EAPIL blog

The author of this post is François Mailhé (University of Picardy – Jules Verne).

“Nul n’a de droit à l’enfant”, that is, no one has a right to a child. This is the first amendment the French Senate has recently added to the latest reform of the Bioethics Act 1994 under discussion in Parliament this month, and which is intended to introduce Title VII of the First book of the civil code “on filiation”.

The Senate is the higher chamber of Parliament, with members elected by elected officials from local governments. It participates in the discussion of all legislative projects with the National Assembly (lower chamber), but the latter would ultimately prevail in case of conflict.

I reported earlier on the three judgments of the French supreme court for civil and criminal matters (Cour de cassation) which, on 18 December 2019, extended the recognition on foreign surrogacies in France. These judgments were expressly based on an advisory opinion concerning the recognition of legal parent-child relationships between a child born through a gestational surrogacy arrangement abroad and the intended mother, given by the European Court of Human Rights (ECtHR) in April 2019.

Surprisingly, the Cour de cassation had gone much further than the ECtHR, though, allowing direct recognition of the filiation for all parents appearing on the birth certificate, while the ECtHR had only required for the recognition of the biological father one.

What happened next is even more surprising if not unique in French legislative history.

On 7 January 2020, the Senate chose to oppose the Cour de cassation case-law, on a private international law issue, to better align French law on the ECHR solution. Amendment No 333 to the Bioethics Act reform would, if passed, create a new article 47-1 of the Code civil, drafted as follows:

Any civil status record or judgment for a French citizen or a foreigner made in a foreign country and establishing the filiation of a child born as a result of a surrogacy agreement shall not be transcribed in the registers in so far as it refers as mother to a woman other than the one who gave birth or when it mentions two fathers.

The provisions of the preceding paragraph shall not prevent the partial transcription of this act or judgment or the establishment of a second parent-child relationship under the conditions of Title VIII of this Book [on adoption], where such conditions are met.

The Amendment would in fact bring the French system back to what it was after the rulings rendered by the Cour de cassation in July 2017, and in line with the ECtHR opinion of April 2019. In practice, the biological father would be the only “intended parent” to be recognised as such through direct transcription. His husband or wife would only have a right to adopt the child at a later stage (as long as the procedure of adoption is not unreasonably long, which should not be the case under French law for the adoption of the husband’s child).

As the government backed a similar amendment, though milder than the one eventually adopted, it seems probable the National Assembly will not much alter it.

The change brought about by the rulings of the Cour de cassation of 4 October and 18 December 2019 may therefore be short-lived.

Foreign surrogacy agreements may not be so much welcome in France after all.

In 2009, AGL, a dual Italian-Israeli citizen, and SRL, an Israeli citizen, married in Milan. The spouses, who were both Jews, married religiously.

Jewish religious marriages celebrated in Italy may be given effect in the Italian legal order provided that certain requirements, set forth in an understanding concluded between the Italian government and the Union of the Italian Jewish Communities, are met. The requirements in question basically refer to the marriage process. In particular, a notice of marriage must be filed with the local civil status office prior to celebration, in accordance with the Italian civil code.

In the circumstances, the prior notice and other requirements had not been complied with. As a result, the marriage of AGL and SRL was, from the standpoint of the Italian legal system, a purely religious one.

A few months later, the spouses – who always resided in Israel – seised the Rabbinical Court of Tel Aviv seeking a declaration that their marriage was valid.

Rabbinical Courts are part of the Israeli judiciary. They deal, inter alia, with matters concerning marriage and divorce, parental responsibility and succession. Their rulings have force in the legal system of Israel.

The Tel Aviv Rabbinical Court declared the marriage between AGL and SRL to be valid.

Next, the couple sought to have the Rabbinical Court judgment recognised in Italy. Based on the provisions of the Italian Statute on Private International Law concerning the (automatic) recognition of foreign judgments, they asked the civil status officer of Milan to record the judgment in the civil status registries, so that the marriage could be regarded as producing civil  effects in Italy, as well.

