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The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

C. Budzikiewicz/K. Duden/A. Dutta/T. Helms/C. Mayer: The European Commission’s Parenthood Proposal – Comments of the Marburg Group

The Marburg Group – a group of German private international law scholars – reviewed the European Commission’s Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. The Group welcomes the initiative of the Commission and embraces the overall structure of the Parenthood Proposal. Nevertheless, it suggests some fundamental changes, apart from technical amendments. The full article-by-article comments of the Group with redrafting suggestions for the Commission Proposal are available at www.marburg-group.de. Building on the comments, the present article authored by the members of the Marburg Group focuses on the main points of critique and considers the present state of discussion on the proposed Regulation.

 

U.P. Gruber: A plea against ex post-adaptation of spousal inheritance rights

Adaptation is recognized as a tool to eliminate the lack of coordination between the provisions of substantive law derived from different legal systems. According to a widespread view, adaption is very often necessary with regard to the spouse’s share in the deceased’s estate, namely if the matrimonial property regime and questions relating to succession are governed by different laws. However, in this article, the author takes the opposite view. Especially in light of the ECJ’s classification of paragraph 1371(1) BGB as a provision dealing with succession, there are new solutions which render ex post adaptations superfluous.

 

M. Mandl: Apparent and virtual establishments reflected through Art. 7 No. 5 Brussels Ia Regulation and Art. 19 (2) Rome I Regulation

The Federal Court of Justice (Bundesgerichtshof – BGH) has ruled that a dispute has the required connection to the operation of an (existing) establishment pursuant to Article 7 (5) Brussels Ia Regulation if the business owner operates an internet presence that gives the appearance of being controlled by this establishment instead of the company’s central administration and the contract in dispute was concluded via this internet presence. This decision provides an opportunity to examine the prerequisites and legal consequences of apparent establishments and so-called virtual establishments (internet presences) from a general perspective, both in the context of Article 7 (5) Brussels Ia Regulation and in connection with Article 19 (2) Rome I Regulation.

 

D. Nitschmann: The consequences of Brexit on Civil Judicial Cooperation between Germany and the United Kingdom

The United Kingdom’s withdrawal from the European Union has far-reaching consequences for international civil procedure law. This is exemplified by the decisions of the Higher Regional Court of Cologne for the international service of process. Since the European Regulation on the Service of Documents no longer applies to new cases, the Brexit leads to a reversion to the Hague Service Convention and the German-British Convention regarding Legal Proceedings in Civil and Commercial Matters. Of practical relevance here is, among other things, the question of whether and under what conditions direct postal service remains permissible.

 

R.A. Schütze: Security for costs of english plaintiffs in Austrian litigation

The judgment of the Austrian Supreme Court (Oberster Gerichtshof – OGH) of 29 March 2022 deals with the obligation of English plaintiffs to provide security for costs according to sect. 57 Austrian Code of Civil Procedure. The principle stated in para. 1 of this section is that plaintiffs of foreign nationality have to provide security for costs. But an exception is made in cases where an Austrian decision for costs can be executed in the country of residence of the plaintiff.

The OGH has found such exception in the Hague Convention 2005 on Choice of Court Agreements. As the United Kingdom has, on 28 September 2020, declared the application of the Hague Convention 2005 for the United Kingdom, the Convention is applicable between Austria and the United Kingdom despite the Brexit. The Hague Convention opens the possibility to recognition and execution of judgments rendered under a choice of court agreement including decisions on costs.

 

Th. Garber/C. Rudolf: Guardianship court authorisation of a claim before Austrian courts ¬– On international jurisdiction and applicable law for the grant of a guardianship court authorization

The Austrian court has requested court approval for the filing of an action by a minor represented by the parents. The international jurisdiction for the granting of a guardianship court authorisation is determined according to the Brussels II-bis Regulation or, since 1.8.2022, according to the Brussels II-ter Regulation. In principle, the court competent to decide on the action for which authorization by the guardianship court is sought has no corresponding annex competence for the granting of the authorization by the guardianship court: in the present case, the Austrian courts cannot therefore authorize the filing of the action due to the lack of international jurisdiction. If an Austrian court orders the legal representative to obtain the authorization of the guardianship court, the courts of the Member State in which the child has his or her habitual residence at the time of the application have jurisdiction. In the present case, there is no requirement for approval on the basis of the German law applicable under Article 17 of the Hague Convention 1996 (§ 1629 para 1 of the German Civil Code). The Cologne Higher Regional Court nevertheless granted approval on the basis of the escape clause under Article 15 para 2 of the Hague Convention 1996. In conclusion, the Cologne Higher Regional Court must be agreed, since the escape clause can be invoked to protect the best interests of the child even if the law is applied incorrectly in order to solve the problem of adaptation.

 

M. Fornasier: The German Certificate of Inheritance and its Legal Effects in Foreign Jurisdictions: Still Many Unsettled Issues

What legal effects does the German certificate of inheritance („Erbschein“) produce in other Member States of the EU? Is it a reliable document to prove succession rights in foreign jurisdictions? More than one decade after the entry into force of the European Succession Regulation (ESR), these questions remain, for the most part, unsettled. In particular, commentators take differing views as to whether the Erbschein, being issued by the probate courts regardless of whether the succession is contentious or non-contentious, constitutes a judicial decision within the meaning of Article 3(1)(g) ESR and may therefore circulate in other Member States in accordance with the rules on recognition under Articles 39 ESR. This article deals with a recent ruling by the Higher Regional Court of Cologne, which marks yet another missed opportunity to clarify whether the Erbschein qualifies as a court decision capable of recognition in foreign jurisdictions. Moreover, the paper addresses two judgments of the CJEU (C-658/17 and C-80/19) relating to national certificates of inheritance which, unlike the German Erbschein, are issued by notaries, and explores which lessons can be learned from that case-law with regard to certificates of inheritance issued by probate courts. In conclusion, it is submitted that, given the persisting uncertainties affecting the use of the Erbschein in foreign jurisdictions, the European Certificate of Succession provided for by the ESR is better suited for the settlement of cross-border successions.

 

E. Vassilakakis/A. Vezyrtzi: Innovations in International Commercial Arbitration – A New Arbitration Act in Greece

On 4.2.2023 a new Arbitration Act came into effect in Greece. It was approved by means of Law No. 5016/2023 on international commercial arbitration, and was enacted in order to align the regime of international commercial arbitration with the revision of the UNCITRAL Model Law on International Commercial Arbitration adopted in 2006 (hereinafter the revised Model Law). The new law contains 49 arbitration-related provisions and replaces the Law No. 2735/1999 on international commercial arbitration, while domestic arbitration continues to be regulated by Art. 867–903 of the Greek Code of Civil Procedure (hereinafter grCCP). A reshaping of Art. 867 ff. grCCP was beyond the “mission statement” of the drafting Committee.1 Besides, it should also be associated with a more extensive and, in consequence, time-consuming reform of procedural law. Hence, the dualist regime in matters of arbitration was preserved.

Pursuant to Art. 2, the new law incorporates on the one hand the provisions of the revised Model Law and on the other hand the latest trends in international arbitration theory and practice. Therefore, it is not confined to a mere adjustment to the revised Model Law, but also includes several innovative provisions that merit a brief presentation.

 

Notifications:

C. Rüsing: Dialogue International Family Law, 28th – 29th April, Münster, Germany.

The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIL 2024. This year’s Focus Section will concentrate on International and European Economic Law – Moving Towards Integration? In the General Section, the EYIEL will address Current Challenges, Developments and Events in European and International Economic Law.

For the Focus Section, abstracts can cover any topic relating to the interlinkages and integration of economic law with other fields such as labour and human rights, environmental protection or climate change. This could cover developments in the WTO as well as in bi- and pluslateral trade agreements, in investment law or in EU law. We particularly welcome contributions addressing the following aspects:

• Labour, human rights and sustainable development provisions and chapters in FTAs; ? Developments in WTO jurisprudence and other dispute settlement mechanisms relating to the integration of non-trade topics in the WTO; 
• Innovations in investment treaty law in relation to sustainable development, environmental law and/or human rights; 
• New approaches inside and outside the WTO (e.g. fisheries agreement, environmental goods agreements); 
• Comparative analysis of developments relating to interlinkages and integration of economic law in different regions (Europe, North- and South-America, Asia, Africa, Pacific) 
• Specific instruments and clauses within agreements integrating and determining the relationship of trade and non-trade topics, including techniques to counter fragmentation and advance integration/harmonization; 
• “Greening” of EU law and European economic law; 
• Global value chain regulation and governance models for sustainable production and consumption; 
• Dogmatic approaches to systemic integration in international (economic) law. 

For the General Section, abstracts should address topics of current relevance to European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged.

Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts together with a short bionote should be submitted until 31 October 2023 via email to eyiel@leuphana.de.

Successful applicants will be notified by 31 December 2023 that their proposal has been accepted. They are expected to send in their final contribution by 30 April 2024.

Final submissions will undergo peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, the review will focus on the development of the paper’s central argument put forward in the abstract.

Submissions addressing particular regional and institutional developments should be analytical and not descriptive. Due to its character as a yearbook, the EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words (including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.

The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.

This post was written by Verena Wodniansky-Wildenfeld, University of Vienna.

On 8 March 2023, the German Supreme Court issued a judgment on the paternity of two children. In the case at hand, the validity of the marriage of the mother, which gives rise to the presumption of paternity, had to be determined as a preliminary issue. This was further complicated by the interference of a talaq divorce.

Facts of the Case

An Iranian-German woman married an Iranian man in Iran in 1996 and was subsequently divorced by a talaq in Iran in 2006. The recognition of this divorce was refused in Germany, as is usual for reasons of public policy in connection with the right to be heard, in 2012 by a decision of a German administrative authority. In 2009, the woman remarried another Iranian man in Iran and gave birth to two children in 2010 and 2013, who have had their habitual residence in Germany ever since. The second husband was registered as the father in the German birth register. The registry office wanted to correct this registration in favour of the first husband, as Section 1592(1) of the German Civil Code (BGB) considers the husband of the mother at the time of the birth as the legal father of the child.

The precondition for the preliminary question

The core issue before the German Supreme Court was the determination of the law applicable to parenthood. In the absence of overriding rules of EU or international law (the Bilateral Treaty between Germany and Iran did not apply because the mother of the children has both German and Iranian nationality), the court turned to national conflicts rules. Article 19(1) of the Introductory Act to the German Civil Code (EGBGB) provides for an alternative connecting factor based either on the law of the child’s habitual residence or, for each parent separately, on his or her nationality. In the case of married persons, parentage may also be determined according to the law governing the general effects of their marriage at the time of birth.

As the children had their habitual residence in Germany, the Court examined parentage in accordance with German substantive law. Accordingly, the children’s father would be the person who was married to the child’s mother at the time of birth.

The question arose to whom the mother was effectively married at the time of birth. The court therefore assessed the validity of the second marriage as a preliminary question. The substantive requirements for marriage are governed by the law of the nationality of each of the spouses (Article 13(1) EGBGB). Accordingly, the second marriage violated from a German viewpoint the prohibition of bigamy (Section 1306 BGB), as the Iranian divorce was not recognised in Germany. For the mother of the child, the second marriage would merely be dissolvable under German law, but not automatically null and void by operation of law (ex lege). For the second husband, who is exclusively of Iranian nationality, Iranian law applies according to Article 13(1) EGBGB, which stipulates that a man must not marry a woman who is already married (Article 1050 Iranian Civil Code), otherwise the marriage is considered to be invalid.

