EAPIL blog

The author of this post is Lorenzo Acconciamessa, a PhD student at the University of Palermo and a teaching assistant at the Catholic University of the Sacred Heart in Milan.

By a ruling of 4 November 2020, the Italian Constitutional Court declared that the combination of Italian rules precluding the formation of a child’s birth certificate that mentions two women as mothers is not at odds with the Italian Constitution. However, it acknowledged that the Constitution does not preclude the Parliament from reforming such rules and, therefore, from allowing the formal and direct recognition of same-sex parenthood in Italy.

The case concerned a same-sex couple of Italian nationals who had entered into a registered civil union in Italy and had decided to have a child. However, provided that the Italian Statute on Medically Assisted Procreation precludes same-sex couples from resorting to such practice in Italy, they went abroad, where one of them conceived a child. Then, they went back to Italy, where the biological mother gave birth to the child. The Registrar of the Municipality dismissed their request to have the intended mother indicated as parent in the birth certificate and, accordingly, the latter only mentioned the biological mother.

The couple asked the Tribunal of Venezia to rectify the birth certificate, since they wanted both of them be mentioned. However, the Tribunal acknowledged that the legislation in force in Italy does not allow for such a ruling. In particular, it considered that the prohibition of direct recognition of same-sex parenthood arises from the combined application of the Italian Statute on same-sex partnerships and the Regulation concerning the Registry of births and deaths, as interpreted in the light of the above-mentioned prohibition to access to medically assisted procreation.

According to the Tribunal, such combination of norms is at odds with the Italian Constitution and with some rules of international human rights law, namely those stipulated in Articles 8 (right to private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 24, paragraph 3 (right to a relationship with both the child’s parents), of the Charter of Fundamental Rights of the European Union, and Article 2 (right to equality and non-discrimination) of the UN Convention on the Rights of the Child.

In a previous post in this blog I have explained that, under Article 117, paragraph 1, of the Italian Constitution, as interpreted by the Constitutional Court, international treaties in force for Italy cannot be derogated from through legislation. Thus, domestic legislation inconsistent with an international obligation of Italy must be considered to be unconstitutional and declared void.

In the Tribunal’s view, the result of the combined application of the said rules violates the parents’ and the child’s fundamental rights. As for the formers, it breaches their right to parenthood and to procreation, as well as the prohibition of discrimination on grounds of sexual orientation and financial status. As a matter of fact, if the couple had the possibility of giving birth to the child abroad, they would had the right to obtain the record of the foreign birth certificate mentioning both of them as parents, pursuant to the case-law of the Italian Supreme Court (which refers to same-sex female couples, not same-sex male couples). As for the child, the Tribunal considered that the latter’s best interests demand the parental relationship be established with the biological and the intended mother.

The Constitutional Court considered that the non-recognition of same-sex parenthood is not at odds with the Italian Constitution, nor with the international human rights norms invoked by the Tribunal: it does not violate the parent’s and/or the child’s fundamental rights.

Those instruments, in the Court’s view, do not guarantee a right to become parents, nor a right to same-sex parenthood. At the same time, given the natural infertility of same-sex couples, limiting their access to parenthood does not involve an illegitimate form of discrimination and falls within the State’s margin of appreciation, as established by the European Court of Human Rights (ECtHR) in the 2019 Advisory Opinion.

In this regard, it should be considered that in 2018 the ECtHR had the opportunity to rule on same-sex couples’ right to access to medically assisted procreation. It dismissed the case on admissibility grounds, given that the applicants had not exhausted the domestic remedies provided for by the French legal order (Charron and Merle-Montet v. France). Therefore, in the view of the subsidiarity principle, the ECtHR held that domestic courts should have had the possibility to rule on the matter.

The (in)admissibility decision, however, does not exclude that the ECtHR could rule in the future that Articles 8 and 14 of the ECHR do require to allow same-sex married couples to have access to medically assisted procreation at the same conditions than heterosexual couples.

It remains that, according to the Constitutional Court, the right to same-sex parenthood is not currently recognized as a fundamental right and, therefore, cannot be invoked for declaring void the domestic rules allegedly violating it. On the other hand, the Constitutional Court admitted that the Constitution and international human rights law do not preclude Italy from recognizing that right. Nevertheless, provided that it is a sensitive issue involving a delicate balancing of interests, it falls within the Parliament’s exclusive margin of appreciation.

As for the best interests of the child, the Constitutional Court recognized that it is true that Italy has a duty to recognise the relationship between the child and the intended mother. However, provided that the conditions established by the ECtHR in the above-mentioned Advisory Opinion are fulfilled (namely, (i) effective recognition of the relationship, (ii) rapidity and (iii) assessment of all the relevant circumstances in the child’s best interests), the State enjoys a wide margin of appreciation in choosing the legal instrument for establishing such relationship.

The Constitutional Court considered, again, that Article 44, paragraph 1, of the Italian Statute on Adoption allows the intended mother to adopt her partner’s child. The so-called “adoption in particular cases”, however, does not create a full parent-child relationship from a legal point of view.

In my view, the Court failed to take into consideration the recent developments in the ECtHR’s case-law, notably as expressed in its recent ruling in the D. v. France case. In that case, the ECtHR concluded that Article 8 had not been violated precisely because the French legal order allows the intended mother to apply for the full adoption of the partner’s child. Even in this regard, however, the Constitutional Court concluded that a “different and wider protection of the child’s best interest” would be constitutionally legitimate, and that therefore the Parliament could reform – in the exercise of its own political discretion – the current legislation with the view of allowing the full-establishment of the relationship between the intended mother and the child.

The Constitutional Court did not rule, as the Tribunal had asked, that the recognition of same-sex parenthood is required by the Italian Constitution and international human rights law. The Court merely recognized that, in any case, neither the Constitution nor international human rights law prohibit same-sex parenthood. It remains to be seen whether the Parliament, in the exercise of its political discretion will decide to reform the current legislation in Italy concerning those issues.

Despite the timid recognition of the (hypothetical) constitutional legitimacy of same-sex parenthood, the Constitutional Court opted for exercising its self-restraint in favour of the legislator. It seems that the Court is not ready to rule on such sensitive and ethical issues.