The officer denied the request. He argued that the rules on the recognition of judgments had no role to play in the circumstances. At issue, in his view, was whether the marriage celebrated in Milan in 2009 ought to be given effect in Italy, not whether the Rabbinical Court’s judgment ought to be recognised. The latter, he contended, merely acknowledged that the marriage had taken place and that it had been performed in accordance with the relevant Jewish rules — two circumstances that were already known to Italian authorities and were, as such, uncontroversial.

In any case, the officer contended, the judgment given by the Tel Aviv Rabbinical Court ought to be denied effect in Italy on grounds of public policy. By seeking a judicial statement of the existence of their marriage, the spouses aimed in fact to evade the Italian provisions that determine the conditions subject to which a Jewish religious marriage may be given effect in the Italian legal system.

By a decision of 29 January 2020, the Court of Appeal of Milan, seised of the matter, ruled in favour of the couple.

The Court conceded that the marriage between AGL and SRL was initially, as a matter of Italian law, devoid of civil effects. However, as a result of the Tel Aviv judgment, the marriage had acquired civil effects in the legal system of Israel. Based on this finding, the Court of Appeal found that, contrary to the civil status officer’s opinion, what was at issue was indeed the recognition of the Rabbinical Court’s judgments, and of the civil effects it added to the marriage.

The Court went on to assess whether the conditions contemplated in the Italian Statute on Private International Law for the recognition of foreign judgments were met in the circumstances. It found that the Tel Aviv judgment complied all such conditions. In particular: the judgment originated from the country of residence and nationality of the spouses at the time when the Rabbinical Court was seised; it represented the outcome of fair proceedings; it did not contradict any previous Italian judgment.

Furthermore, the Court observed, the judgment could not be characterised as inconsistent with the ordre public of Italy. The public policy defence, it recalled, operates as an exception and can only be invoked where the recognition of a foreign judgment or the application of a foreign law would be at odds with the fundamental principles of the Italian legal order.

In the Court’s view, this did not occur in the circumstances. The non observance of the Italian rules on the marriage process does not amount, as such, to a violation of the public policy of Italy, as long as it is established that the spouses’ consent was expressed freely by each of them.

The Court noted that the fundamental principles of Italy would rather be challenged if the judgment were denied recognition. Article 8 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights in Wagner v Luxembourg and other rulings, indicates that family status validly created abroad, insofar as they correspond to an established social reality, cannot be denied recognition unless very strong reasons require otherwise.

— Thanks to Marzia Ghigliazza, family lawyer and mediator in Milan, for drawing my attention to the ruling of the Court of Appeal.

In 2016, an application for the recognition of a judgment rendered by the Southern District Court of New York against the State of Iran, some of its emanations and other non-State parties was filed with a Luxembourg court.

If recognised, this U.S. judgment, which awarded 1.3 billion USD of compensatory damages and 4.7 billion USD of punitive damages to the victims of the terrorist attacks of 9 September 2001 and/or their families, would have enabled the claimants to seize Iranian assets held with a Luxembourg-based clearing house.

As it happens, the application was not not successful.

A recently published Working Paper of the MPI Luxembourg series (also available on SSRN) puts the American decision into a broader context and provides for an in-depth analysis of the grounds for refusal from the point of view of both private and public international law.

The paper takes stock of the attempts made by the families of the victims of the 9/11 terrorist attacks to enforce the New York judgment in Europe.

It brings together four different contributions, focusing on specific aspects of the Havlish saga.

To set the scene for the proper understanding of the Havlish litigations, Stephanie Law analyses the development of the U.S. legal framework on the state-sponsored terrorism exception and its impact on the U.S. proceedings, which resulted in the judgment whose recognition and enforcement is being sought in Europe.

The ruling given in March 2019 by the Luxembourg court is analysed by Vincent Richard and Edoardo Stoppioni, who deal in turn with the arguments set forth vis-à-vis non-State parties and with the use, by the Luxembourg Court, of the law on State immunity as it applies to the Iranian State and its emanations (see further on this judgment Burkhard Hess “Keine juristische Fussnote: Klagen aus 9/11 vor Luxemburgischen Gerichten”, IPRax, 5/2019, p. 442-446).

Finally, Martina Mantovani addresses the parallel attempts made by the U.S. claimants to enforce the Havlish judgments in other European Jurisdictions, which have given rise to ongoing exequatur procedures in England and in Italy.