In this respect, the Court first had to decide whether the talaq divorce with the first husband was effective in order to answer the question of the validity of the marriage with the second husband.

The Outcome

The legally binding decision of the German administrative authority not to recognise the talaq divorce has the consequence that it has no legal effect in Germany. A separate conflict-of-laws assessment is therefore not required, at least in cases with a strong national link, as in the present case. The Court therefore correctly assumed that the second marriage of the mother was a violation of the Iranian prohibition of bigamy and therefore null and void, as the divorce had to be considered invalid.

In order to avoid a situation in which the status of the parties to a marriage is in doubt (limping marriage), the “stricter” law that is most opposed to the marriage is generally applied when examining the substantive requirements for marriage. According to this principle, the second marriage would be considered void, as it is considered void under Iranian law. However, this would be a “paradox” result in so far as the marriage would not be null and void under either of the two legal systems when examined individually. Therefore, the Court deviates from the principle of applying the stricter law and, exceptionally, allows the milder German law to decide the consequence. The result is that under German law two marriages existed at the time of birth. The court resolves the subsequent double presumption of paternity by an analogous application of Section 1593 sentence 3 BGB (A child that could be both the child of the former husband and the new husband is to be regarded only as the child of the new husband). Consequently, only the second marriage is decisive, and the second husband was registered as the father of both children.

Assessment

Although the reasoning of the decision may appear contrived and somewhat forced, the outcome reflects the factual circumstances. The prior legally binding decision not to recognise the divorce and the resulting lack of a conflict-of-laws analysis forces the court to reach deep into its bag of tricks in order not to undermine a presumption of paternity that is effective in both legal systems. Adaptation would normally be the tool of choice in cases where the result of a conflicts analysis is unsatisfactory because the legal consequences would not arise in either jurisdiction. In the case at hand, however, adapting the outcome was not possible due to the interplay between procedural law and substantive law. The procedural effect of the refusal to recognise the divorce must be clearly distinguished from the conflict-of-laws implications. The court is therefore facing the challenge of making corrections at the level of the legal consequences in order to achieve the desired result. Dogmatically as well as methodologically, it is always problematic to put the cart before the horse in this way, and once again the approach taken by the Court is not flawless. Instead of following legal practice, the Court chose the most practical solution in the individual case – which is always where legal practice and science have to part company.

I am thrilled to announce that my book on international child abduction has been published this week (María Mayela Celis Aguilar (aka Mayela Celis), Madrid: Dykinson, 2023, 604 pp. – in Spanish). More information is available here.

I am most grateful to Prof. Marina Vargas Gómez-Urrutia and Hans van Loon for having written the Foreword of this book and for their support throughout this process. This book is dedicated to the memory of Adair Dyer, former Deputy Secretary General of the Hague Conference on Private International Law (HCCH), whom some of you may have known.

As stated in the publisher’s website (translation into English): “This monograph conducts a critical study of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction by analysing both case law and doctrine. In particular, it examines key concepts of the Convention, such as habitual residence and rights of custody, as well as other problems that arise more frequently in its application. But not before carrying out a detailed study of the phenomenon of international child abduction from a multidisciplinary and human rights approach.

“From a case law perspective, this work analyses approximately 600 judgments – and decisions – issued in 46 countries party to the 1980 Hague Convention, as well as decisions from seven international or regional tribunals and bodies. Moreover, it prominently studies the decisions rendered by the European Court of Human Rights and the Court of Justice of the European Union that were considered most relevant. In addition, reference is made to decisions and opinions of the Inter-American Commission on Human Rights, Inter-American Court of Human Rights, International Court of Justice, UN Committee on the Elimination of Discrimination against Women, and the UN Committee on the Rights of the Child. 25 mediatic or historical cases are also analysed on the basis of news media or sociological and historical literature.

“From a doctrinal perspective, this book carries out a detailed study of the latest doctrinal developments, both European and Latin-American. Furthermore, from a legislative perspective, this work includes an analysis of the latest legislative developments regarding both hard law and soft law. With respect to the former, this work briefly studies the European Brussels II ter Regulation (2019/1111) and with regard to the latter, it analyses and provides critical comments on the Guide to Good Practice of the HCCH on Article 13(1)(b) of the 1980 Hague Convention.”

Book reviews are very much welcome.

On Tuesday, September 19, 2023, the Hamburg Max Planck Institute will host its 36th monthly virtual workshop Current Research in Private International Law at 17:00-18:30 (CEST). Chris Thomale (Universität Wien/Università degli Studi Roma Tre) will speak, in German, about

The theory of real seat: Connecting factor or domestic link?

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

crosspost from https://eurolatinstudies.com

The collection of assignments presented here is the result of the V Workshop Jean Monnet Network – BRIDGE on “El Derecho Internacional Privado en las Relaciones entre la Unión Europea y América Latina” which took place on April 19th, 2023, in hybrid mode, at University of Sevilla, Spain. This initiative promoted an intense debate on the theoretical and practical aspects about international law and the relations between European Union and Latin America, with the presence of professors and researchers from several universities.

The proceedings are part of the activities developed by Jean Monnet Network project called “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”, co-financed by the Erasmus+ Program of European Commission (620744-EPP-1-2020-1-BR-EPPJMO-NETWORK), composed of a consortium of seven Latin American and European universities.

The articles presented at the Workshop were previously evaluated through Call for Papers, launched in January 2023, and selected by the Organizing Committee composed of Professors Aline Beltrame de Moura (Federal University of Santa Catarina), Beatriz Campuzano Días and Mª Ángeles Rodríguez Vázquez (both from University of Sevilla, Spain). Part of the articles selected for presentation at the Workshop were published in Anais do V Workshop Jean Monnet Network – BRIDGE and the others were published in the V edition of the Latin American Journal of European Studies (2023-1).

Holidays are over and September 2023 will be a busy month at the Court of Justice also as regards private international law, starting with the delivery of the Opinion by AG Emiliou in case C-90/22, Gjensidige, and of two decisions by the third and the fifth chamber respectively (both formations of five judges) already on Thursday 7.

The request for a preliminary ruling in Gjensidige comes from the Lietuvos Aukščiausiasis Teismas (Lithuania). In the case at hand, the proceedings in cassation focus on the legal provisions governing the significance of an agreement conferring jurisdiction, entered into by the parties to a contract for international carriage, in the context of determining both the jurisdiction of the court hearing the dispute that arose from that contract and the legal consequences of a breach of the lis pendens rules. The national court is asking the following:

Can Article 71 of Regulation No 1215/2012, having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of the CMR Convention also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?

Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of Regulation No 1215/2012 be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?

After assessment of the specific features of the situation and the resulting legal consequences, can the term ‘public policy’ used in Regulation No 1215/2012 be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as the CMR Convention, creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

One the same day the Court will hand down its judgement in cases C-590/21, Charles Taylor Adjusting,  and C-832/21 Beverage City Polska.

The request for a preliminary ruling in case C-590/21 was lodged by the Areios Pagos (Court of Cassation, Greece). It concerns the interpretation of Article 34(1) and Article 45(1) of the Regulation No 44/2001 (Brussels I), in proceedings on the recognition and enforcement by a court of a Member State of judgments issued by a court of another Member State which have the effect of deterring parties, which had brought proceedings before another court of the former Member State, from continuing the proceedings pending before it. The questions referred read:

(1) Is the expression “manifestly contrary to public policy” in the EU and, by extension, to domestic public policy, which constitutes a ground for non-recognition and non-enforcement pursuant to point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to be understood as meaning that it extends beyond explicit anti-suit injunctions prohibiting the commencement and continuation of proceedings before a court of another Member State to judgments or orders delivered by courts of Member States where: (i) they impede or prevent the claimant in obtaining judicial protection by the court of another Member State or from continuing proceedings already commenced before it; and (ii) is that form of interference in the jurisdiction of a court of another Member State to adjudicate a dispute of which it has already been seised, and which it has admitted, compatible with public policy in the EU? In particular, is it contrary to public policy in the EU within the meaning of point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to recognise and/or declare enforceable a judgment or order of a court of a Member State awarding provisional damages to claimants seeking recognition and a declaration of enforceability in respect of the costs and expenses incurred by them in bringing an action or continuing proceedings before the court of another Member State, where the reasons given are that: (a) it follows from an examination of that action that the case is covered by a settlement duly established and ratified by the court of the Member State delivering the judgment (or order); and (b) the court of the other Member State seised in a fresh action by the party against which the judgment or order was delivered lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction?

(2) If the first question is answered in the negative, is point 1 of Article 34 of Regulation No 44/2001, as interpreted by the Court of Justice of the European Union, to be understood as constituting a ground for non-recognition and non-enforcement in Greece of the judgment and orders delivered by a court of another Member State (the United Kingdom), as described under [(1)] above, where they are directly and manifestly contrary to national public policy in accordance with fundamental social and legal perceptions which prevail in Greece and the fundamental provisions of Greek law that lie at the very heart of the right to judicial protection (Articles 8 and 20 of the Greek Constitution, Article 33 of the [Astikos Kodikas (Greek Civil Code)] and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in [Article 176, Article 173(1) to (3) and Articles 185, 205 and 191] of the [Kodikas Politikis Dikonomias (Greek Code of Civil Procedure)] cited in paragraph 6 of the statement of reasons) and Article 6(1) of the [European Convention on Human Rights], such that, in that case, it is permissible to disapply the principle of EU law on the free movement of judgments, and is the non-recognition resulting therefrom compatible with the views that assimilate and promote the European perspective?

In his Opinion delivered on 23 March 2023, AG Richard de la Tour proposes propose that the Court of Justice answer as follows:

Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a court of a Member State can refuse to recognise and enforce a decision on the ground that it is contrary to public policy based on the fact that that decision prevents the continuation of proceedings pending before another court of that Member State, in that it awards to one of the parties provisional damages in respect of the costs and expenses incurred by it in bringing those proceedings, where the reasons given are, first, that the subject matter of those proceedings is covered by a settlement duly established and ratified by the court of the Member State delivering that decision, and, second, that the court of the other Member State before which those proceedings were brought lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction.

It is now for judges K. Jürimäe, M. Safjan, N. Piçarra, N. Jääskinen (as reporting judge) and M. Gavalec to decide.

In case C-832/21, Beverage City Polska, the Oberlandesgericht Düsseldorf (Higher Regional Court for Civil and Criminal Matters of Düsseldorf, Germany), made a request for a preliminary ruling on the interpretation of Article 8, point 1, of the Brussels I regulation, in relation to Article 122 of Regulation (EU) 2017/1001 on the European Union trade mark. The main proceedings engaged the owner of a Union trademark, established in the United States, and a distributor and its supplier, respectively domiciled in Germany and Poland, regarding the alleged violation by them of said trademark. The Court of Justice is asked to complete its jurisprudence on the requirements of the special rule established in Article 8, point 1, of Regulation No. 1215/2012, which allows several persons domiciled in different Member States to sue before the courts of the domicile of only one of them, whereas the claims filed before the referring court are directed against several companies and their administrators, against whom the action has been filed not only in their capacity as representatives of such companies, but also in their personal capacity.

AG Richard de la Tour’s Opinion, March 23, 2023 proposes the Court to answer:

Article 8(1) of Regulation (EU) No 1215/2012 …, read in conjunction with Article 122 of Regulation (EU) 2017/1001 …, must be interpreted as meaning that more than one defendant, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled that are seised, in the context of infringement proceedings, of claims brought against them by the proprietor of an EU trade mark where the defendants are alleged to have infringed that trade mark in a materially identical manner through each of their acts in a supply chain. It is for the court seised to assess whether there is a risk of irreconcilable judgments resulting from separate proceedings, taking into account all the relevant material in the case file.