In the meantime, the Court has announced that on 27 January 2021 it will hold a public hearing in the case concerning the constitutional legitimacy of the Italian rules of private international law (currently) precluding the recognition of a foreign birth certificate attesting the existence of a parent-child relationship between a child born abroad by resorting to gestational surrogacy and his intended parent.

Will the Court continue to exercise its self-restraint approach?

Noëmie Reichling (PhD, Avocat à la Cour, France) has just published a monograph on Fundamental Principles of Civil Litigation in the European Judicial Area, based on her doctoral thesis: Les principes directeur du procès civil dans l’espace judiciaire européen. Etude à partir du procès civil transfrontalier, PUAM, 2020.

The author has provided the following abstract in English:

Since the Treaty of Amsterdam entered into force on the 1st of May 1999 and the “communitarisation” of judicial cooperation in civil matters, the European Union has adopted many legal instruments relating to cross-border litigation, to the extent that one can now refer to a distinct “European International Private Law”, the governing principles of which have yet to be defined. By comparison, the French Code of Civil Procedure includes an entire chapter devoted to the governing principles applicable to civil trials. Based on a study of the European civil justice area, four governing principles can be identified: the adversarial principle, the principle of the judge’s active role, the principle of urgency and the principle of cross-border dialogue. In prospective terms, it follows that the possibility of these four principles’ being enacted in EU law is a matter worthy of examination. Several obstacles can be identified, none of which appears to be insuperable. Having been recognised as a possibility, such a consecration also seems desirable on the grounds of its several demonstrable advantages. The legal basis and vehicle of the above-mentioned four principles’ legal enshrinement remain to be determined. In this regard, article 81 of the Treaty on the Functioning of the European Union, pertaining to judicial cooperation in civil matters, could serve as a legal basis. In terms of implementation, this study also argues in favour of regulations over directives.

More details available here.

A set of seven articles on the Project IC2BE have been published in the second issue of the Zeitschrift für Vergleichende Rechtswissenschaft (ZVglRWiss 119 (2020), Heft 2), a German periodical, providing information in the area of comparative law with a focus on international business law.

The articles cover a wide array of issues on cross-border debt recovery.

The opening contribution, by Jan von Hein, provides a presentation and illustrates the results of the Project (Informierte Entscheidungen in der grenzüberschreitenden Forderungsdurchsetzung – Vorstellung und Ergebnisse eines internationalen Forschungsprojekts).

Michael Stürner discusses the field of application oft the EU Regulations relating to cross-border debt recovery (Der Anwendungsbereich der EU-Verordnungen zur grenzüberschreitenden Forderungsdurchsetzung). Christian Heinze‘s paper is about the provisional protection of claims in European Civil Procedural Law (Die Sicherung von Forderungen im europäischen Zivilprozessrecht), while Christoph Althammer’s is on the contribution of court organization to the efficiency of cross-border debt recovery (Der Beitrag der Gerichtsorganisation zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung).

The article by Florian Eichel is about the contribution of modern information technology to the efficiency of of cross-border debt recovery (Der Beitrag der modernen Informationstechnologie zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung). Haimo Schack’s is on the grounds for refusal of recognition and enforcement in European Civil Procedural Law (Anerkennungs- und Vollstreckungsversagungsgründe im Europäischen Zivilprozessrecht).

Finally, Caroline Meller-Hannich discusses the interface and interaction of European Civil Procedural Law and national law as regards enforcement (Schnittstellen und Wechselwirkungen zwischen dem europäischen Zivilprozessrecht und dem nationalen Vollstreckungsrecht).

The Jean Monnet Chair in European Civil Procedure, hosted by the Madrid-based IE University, is the first Chair entirely devoted to the study and dissemination of the ELI-UNIDROIT Model Rules of European Civil Procedure.

The Chair is held by Marco de Benito, Professor of Law at IE University, where he teaches comparative civil procedure and international arbitration. Prof. de Benito also fosters reflection and debate on private law and legal history through the Jean Monnet Module in European Private Law.

In its quest to become a genuine area of freedom, security and justice, the EU has developed an ambitious program of normative action in civil procedure. Judicial cooperation has been strengthened. Exequatur has been abolished. Credit has been robustly protected. Sectorial action regularly includes procedural reform. In spite of this considerable acquis, the core procedural systems of states have remained anchored in national traditions. Cutting-edge policy and scholarship have advocated a deeper harmonisation. The Principles of Transnational Civil Procedure adopted by the American Law Institute (ALI) and UNIDROIT in 2004 lighted the path forward. In 2014 the European Law Institute (ELI) and UNIDROIT launched the project ‘From Transnational Principles to European Rules of Civil Procedure’, recently completed with the European Rules of Civil Procedure. Based on that project, in 2017 the European Parliament adopted a resolution requesting the Commission to put forward a proposal for a directive on common minimum standards of civil procedure in the EU.

These projects are the last frontier of civil procedural scholarship. A European proto-civil procedure code shows on the horizon. It will no longer be possible to teach or study civil procedure without making reference to the common rules and categories. The Chair embraces the paradigm shift and offers its grain of sand nationally and internationally.

IE Law School takes inspiration in the old ius commune europæum to teach law as a common language with dialectal expressions. A transnational standpoint is applied systematically. With more than 75% international students, all programmes are taught in English, while also using the original texts in class to the best extent possible. The core course touching upon civil procedure at IE, Litigation I, is dramatically transformed by the current harmonisation endeavours. Litigation I adopts the ELI-UNIDROIT Rules as leitmotif, so that students learn the structure, principles and rules of civil proceedings by reference to the common normative, conceptual and terminological framework. The Rules thus provide the students with a point of reference from which to identify the expression of this or that principle in the law and practice of selected jurisdictions. Like a musical theme with multiple variations, a dialogue between the European Rules and the national laws is established.

Based on that experience, the Chair builds on three more levels: a Study Group (in which students do and comment readings and research); a Faculty Seminar (in which teaching experiences are shared); and the IE Civil Procedure Series, a series of roundtables where students, academics, practitioners, judges, policymakers, from Europe and beyond, can explore the Rules, together with the leaders in the field.

The author of this post is Simon Laimer, professor at the Linz University.

The claimant, an airline established in Austria, and the defendant, which operates a hotel in India, concluded a written contract for the accommodation of the airline’s crew members in the defendant’s hotel as well as their transfer from the airport to the hotel.