Symeon Symeonides posted on SSRN the Annual Survey of American Choice-of-Law Cases for 2019, now in its 33rd year.

This is the Thirty-Third Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws. It is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States. Its purpose remains the same as it has been in the previous 32 years: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2019 and posted on Westlaw by December 31, 2019. Of the 1,404 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law—and in particular choice of law. The Survey proceeds in four parts. The first describes fourteen cases decided by the United States Supreme Court. The second part discusses judgments delineating the reach of federal law in cases with foreign elements (extraterritoriality). The third part focuses on the choice-of-law part of conflicts law, in both interstate and international cases. The fourth part deals with the recognition of sister state and foreign country judgments, as well as domestic and international arbitral awards.

Compared to January (with the hearings I had announced here, plus AG Szpunar’s opinion on Rina, delivered on the 14th), February 2020 will be a quiet month at the Court in terms of private international law, with just AG Bobek’s opinion in FX v GZ (case C-41/19) being scheduled for the 27th.

The case concerns both the Maintenance Regulation and the Brussels I bis Regulation, in the context of judicial proceedings instituted in Germany whereby the applicant, residing in Germany, tries to resist the enforcement of a Polish decision to pay monthly maintenance for his daughter.

As grounds for his application, the applicant argues that the defendant’s maintenance claim underlying the Polish decision had been settled by payment (for the record, the Polish judgment was given in 2009; the request for enforcement in Germany was filed in 2016).

The referring court hesitates about its jurisdiction. If the application opposing enforcement made by the applicant constitutes a matter relating to maintenance for the purposes of Article 1 of the Maintenance Regulation, then no international jurisdiction of the court seised results from the Regulation, since the conditions of Article 3 of the Maintenance Regulation are evidently not satisfied.

By contrast, the courts in Poland, where the order was made, would, pursuant to Article 3(a) and (b) of the Regulation, be directly called upon to deal with the applicant’s defence of fulfilment. Conversely, the view that applications opposing enforcement are not matters relating to maintenance within the meaning of the maintenance Regulation is the prevailing opinion in Germany, where it is argued that the objective of an application against opposing enforcement is directed solely against the enforcement itself, which is not covered by the manintenance Regulation.

Should the latter view on the interpretation of the maintenance Regulation be right, the question arises whether proceedings concerned with the enforcement of judgments within the meaning of Article 24(5) of the Brussels I bis Regulation are involved. In this regard, the German court claims that an answer is not apparent from the decisions of the Court of Justice in AS Autoteile Service (case C-220/84) and in Prism Investments (case C-139/10).

At the same time, because both decisions concerned general civil and commercial matters and were delivered before the entry into force of the Maintenance Regulation and the Brussels I bis Regulation – which, according to its Article 1(2)(e), is not intended to cover matters relating to maintenance – the court doubts they are transferable to matters relating to maintenance.

While waiting for AG Bobek’s opinion, I would like to add that another request for a preliminary ruling on the maintenance Regulation is pending (still at an early stage) where its relationship with the Brussels I bis Regulation for the purposes of interpretation is also at stake.

Today, 31 January 2020, at midnight (11 PM GMT), the United Kingdom will leave the European Union. This is a historic event with innumerable implications, amongst others, for private international law.

However, during the transition period – which expires earliest at the end of 2020 – most things will stay the same. This is thanks to the Withdrawal Agreement, which governs the UK’s divorce from the Union.

The UK will apply EU law, and the EU will, in principle, treat the UK as if it were a Member State (Article 127(1) and (6) of the Withdrawal Agreement). The main exceptions are some institutional provisions, e.g. the participation of the UK in EU bodies, where it will no longer have voting rights (see Article 7(1) and 128(1) of the Withdrawal Agreement).

What will happen after the end of transition period, nobody knows for sure, as the EU and the UK have just started negotiating their future relationship. However, the Withdrawal Agreement makes some provision for the post-transitional period.

Basically, the Regulations on Judicial Cooperation (Brussels I bis, II bis, Rome I, II, the Insolvency Regulation, the Maintenance Regulation, amongst others) will continue to apply to proceedings that have been “instituted” before the end of the transition period, i.e. before 31 December 2020 (Article 66-69 of the Withdrawal Agreement).