The decision corresponds to judges E. Regan, D. Gratsias, M. Ilešič (reporting judge), I. Jarukaitis and Z. Csehi.

Three further decisions will be published the following week, i.e. on Thursday 14.

C-632/21, Diamond Resorts Europe e.a., is a Spanish request from the Juzgado de Primera Instancia e Instrucción n.º 2 de Granadilla de Abona on the law applicable to contractual obligations under Regulation No 593/2008 (Rome I) and (to some extent) its predecessor, the 1980 Rome Convention. The succinct presentation  of the facts according to the English summary of the request establishes that an action was brought before the referring Spanish court seeking the annulment of two contracts (of 14 April 2008 and of 28 June 2010) concluded between a UK company and the applicants in the main proceedings, Mr JF and Ms NS, of British nationality. The contracts relate to the purchase of points which enable consumers to use accommodation belonging to the club owned by the defendant in Europe, including Spain. Consumers are not allocated specific accommodation, even for a specified period each year; instead, they are offered a brochure of accommodation and must request availability for each property at a particular time.

These are the questions referred to the Court:

1) Are the 1980 Rome Convention … and Regulation No 593/2008 on the law applicable to contractual obligations to be construed as applying to contracts in which both parties are United Kingdom nationals?

If the answer to the first question is in the affirmative

2) Is Regulation No 593/2008 to be construed as applying to contracts concluded before its entry into force, pursuant to Article 24 of that regulation? If the answer is no, must a club-points-based timeshare contract be treated as falling within the scope of Articles 4(3) or (5) of the 1980 Rome Convention, including where the consumer has chosen the law of a State other than his or her State of habitual residence as the applicable law? Further, if the answer is that such contracts can come under either provision, which set of rules takes priority?

3) Irrespective of the answers to the second question, is a club-points-based timeshare contract to be treated as a contract for the acquisition of rights in rem in immovable property or association-type rights in personam?

– If it is considered that rights in rem are acquired, for the purposes of determining the law applicable, which of Article 4(c) and 6(1) of Regulation No 593/2008 is applicable by way priority, including in the event that the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?

– If it is considered that rights in personam are acquired, are those rights to be treated as a tenancy of immovable property, for the purposes of Article 4(c), or as a provision of services, for the purposes of Article 4(b)? Further, and in any event, is Article 6(1) applicable by way of priority in so far as the contract is with a consumer and/or user, including where the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?

4) In all of the above cases, is national legislation which states that ‘all contracts concerning rights relating to the use of one or more immovable properties situated in Spain during a specified or specifiable period of the year are subject to the provisions of this Law, regardless of the place or the date on which such contracts were concluded’ to be interpreted as being compatible with the provisions governing the applicable law laid down in the 1980 Rome Convention and in Regulation No 593/2008?

No Opinion has been asked for. The Court will decide in a chamber of three judges, namely L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer.

On the same day, the same chamber will hand down the judgment in case C-821/21, Club La Costa e.a., corresponding again to a Spanish request; no Opinion precedes the decision. Six questions have been referred to the Court on the Brussels I bis and Rome I Regulations:

In relation to Regulation (EU) No 1215/2012 …:

1. In the case of consumer contracts to which Article 18(1) of the Brussels I Regulation is applicable, is it compatible with that regulation to interpret the term ‘the other party to a contract’ used in that provision as encompassing only a person who signed the contract, such that it cannot include natural or legal persons other than those who actually signed the contract?

2. If the term ‘the other party to a contract’ is interpreted as encompassing only a person who actually signed the contract, in situations in which both the consumer and ‘the other party to a contract’ are domiciled outside Spain, is it compatible with Article 18(1) of the Brussels I Regulation to conclude that the international jurisdiction of the Spanish courts cannot be determined by the fact that the group of undertakings to which ‘the other party to a contract’ belongs includes companies that are domiciled in Spain but did not sign the contract or signed different contracts other than that in respect of which a declaration of nullity is sought?

3. If ‘the other party to a contract’, as referred to in Article 18(1) of the Brussels I Regulation, provides evidence that its domicile is established in the United Kingdom in accordance with Article 63(2) of the regulation, is it compatible with that provision to conclude that a domicile so established delimits the option that can be exercised under Article 18(1)? And, in addition to that, is it compatible with that provision to conclude that it does not simply establish a mere ‘presumption of fact’, or that that presumption is overturned if ‘the other party to a contract’ carries on business outside the jurisdiction of its domicile, or that the onus is on ‘the other party to a contract’ to demonstrate that its domicile, as determined in accordance with the provision cited, is the same as the place where it carries on its business?

In relation to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008:

4. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 3 of that regulation to conclude that clauses determining the applicable law, which are included in the ‘general conditions’ of the contract signed by the parties or which are included in a separate document which is expressly referred to in the contract and is shown to have been provided to the consumer, are valid and applicable?

5. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that it can be relied on by a consumer and by the other party to a contract?

6. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that, if the conditions laid down therein are satisfied, the law indicated in that provision will in all cases be applied in preference to that indicated in Article 6(3), even though the latter may be more favourable to the consumer in the particular case?

In the main proceedings, Mr NM, a British national domiciled in the United Kingdom, concluded in Spain in 2018 a timeshare contract under Spanish Law 4/2012 of 6 July 2012. Mr NM’s wife, also a British national domiciled in the UK, was a party to the contract as well, as was, through its Spanish branch, the entity Club La Costa (UK) PLC, a British company domiciled in the UK which directs its commercial activities to Spain and other countries, including the UK. The timeshare contract contained a clause according to which it ‘shall be interpreted in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.’ Mr NM brought an action against the other party to the contract, Club La Costa (UK) for a declaration of nullity of that contract before the referring court together with a claim for a refund of payments made PLC. The claim was directed as well against another four companies, three of British nationality and a fourth of Spanish nationality; none of them had participated in the conclusion of the contract at issue in the main proceedings; they had, though, in the conclusion of other contracts in which Club La Costa (UK) PLC was not involved. The disputed issue in the main proceedings is whether the Spanish courts have jurisdiction to hear the claim. It is also necessary to determine what the applicable law is. In this regard, albeit not the subject matter of a question to the Court of Justice, the doubts of the referring court are raised by the fact that under Spanish procedural law, if a foreign law is applicable, the party which invokes that law must confirm the existence and content of that law. Spanish law also lays down rules on the admission of evidence under foreign law.

Finally, the decision by judges L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer in case C-393/22, EXTÉRIA, not accompanied by a previous Opinion, will be published on 14 September 2023. Here, the Nejvyšší soud (Supreme Court, Czech Republic) asks the Court in Luxembourg whether Article 7(1)(b) of Regulation No 1215/2012 must be interpreted ‘as meaning that the concept contract for the provision of services also includes a contract to enter into a future contract (pactum de contrahendo), in which the parties undertook to enter into a future contract that would be a contract for the provision of services, within the meaning of that provision’.

This blogpost is an edited version of this blogpost written in Dutch by Stichting IJI (The Hague Institute for private international law and foreign law). We thought it was interesting to also bring it to the attention of the international readership of this blog.

Introduction

In the Netherlands, international high-tech surrogacy is a hot topic, resulting in interesting legal developments. Recently, a Dutch District Court dealt with a case on the recognition of US court decisions on legal parenthood over children born from a high-tech surrogacy trajectory in the US, providing many private international law insights on how to assess such request for recognition. Furthermore, on July 4 a bill was proposed that encloses several private international law provisions. This blogpost briefly highlights both developments.

High-tech surrogacy in the Netherlands

In the Netherlands, high-tech surrogacy – this involves the use of in vitro fertilization (ivf), often with the use of an ovum of a woman other than the surrogate mother – has been allowed (decriminalized) since 1997, but under strict conditions. Important conditions include having a medical reason and medical, psychological and legal information and counseling. It should be noted that commercial surrogacy is illegal.

It is not well tracked how often surrogacy occurs in the Netherlands. The Dutch government estimates that there are several dozen occurrences annually, but indicates that the number is increasing.

High-tech surrogacy abroad

Because, i.a., there are not always (enough) surrogate mothers to be found in the Netherlands, it occurs that some intending parents search for a surrogate mother abroad. Surrogacy is treated differently abroad, to which roughly three variations apply:

1. Surrogacy is prohibited (e.g. Germany and France);
2. Surrogacy is allowed, through a legal framework with either various safeguards (counseling, legal assistance, judicial review etc.) or rules that provide for the legal parenthood of the intended parents. Thereby, as far as legal parenthood at birth is concerned, roughly two alternatives can be distinguished. For example, the surrogate mother is regarded as the legal mother and her husband or partner as the legal father. But there are also countries where the intended parents are considered to be the legal parents from the birth of the child;
3. There is no specific regulation in place for surrogacy and existing legal regulations are applied by analogy or not (e.g. Belgium and the Netherlands).

In case intended parents enter into a surrogacy trajectory abroad, all kinds of private international law issues arise in the Netherlands regarding, among others, the legal parenthood of the intended parents.

District Court decision of January 13, 2023

Early in 2023, said private international law issues arose before the District Court of The Hague (ECLI:NL:RBDHA:2023:363). The court had to rule on several requests by two married men (hereinafter: husband X and husband Y) regarding legal parenthood over children born from a surrogacy trajectory in the US.

The surrogate mother became pregnant with twins following ivf treatment in the US. Two embryos were transferred to her, using sperm from husband X and an ovum from an ovum donor, and sperm from husband Y and an ovum from an ovum donor. The couple applies in the Netherlands for, among other things, recognition of several court decisions on legal parenthood issued in the US, including a decision on denial of paternity, denial of maternity and establishment of paternity, and a decision on custody.

The District Court ruled that the court decisions from the US could be recognized in the Netherlands, with an extensive assessment of the public policy exception and the question of whether there was a diligent surrogacy trajectory.

Dutch bill of July 4, 2023 to regulate (international) surrogacy

On July 4, 2023, a bill was proposed in the Netherlands. This bill introduces rules for granting parenthood after surrogacy within the Netherlands and further holds rules for recognising parenthood after surrogacy from abroad. The bill indicates there will be a standard for ‘responsible surrogacy’ that intended parents should consider when choosing a surrogacy route both domestically and abroad. If certain conditions are met and the court has given its consent prior to conception, the intended parents will be considered the legal parents from birth. The bill also provides a specific recognition scheme for decisions made abroad, in which family law relations following surrogacy have been established or modified between the child and the intended parents. Important here is that the surrogacy process has been diligent. The standard will be that comparable requirements have been met that are also set for a ‘national’ surrogacy trajectory.

 

On 31 August 2023, the European Court of Human Rights has handed out its decision regarding application in case C. v. Italie (application no. 47196/21), on the refusal by the Italian authorities to recognize the bond of filiation established by a Ukrainian birth certificate between the child C, born abroad by surrogacy, and her biological father and her mother of intention. Article 8 of the Convention is at stake.

The Court has declared the request admissible (unanimously); it has held, by six votes to one, that there has been a violation of Article 8 of the Convention in its procedural aspect in connection with the establishment of parentage between the applicant and L.B.; and has held unanimously that there has been no violation of Article 8 of the Convention on account of the refusal to transcribe the applicant’s birth certificate in respect of her intended mother.

The decision is already available in French at HUDOC.

On a related previous ruling against Denmark, with three dissenting opinions (out of seven) see E. Sinander’s post here.