The agreement provided, among other things, that the defendant should indemnify the claimant in respect of any damage to property or injury or death of persons, encompassing the property of the claimant and the crew members, caused by negligent or wilful misconduct of the hotel or its staff.

Furthermore, the agreement included an exclusive jurisdiction clause on behalf of a competent court in Vienna (Austria) and provided that it shall be governed by Austrian law without reference to the choice of law principles thereof. During a transfer from the airport to the hotel commissioned by the defendant a traffic accident occurred and several crew members were injured.

The claimant brought a claim to the Vienna commercial court (Handelsgericht) for payment of damages, including damage claims assigned to it by its crew members. While the Handelsgericht determined its jurisdiction based on the jurisdiction clause, the Court of Appeal rejected the claim in so far as it concerned the crew members’ claims assigned to the claimant for lack of international jurisdiction of the Austrian courts.

By a ruling of 29 June 2020, the Austrian Supreme Court (2 Ob 104/19m) confirmed the international jurisdiction of Austrian courts also with regard to that part of the claim. The Court held that a jurisdiction clause under Article 25 Brussels I bis Regulation cannot be invoked against third parties benefitting from the contract (citing the ruling of the Court of Justice in Refcomp), but they could rely on it if the interpretation of the clause leads to the conclusion that it (also) aims at protecting them, hence only the effect of prorogation but not the effect of derogation applies.

The decision may be correct in its outcome, although it remains questionable whether the Austrian Supreme Court should have referred this case to the Court of Justice for a preliminary ruling.

The CJEU recently ruled (in his – debatable – decision in Ryanair v DelayFix; see also Matthias Lehmann) that the mere assignment of a claim is not sufficient for the assignee to be bound by a choice-of-court clause (unless the assignee is the successor to all the initial contracting party’s rights and obligations under the applicable law; para 47). In the present case, however, the roles of the parties were exactly reversed: the Austrian Supreme Court found that, in accordance with the definition of responsibilities covered by the contract, a place of jurisdiction in favor of the assignors had been agreed between the contracting parties. With regard to the interpretation of the jurisdiction clause, both the law applicable to the contractual relationship and the lex fori led to Austrian law, which is why the Austrian Supreme Court found that it did not have to decide the corresponding dispute in legal literature (cf. Caterina Benini on the subject).

Well, it may be sufficiently clear in Austrian national law and as well in the field of insurance contract law according to art. 15 No. 2 Brussels I bis (see CJEU in Gerling v Amministrazione del tesoro dello Stato) that choice-of-court agreements in favor of third parties are effective (at least with regard to the effect of prorogation), but a CJEU decision going beyond this could have contributed to legal clarity.

A detailed summary of the decision is available in the latest issue (4-2020) of The European Legal Forum.

Cedric Ryngaert, Professor of Public International Law at the Utrecht University, has kindly accepted to provide a presentation of his latest monograph, ‘Selfless Intervention – The Exercise of Jurisdiction in the Common Interest’ (Oxford University Press 2020). This post draws on the monograph’s concluding observations.

This monograph inquires how a cosmopolitan agenda could be implemented in the law of jurisdiction. At first sight, such an inquiry might look like an attempt at marrying fire and ice. Cosmopolitans tend to focus on the individual as the ultimate unit of moral concern, and are interested in bringing about ‘global justice’ (whether of the human or environmental variant), regardless of geographical location. They are always concerned with the negotiation and overcoming of delineated political borders. In contrast, the law of jurisdiction, given its close connection to the seminal concept of state sovereignty in international relations, has ‘borders’ written all over it.

Nevertheless, political allegiance to territorially delineated states and allegiance to an international community project based on universal human solidarity need not be mutually exclusive. Kwame Appiah, one of the leading political philosophers of cosmopolitanism, has coined the term ‘constitutional patriotism’ in his respect: ‘We cosmopolitans can be patriots, loving our homelands (not only the states where we were born but the states where we grew up and the states where we live); our loyalty to humankind so vast, so abstract, a unity does not deprive us of the capacity to care for lives nearer by.’ Accordingly, the actual existence of borders need not prove fatal to the cosmopolitan project.

Some authors have even suggested that the ‘state’ could be considered as a cosmopolitan construct in its own right. A somewhat less extreme position, taken by this monograph, is that states may perhaps have primarily been set up or conceived to serve their own citizens, but that this does not bar them from serving a global citizenship and protecting humankind’s common concerns. This cosmopolitan, global citizenship-based authority and responsibility of states has gained increased attention from political theorists disenchanted with the disconnect between moral idealism and actual international political practice, which revolves very much around states indeed. Thus, in a praiseworthy and wide-ranging volume on the cosmopolitan responsibilities of the state (2019), Beardsworth et al investigate ‘the possibility that states can become bearers of cosmopolitan responsibilities while also remaining vehicles for popular self-determination’. Along the same lines, for an international lawyer interested in jurisdictional questions, the challenge is to investigate how the law of state jurisdiction – the initial aim of which was to prevent state sovereignties from clashing with each other – is, and can be reinterpreted to serve cosmopolitan or ‘selfless’ ends, alongside parochial, national interest-based ends.

Inevitably, the quest to conceive the notion of jurisdiction as a vehicle for selfless intervention by states is closely bound up with epistemic evolutions regarding jurisdiction’s twin concept of state sovereignty. After all, jurisdiction is the legal emanation of the political notion of state sovereignty. The state manifests its sovereign power by exercising jurisdiction, ie prescribing and enforcing its laws, and adjudicating disputes on the basis of these laws. In the monograph I argue that the concept of sovereignty is malleable and allows for novel, contemporary understandings of sovereignty being in the service of the international community. It is logical, then, that jurisdiction could fulfil the same function.

However, jurisdiction is not simply an emanation of sovereignty, ie originating or issuing from sovereignty. As Irani suggested, jurisdictional assertions

not only form, border, and construct “the state”: they are the state. The state is instantiated in its jurisdictional assertions … Changing jurisdictional assertions do not simply change what “the state” does: they further change what the state is, who and what it includes and excludes, and crucially, where it is located.

