charts refer not to the number of cases filed with the ECJ, but to the number of preliminary references raised with respect to each instrument (e.g. if one case raised questions concerning two different EUPIL instruments, it was counted twice).

Overall, there are 245 preliminary references concerning EUPIL instruments in the selected timeframe. Unsurprisingly, the Brussels-Lugano regime accounts, alone, for more than 50% of the total references submitted to the ECJ, followed by Reg. 2201/2003 as a far second (12 %). The Rome Regulations, taken together, make up for another 12 % of the total cases.

A closer look at the geographical origin of the preliminary references confirms that EUPIL preliminary references are not equally distributed across the Member States.

National courts in Germany and Austria have indisputably acquired a leading role as triggers of EUPIL case law and of its evolution over the past 7 years. Rather surprising is the data concerning Luxembourg, where the ‘cross-border dimension’ of cases is almost a daily occurrence. This suggests that there is no necessary correlation between the application rate of EUPIL instruments and the number of preliminary references submitted to the ECJ.

Data from the last seven years shows that a generous majority of EUPIL cases commands an Opinion of the AG. The percentages shown in Chart 5, below, are based on aggregated data concerning all EUPIL instruments, as defined above sub A.

In actual truth, there are perceivable sectoral variations, across the several instruments, with this percentage hovering between a maximum rate of 80 % in the Succession Regulation to a minimum of 33% under the EEO Regulation (except, of course, for the 0% rate that characterizes the Evidence and the ESC Regulations). The Charts below give a good idea of such sectoral variations.

Another good indicator of the relative ‘weight’ of EUPIL cases (and of the importance of the legal questions raised therein) is the number of preliminary references that, owing to their difficulty, their importance for Union Law or the particular circumstances surrounding them, are assigned to the Grand Chamber (cf Article 60 of the Rules of Procedure of the Court).

In this respect, it is apparent from the Charts below that the field of EUPIL is characterized by a relatively low number of Grand Chamber cases (6 cases in total over the last 7 years, ie 3 %). As a reminder, these Grand Chamber cases are:

• Concerning Reg. 1215/2012, C-194/16, Bolagsupplysningen, C-59/19, Wikingerhof (the object of an online symposium on this blog, with comments by Matthias Lehmann, Adrian Briggs, Gilles Cuniberti and Peter Mankowski); C-251/20 Gtflix Tv (commented on this blog by Marco Buzzoni);
• Concerning Reg. 44/2001, C-700/20, London Steam-Ship Owners’ Mutual Insurance Association (the object of another symposium on this blog, with comments by Adrian Briggs, Gilles Cuniberti, Antonio Leandro and François Mailhé).
• Concerning Reg. 593/2008, C-135/15, Nikiforidis
• Concerning Reg. 2201/2003, C-646/20, Senatsverwaltung für Inneres und Sport, pending.

The vast majority of cases remains assigned to Chambers of five, which is the ordinary formation of the Court. Chambers of three, which are reserved to cases that are either highly technical in nature or of straightforward solution, are less frequent in EUPIL, accounting for around one quarter of the total cases. These are relatively more common under the Brussels I and Ibis Regulation, possibly because of the existence of a long-standing and well-developed body of case law that may better contribute to the straightforward solution of the case.

Interestingly, there is a certain number of cases assigned to a Chamber of three but decided with the support of an AG Opinion. This may, at first (and only at first), seem like a contradiction in terms. As mentioned above, the Opinion of the AG should, in principle, be delivered solely in cases that raise ‘new questions of law’. In practice, however, it is apparent that Opinions have been asked under other circumstances, presumably to help the drafting of the future judgment, or because different approaches to the solution of a case could easily be envisioned. Hence, it is not inconceivable that a case may be, at once, highly technical in nature – thus justifying the deferral to a Chamber of three – and open to different alternative solutions, calling therefore for the advisory assistance of the AG (as it was the case in C-214/17, where AG Szpunar explicitly evokes the doubts expressed by the referring court concerning two alternative approaches to the solution of the question raised, §21-23). Similarly, a case can present a question which is at the same time highly technical in nature, but ‘novel’ in the sense of Article 20 of the Statute, as it might have been the case in C-555/18, concerning the weight to be attached to the requirement of enforceability for the purposes of the uniform definition of ‘authentic instrument’ under the EAPO Regulation (there was, in that case, a target Opinion by AG Szpunar).

Another and more significant pointer to the ‘novelty’ of the legal questions raised by EUPIL cases is the form taken by the decision finally delivered by the ECJ.