The Facts

In 2018, L.B. and E.A.M., an Italian heterosexual couple, enter into a surrogacy contract in Ukraine. An embryo from an egg from an anonymous donor and sperm from L.B. was implanted in the uterus of a surrogate mother. The applicant was born in August 2019. A birth certificate was drawn up in Ukraine.

On September 16, 2019, L.B. and E.A.M. asked the civil registrar of the Italian town of V. for the entry into the civil status register of the child’s Ukrainian birth certificate. By decision of 4 December 2019, the civil status office rejected the request on the ground that such a transcription was contrary to public order. On January 14, 2020, L.B. and E.A.M. appealed before the court of V. They requested the transcription of the certificate and, in the alternative, the transcription of the name of the biological father alone. By a decision of March 16, 2020, the court dismissed the appeal on the grounds that taking into account the best interests of the child could not lead to disregard of the principle of incompatibility of surrogacy with public order. L.B. and E.A.M. appealed against this decision and requested, by way of an interim appeal included in the appeal proceedings, the partial transcription of the birth certificate in respect of L.B. In a judgment of June 14, 2021, the Court of Appeal dismissed their appeal.

On 8 June 2022, L.B. asked the civil status office of the municipality of C.S., where he had transferred his residence, to carry out a partial transcription of his daughter’s birth certificate. By a note of July 6, 2022, the civil status office refused the partial transcription on the grounds that the prohibition of surrogacy could not be circumvented.

Ruling of the Court

On the merits, the Strasbourg Court considers that the existence of an interference with the applicant’s right to respect for her private life is beyond doubt. It recalls that such interference infringes Article 8 unless, ‘in accordance with the law’, it pursues one or more of the legitimate aims set out in the second paragraph of this provision and if it is ‘necessary in a democratic society’, the notion of ‘necessity’ implying an interference based on a pressing social need and, in particular, proportionate to the legitimate aim pursued (Mennesson v. France, no. 65192/11).

The Court finds that the rejection of the request for the entry in the civil status registers of the applicant’s foreign birth certificate was provided for by law, within the meaning of the second paragraph of Article 8, surrogacy being prohibited under Italian law. It also finds the condition of legitimate aims is met, in that the interference under examination pursued two of the legitimate aims listed in the second paragraph of Article 8 of the Convention (‘the protection of health’ and ‘the protection of human rights and freedoms of others’).

The interference is, however, not ‘necessary in a democratic society’ to achieve the pursued aims. Here, the Court differentiates:

A. On the establishment of the parent-child relationship between the applicant and her biological father, the Court recalls that, according to its case-law, Article 8 of the Convention requires domestic law to provide for the possibility of recognition of the link between a child, born as a result of surrogacy practiced abroad, and the intending father when the latter is the biological father. In addition, the Court has already noted that the absence of recognition of a parent-child relationship between a child born from surrogacy practiced abroad and the intended parent has negative consequences on several aspects of the right of the child to respect for private life; it also disadvantages the child in as far as it places him in a form of legal uncertainty as to his identity in society. It is in the interest of the child who is in this situation that the duration of the uncertainty as to the establishment of his filiation be as short as possible.

Regarding the case at hand, the Court concludes that the domestic courts dismissed the disputed claims without weighing the various interests at stake and, above all, without considering the requirements of speed and efficiency required in proceedings such as the present one. The Court finds that, in view of the particular circumstances of the case, despite the margin of appreciation afforded to the State the Italian authorities failed in their positive obligation to guarantee the applicant’s right to respect for her privacy to which he is entitled under the Convention. Accordingly, there has been a violation of Article 8 of the Convention on this point (see dissenting opinion by Judge Wojtyczek).

B. Regarding the impossibility for the applicant to have the bond which unites her to her intended mother recognized, the Court admits that Italian law does not allow the transcription of the birth certificate for the intended mother. It acknowledges, however, that Italian law guarantees the latter the possibility of legally recognizing the child through adoption. In this regard, the Court notes that, according to the Plenary Assembly of the Italian Court of Cassation, adoption enables the courts seised to assess the requirements of Article 8 of the Convention and the best interests of the child.

In view of the foregoing, the Court is of the opinion that by refusing to transcribe the applicant’s Ukrainian birth certificate into the Italian civil status registers in so far as it designates E.A.M. as her mother, the Respondent State did not, in the circumstances of the case, exceed its margin of appreciation. Therefore, there has been no violation of Article 8 of the Convention on this point.

The author of this post is Chukwuma Okoli, Assistant Professor in Commercial Conflict of Laws at the University of Birmingham, and Senior Research Associate at the University of Johannesburg.

In a recent article, I explore what should be globally significant in a forum selection agreement as an indicator of the implied choice of law.

This topic is in itself a very old one, dating back to the late 19th century when English judges in Hamlyn & Co v Talisker Distillery (1894) AC 202, 208.explicitly held that in the absence of an express choice of law, a choice of forum agreement would imply the choice of law. The popular Latin maxim for this is: Qui eligit forum vel iudicem eligit ius. Currently, however, this topic is ill-defined, notoriously complex, and a hotly debated issue in theory and practice across the global community.

Indeed, there are two main opposing schools of thought on this topic, the first being that where there is no express choice of law, a forum selection agreement (encompassing a jurisdiction and arbitration agreement) should be decisive or a strong presumption in implying the choice of law. This enhances coherence between the forum and lex fori. Moreover, on pragmatic grounds, it is easier and less expensive for the forum to apply its own law correctly. Conversely, the opposing school of thought argues against a forum selection agreement being decisive or a strong presumption to imply the choice of law. This is on the basis that parties who choose a forum should also choose the law. Failure to choose a law to match a forum selection agreement will negate an implied choice of law; it could either mean that the parties were ignorant of the choice of law or did not intend to apply the law of the chosen forum. Therefore, according to a strict standard, this school of thought requires the corroboration of other indicators to imply a choice of law. In essence, where an express choice of law is absent, the choice of forum alone cannot imply a choice of law, because this wrongly conflates jurisdiction with choice of law.

There are many scholarly works that have commented on this issue, but few have devoted their attention to the topic. Maxi Scherer (2011) and Jan Neels (2016) are the only scholars I have found to dedicate their research to this area. Scherer’s focus is exclusively based on the European Union, whilst Neels is mainly concerned with  a note on the approach of the Indian courts in this regard. Nevertheless, other scholars have discussed the matter in great depth, even though it has not been the main thrust of their research, for example, Manuel Penades Fons (2012), Peter Mankowski (2017), Richard Plender &, Michael Wilderspin, (2019) Michael McParland (2015), and Garth Bouwers. (2021).

However, what is lacking in the previous scholarly works is the commitment to provide clear guidance on global uniform criteria for this issue. My article explicitly departs from a recent study by Garth Bouwers, who proposes a ‘case-by-case basis, avoiding fixed criteria’ in the use of a forum selection agreement as an indicator to imply a choice of law (ibid at at pages 237 & 247) The reason for advancing a clear guide to global uniform criteria is that it should contribute to greater certainty, predictability, and uniformity in this field of law.

The methodology employed, namely, a global comparative perspective, is one that presents all relevant international, regional, and supranational instruments, and selected legal systems in Africa, Asia, Australasia, Europe, the Middle East, and North and South America. The legal systems compared encompass those in the Global North and Global South, including common law, civil law, and mixed legal systems. I consider Symeon Symeonides to be the intellectual godfather of this form of global comparative perspective on choice of law. A decade or so ago, he employed this methodology in his seminal work, which covered around 100 codifications on choice of law. Daniel Girsberger, Thomas Graziano, and Jan Neels also utilised this methodology in an edited work on choice of law in international commercial contracts. Finally, Garth Bouwers applied this methodology in his recent study on tacit choice of law in international contracts.

Based on such a global comparative perspective, my article’s core proposal is that an exclusive forum selection agreement should be a key factor in implying the choice of law. However, except in cases where the forum is chosen on a neutral basis, there should be a general requirement of corroboration with at least one other factor of significance. My proposal is therefore a compromise between the school of thought that insists on the corroboration of a plurality of factors as a requirement, and the other, which rejects this requirement. Therefore, it is a proposal that should not be difficult to sell as a global approach.

However, debate might be unnecessary if parties make an express choice of law in their international contracts. Nevertheless, the reality is that whilst choice of forum agreements are popular worldwide, agreements on an express choice of law are not always entered into. Therefore, this present study is one that should remain pertinent to the theory and practice of international commercial dispute resolution.

Today, we are on the eve of the HCCH 2019 Judgments Convention’s entry into force. This gives us the opportunity to offer the final instalment of our Repository on the HCCH 2019 Judgments Convention and to bring this project to its end. However, the CoL General Editors will preserve the Repository’s final state as first entry to the CoL Materials.

In recent years, its continuous updates have been a frequently used means of keeping the joint HCCH|University of Bonn project viable and to overcome all challenges from the pandemic. Originally intended as a preparatory tool to the Pre-Conference Video Roundtable (2020), the database also served as a research resource to our Book Project (2023) and, of course, the main Conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook” (2023) here in Bonn, from which we keep fond memories, as is illustrated by the small picture gallery above. One of the most recurring responses we received from the conference audience on site was how remarkably thoroughly prepared all conference speakers were for their respective presentations. Allow us for a moment to believe that this might have something to do with the Repository, amongst many other reasons, above alle the excellence and the extreme efforts and thoroughness of all the authors/speakers.

As of today, the last day of the Repository, we are pleased to count a total of over 260 entries to the repository in 18 languages from all continents. Our sincere thanks go to all involved, not only at the conference and in the book project, but also to the legal scholars from around the world who have kept us constantly informed about publications of their own work on the HCCH 2019 Judgments Convention. In our humble opinion, this global cooperation of legal scholars and practitioners has contributed to making more visible what has been referred to elsewhere as the “College of International Lawyers”.

However, as the practical implications of the HCCH 2019 Convention have only just begun with its applicability between the European Union (EU) and Ukraine as an important first step, we strongly encourage all those engaged in research to continue contributing to the “official” Bibliography of the HCCH for the instrument.

 

Final Update of 29 August 2023: New entries are printed bold.