Thus, the nature of the state and of state sovereignty may change as a result of actual jurisdictional practices. This also means that jurisdictional assertions may yield the formation of new political communities that do not necessarily track the physical borders of the state. For our research object, it means that a state becomes cosmopolitan to the extent that it engages in cosmopolitan jurisdictional practices. Accordingly, to fully grasp the contemporary epistemic transformation of state sovereignty, a fine-grained analysis of actual instances of the exercise of  jurisdiction by states is imperative.

In the monograph I demonstrate that, regardless of the dynamics of globalization, interconnectedness, deterritorialization or international solidarity characterizing the current era, when addressing transnational or global challenges, states continue to give pride of place to the core principle of the law of jurisdiction: the principle of territoriality. While use of territoriality to capture the extraterritorial may seem somewhat incongruous, as Rajkovic has pointed out, that ‘territorial boundaries have been always, to varying degrees, in temporal flux.’ Hence, the newly minted concept of ‘territorial extension’, which has played a prominent role in this monograph, may not be a conceptual revolution in the law of jurisdiction. Still,  it does point to an expanding state praxis of states formally relying on territoriality to – in fact – reach beyond state borders.

Also to roll out a cosmopolitan agenda, the principle of territoriality has been the primary jurisdictional gateway. To be true, universality – which is triggered by the gravity of an offence rather than a (territorial) connection to the regulating state – is well-known in the law of jurisdiction, but it only has purchase in respect of a limited number of offences, and arguably only in the field of criminal law. This renders universality, as it is currently understood, ill-suited to address the range of global governance challenges confronting humanity, eg climate change, unsustainable fishing practices, or corporate human rights abuses. Territoriality then emerges as an unlikely savior for the cosmopolitan project, as its capaciousness allows states to ‘territorialize the extraterritorial’ and contribute to the realization of global justice.

There are many instances of states using a territorial hook to address essentially extraterritorial activities, both historic and more recent ones. Some of these jurisdictional assertions have a cosmopolitan dimension, in that they have the realization of global justice as their goal (deontological cosmopolitanism), or as their effect (consequentialist cosmopolitanism). In the field of criminal law, where the origins of the international law of jurisdiction lie, the long-standing ubiquity principle has enabled states to exercise territorial jurisdiction over the whole of an offence as soon as a constituent element could be located on the territory. The seminal idea that it suffices for an element of a particular offense or event to be linked to the territory for territorial jurisdiction to be validly exercised, has cast a long shadow. It has paved the way for a host of jurisdictional assertions that rely on tenuous, artificial or even fictitious territorial connections, assertions which may also serve the common interest. In the monograph I explain how territoriality has been creatively used in such diverse areas as the environment, fisheries, business and human rights litigation, and data protection, to further (sometimes only nascent) global values and common interests.

This area analysis is by no means exhaustive. Also, in other areas, which are not addressed in detail in the monograph, has territoriality been similarly instrumentalized, such as competition law, foreign corrupt practices, and secondary sanctions legislation.  In the field of competition law, US and European courts have exercised jurisdiction over foreign-origin restrictive practices that are implemented or have direct, substantial, and reasonably foreseeable anti-competitive effects on the territory. While this effects jurisdiction has traditionally been relied upon to protect the national economy, wider goals such as boosting global deterrence of anti-competitive conduct and increasing global welfare for both domestic and foreign consumers have been propounded and arguably pursued. Also as regards enforcement of foreign corrupt practices and economic sanctions legislation, which could be considered cosmopolitan insofar as this contributes to the stamping out of global corrupt practices blighting the developmental prospects of foreign populations, or to clamping down on commercial transactions with regimes violating human rights or threatening international security, have courts, especially US courts, given wide interpretations to territoriality. All this speaks to the enduring attractiveness of territoriality to address transnational and global challenges.

In themselves, some territorial connections may be too tenuous to support successful reliance on the territoriality principle. After all, the permissive principles of jurisdiction should be interpreted in light of the substantial connection requirement undergirding the law of jurisdiction. However, one of the main arguments in this monograph is that the legality of jurisdictional assertions resting on weak territorial links may be boosted by these assertions’ very contribution to the common interest, and preferably by their embeddedness in, or relationship with international regulatory instruments. Thus, trade restrictions aimed at tackling climate change may derive their jurisdictional legality from their contribution to the goals of the Paris Climate Agreement, regardless of the diffuse character of the effects which emissions tend to have on the territory of the regulating state. By the same token, the insertion of an unqualified territorial principle in the UN Convention against Corruption and the OECD Convention against Bribery may give international backing for wide interpretations of the principle by Contracting Parties; the nature of corruption as a global scourge may compensate for the weak territorial link which certain foreign practices may have.

It could even be argued that, from a normative perspective, territoriality should more often, and more expansively be relied on when it comes to global values and common interests, in order to prevent that no state’s law applies. As it happens, some conventions require that states exercise territorial jurisdiction, not only in the field of core international crimes (eg torture), but also as regards transnational offences such as corruption. The Port State Measures Agreement, for its part, requires that states deny entry or privileges to visiting foreign-flagged vessels which engaged in IUU fishing. Also human rights treaties or fundamental rights instruments may mandate that states exercise their jurisdiction more vigorously. The human right to a remedy may require state courts to give a liberal interpretation to principles of adjudicatory jurisdiction, such as the principles of domicile, connected claims, or forum of necessity (all of which can be considered as variations of territoriality), so that victims of (corporate) human rights abuses have their day in court, even if they sustained harm outside the territory. In the same vein, the nature of data protection as a fundamental right in the EU exerts pressure on EU regulators and courts to give wide interpretations to territorial jurisdiction with a view to safeguarding the rights of EU residents.

Conversely, expansive jurisdictional assertions which do not further widely recognized common interests may, in the absence of a strong nexus with the regulating state, be more difficult to justify. For instance, the US imposition of ‘secondary’ sanctions on non-US persons engaging in commercial transactions with non-US sanctioned entities may well violate the law of jurisdiction, as the territorial or personal nexus of sanctions with the US is typically very tenuous, and such sanctions may not give effect to an international consensus on the harmful activities of the sanctioned entity. Also, expansive assertions of effects-based jurisdiction in the field of competition (antitrust) law may be problematic, insofar as such assertions are based on weak territorial connections, and insofar as an international agreement on the illegality of particular anti-competitive practices remains elusive. Jurisdictional assertions that are not based on a strong nexus to the state and do not build on international instruments recognizing particular values and common interests are likely to unjustifiably intrude on the policy space of other states and violate the principle of non-intervention.