It should be reminded that the ECJ usually rules through judgments (arrêts, in French), but it can exceptionally adopt a ‘reasoned order’ where (a) a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled ; or (b) where the reply to such a question may be clearly deduced from existing case-law ; or (c) where the answer to the question referred for a preliminary ruling admits of no reasonable doubt (Article 99 of the Rules of Procedure). Moreover, where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court can decide to give a decision by reasoned order without taking further steps in the proceedings (Article 53 (2) Rules of Procedure).

Against this backdrop, the more surprising result is not so much the high number of judgments delivered in EUPIL matters, but rather the extremely low number of Article 99 Orders, even more so with respect to the Brussels I Regulation, which has by now undergone almost two decades of application and interpretations by the Luxembourg Court, and could itself profit from the interpretive rulings previously rendered under the 1968 Brussels Convention according to the 1971 Protocol.

Considering the high recurrence rate of questions concerning the interpretation of certain specific provisions of the Brussels Regulations, such as those dealing with the heads of jurisdiction in contractual matters and torts, consumer contracts and exclusive or prorogated jurisdiction, the low number of Article 99 Orders means, in practice, that the application of such provisions to concrete facts continues to give rise to new scenarios, with respect to which existing case law provides for an answer that is either partial, incomplete or open to further interpretation.

The final aspect considered by this empirical research relates to the (only apparent) lack of internal specialization within the ECJ, in the sense that this Institution is not formally divided into Chambers dedicated to specific subject-matters. Each of the Chambers of the Court, whatever the judicial formation, can in fact hear cases relating to any matter that falls within the jurisdiction thereof. Considering the wide scope of EU law and in the light of the current challenges brought by the inflating number of new cases, this lack of specialization of the Court’s Chambers could be seen as a hindrance to the Institution’s efficiency. Again, this conclusion must be nuanced, if not completely set aside, based on the analysis of the Court’s case law. Despite the lack of institutional specialized Chambers, the Court has developed an internal system for the allocation of cases among reporting judges and AGs which favours, at once, informal specialization and flexibility. Concerning the latter, the internal allocation of cases must be flexible enough to accommodate the contingent organizational needs of an Institution of such size, such as, for example, the need of ensuring an equal distribution of cases and expedited treatment of PPU cases or of avoiding national or other kinds of bias. Concerning specialization, existing case law clearly shows that certain judges and AGs that have been consistently entrusted, over the time, with EUPIL cases.

(***Note of the Author: data about Reporting Judges are incomplete, as this information is not disclosed with respect to cases that have been withdrawn and removed from the register. The Order of the President only mentions the designated AG***)

Obviously, this is not to say that the final decision on the case will reflect exclusively or even predominantly the individual views of these judges. Rather, this decision will always be the result of the collective will emerged from the discussion within the Chamber (of five or of three judges). This informal specialization of the Reporting Judge and of the AGs ensures nonetheless the efficient working of the Institution at the initial stage of the proceedings, concerned with the preliminary analysis of the case geared towards the identification of the appropriate judicial formation and of other procedural needs (eg. the need for further written clarifications or for an oral hearing). It could also favour, over time, a certain consistency in the (procedural and substantive) approach adopted with respect to recurrent issues, thus enhancing the overall coherence of the Court’s case law in EUPIL.

Olaf Meyer (Frankfurt University of Applied Sciences) edited a book titled Public Policy and Private International Law – A Comparative Guide with Edward Elgar Publishing, part of the Elgar Comparative Guides.

Bearing in mind that the public policy exception in private international law is designed to provide a national backstop in the application of foreign laws, this book provides detailed and practical comparative coverage of the use of public policy in the context of private international law across a number of important jurisdictions spanning three continents. As well as explaining the basic theoretical framework of the public policy exception in private international law, this book drills down into the practical application of such rules, giving an overview of these jurisdictions’ legal and policy stances on current issues including: punitive damages, surrogacy, same-sex marriage, gender-based discrimination, Islamic law, and adoption to name a few. This approach serves to highlight both the differences and the similarities in approach.

Contributors include John F. Coyle, Luís de Lima Pinheiro, Anita Duraković, Pietro Franzina, Andreas Furrer, Florian Heindler, Madina Kassenova, Svenja Langenhagen, Qiao Liu, Peter Mankowski, Ulf Maunsbach, Louise Merrett, Zlatan Meškić, Olaf Meyer, Alberto Muñoz Fernández, Cécile Pellegrini, Réka Somssich, Dirk Trüten, Bea Verschraegen, Wolfgang Wurmnest, Candan Yasan-Tepetaş, Fang Yu, Maciej Zachariasiewicz and Nicolás Zambrana-Tévar.