Naturally, those EU texts to which the UK was never subject will also not apply after 2020, such as the Succession Regulation.

These transitory provisions seem rather straightforward. However, as always, the devil is in the detail. For starters, it is not easy to determine when proceedings are ‘instituted’ (see this study for the European Parliament, p. 15-16). Moreover, Article 66-69 of the Withdrawal Agreement originally referred only to provisions on ‘jurisdiction’ and ‘recognition and enforcement’. The provisions regarding lis pendens have been later included at the beginning of Article 67 of the Withdrawal Agreement. This is not a model for clear drafting!

One must also not forget that Brexit will change the UK’s relation to non-EU Member States, such as Switzerland, Norway and Iceland. With the withdrawal from the EU, the Lugano Convention will no longer apply to the UK. As a consequence, British judgments will be subject to the recognition procedure under national law in the three Lugano States Switzerland, Norway and Iceland, and vice versa. This effect already applies as of tomorrow (1 February 2020)!

The Withdrawal Agreement between the EU and the UK has no impact on this, as it only concerns the relationship between those two parties. Article 129(1) of the Withdrawal Agreement binds the UK to “the obligations stemming from the international agreements concluded by the Union”, but cannot impose obligations on third parties.

The UK has, however, received assurances by Switzerland, Norway and Iceland that they support the UK’s accession to the Lugano Convention before the end of the transition period. What is missing so far is the EU’s consent.

One can only hope that the relevant political actors will come to their senses and reestablish the network of binding texts as soon and as comprehensively as possible. Judicial Cooperation is about much more than trade deals. It directly affects every day life of ordinary people.

Symeon Symeonides compiled a bibliography, available on SSRN, of books and articles in English in the field of private international law published 2019.

This bibliography covers private international law or conflict of laws in a broad sense. In particular, it covers judicial or adjudicatory jurisdiction, prescriptive jurisdiction, choice of forum, choice of law, federal-state conflicts, recognition and enforcement of sister-state and foreign-country judgments, extraterritoriality, arbitration and related topics. It includes books and law journal articles that appeared in print during 2019, or earlier but were not included in the 2018 bibliography. It does not include articles or essays published in books (as opposed to journals), or writings appearing only in electronic form.

Lydia Lundstedt and Erik Sinander (both  Stockholm University) have published Enhancing Critical Thinking in Private International Law in The Law Teacher.

The abstract reads:

This article describes and evaluates the reforms that the authors (as course managers) introduced to enhance critical thinking in the compulsory course on private international law in the Master of Laws programme at Stockholm University. The reforms were made in response to a decision by the Stockholm University Law Faculty Board to develop the “Stockholm Model” in an effort to strengthen students’ critical and scientific approach to law. The Stockholm Model aims to place law in a broader context so students can understand its relation to and impact on society. It also shifts the focus from an orthodox teaching of the doctrinal subject areas to facilitating the students’ ability to apply legal and other social science methods to analyse and develop the law. The article evaluates the success of the measures and reflects on what more can be done to improve critical thinking.

The article can be read here.

A collection of essays edited by Elisabetta Bergamini (University of Udine) and Chiara Ragni (University of Milan) has recently been published by Intersentia under the title Fundamental Rights and the Best Interest of the Child in Transnational Families.

The blurb reads:

Families in Europe are increasingly shaped by the mobility of persons and multicultural backgrounds. This book is focusing on the protection of children in cross-border situations. What are the fundamental rights of children in transnational families, what is in their ‘best interest’, and how can their rights be safeguarded? There is much controversy on these rights and the accompanying uncertainty has resulted in considerable practical difficulties for those trying to implement them. In order to provide a clearer scope and insights into the nature of children’s fundamental rights and their best interests, this book examines solutions provided by both EU and international law to the questions raised by the increasing incidence of transnational families as regards the protection of minors. It covers both substantive and conflict-of-laws rules. Differences in the substantive family laws of Member States still prevent an effective protection of the child or its family unit. This includes cases of migration, asylum, forced marriage, kafalah, but also rainbow families. Further, the role of human rights (mutual recognition of status and surrogacy agreements, adoption) and procedural rights (child abduction, Brussels II bis recast) in cross-border cases must be considered carefully.

The table of contents can be found here.