This is not to say, however, that jurisdictional assertions of which the object is internationally recognized, pass muster with the law of jurisdiction as soon as some territorial link can be discerned, however tenuous. To prevent that territorial jurisdiction degenerates into connectionless universal jurisdiction, a quantum of (territorial) connection may still be required. This may prevent the eruption of international conflict, and the wasting of precious domestic resources. In light of loss of territoriality in an era of economic globalization and of revolutions in communication technology, the quest for this required quantum under customary international law in still on-going.

Efforts at restricting the reach of territoriality speak to a desire to safeguard the traditional role of the principle of territoriality as a principle of jurisdictional order rather than justice. In its original Westphalian incarnation, territoriality aims at delimiting spheres of competence and preventing undue intervention in other states’ affairs. As the limits of territoriality are pushed to almost breaking point in order to address global and transnational challenges, some pushback against overly loose interpretations which undermine the principle’s function as competence-delimitator is expected. At the same time, precisely because of the poor fit of the concept of territoriality and the reality of global challenges, more revolutionary jurisdictional thinking no longer focuses on territoriality as the main jurisdictional linchpin, but instead suggests reliance on other connections to the regulating state, or on the goals of regulatory intervention. As regards connections, scholars of global legal pluralism have urged increased attention to personal or community connections, whereas others have emphasized the substantiality of connections mitigated by the principle of reasonableness. Especially in the context of access to data in the ‘extraterritorial cloud’, multiple, technology-driven connecting criteria have been proposed. Yet others have advanced a broad construction of the national interest as the jurisdictional trigger, or suggested conceiving of cosmopolitan jurisdiction as a form of functional jurisdiction, the exercise of which is, in given circumstances, justified by its furthering of the common interest. At the far end of the spectrum, the link between jurisdiction and the state has been abandoned altogether, and jurisdictional empowerment of private actors in a transnational legal space has been mooted.

It is appropriate to observe, finally, that no scheme of jurisdictional (al-)location is ever politically neutral. All schemes have important distributive effects, in that it may further the interests of one actor (eg a multinational corporation) to the detriment of those of another (eg victims of human rights abuses).

However the exercise of state jurisdiction in the common interest is doctrinally conceived (as a form of territorial, community, functional, or universal jurisdiction), care should be taken to prevent jurisdictional overreach and imperial imposition. After all, such jurisdiction is enacted unilaterally by individual states or regional organizations, even if the common interest which is (supposedly) served is international in nature. Unilateral action carries the risk that the regulating state imposes its own value conceptions and furthers its own interests, thereby impinging on foreign persons’ right to self-government. To limit this risk, in the monograph I suggest a number of techniques of restraint, such as allowing foreign affected states, communities and persons a voice in the design and enforcement of regulation with extraterritorial effect, recognition of equivalent foreign regulation, and compensation of affected persons and entities. These techniques of jurisdictional reasonableness discipline unilateralism and increase its legitimacy as a tool to further the common interest in the absence of adequate multilateral or host state regulation and enforcement.

Techniques of restraint should however not be interpreted too strictly lest states prove unwilling to exercise their jurisdiction. Bearing in mind that global public goods tend to be underprovided because of free-riding, the risk of normative conflicts among states should not be inflated. Thus, states should be offered sufficient jurisdictional leeway to assume their responsibility in respect of the common interest. To give just one example, international comity-inspired principles of adjudicatory jurisdiction may be in need of an overhaul, or at least a more liberal interpretation, so that they can be more effectively relied on to deliver justice for individuals suffering extraterritorial human rights abuses.

In spite of the title of the monograph, ultimately, selfless intervention remains somewhat of a mirage. As I argue in the monograph, states are unlikely to exercise jurisdiction in the common interest if it is not also somehow in their own interests. In this respect, states may consider the existence of a jurisdictional connection as a proxy for the existence of an interest, so that framing extraterritorial as territorial conduct (‘territorializing the extraterritorial’) may have enforcement advantages. In practice, however, especially in the social, economic and environmental fields, a domestic rule integrity logic tends to inform common interest-oriented unilateralism. The danger of foreign regulatory leakage as a result of strict domestic regulation serving common interests (eg addressing climate change, combating foreign corrupt practices, protecting data) more or less compels first-moving states to extend their regulation extraterritorially. In so doing, states pursue prima facie parochial interests (safeguarding the competitive opportunities of their own businesses) alongside common interests.

In the field of human rights and international crimes, a less selfish justice logic may be expected, but also there, extra-legal incentives may be required before states exercise their jurisdiction. For instance, Germany’s vigorous prosecution of Syrian war criminals, mainly under the universality principle, may be informed by the presence of a large number of Syrian refugees, whose integration in Germany might be furthered in case their torturers (some of whom have posed as refugees themselves) are brought to justice. Alternatively, a state’s exercise of jurisdiction over gross human rights violations could be informed by a desire to brandish its liberal values and to set itself apart from an amoral world dominated by Realpolitik.

Faced with governance deficits at international and national levels, third states’ exercise of unilateral jurisdiction has its rightful place in the international legal order, as third state legal prescription and adjudication may well be the only means to safeguard common interests. Therefore, states’ extensions of national laws into the global sphere can promote world order and justice. However, safety valves should be provided to ensure that such jurisdiction, as a tool of global governance, is exercised responsibly and reasonably. Ideally, unilateral jurisdiction with extraterritorial effects is just a temporary means of providing protection and justice. It should not displace multilateral and foreign regulation and enforcement, but rather emphasize the latter’s urgency. Obviously, this regulation and enforcement are likely to mirror the preferences of powerful first-moving states, who may only be willing to forego their unilateralism provided that international and foreign norms and practices approximate their own. Such ‘contingent unilateralism’ should not be considered as holding the multilateral process hostage, but rather as a welcome tool to overcome the tyranny of consent and address its anti-commons streak.

The topic of Brexit has been in the hearts and minds of private international lawyers ever since the Brexit referendum.

However, for reasons that are unknown, it did not make it onto the agenda of the UK-EU negotiations about a free trade agreement. The agreement that was eventually adopted in late December 2020, therefore, does not contain any substantive provisions dealing with the future EU-UK relationship in the field of judicial cooperation in civil matters (despite a confusing reference in the press release of the European Commission).