For further information, see here.

Georgina Garriga Suau and Christopher Whytock have recently published a paper on SSRN, entitled “Choice of Law for Immovable Property Issues: New directions in the European Union and the United States”.

Building on a comparative assessment of recent developments in US and EU private international law (PIL), the paper address the changing fate of lex rei sitae conflict-of-law rule, which went from being the cornerstone of the PIL regime for issues about immovable property to see its scope of application substantially reduced over the last years.

In the US, the current drafts of the Third Restatement limits the scope of application of the lex rei situs to “core immovable property issues”, to the exclusions of other ancillary matters that were subsumed under this rule according to the First and Second Restatement, such as succession and matrimonial property issues involving immovables, and even issues concerning contracts for the transfer of immovable property interests. Behind the retrocession of this rule lies a different and more holistic approach to the appraisal of the policies underpinning the laws governing matrimonial property regimes, successions and contracts: these are usually not policies about immovables as such, meaning a State other than that where the immovables are located will likely have a stronger interest in having its law applied to these issues, considered as an inseparable whole.

The authors give evidence of a similar trend in EU PIL. Although the lex rei sitae conflict-of-law rule is maintained, in principle, by the Rome I Regulation with respect to contracts relating to a right in rem in immovable property, later on it did not find its way in either the Succession Regulation or the Matrimonial Property Regulation, both axed on the connecting factor of habitual residence.

Similarly, the Registered Partnership Regulation does not adopt the lex rei sitae conflict-of-law rule, even when the issues covered by it arise in relation to immovable property. All these Regulations favour the unity of the applicable law, extending their conflict-of-law rules to the issues that are within their scope regardless of the property’s location and regardless of whether it is characterized a movable or immovable property.

They do, nonetheless, indirectly allow for the “survival” of the lex rei sitae conflict-of-law rule, insofar as they exclude from their scope (and delegate to national PIL) certain core immovable property issues, namely, the nature of rights in rem  and the recording o immovable property rights in a register, including the legal requirements for recording and the effects of recording or failing to record. Such exclusions (which are narrowly interpreted by the ECJ) pose the problem of defining such “core immovable property issues”.

According to the authors, these include, that these issues include, at a minimum, issues about permissible interests in immovable property and about the requirements for and effects vis-à-vis third parties of recording immovable property transfers in immovable property registries. On this point, there is certainly room for enhancing coherence among the several EU Regulations and improving legal certainty as concerns the EU’s understanding of “rights in rem in immovable property”. This challenge is currently being tackled by several academic initiatives, that are briefly discussed by Garriga Suau and Whytock.

The authors conclude that the comparative analysis of EU and US PIL reveals that similar reasons lie behind the “shrinking” scope of application of the lex rei sitae conflict-of-law rule, relating mostly to the objective of avoiding fragmentation a corpus of property in the case of matrimonial property/succession issues, and in those contexts as well as in the context of contractual matters, avoiding the need to characterize issues as involving either immovable property or movable property. Another underlying reason is, in both legal systems, a shift in the interest analysis that underpins the conception of conflict-of-law rules in those matters, which now tends to attach less weight to the sheer location of property, to the benefit of other interests that can usually be better ensured through the application of a law other than the lex rei sitae.

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is offering several three- to six-month legal internships at its office in the Hague from January to June 2023.

The selected interns are expected to conduct research together with the HCCH legal team the following areas of activity of the organisation:

Family and Child Protection Law (at least three interns):

• 2000 Protection of Adults Convention and 2007 Child Support Convention and Protocol
• 1993 Adoption Convention and Parentage / Surrogacy Project
• 1980 Child Abduction Convention (incl. Malta Process and related Working Party on Mediation) and 1996 Child Protection Convention

Transnational Litigation, Legal Cooperation, and Commercial and Financial Law (at least three interns):

• 1961 Apostille Convention (incl. e-APP)
• 1985 Trusts Convention, 2006 Securities Convention and Digital Economy (incl. DLT) Project
• 2005 Choice of Court Convention, 2019 Judgments Convention, Jurisdiction Project, and 2015 Choice of Law Principles
• 1965 Service Convention, 1970 Evidence Convention, and 1980 Access to Justice Convention

The HCCH Internship Programme is open to those currently studying law at the Bachelor, Masters, J.D, and PhD. level and to those who have already been awarded a law degree or Masters.

The intern should speak at least one of the two official languages of the HCCH, English and French. Knowledge of the other official language is an asset. Knowledge of any other languages may also be an advantage.