 

I. Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

II. Bibliography

Ahmed, Mukarrum “Brexit and the Future of Private International Law in English Courts”, Oxford 2022 Åkerfeldt, Xerxes ”Indirekta behörighetsregler och svensk domsrätt – Analys och utredning av svensk domstols behörighet i förhållande till 2019 års Haagkonvention om erkännande och verkställighet” (Examensarbete inom juristprogrammet, avancerad nivå, Örebro Universitet, 2021 ; available here)

 

“Indirect jurisdiction and Swedish law – Analysis and inquiry of the jurisdiction of Swedish courts in relation to the 2019 Hague Convention on Recognition and Enforcement” Al-Jubouri, Zina Hazem “Modern trends for the recognition and enforcement of foreign judgments in civil and commercial matters accordance the 2019 Hague Convention”, Tikrit University Journal for Rights (TUJR) 2022-03, pp. 79-109 (available here) Amurodov, Jahongir “Some issues of Ratification of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) by the Republic of Uzbekistan”, Uzbek Law Review 2020-03, pp. 11-116 (available here) Arslan, Ilyas “The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Uluslararasi Ticaret ve Tahkim Hukuku Dergisi 10 (2021), pp. 329-402 Badr, Yehya Ibrahim “The Hague 2019 Convention for the Recognition and Enforcement of Foreign Judicial Decisions: A Comparative Study”, International Journal of Doctrine, Judiciary, and Legislation (IJDJL) 2 (2021), pp. 427-468 (available here) Balbi, Francesca “La circolazione delle decisioni a livello globale: il rogetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Beaumont, Paul;
Holliday, Jayne (eds.) “A Guide to Global Private International Law”, Oxford 2022 Biresaw, Samuel Maigreg “Appraisal of the Success of the Instruments of International Commercial Arbitration vis-a-vis International Commercial Litigation and Mediation in the Harmonization of the Rules of Transnational Commercial Dispute Resolution”, Journal of Dispute Resolution 2022-02, pp. 1-27 (preprint available here) Blanquet-Angulo, Alejandra “Les Zones d’ombre de la Convention de La Haye du 2 Juillet 2019”, Revue Internationale de Droit Comparé (RIDC), 73 (2021), pp. 53-71 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Borisov, Vitaly Nikolaevich “2019 Hague Judgments Convention: Global Recognition and Enforcement of Civil and Commercial Judgments (Review of the International Conference held in Hong Kong on September 9, 2019), Journal of Foreign Legislation and Comparative Law 2020-03, pp. 166-172 (available here) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Brand, Ronald A. “The Hague Judgments Convention in the United States: A ‘Game Changer’ or a New Path to the Old Game?“, University of Pittsburgh Law Review 82 (2021), pp. 847-880 (available here) Brannigan, Neil “Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention”, Journal of Private International Law 18 (2022), pp. 83-112 Cai, Ya-qi “Feasibility Study on China’s Ratification of the HCCH Judgment Convention from the Perspective of Indirect Jurisdiction”, Journal of Taiyuan Normal University (Social Science Edition) 2021-04, pp. 74-80 Çaliskan, Yusuf;
Çaliskan, Zeynep “2 Temmuz 2019 Tarihli Yabanci Mahkeme Kararlarinin Taninmasi ve Tenfizine Iliskin Lahey Anlasmasinin Degerlendirilmesi”, Public and Private International Law Bulletin 40 (2020), pp 231-245 (available here)

(An Evaluation of 2 July 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters) Campuzano Díaz, Beatriz “The participation of the European Union in the Conventions of the Hague Conference on Private International Law and its relationship with the regulations”, Latin American Journal of European Studies 3 (2023) Cardoso, Connor J. “Implementing the Hague Judgments Convention”, New York University Law Review 97 (2022), pp. 1508-1545 (available here) Casey, Alex “Holding out Hope for the Hague Judgments Project Thirty-Years Later: The Future of Express English Jurisdiction Clauses in Light of the London-Lugano Lacuna (Brexit, Brussels, and Beyond)”, Plassey Law Review 3 (2023), pp. 10-31 Ceci, Federico “Osservazioni sull’adesione dell’Unione europea alla Convenzione dell’Aja del 2019 sul riconosciemento e l’esecuzione delle sentenze straniere in materia civile e commerciale”, Quaderni AISDUE N.º3 (2022), pp. 119-131 (available here) Celis Aguilar, María Mayela “El convenio de la haya de 30 de junio de 2005 sobre acuerdos de elección de foro y su vinculación con el ‘proyecto sobre Sentencias’ (y viceversa)”, Revista mexicana de Derecho internacional privado y comprado N°40 (octubre de 2018), pp. 29-51 (available here) Chai, Yuhong ; Qu, Zichao “The Development and Future of the Hague Jurisdiction Project”, Wuhan University International Law Review 2021-05, pp. 27-52 (online first) Chen, Shun-Hsiang “Signed, Sealed, & Undelivered: Unsuccessful Attempts of Judgment Recognition Between the U.S. and China”, Brooklyn Journal of Corporate, Financial & Commercial Law 16 (2022), pp. 167-189 (available here) Chen, Wendy “Indirect Jurisdiction over the Recognition and Enforcement of Judgments of Foreign Courts in Compulsory Counterclaims”, Journal of Xingtai University 2019-04, pp. 106-110 Cheng, Xian-ping; Liu, Xian-chao “On the Application of the Severable Clause in The Hague Judgments Convention”, Harbin Normal University Social Science Journal 2021-05, pp. 30-34 Choi, Sung-Soo “Review of the several issues of the Convention on the Recognition and Enforcement of Foreign Judgments”, Gachon Law Review 14 (2021), pp. 37-68 (available here) Clavel, Sandrine ; Jault-Seseke, Fabienne “La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : Que peut-on en attendre ?”, Travaux du comité français de Droit international privé, Vol. 2018-2020, Paris 2021 (Version provisoire de la communication présentée le 4 octobre 2019, available here) Clover Alcolea, Lucas “The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention – Rivals, Alternatives or Something Else?”, Mc Gill Journal of Dispute Resolution 6 (2019-2020), pp. 187-214 Coco, Sarah E. “The Value of a New Judgments Convention for U.S. Litigants”, New York University Law Review 94 (2019), pp 1210-1243 Cong, Junqi “Reinventing China’s Indirect Jurisdiction over Civil and Commercial Matters concerning Foreign Affairs – Starting from the Hague Judgment Convention” (Master’s Thesis, National 211/985 Project Jilin University; DOI: 10.27162/d.cnki.gjlin.2020.001343) Conley, Anna “Comparing Essential Components of Transnational Jurisdiction: A Proposed Comparative Methodology”, Tulane Journal of International and Comparative Law” 31 (2023), pp. 1-55 Contreras Vaca, Francisco José “Comentarios al Convenio de la Haya del 2 de julio de 2019 sobre Reconcimiento y Ejecución de Sentencias Extranjeras en materia civil y comercial”, Revista mexicana de Derecho internacional privado y comprado N°45 (abril de 2021), pp. 110-127 (available here) Cui, Zhenghao “On the Coordination between the Draft Convention on Judicial Sale of Ships and the related Conventions of the Hague Conference on Private International Law”, China Ship Survey 2021-04, pp. 65-68 Cuniberti, Gilles “Signalling the Enforceability of the Forum’s Judgments Abroad”, Rivista di diritto internazionale private e processuale (RDIPP) 56 (2020), pp 33-54 Daniel, Naama “Lost in Transit: How Enforcement of Foreign Copyright Judgments Undermines the Right to Research”, PIJIP Research Paper Series 3-2023, pp. 1-60 (available here) DAV (German Bar Association) “Position Paper on the EU’s possible accession to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of the Hague Conference on Private International Law”, Berlin 2020 (available here) de Araujo, Nadia ; de Nardi, Marcelo ;
Spitz, Lidia “A nova era dos litígios internacionais”, Valor Economico 2019 de Araujo, Nadia ;
de Nardi, Marcelo ;
Lopes Inez ;
Polido, Fabricio „Private International Law Chronicles“, Brazilian Journal of International Law 16 (2019), pp 19-34 de Araujo, Nadia ;
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2019-01, pp. 59-74 (available here) Qian, Zhenqiu;
Yang, Yu “On the Interpretation and Application of the Cost of Proceedings Provision under the Hague Judgment Convention”, China Journal of Applied Jurisprudence 2020-04, pp. 96-108 Reisman, Diana A. A. “Breaking Bad: Fail –Safes to the Hague Judgments Convention”, Georgetown Law Journal 109 (2021), pp. 880-906 Revolidis, Ioannis « From the ashes we will rise – recognition and enforcement of international judgments after the revival of the Hague Convention », Lex & Forum 4/2021 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-404 Rumenov, Ilija “Country Report North Macedonia”, in GIZ (ed.), Cross-Border Recognition and Enforcement of Foreign Judicial Decisions in South East Europe and Perspectives of HCCH 2019 Judgments Convention, Skopje 2021, pp. 138-179 (available here) Rumenov, Ilija “The indirect jurisdiction of the 2019 Hague Convention on recognition and enforcement of foreign judgments in civil or commercial matters – Is the “heart” of the Convention”, SEELJ Special Edition No. 8 (2021), pp. 9-45 Sachs, Klaus;
Weiler, Marcus “A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 Saito, Akira “Advancing Recognition and Enforcement of Foreign Judgments: Developments of Inter-Court Diplomacy and New Hague Judgments Convention”, Kobe Law Journal 2019-03, pp. 59-110 (available here) Salim, Rhonson “Quo Vadis Consumer Dispute Resolution? – UK & EU Cross Border Consumer Dispute Resolution in the Post Brexit Landscape”, Revista Ítalo-Española De Derecho Procesal 2022-01, pp. 97-121 (available here) Sánchez Fernández, Sara “El Convenio de la Haya de Reconocimiento y Ejecución de Sentencias”, Revista Española de Derecho Internacional 73 (2021), pp. 233-252 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZeuP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Schack, Haimo “HAVÜ Nein danke! Zur weltweiten Urteilsanerkennung und zum Jurisdiction Project der Haager Konferenz für IPR“, Zeitschrift für Europäisches Privatrecht (ZEuP) 2023, pp. 285-289 Schroeter, Ulrich G. “Rechtsschutz am Erfüllungsort im grenzüberschreitenden Warenhandel nach Lugano-Übereinkommen und Haager Übereinkommen 2019” (Jurisdiction of the courts at the place of performance in cross-border trade under the 2007 Lugano Convention and the 2019 Hague Convention – in German)
in Claudia Seitz/Ralf Michael Straub/Robert Weyeneth (eds.), Rechtsschutz in Theorie und Praxis: Festschrift for Stephan Breitenmoser, Basel: Helbing Lichtenhahn (2022), 497–508 (available here) Senicheva, Marina “The Relevance and Problems of the Hague Convention of July 2, 2019 on the Recognition and Enforcement of Foreign Judgments Ratification by the Russian Federation”, Advances in Law Studies 8 (2020), online (available: here) Shan, Juan “A study on the Anti-trust Provisions in the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 318-335 Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 1)”, Journal of Russian Law No. 2020-07, pp. 170-186 (available here) Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 2)”, Journal of Russian Law No. 2020-11, pp. 140-54 (available here) Shen, Juan “Further Discussion on the Drafts of the Hague Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and Considerations from Chinese Perspective”, Chinese Review of International Law 2016-06, pp. 83-103 (available here) Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Silberman, Linda “The 2019 Judgments Convention: The Need for Comprehensive Federal Implementing Legislation and a Look Back at the ALI Proposed Federal Statute”, NYU School of Law, Public Law Research Paper No. 21-19 (available here) Skvortsova, Tatyana Aleksandrovna;
Denyak, Victoria Yurievna “On the issue of Recognition and Enforcement of Court Decisions of a Foreign State in the Russian Federation”, Collection of selected Articles of the International Scientific Conference, Saint Petersburg (2021), pp. 258-261 Solomon, Dennis “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 Song, Jianli “ ‘Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments’ and its influence on my country”, People’s Judicature (Application) 2020-01, pp. 88-92 (available here) Song, Lianbin; Chen, Xi “The Judicial Difference and International Coordination of the Recognition and Enforcement of Foreign Punitive Damages Judgements: Also on China’s Corresponding Measures Under the Frame of HCCH Convention”, Jiang-Huai Tribune 2021-03, pp. 111-113 Spitz, Lidia „Homologação De Decisões Estrangeiras No Brasil –  A Convenção de Sentenças da Conferência da Haia de 2019 e o contrôle indireto da jurisdição estrangeira”, Belo Horizonte 2021 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stamboulakis, Drossos “Comparative Recognition and Enforcement”, Cambridge 2022 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Stitz, Olivia “Comity, Tipping Points, and Commercial Significance: What to expect of the Hague Judgments Convention”, Corporate and Business Law Journal (Corp. & Bus. L.J.) 2 (2021), pp. 203-236 (available here) Storskrubb, Eva “The EU Commission’s Proposal for the EU to Accede to the Hague Judgments Convention”, EU Law Live Weekend Edition No. 75 (2021), pp. 10-16 (available here) Suk, Kwang-Hyun “Principal Content and Indirect Jurisdiction Rules of the Hague Judgments Convention of 2019”, Korea Private International Law Journal 2020-02, pp. 3-83 Sun, Jin;
Wu, Qiong “The Hague Judgments Convention and how we negotiated it”, Chinese Journal of International Law 19 (2020) (available here) Sun, Xiaofei;
Wu, Qiong “Commentary and Outlook on the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Journal of International Law 2019-01, pp. 155-164+170 Symeonides, Symeon C. “Recognition and Enforcement of Foreign Judgments: The Hague Convention of 2019”, in Symeon C. Symeonides, Cross-Border Infringement of Personality Rights via the Internet, Leiden 2021, pp. 130-144 Symeonides, Symeon C. « The Hague Treaty for the Recognition of Foreign Decisions-The Lowest Common Denominator », Lex & Forum 4/2021 Taghipour Darzi Naghibi, Mohammadhossein; Soleimani Andarvar, Ali “Comparative Study of the Recognition and Enforcement of Foreign Court Judgments in The Hague Convention Judgments 2019 and Iranian Law”, Comparative Law Review 13 (2022), pp. 493-514 (available here) Takeshita, Keisuke “The New Hague Convention on Recognition and Enforcement of Foreign Judgments: Analysis on its Relationship with Arbitration”, Japanese Commercial Arbitration Journal (JCA) 2020-02, pp. 10-15 (available here) Takeshita, Keisuke “The New Hague Convention on Recognition and Enforcement of Foreign Judgments”, Japanese Commercial Arbitration Journal