Since 1 January 2021 we are, therefore, back to “square one”, i.e. a patchwork of national, (retained) European and international law which will make the resolution of cross-border disputes more complex.

The European Association of Private International Law (EAPIL) took this (foreseeable) finding as an occasion to devote its first Virtual Seminar to the future EU-UK relationship in private international law. It gave six renowned speakers from the EU and Continental Europe occasion to present their views on the state of affairs, including the question of whether the EU and the Uk should strive for conclusion of a bespoke bilateral agreement.

The Seminar lasted roughly two hours and was attended by almost 120 academics and practitioners from all over Europe (and beyond). It more than showed that there are no easy solutions for the problems that Brexit has created – and that Brexit will be a source for discussion for years to come.

If you were not able to join us for the Seminar (or if you want to refresh your memory) you may now (re-) read some of the speakers’ statement on the EAPIL website. Just follow this link. Happy reading!

Massimo Benedettelli (University of Bari) is the author of International Arbitration in Italy, which has just been published by Wolters Kluwer.

International Arbitration in Italy is the first commentary on international arbitration in Italy ever written in English. Since centuries, arbitrating cross-border business disputes has been common practice in Italy, which makes the Italian arbitration law and jurisprudence expansive and sophisticated. Italian courts have already rendered thousands of judgments addressing complex problems hidden in the regulation of arbitration. Italian jurists have been among the outstanding members of the international arbitration community, starting from when, back in 1958, Professor Eugenio Minoli was among the promoters of the New York Convention. Italy being the third-largest economy in the European Union and the eighth-largest economy by nominal GDP in the world, it also comes as no surprise that Italian companies, and foreign companies with respect to the business they do in the Italian market, are among the leading ‘users’ of international arbitration, nor that Italy is part to a network of more than 80 treaties aimed to protect inbound and outbound foreign direct investments and being the ground for investment arbitration cases. Moreover, in recent years, Italy has risen to prominence as a neutral arbitral seat, in particular for the settlement of ‘intra-Mediterranean’ disputes, also thanks to the reputation acquired by the Milan Chamber of Arbitration which has become one of the main European arbitral institutions.  

More information available here.

On 11 January 2021, the Tax and Law Department of HEC Paris will host an online workshop titled What future for Cross-Border Small Claims?

The event will involve a keynote speech by Elena Alina Ontanu (Erasmus University Rotterdam) and a presentation of the guidelines on the European Small Claims Procedure Regulation (ESCP) that have been produced in the context of the SCAN Project, co-funded by the European Union. The objective of the workshop is to disseminate information about the ESCP in order to help consumers and other stakeholders to use this procedure.

The workshop is organized in the framework of the EU-financed project SCAN – ‘Small Claims Analysis Net’, aimed at studying the flaws and implementation issues regarding the ESCP.

The programme of the event and the registration form are available here.

The new issue of the Revue Critique de Droit International Privé (4/2020) is out.

It contains four articles and numerous case notes. The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Éclectique, résolument…).

In the first article, Delphine Porcheron (University of Strasbourg/CNRS) addresses the peculiar challenges raised by transnational civil litigation for the reparation of “crimes of the past”, in the light of private international law (Les actions civiles transnationales en réparation des “crimes du passé”).

Transnational civil litigation for the reparation of “crimes of the past” has been growing for the past 30 years. Several features underline its singularity: the extraordinary seriousness of the facts at the origin of the legal actions, their impact on collective memory, the political and temporal dimensions of the disputes. The study of judicial proceedings brought by individuals before European, American and Asian tribunals reveal a distinct approach depending on the court referred to. In this context, one can come to consider how private international law deals with these complex litigations. On the one hand, both public and private international laws are to be mutually considered. On the other hand, private international law rules should be applied in order to take into account the specific environment of these cases.

In the second article, Mathias Audit (University of Paris 1, Sorbonne Law School) discusses the complex issue of blockchain in the light of private international law (Le droit international privé confronté à la blockchain).

The blockchain is one of the major technological developments of the last ten years in respect of securing exchanges. Its applications are very varied, ranging from cryptocurrency, through smart contracts or initial coin offerings (ICOs), to the creation of decentralized autonomous organizations (DAOs). All of these applications, as well as those that are still to come, have the particular feature of evolving in an environment that is detached from any territorial basis. This specific situation obviously renders the confrontation of the blockchain with the techniques of private international law complex. However, avoiding these confrontations appears to be difficult, because through them, it is the opportunity for domestic laws to regulate legal relations based on this new technology that is at stake.

In the third article, Tristan Azzi (University of Paris 1, Sorbonne Law School) proposes to rethink in depth the interpretation of the jurisdictional rules applicable to cybercrime, in the context of the decline of the “accessibility criterion” (Compétence juridictionnelle en matière de cyber-délits : l’incontestable déclin du critère de l’accessibilité – A propos de plusieurs arrêts récents).

In the fourth article, David Sindres (University of Angers) addresses the difficult issue of civil liability action brought by a third party against a contracting party, in the light of recent case law (L’appréhension par le droit international privé de l’action en responsabilité d’un tiers fondée sur un manquement contractuel du défendeur).

 Lying on the borders of contractual and tort matters, the civil liability action brought by a third party against a contracting party whom it accuses of having, through its contractual breaches, caused its damage, is difficult to address from a private international law perspective. This is evidenced by several recent decisions handed down by the French Court of Cassation in cases where the claimants, third parties to certification contracts, had complained that a German certifier had committed various contractual breaches which contributed to the occurrence of their damages. Reflecting on these decisions, the present article aims at finding the adequate regime for this action under private international law.

 The full table of contents is available here.

The course Party Autonomy in International Family Law given by Cristina González Beilfuss at the Hague Academy of International Law in Summer 2018 has recently been published in volume 408 of the Academy’s Collected Courses (Recueil des cours).

As explained in the summary:

Party autonomy, i.e. the power of parties to select the applicable law, is increasingly used in international family law. This course follows this development and questions whether rules that have been developed in relation to commercial contracts work also for personal relationships. This involves an in- depth analysis of the functions of party autonomy in Private international law and the needs of families in contemporary society. The latter has often been neglected in Private international law theory that has uncritically assumed a normative idea of family life and failed to consider the care work families do in society and the different roles assumed by family members in accordance to gender.