Prospective applicants should complete an online application form (available here) and submit the following supporting documentation:

1. a letter of motivation (two pages maximum)
2. a curriculum vitae (CV)
3. a transcript of academic records or statement of academic results
4. an academic writing sample (an excerpt of any of your essays or papers in either English or French)
5. at least one letter of recommendation

The applications can be submitted until 18.00 hours (CEST), Friday 23 September 2022.

More information about the internship and the application and selection process can be found here.

This post was contributed by Thomas Mastrullo, who is an Associate Professor of Commercial Law at the University  of Luxembourg. It is the fifth in a series of posts on the French draft code of private international law of March 2022 (the previous posts in the series gave a German perspective and discussed the issues of renvoi, foreign law and the recognition of marriages celebrated abroad). 

Title II of Book II of the French Draft Code of Private International Law is devoted to legal persons.

This Title II is divided into two chapters which deal with two major questions of international company law: the first chapter pertains to the recognition of companies (Art. 85), while the second chapter concerns the conflict-of-law rule in corporate matters, through the determination (Art. 86) and the scope (Art. 87) of lex societatis.

By the rules it proposes, the French Draft PIL Code undoubtedly promotes the modernization of French international company law.

Article 85 of the French Draft PIL Code lays down the principle of recognition in France of the legal personality of companies formed in accordance with the law of a foreign State.

The proposed article 85 reads :

L’existence et les effets de la personnalité morale ou de la capacité juridique des sociétés dont le siège statutaire est situé hors du territoire français et qui ont été régulièrement immatriculées sur un registre public d’un État étranger sont reconnus de plein droit sous réserve de la fraude aux droits des tiers.

The Draft PIL Code thus adopts the liberal theory of incorporation with regard to the recognition of foreign companies: as soon as a company is validly incorporated in a foreign State, where by hypothesis it has fixed its statutory seat or registered office, it must be recognised in French territory.

Such a rule “codifies” the traditional position of French law on this subject. Indeed, since the 19th century, it has been accepted in French law that “la régularité de la constitution selon la loi de l’État d’immatriculation est suffisante pour que la société soit reconnue en France” (M. Menjucq, Droit international et européen des sociétés, LGDJ, “Précis Domat”, 6th ed., no. 58), as long as it is established that the company enjoys legal personality in its State of incorporation (See CA Paris, 30 Apr. 1997, BJS 1997, p. 778, note M. Menjucq). Moreover, the solution adopted by the Draft is in line with the jurisprudence of the CJEU, and in particular with Überseering judgment (see here) according to which:

the refusal by a host Member State to recognize the legal capacity of a company formed in accordance with the law of another Member State in which it has its registered office on the ground (…) constitutes a restriction on freedom of establishment” and, even worst, an “outright negation of the freedom of establishment.

Beyond these general remarks, three points on the text may be underlined.

Firstly, recognition relates to the “existence and effects” of legal personality. This expression refers to the French doctrinal position which defines recognition as “l’admission sur le territoire nationale de l’existence et des effets d’une personne juridique (physique ou morale) étrangère” (L. Lévy, La nationalité des sociétés, LGDJ, 1984, p. 51). This definition gives precedence to the fiction theory of legal personality, considering that, whatever personality a company enjoys abroad, it is not imposed on the State of recognition, which remains free to decide on its existence. We know that other authors, inspired by the reality theory, define recognition more strictly as “l’autorisation accordée par l’État à la société d’exercer une activité sur son sol” (P. Mayer et V. Heuzé, Droit international privé, LGDJ, « Précis Domat », 11th ed., no. 1106 et s.). The approach adopted by the Draft has the merit of grasping the whole issue of recognition in corporate matters: the recognition of the existence of a foreign company as a legal person logically implies the recognition of the effects resulting from this personality… And it is difficult to imagine that a foreign company whose existence is recognised in a State could be outright refused authorization to carry on its business there.

Secondly, the Draft PIL Code pertains to the recognition of the companies’ “legal personality” but also of the companies’ “legal capacity”. A simple legal capacity granted in the foreign State of incorporation is therefore sufficient to recognize a company’s legal personality in France. Indeed, the condition that the company must have legal personality in its State of incorporation in order to be recognized in France is interpreted broadly. Even if it does not have legal personality in its State of incorporation, a company which enjoys a capacity equivalent to that conferred on companies which have legal personality in France may be recognized as a legal person on French territory, as was decided in the case of a German Offene Handelsgesellschaft (see CA Versailles, 14 janv. 1999, BJS 1999, § 97, p. 466, note M. Menjucq).