Part 1: JCA 2020-04, pp. 40-45 (available here)

Part 2: JCA 2020-05, pp. 40-45 (available here)

Part 3: JCA 2020-06, pp. 42-49 (available here)

Part 4: JCA 2020-10, pp. 40-46 (available here)

Part 5: JCA 2020-11, pp. 35-41 (available here)

Part 6: JCA 2020-12, pp. 43-48 (available here)

Part 7: JCA 2021-02, pp. 50-56 (available here)

Part 8: JCA 2021-04, pp. 45-51 (available here)

Part 9: JCA 2021-07, pp. 46-53 (available here)

Part 10: JCA 2021-09, pp. 40-46 (available here)

Part 11: JCA 2021-10, pp. 48-54 (available here)

Part 12: JCA 2022-01, pp. 45-52 (available here)

Part 13: JCA 2022-03, pp. 44-51 (available here)

Part 14: JCA 2022-05, pp. 58-55

Part 15 JCA 2022-07, pp. 49-55

Part 16 JCA 2022-09, pp. 36-44

Part 17 JCA 2022-12, pp. 53 et seq. Taquela, María Blanca Noodt ; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Hongjun “The Present and Future of the Recognition and Enforcement of Civil and Commercial Judgments in Northeast Asia: From the Perspective of the 2019 Hague Judgments Convention”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 300-317 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 Trooboff, Peter D.;
North, Cara; Nishitani, Yuko;
Sastry, Shubha; Chanda, Riccarda “The Promise and Prospects of the 2019 Hague Convention: Introductory Remarks”, Proceedings of the ASIL Annual Meeting 114 (2020), pp. 345-357 Tsang, King Fung;
Wong, Tsz Wai “Enforcement of Non-Monetary Judgments in Common Law Jurisdictions: Is the Time Ripe?”, Fordham International Law Journal 45 (2021), pp. 379-428 (available here) van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue critique de droit international privé (Rev. Crit. DIP) 2019, pp. 353-365 Viegas Liquidato, Vera Lúcia “Reconhecimento E Homologação De Sentenças Estrangeiras : O Projeto De Convenção Da Conferência da Haia”, Revista de Direito Brasileira 2019-09, pp. 242-256 Vishchuprapha, Shayanit “Thailand’s Possibility of Becoming a Party to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters of 2019”, Mae Fah Luang University Law Journal 2023-01, pp. 185-228 (available here) Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 (available here) Wang, Yahan “No Review of the Merits in Recognizing and Enforcing Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 78-95 Wass, Jack; Hook, Maria “The Hague Conventions on International Civil Procedure – The Case for Accession”, New Zealand Law Review 2023, pp. 99-133 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 (available here) Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed. 2022 Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, Tübingen 2021, pp. 835-855 Weller, Matthias; Ribeiro-Bidaoui, Joao; Brinkmann, Moritz, Dethloff, Nina (eds.) “The HCCH 2019 Judgments Convention – Cornerstones, Prospects, Outlook”, Oxford 2023 Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Wu, Qiong “The Overview of the 22nd Diplomatic Session of the Hague Conference on Private International Law”, Chinese Yearbook of International Law 2019, pp. 337-338 Wu, Zhenghong “A Study on the Connection between Our Commercial Mediation System and the Singapore Mediation Convention”, Open Journal of Legal Science 11 (2023), pp. 1422-1430 (available here) Xie, Yili “Research on the Intellectual Property Infringment System of the Hague Judgments Convention”, China-Arab States Science and Technology Forum 2021-09, pp. 190-194 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 2017-05, pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Xu, Guojian “On the Scope and Limitation of the Global Circulation of Court Judgments: An Analysis on the Application Scope of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 269-299 Xu, Guojian “On Circumstances of Refusal of Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters: A Study on Relevant Systems and Rules in the HCCH 2019 Judgments Convention”, Chinese Review of International Law 2023-03, pp. 124-144 Xu, Pengju “A Study on the Interpretation of Non-substantive Review Clauses in the Hague Convention on Judgments”, Frontiers in Business, Economics and Management (FBEM) 2022-03, pp. 79-81 (available here) Yang, Liu “The Applicable Conditions of the Lis Pendens Rule under the Hague Judgments Convention”, Journal of Ocean University of China (Social Sciences) 2022-05, pp. 99-111 Yang, Yujie “On the Rules of indirect Jurisdiction responding to Litigation – Based on Article 5, Paragraph 1, Item 6 of the Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters” (Master Thesis China Foreign Affairs University Beijing 2021) Yekini, Abubakri

  “The Hague Judgments Convention and Commonwealth Model Law – A Pragmatic Perspective”, Oxford 2021. Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Yu, Yue “Resolution of International Commercial Disputes – From the Perspective of Recognition and Enforcement of Judgments”, Dispute Settlement 9 (2023), pp. 1155-1162 (available here) Yuzhakov, D.A. “Legal Regulation of the Procedures for Enforcement of Decisions of Foreign Courts in Economic Disputes”, Urgent Issues of the Entrepreneurship Law, Civil Litigation and Arbitration (Perm State University) No. 4 (2021), pp. 119-123 (available here) Zasemkova, Olesya Fedorovna “ ‘Judicial Convention’ as a New Stage in the Recognition and Enforcement of Foreign Judgments”, Lex Russica 2019-10, pp. 84-103 (available here) Zasemkova, Olesya Fedorovna “Recognition and Enforcement of Foreign Judgments in the Context of the Adoption of the « Judicial Convention » 2019”, in Zhuikov V.M., Shchukin A.I. (eds.), Liber Amicorum Natalia Ivanovna Marysheva, pp. 196-211 Zernikow, Marcel “Recognition and Enforcement of Foreign Decisions in MERCOSUR Letters Rogatory (Carta Rogatória) and National Civil Procedure” Yearbook of Private International Law 22 (2020/2021), pp. 353-380 Zhang, Chunliang;
Huang, Shan “On the Common Courts Rules in Hague Judgments Convention – China’s way for the Judicial Assistance under Belt and Road Initiative”, Journal of Henan University of Economics and Law 2020-05, pp. 103-113 Zhang, Lizhen “On the Defamation Problem in the Hague Judgments Project: Ever In and Now out of the Scope”, Wuhan University International Law Review 2019-01, pp. 41-58 (available here) Zhang, Wenliang “The Finality Requirement of Recognition and Enforcement of Foreign Judgments”, Wuhan University Law Review 2020-02, pp. 19-38 Zhang, Wenliang; Tu, Guangjian “The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation”, Chinese Journal of International Law 20 (2021), pp. 101-135 Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhang, Zhengyi;
Zhang, Zhen “Development of the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and Its Implication to China”, International and Comparative Law Review 2020, pp. 112-131 Zhao, Ning “The HCCH 2019 Judgments Convention, adding essential components for an effective international legal framework on recognition and enforcement”, in UIHJ (ed.), David Walker (dir.), Cyberjustice, de nouvelles opportunités pour l’huissier de justice / Cyberjustice, New Opportunities for the Judicial Officer – XXIVe Congrès de l’Union Internationale des Huissiers de Justice – Dubai – 22 au 25 Novembre 2021, Bruxelles 2021, pp. 120-133 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368 Zhao, Ning “The Resumed HCCH Jurisdiction Project” in Tobias Lutzi, Ennio Piovesani, Dora Zgrabljic Rotar (eds.), Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended?, Oxford 2023, pp. 321-332 Zirat, Gennadii “Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: A new Contribution of the Hague Conference on Private International Law to the Unification of International Civil Procedure”, Ukrainian Journal of International Law 2020-03, pp. 105-112 (available here)

 

III. Recordings of Events Related to the HCCH 2019 Judgments Convention

ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here) ASIL “The Promise and Prospects of the 2019 Hague Convention”, 25-26 June 2020 (full recording available here and here) CILC; HCCH; GIZ; UIHJ “HCCH 2019 Judgments Convention: Prospects for the Western Balkans”, Regional Forum 2022, 30 June-1 July 2022 (short official video available here) CIS Arbitration Forum “CIS-related Disputes: Treaties, Sanctions, Compliance and Enforcement, Conference, Keynote 2: Russia’s accession to the Hague Convention on Recognition and Enforcement of Foreign Judgments”, 25-26 May 2021 (recording available here) CUHK “Latest Development of Hague Conference on Private International Law and the Hague Judgments Convention”, Online Seminar by Prof. Yun Zhao, 25 March 2021 (full recording available here) Department of Justice Hong Kong; HCCH “Inaugural Global Conference – 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments”, 9 September 2019 (recording available here) GIAS “Arbitration v. Litigation: Can the Hague Foreign Judgments Convention Change the Game?, Panel 2, 10th Annual International Arbitration Month, Commercial Arbitration Day”, 25 March 2022 (full recording available here) HCCH “HCCH a|Bridged: Innovation in Transnational Litigation – Edition 2021: Enabling Party Autonomy with the HCCH 2005 Choice of Court Convention”, 1 December 2021 (full recording available here) HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) Lex & Forum Journal; Sakkoula Publications SA « The Hague Conference on Private International Law and the European Union – Latest developments », 3 December 2021 (full recording available here) UIHJ; HCCH “3rd training webinar on the Hague Conventions on service of documents (1965) and recognition and enforcement of judgements (2019)”, 15/18 March 2021 (full recording available here in French and here in English) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here)

 

Michele Grassi (University of Milan) has kindly shared the following announcement with us:

The Department of Italian and Supranational Public Law of the University of Milan will host, on September 14 and 15, a conference on “EU Private International Law: a Look into the Future 50 Years after the Entry into Force of the 1968 Brussels Convention”, in cooperation with the European Group for Private International Law. The event is co-founded by the Erasmus+ Programme of the EU (Jean Monnet Module on Family and Succession Law Matters in EU Private International Law and Jean Monnet Module on EU Private International Law Rules on Obligations in a Digitalised World).