The course is divided into an introduction and five chapters, followed by an extensive bibliography. In the introduction, the Author defines party autonomy “as the principle according to which parties to an international relationship are free to choose the applicable law” or to “deselect the law that would apply on objective grounds, including its mandatory rules, and to stipulate the application of another law”. The course also deals with dispute resolution, but only to the extent it opens possibilities for indirectly choosing the applicable law. The family is understood broadly. Geographically, the research encompasses, in general, Europe.

The structure of the course is as follows:

In Chapter I, I will describe the role of party autonomy in private international law. After a short overview of developments in other subject areas, namely in contract, tort, property and succession, I will map family law more exhaustively, and explore both horizontal and vertical family relationships in order to show the opportunities for direct and indirect party autonomy.

In Chapter II, I will investigate the theoretical foundation of party autonomy in relation to, in particular, family law. I will try to find out which is the function of the party autonomy rule and why families might benefit from selecting the applicable law, if allowed to do so. In this chapter, I will also try to determine whether there should be any limits to party autonomy, in particular, in view of the special character of family law.

Chapter III will deal with the choice of law contract and examine party autonomy from a contractual perspective. I will try to determine the requirements parties need to comply with to materialize their intention of selecting the governing law. The approach in this chapter is principled. I do not only examine the law as it stands but try to critically determine whether present rules provide satisfactory solutions in a family law context.

Chapter IV then examines restrictions to party autonomy. In accordance with the findings of Chapter II, it is claimed that party autonomy needs to be regulated and restricted in order to ensure that it works in favor of family and not against it.

Chapter V finally examines indirect party autonomy, a number of strategies that parties can resort to, when party autonomy is not openly accepted, that, in the end, allow them to select the law applying to their legal relationship.

For more details (including table of contents and bibliographical note on the Author) please consult Brill’s website. The course is already available online (for example, for holders of Peace Palace Library card).

The EU has developed a common judicial area where judgments given in one EU Member State are recognised and can be enforced in all others. To this end, the EU has adopted a number of legal instruments that regulate and ease cross-border enforcement, ensuring legal certainty for all parties and making these processes easier. One of them is Regulation (EC) 805/2004 creating a European Enforcement Order for uncontested claims (the EEO Regulation).

When it was adopted, the Regulation was a ground-breaking instrument that was the first to abolish the need for obtaining a declaration of enforceability in the requested state (the so-called ‘exequatur’). The EEO certificate has replaced it.

Other similar legal instruments were adopted in quick succession, leading to the ‘exequatur’ being abolished by Regulation (EU) 1215/2012 (the Brussels I bis Regulation), although with different conditions than those in the EEO Regulation.

In 2020, the Commission decided to evaluate the EEO Regulation, and to carry out a consultation as a part of the evaluation process. The Commission sought opinions on how the Regulation is working, also with regard to the Brussels Ibis Regulation. It also aimed to collect practical experiences with the EEO Regulation and views on its use in the future.

Upon an invitation by the Commission, the EAPIL formed a Working Group chaired by Jan von Hein (University of Freiburg/Germany). This Working Group presented a position paper in November 2020 that is now available here.

Members of the Working Group will also participate in the upcoming Commission’s online workshop on the revision of the EEO Regulation in January 2021.

In December 2020, the Standing International Forum of Commercial Courts (SIFoCC), which brings together the commercial courts of several countries across the world, launched the second edition of its Multilateral Memorandum on Enforcement of Commercial Judgments for Money.

The memorandum is the result of a collaborative effort from judges sitting in the courts involved, and outlines the way in which the judgment of one jurisdiction can be enforced in another. Over 30 jurisdictions have contributed, including Australia, Brazil, Canada, France, Germany, Hong Kong, Japan, Kenya, Malaysia, New York, Singapore, South Korea and the United kingdom.

More information available here.

Not much to be reported on the activity of the Court for January 2021 on PIL (nor for February, as of today).

The Opinion by AG Campos Sánchez-Bordona in C-913/19, CNP, will be delivered on 14 January. The request comes from the District Court in Białystok, and concerns an insurance case involving the interpretation of Chapter I, Section 3, of the Brussels I bis Regulation, and the systematic relationship with Articles 7.2 and 7.5:

(1) Should Article 13(2), in conjunction with Article 10, of Regulation (EU) No 1215/2012 … be interpreted as meaning that, in a dispute between a trader and an insurance company, the former having acquired from an injured party a claim arising from civil liability insurance against that insurance company, the establishment of court jurisdiction on the basis of Article 7(2) or Article 7(5) of the regulation is not precluded?

(2) If Question 1 is answered in the affirmative, should Article 7(5) of Regulation (EU) No 1215/2012 … be interpreted as meaning that a commercial company operating in a Member State which adjusts losses under compulsory insurance against civil liability in respect of the use of motor vehicles pursuant to a contract with an insurance undertaking established in another Member State is a branch, agency or other establishment of that insurance undertaking?

(3) If Question 1 is answered in the affirmative, should Article 7(2) of Regulation (EU) No 1215/2012 … be interpreted as meaning that it constitutes an independent basis for the jurisdiction of the court of the Member State in which the harmful event occurred, before which court the creditor who has acquired the claim from the injured party under compulsory insurance against civil liability brings an action against an insurance undertaking established in another Member State?

The case will be decided by a chamber of five judges, with Mme Rossi reporting.

Next date will be 28 January, with the hearing in C-603/20 PPU, a case on the Brussels II bis Regulation from the High Court of Justice of England and Wales, Family Division, filed last in October 2020. The proceedings relate to the abduction of a girl to India. The question submitted to the Court reads as follows:

Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?

The case has been allocated to a chamber of five judges, with Mr. Regan reporting. M. Rantos has been appointed AG.

As reported in other blogs (see for instance here and here), the Trade and Cooperation Agreement that the EU and the UK managed to conclude right before the end of the Brexit transition period does not seem to make any provision for judicial cooperation in civil matters.

On the European side, the Notice to Stakeholders issued by the European Commission in August 2020 already took lack of agreement in this area for granted.

Surprisingly, the press release of the Commission of 24 December 2020, under the heading “A new partnership for our citizens’ security”, states

The Trade and Cooperation Agreement establishes a new framework for law enforcement and judicial cooperation in criminal and civil law matters. (italics added)

And to top it all, have a look a recital 47 of the Recast Service Regulation:

In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Regulation.