Thirdly, the Draft PIL Code provides that recognition can be rejected in case of fraud against the right of third parties. This could be the hypothesis of a letter-box company without any effective connection to the State in which it has its statutory seat or registered office. This international company law’s classic limitation is to be welcomed, especially as it is compatible with EU law. Indeed, it follows in particular from the Inspire Art (see here) and Polbud (see here) CJEU’s judgements that fraud against the rights of third parties may constitute a limit on the companies’ freedom of establishment, provided that such fraud is assessed on a case-by-case basis and in a punitive manner (see Th. Mastrullo in Traité de droit du commerce international, M. Menjucq et J. Béguin (dir.), LexisNexis, 3rd ed., no 711). Obviously, the characterisation of fraud will always be based on an assessment of the facts of the case.

The French Draft Code of Private International Law adopts the theory of incorporation and the criterion of the statutory seat or registered office as a connecting factor for determining the lex societatis.

The proposed Article 86 reads :

Les sociétés immatriculées au registre du commerce et des sociétés au titre de leur siège statutaire sont soumises aux dispositions de la loi française.

Les sociétés dont le siège statutaire est situé hors du territoire français sont soumises aux dispositions du droit des sociétés de l’État dans lequel elles sont immatriculées dans un registre public ou, à défaut d’immatriculation, de l’État où est situé le siège statutaire.

The first paragraph uses the unilateralist method, and states the French law’s will to be applicable to companies whose statutory seat or registered office is in France, while the second paragraph contains a bilateral conflict-of-laws rule according to which, when its statutory seat is not in France, the company is ruled by the law of the State where it is incorporated or has its statutory seat.

As the Legal High Committee for Financial Markets of Paris (“Haut Comité juridique de la Place Financière de Paris” – HCJP) which has published a report on the applicable law to companies  (Rapport sur le rattachement des sociétés – see here) on 31 March 2021, the French Draft PIL Code adopts a liberal approach of companies’ connecting factor.

Several arguments may be advanced in support of this proposition.

Firstly, the connecting factor relying the statutory seat or registered office is simpler and, as a consequence, more favorable to legal certainty. Indeed, on the one hand, it eliminates the touchy question of the place of the real seat and, on the other hand, it guarantees respect for the operators’ choice of the law to rule their company. Thus, this connecting factor might reinforce France’s attractiveness. Secondly, the solution is inspired by the comparative private international law which reveals a strong tendency towards the generalization of the incorporation theory or connecting criterion by the statutory seat or registered office. In Belgium, for instance, the connecting criterion by the real seat, which had prevailed since 1873, has been abandoned by the law of 23 March 2019 in favour of the connecting criterion by the statutory seat, the new Article 110 of the Belgian Code of Private International Law now providing that « La personne morale est régie par le droit de l’État où se situe son siège statutaire ». Thirdly, the solution is more suited to the development of EU law which, through the jurisprudence of the CJEU – and in particular the Centros (see here), Überseering (see here), Inspire Art (see here), and Polbud (see here) judgments – and some regulations – such as European Regulation n° 2157/2001 on SE (see here) or Directive (UE) 2019/2121 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions (see here), tends to promote the statutory seat or registered office as a connecting factor.

It is regrettable that the proposed Article 86 does not provide for the limit of fraud against the rights of third parties, as it is expressly provided for in relation to recognition. One can think, however, that the limit of fraud could be implemented in order to apply the law of the real seat instead of the law of the statutory seat, either on the basis of Article 85, which rejects the recognition of legal personality’s “effects” in case of fraud against the right of third parties (lex societatis may be considered as one of these “effects”), or on the basis of common private international law, knowing that such a limit is envisaged by European case law (see already above).

Article 87 of the French Draft Code of Private International Law is dedicated to the scope of application of the lex societatis. The inspiration of this text can be found in Swiss law. The aim is to increase the readability and, as a result, the attractiveness of French law. A list of elements falling within the scope of lex societatis is drawn, this list being non-exhaustive as suggested by the use of the French adverb “notamment” (which can be translated by “in particular”).The list of elements falling within the scope of the lex societatis is not surprising and, mostly, “codifies” the French doctrinal positions and case law’s solutions.For example, the assertion that the lex societatis determines the acquisition and loss of the status of shareholder takes up the solution of the famous Royal Dutch judgment of 17 October 1972 (see here), in the same way that the Africatours judgment of 1st July 1997 admitted the application of the lex societatis with regard to the liability of managers towards third parties (see here).

In conclusion, the project seems relevant to meet the challenges created by the development of freedom of establishment in the European Union and to strengthen the competitiveness of French company law.