The conference will consider the relationship of EU PIL acts with third States and the new perspectives and gaps to fill in the EU judicial cooperation in civil matters. Speakers and chairs of the panels include: Fausto Pocar (University of Milan, Emeritus), Hans van Loon (former Secretary-General of the HCCH), Pietro Franzina (Catholic University of the Sacred Heart, Milan), Christian Kohler (University of Saarland, Emeritus) Zeno Crespi Reghizzi (University of Milan), Patrick Kinsch (University of Luxembourg), Etienne Pataut (University of Paris 1 Panthéon-Sorbonne), Cristina González Beilfuss (University of Barcelona), Luigi Fumagalli (University of Milan), Andrea Bonomi (University of Lausanne), Francesca Villata (University of Milan), Támas Szabados (University of Budapest), Stefania Bariatti (University of Milan), Andreas Stein (EU Commission).

Participation is free of charge, but you are kindly asked to register at the following link: https://forms.office.com/e/SYhcX0pi1e

The flyer can be found here; for further information, feel free to contact michele.grassi@unimi.it.

The University of Coimbra Institute for Legal Research, UCILeR, Portugal, is an investigation center devoted to the analysis of the legal implications and possible solutions for societal challenges.

Knowing that the family and personal status have been going through profound changes in internal legislations and in the scope of international mobility, the organizing committee of the Seminar on Transatlantic dialogues on PIL: family and personal status on the move (consisting of Dulce Lopes, Guillermo Palao Moreno, Nicolas Nord and Paula Távora Vítor) decided to contribute to the ongoing discussions on those issues, by adding a clear and necessary intercontinental dimension to them.

The Seminar is intended to discuss topics related to novelties in the regulation and recognition of family and personal status, through a series of combined panels from colleagues from Europe and America, ranging from the more general issues such as Family and Personal Status and Registry, Family and Personal Status between Nationality and Habitual Residence, Family and Personal Status and Human Rights and Family and Personal Status and Best Interest of the Child, to the more specific topics on Name in Private International Law (How far should personal autonomy go?), Multiple Parenthood in Private International Law (Socio-affective ties and new family models), Gender in Private International Law (Should sex still be a part of the civil status?) and Poly Amorous Relationships in Private International Law (Going beyond polygamy?). 

Young Researchers are welcome to propose individual or co-authored presentations. These presentations should cover one of the above-mentioned themes or others closely related to them. Paper proposals shall fit into the objectives of the Seminar and will be selected according their innovative approach, academic soundness as well as to their contribution to the development of private international law studies.

Proposals should be submitted no later than 20 September 2023 by e-mail to dulcel@fd.uc.pt and paulavit@fd.uc.pt. The proposals should include: the proposed title; an abstract of no more than 300 words; the participant’s name, function and affiliation; the indication if the paper is to be presented online or on-site.

The submission of paper abstracts and participation in the Seminar is free of charge. UCILeR does not cover expenses.

The conference will be held in a hybrid format – online and on-site – at the University of Coimbra. The papers selected by the conveners will be presented on 12 October 2o23.

Recently, the  German Society of International Law (DGIR) has published the proceedings of its 37 Biennial Conference held in Heidelberg from 9 to 11 March 2022.  The volume is devoted to the – very timely – topic of “Turning away from Multilateralism – International Law in Danger?” and contains five contributions (in German) explicitly discussing issues related to Private International Law:

• Internationalization versus Europeanization and Renationalization in Private International Law
  by Prof. Dr. Martin Gebauer, Tübingen, Judge at the Court of Appeal in Stuttgart
• The Crisis of Uniform Law
  by Prof. Dr. Matthias Weller, Mag.rer.publ., Bonn
• The Influence of Human Rights on Private International Law
  by Prof. Dr. Christine Budzikiewicz, Marburg
• Crisis and Future of State Courts as an Instrument of Dispute Resolution in International Trade
  by Prof. Dr. Michael Stürner, M.Jur (Oxford), Konstanz
• Arbitration Reform from an International Law Perspective
  by Hans-Georg Dederer, University of Passau

The English-language summaries, provided for by the authors and the publisher, are available here.

 

A new private international law article was recently published online in the Journal of Comparative Law in Africa. The title is: MK Quartey & TE Coleman, “The Law Applicable to Tortious Liability: A Comparative Analysis of Article 4 of the Rome II Regulation and Private International Law in Ghana”

The abstract reads as follows:

The law applicable to tortious liability involving a foreign element has become one of the most vexed questions in private international law. This can be attributed to technological advancements and the movement of people and goods across state lines. Accidents involving a foreign element are, therefore, reasonably foreseeable. Torts such as online defamation, accidents involving self-driving vehicles, and other technological acts involving a foreign element have heightened the possibility of cross-border torts. Considering the complexities associated with cross-border torts, the European Union (EU) has enacted the Rome II Regulation. The overarching objective of enacting the Rome II Regulation is to promote certainty and predictability when dealing with cross-border disputes, irrespective of the country of the court in which an action is brought in the EU. Conversely, Ghana relies on the broadly drafted section 54 of the Courts Act 459 of 1993 and common law principles of private international law to determine the aspects of choice of law. This has made the position in Ghana very uncertain and unpredictable due to the broad discretion given to courts under section 54 of the Courts Act, particularly in determining the law applicable to cross-border tort cases. Also, Ghanaian courts have applied the much-criticised double actionability rule to determine the rights and obligations of parties in cross-border tort cases. In light of the uncertain and unpredictable nature of Ghanaian law, some academics have suggested that Ghana adopt the traditional rule to determine the applicable law in torts. This article seeks to critically analyse the applicability of article 4 of the Rome II Regulation regarding non-contractual liabilities. The article compares how courts in EU member states have applied article 4 to determine the applicable law in torts, to how the Ghanaian courts use private international law rules to determine the applicable law in torts. The essence of the comparison is to ascertain whether Ghana can draw some legislative and judicial lessons from the position under article 4. In addition, the significance of the comparison is to determine whether the approach under the Rome II Regulation can serve as a basis for legal reforms in Ghana. Most importantly, the article explores the extent to which the legal approach under the EU law can bolster judicial certainty and predictability in Ghanaian law.

Horatia Muir Watt (Sciences Po Law School) has published the lecture that she gave as the 18th Rabel Lecture in November 2022 on Alterity in the Conflict of Laws – An Onthology of the In-Between.

The conflict of laws can serve heuristically to underscore two established but radically opposing models of modernist legal ordering: multilateralism and statutism. Such a prism is helpful if we want to rethink (as we must!) our late-modern legality’s deep epistemological settings in the shadow of the »catastrophic times« to come, whether in terms of environmental devastation or political dislocation. Both phenomena are profoundly linked and indeed constitute two faces of alterity, natural and cultural, from which modernity has progressively taught us to distance ourselves. Importantly, law encodes the conditions that produce these dual somatic symptoms in our contemporary societies. This chasm between nature and culture has produced humanity’s “ontological privilege” over our natural surroundings and a similar claim of superiority of modern (Western) worldviews over “the rest”. In this respect, the main achievement of the moderns, as Bruno Latour wryly observed, has been to universalise the collective blindness and amnesia that allow our “anthropocentric machine” to hurtle on, devastating life in its path and devouring the very resources it needs to survive.

The paper, which is published in free access, is forthcoming in the Rabels Zeitschrift.

There is no doubt that the issue of same-sex marriage is highly controversial. This is true for both liberal and conservative societies, especially when the same-sex union to be formed involves parties from different countries. Liberal societies may be tempted to open up access to same-sex marriage to all, especially when their citizens are involved and regardless of whether the same-sex marriage is permitted under the personal law of the other foreign party. For conservative societies, the challenge is even greater, as local authorities may have to decide whether or not to recognise same-sex marriages contracted abroad (in particular when their nationals are involved). The issue becomes even more complicated in countries where domestic law is hostile to, or even criminalises, same-sex relationships.

It is in this broader context that the decision of the Supreme Court of Namibia in Digashu v. GRN, Seiler-Lilles v. GRN (SA 7/2022 and SA 6/2022) [2023] NASC (16 May 2023) decided that same-sex marriages concluded abroad should be recognised in Namibia and that the failure to do so infringes the right of the spouses to dignity and equality. Interestingly, the Supreme Court ruled as it did despite the fact that Namibian law does not recognise, and also criminalises same-sex relationships (see infra). Hence, the Supreme Court’s decision provides valuable insights into the issue of recognition of same-sex unions contracted abroad in Africa and therefore deserves attention.

 

I. General Context

In his seminal book (Private International Law in Commonwealth Africa (Cambridge University Press, 2013) p. 182), Richard F. Oppong describes the issue of same-sex unions in Commonwealth Africa as follows: ‘It still remains highly contentious in most of the countries under study whether the associations between persons of the same sex should be recognized as marriage. In Zambia, a marriage between persons of the same sex is void. It only in South Africa where civil unions solemnised either as marriage or a civil partnership are recognized’ (footnotes omitted). As to whether other African countries would follow the South African example, Richard F. Oppong opined that ‘[t]here is little prospect of this happening […]. Indeed, there have been legislative attempts […] in countries such as Nigeria, Uganda, Malawi and Zimbabwe – to criminalise same-sex marriage.’ (op. cit. p. 183). For a detailed study on the issue, see Richard F. Oppong and Solomon Amoateng, ‘Foreign Same-Sex Marriages Before Commonwealth African Courts’, Yearbook of Private International Law, Vol. 18 (2016/2017), pp. 39-60. On the prohibition of same-sex marriages and same-sex unions and other same-sex relationships in Nigeria under domestic law and its implication on the recognition of same-sex unions concluded abroad, see Chukwuma S. A. Okoli and Richard F. Oppong, Private International Law in Nigeria (Hart Publishing, 2020) pp. 271-274.

 

II. The Law in Namibia

A comprehensive study of LGBT laws in Namibia shows that same-sex couples cannot marry under either of the two types of marriage permitted in Namibia, namely civil or customary marriages (see Legal Assistance Center, Namibian Laws on LGBT Issues (2015) p. 129). In one of its landmark decisions decided in 2001 known as ‘the Frank case’ (Chairperson of the Immigration Selection Board v Frank and Another 2001 NR 107 (SC)), the Supreme Court held that the term ‘marriage’ in the Constitution should be interpreted to mean only a ‘formal relationship between a man and a woman‘ and not a same-sex relationship. Accordingly, same-sex relationships, in the Court’s view, are not protected by the Constitution, in particular by Article 14 of the Constitution, which deals with family and marriage. With regard to same-sex marriages contracted abroad, the above-mentioned study explains that according to the general principles of law applicable in Namibia, a marriage validly contracted abroad is recognised in Namibia, subject to exceptions based on fraud or public policy (p. 135). However, the same study (critically) expressed doubt as to whether Namibian courts would be willing to recognise a foreign same-sex marriage (ibid). The same study also referred to a draft bill discussed by the Ministry of Home Affairs and Immigration which ‘contained a provision specifically forbidding the recognition of foreign same-sex marriages’ (p. 136).

 

III. The Case

The case came before the Supreme Court of Namibia as a consolidated appeal of two cases involving foreign nationals married to Namibians in same-sex marriages contracted abroad.

In the first case, the marriage was contracted in South Africa in 2015 between a South African citizen and a Namibian citizen (both men) under South African law (Civil Union Act 17 of 2006). The couple in this case had been in a long-term relationship in South Africa since 2010. In 2017, the couple moved to Namibia.

In the second case, the marriage was contracted in Germany in 2017 under German law between a German citizen and a Namibian citizen (both women). The couple had been in a long-term relationship since 1988 and had entered into a formal life partnership in Germany under German law in 2004. The couple later moved to Namibia.