Probably just a clerical mistake.

On the UK side, the gov.uk website on Brexit was updated on 31 December 2020 (see here), providing information on the rules applicable to cross border cases in civil and commercial matters involving the courts of England and Wales. Links to all relevant Acts and Regulations are found there, too. For cross-border divorces, nothing has been added to the previous information, which already distinguished between proceedings initiated pre- and post-Brexit. The same applies to maintenance and disputes about parental responsibility.

As president of EAPIL and an editor of the blog, and on behalf of all the officers of the association and the editors of the EAPIL blog, I would like to wish to the members of the association and the readers of the blog the best for year 2021.

In 2020, the blog has published 325 posts. In case you missed some of them, here are the 15 most popular ones:

1. Corona Virus and Applicable Law
2. COVID-19 and the Right to Respect for Family Life under Article 8 ECHR
3. UK Applies for Accession to Lugano Convention
4. Paris Court Issues Anti Anti Suit Injunction
5. New Courts for International Commercial Disputes in Germany
6. The Impact of Corona Virus on the Management of Judicial Proceedings in Italy
7. Law and Global Value Chains at the Time of Covid-19: A Systemic Approach Beyond Contracts and Tort
8. French Supreme Court Accepts First Degree Renvoi in Parenthood Matters
9. Wikingerhof: A View from Oxford
10. Another Preliminary Reference on the Succession Regulation Involving (and Referred by) a Polish Notary
11. CJEU Significantly Weakens Jurisdiction Clauses in Case Assignment
12. The COVID-19 Crisis and Employment Contracts: the Italian Emergency Legislation on Dismissals
13. Anti-Anti-Suit Injunctions by German Courts – What Goes Around, Comes Around
14. On ‘Habitual Residence’ under the EU Regulations on Family Matters: Once and for All?
15. Human Rights in Global Supply Chains: Do We Need to Amend the Rome II Regulation?

The latest issue of Acta Universitatis Carolinae Iuridica, a periodical edited by the Faculty of Law of the Charles University in Prague, is out.

The issue’s general theme is ‘Thinking Private International Law through European Lenses’. It focuses on comparative private international law, with an emphasis on the European Union. The contributions – some in English, others in French – were put together on the occasion of the annual meeting of the Group européen de droit international privé (GEDIP), which was to take place between 18 and 20 September 2020 in Prague.

Opened by editorials by Monika Pauknerová and Catherine Kessedjian, the issue is made of three main sections.

The first addresses some general issues. It includes contributions by Johan Meeusen (‘The “logic of globalization” versus the “logic of the internal market”: a new challenge for the EuropeanUnion), Giuditta Cordero-Moss (‘The impact of EU law on Norwegian private international law’), Patrick Kinsch (‘La Convention européenne des droits de l’homme et les conflits de lois: synthèse de dix ans de jurisprudence européenne’), and Hans van Loon (‘Strategic Climate Litigation in the Dutch Courts: a source of inspiration for NGOs elsewhere?’).

The second section, on family law, features articles by Michael Bogdan (‘The relevance of family status created abroad for the freedom of movement in the EU’), Etienne Pataut (‘Codifier le divorce international – Quelques remarques sur le projet GEDIP’), and Zuzana Fišerová (Limits of jurisdiction for divorce under the Brussels IIa Regulation from the Czech perspective’).

Finally, the commercial law section hosts contributions by Jan Brodec (‘Applicable law in international insolvency proceedings (focused on the relation of Articles 3 and 7 of the Insolvency Regulation)’), Petr Bříza (‘Czech perspective on the validity of international arbitration clauses contained in an exchange of emails under the New York Convention’) and Magdalena Pfeiffer and Marta Zavadilová (‘Recognition and enforcement of judgments in commercial matters rendered by courts of non-EU countries in the Czech Republic’).

The whole issue can be downloaded here.

Many good wishes for the Holiday Season and the New Year from the Editors of the EAPIL blog!

Blogging will be light in the coming days, but we plan to gradually resume our usual publishing pace on 7 January.

Elie Lenglart, a lecturer at the University Paris II Panthéon-Assas, gave an online conference on La théorie générale des conflits de lois à l’épreuve de l’individualisme (Individualism and General Choice of Law Theory) on 1 December 2020.

This is the topic of his doctoral thesis, which received the first prize of the French Committee of Private International Law earlier this year.

The English abstract of the work reads:

Individualism is one the characteristic features of modern legal theories. The emergence of individualism has so profoundly altered the meaning of the judicial phenomenon that it may be considered as the decisive factor in the evolution from a classical to a modern conception of the Law. This evolution is the product of a substantial mutation of our vision of the world, inextricably linked to a change of philosophical paradigm. The analysis of this evolution is essential not only to the understanding of the meaning of the Individualism doctrine but also to apprehend its main repercussions. International private Law has also been influenced by this evolution. The Conflict of Laws doctrine is necessarily based on a specific conception of the Law itself. Thus, the emergence of the individualistic approach of the Law undoubtedly has decisive consequences on this field: the methods used to solve conflicts of laws have evolved while the goals have been substantially altered. The Conflict of Laws doctrine is now structured toward the sole analysis of individual interests. This new feature is radically opposed to the balance that characterized the classical approach of Conflict of Laws. In order to reveal the extent of the implications of the Individualism on this field, a study of the concept within the Conflict of Laws doctrine is necessary.

The table of contents of the thesis is available here.

A video of the conference (in French) can be accessed here.

Marta Pertegás (Maastricht University) has posted The 2019 Judgments Convention: the Road Ahead on SSRN.

The abstract reads:

In The Hague and far beyond, the conclusion of the Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereafter, “the Hague Judgments Convention”) in July 2019 was welcomed with a long deep sigh of satisfaction. The successful conclusion of this Convention under the auspices of the Hague Conference on Private International Law (hereafter, “the HCCH”) undoubtedly marks a crucial milestone in the area of international dispute settlement in civil and commercial matters. In this contribution, the author describes the circumstances leading up to the conclusion of the Hague Judgments Convention, as well as the Convention´s most salient features. The author also recommends some actions for the Convention to become truly effective. Indeed, the “road ahead” towards an operational international standard of practical relevance is the next challenge for the private international law global community.