In both cases, the foreign partners (appellants) applied for residency permits under the applicable  legislation (Immigration Control Act). The Ministry of Home Affairs and Immigration (‘the Ministry’), however, refused to recognise the couples as spouses in same-sex marriages contracted abroad for immigration purposes. The Appellants then sought, inter alia, a declaration that the Ministry should recognise their respective marriages and treat them as spouses under the applicable legislation.

 

IV. Issue and Arguments of the Parties

‘The central issue’ for the Court was to determine whether ‘the refusal of the [Ministry] to recognise lawful same-sex marriage of foreign jurisdictions […] between a Namibian and a non-citizen [was] compatible with the [Namibian] Constitution’ (para. 20). In order to make such a determination, the Court had to consider whether or not the applicable domestic legislation could be interpreted to treat same-sex partners as ‘spouses’.

The Ministry argued that, in the light of the Supreme Court’s earlier precedent (the abovementioned Frank case), spouses in a same-sex marriage were excluded from the scope of the applicable legislation, irrespective of whether the marriage had been validly contracted abroad in accordance with the applicable foreign law (para. 58). The Ministry considered that the Supreme Court’s precedent was binding (para. 57); and the position of the Supreme Court in that case (see II above) (para. 36) reflected the correct position of Namibian law (para. 59].

The appellants argued that the Frank case relied on by the Ministry was not a precedent, and should not be considered as binding (para. 54). They also argued that the approach taken by the Court in that case should not be followed (paras. 52, 55). The appellants also contended that the case should be distinguished, inter alia, on the basis that, unlike the Frank case were the partners were not legally married (i.e. in a situation of long-term cohabitation), the couples in casu had entered into lawful same-sex marriages contracted in foreign jurisdictions and that their marriages were valid on the basis of general principles of common law – the lex loci celebrationis (para. 50). Finally, the appellants argued that the Ministry’s refusal to recognise their marriage was inconsistent with the Namibian Constitution as it violated their rights (para. 51).

 

V. The Ruling

In dealing with the case, the Supreme Court focused mainly on the applicability of the doctrine of precedent in the Namibian context and the constitutional rights of the appellants. Interestingly, comparative law (with references to the law of some neighbouring African jurisdictions, English law, American law, Canadian law and even the case law of the European Court of Human Rights) was mobilised by the Court to reach its conclusion, i.e. that the Ministry’s decision to interpret and apply the applicable legislation in a manner that excluded spouses in same-sex marriages validly entered into abroad violated the appellants’ constitutional rights.

With regard to the validity of same-sex marriages contracted abroad, the Supreme Court ruled as follows:

 [82] According to the well-established general principle of common law, if a marriage is duly concluded in accordance with the statutory requirements for a valid marriage in a foreign jurisdiction, it falls to be recognised in Namibia. […]

[83] […] The term marriage is likewise not defined in the [applicable legislation] and would contemplate valid marriages duly concluded and ordinarily recognised, including those validly contracted outside Namibia in accordance with the law applicable where the marriage is concluded in accordance with the general principle of common law already referred to. […].

[84] The Ministry has not raised any reason relating to public policy as to why the appellants’ marriage should not be recognised in accordance with the general principle of common law. Nor did the Ministry question the validity of the appellants’ respective marriages.

[85] On this basis alone, the appellants’ respective marriages should have been recognised by the Ministry for the purpose of [the applicable legislation] and [the appellants] are to be regarded as spouse for the purpose of the [applicable legislation][…]

 

VI. The Dissent

The views of the majority in this case were challenged in a virulent dissent authored by one of the Supreme Court’s Justices. With respect to the issue of the validity of same-sex marriages concluded abroad, the dissent considered that the majority judgment holding that ‘in the present appeals, the parties concluded lawful marriages in jurisdictions recognising such marriages’ (145) failed to consider that ‘the laws of Namibia (including the Constitution of the Republic) do not recognise same-sex relationships and marriages.’ (146). The dissent then listed many examples, including the criminalisation of sodomy and other legislation excluding same-sex relationships or providing that marriage shall be valid when two parties are of different sexes (para. 146).

More importantly, the dissent also criticised the recognition of the same-sex marriages based on their being valid under the law of the place where they were concluded by stating as follow:

 [152] [the main finding of the majority judgment] has its basis on a well-established principle of common law, that if a marriage is duly concluded in accordance with the statutory requirements for a valid marriage in a foreign jurisdiction, it fall to be recognised in Namibia and that, that principle find its application to these matters. […].

[170] […] The common law principle relied on by the majority is sound in law but there are exceptions to the rule and Namibia is under no obligation to recognise a marriage inconsistent with its policies and laws for the reason that the said marriage is warranted by the municipal law of the country in which it was contracted. The marriages of the appellants offend the policies and laws of Namibia […]. (Emphasis in the original).

 

VII. Comments

The case presented here is interesting in many regards.

First, it introduces the Namibian approach to the question of the validity of marriages in general, including same-sex marriages. According to the majority judgment and the dissenting judgment, the validity of marriages is to be determined in accordance with the ‘well-established common law principle’ that a marriage should be governed by the law of the place where it was contracted (i.e. lex loci celebrationis).

According to the Namibian Supreme Court judges, the rule arguably applies to marriages contracted within the jurisdiction as well as to marriages contracted abroad. The rule also appears to apply to both the formal and substantive (essential) validity of marriages. This is a particularly interesting point. In Richard F. Oppong’s survey of approaches in Commonwealth Africa (but not including Namibia), the author concludes that ‘most of the countries surveyed make a distinction between the substantive and formal validity of marriage’ (op. cit. 185). The former is generally determined by the lex domicilii (although there may be different approaches to this), while the latter is determined by the lex loci celebrationis. (op. cit., pp. 183-186). The author goes on to affirm that ‘the main exception appears to be South Africa, where it has been suggested that the sole test of validity [for both substantive and formal validity] is the law of the place of celebration’ (op. cit., p. 185). The case presented here shows that Namibia also follows the South African example. This is not surprising given that the majority opinion relied on South African jurisprudence for its findings and analysis (see paras. 82, 90, 108 for the majority judgment and paras. 152, 155-162 of the dissenting opinion).

Secondly, the majority judgment and the dissenting opinion show the divergent views of the Supreme Court judges as to whether the lex loci celebrationis rule should be subject to any limitation (cf. II above). For the majority, the rule is straightforward and does not appear to be subject to any exception or limitation. Indeed, in the words of the majority, ‘if a marriage is duly solemnised in accordance with the legal requirements for a valid marriage in a foreign jurisdiction, it falls to be recognised in Namibia’ (emphasis added). No exception is allowed, including public policy. It is indeed interesting that the majority simply brushed aside public policy concerns by considering that that the Ministry had not raised any public policy ground (para. 84) (as if the intervention of public policy depended on its being invoked by the parties).

This aspect of the majority decision was criticised by the dissenting opinion. According to the dissenting opinion (para. 170), the application of the lex loci celebrationis is subject to the intervention of public policy. In other words, public policy should be invoked to refuse recognition of marriages validly celebrated abroad (cf. Oppong, op. cit, p. 186) if the marriage is ‘inconsistent with the policies and laws’ of Namibia.

Finally, and most importantly, it should be pointed out that although the majority generally reasoned about ‘marriage’ and ‘spouses’ in broad terms. Indeed, the majority repeatedly pointed out that the appellants ‘had concluded valid marriages’ that should be recognised in application of the lex loci celebrationis. Yet, when the the majority reached its final conclusions, it carefully indicated that the issue of the recognition of same-sex marriages was addressed for immigration purposes only. Indeed, the majority was eager to include the following paragraph at the end of its analyses:

[134] the legal consequences for marriages are manifold and multi-facetted and are addressed in a wide range of legislation. This judgment only addresses the recognition of spouses for the purpose of [the applicable legislation] and is to be confined to that issue. (Emphasis added).

The reason for the inclusion of this paragraph seems obvious: the Court cannot simply ignore the general legal framework in Namibia. Moreover, one can see in the inclusion of the said paragraph an attempt by the majority to limit the impact of its judgment in a rather conservative society and the intense debate it would provoke (see VIII below). In doing so, however, the majority placed itself in a rather obvious and insurmountable contradiction. In other words, if the Court recognises the validity of the marriage under the lex loci celebrationis, and (in the words of the dissenting opinion) ‘conveniently overlooks’ (para. 162) the intervention of public policy, nothing prevents the admission of the validity of same-sex marriages in other situations, such as inheritance disputes, maintenance claims or divorce. Otherwise, the principles of legal certainty would be seriously undermined if couples were considered legally ‘married’ for immigration purposes only. For example, would couples be considered as married if they later wished to divorce? Would one of the spouses be allowed to enter into a new heterosexual marriage without divorcing? Can the parties claim certain rights by virtue of their status as ‘spouses’ (e.g. inheritance rights)?

This issue is particularly important even for the case at hand. Indeed, in one of the consolidate cases, the appellants obtained before moving to Namibia an adoption order in South Africa declaring them joint care givers of a minor and granting them joint guardianship (para. 5). In a document prepared by the Ministry of Gender Equality and Child Welfare (Guide to Namibia’s Child Care and Protection act 3 of 2015 (2019)), it was clearly indicated that ‘only “spouses in a marriage” can adopt a child jointly’ and that ‘[i]f same-sex partner were legally married in another country, it depends on whether the marriage is recognised as a marriage under the laws of Namibia’ (p. 10). Therefore, in light of the decision at hand, it remains to be seen whether the South African adoption order will be or not recognised in Namibia. (On the adoption by same-sex couples in Namibia and the recognition of same-sex adoptions concluded in other countries, see the study undertaken the Legal Assistance Center on the Namibian Laws on LGBT Issues (2015) pp. 143-145).

 

VIII. The Aftermath of the Ruling: The Legislative Response

It is undeniable that Supreme Court decision could be considered as groundbreaking. It is no surprise that human rights and LGBT+ activists have welcomed the decision, despite the majority judgment’s confined scope. On the other hand, legislative reaction was swift. In an official letter addressed to the Parliament, the Prime Minister expressed the intention its Government to bring a bill that would reverse the Supreme Court decision by modifying ‘the relevant common law principle in order that same sex marriage even where solemnized in Countries that permit such marriages cannot be recognised in Namibia’. Later, two bills (among many others) were introduced in order to define ?the term ‘marriage’ as to exclude same-sex marriages; and ?to define the term ‘spouse’. Both bills intend to prohibit the conclusion and the recognition of same-sex marriage in Namibia. Last July, the bills were discussed and approved by the Namibian’s Parliament Upper House (The National Assembly). The bills need now to be approved by the Lower House (The National Council) and promulgated by the President to come into force.

The third issue of the Journal du droit international for 2023 was released. It contains three articles and several case notes relating to private international law issues.

In the first article, Sylvette Guillemard (Laval University) analyses the recent French Draft PIL Code based on the Quebec experience in this area (Regard québécois sur le projet de Code de droit international privé français).

A draft of a French private international law code project was presented to the Minister of Justice in March 2022. As soon as it was submitted, it was immediately commented on by various parties; its qualities are admired as much as its shortcomings are pointed out. In 1994, the Quebec legislator adopted a book dedicated to private international law in its new Civil Code. After nearly 30 years, it was able to reveal its flaws and demonstrate its advantages. Therefore, neither too old nor too young, it appeared to us as an excellent object of comparison with the French project. At the end of the exercise, we may conclude that French law can only emerge as the winner of this “operation of shaping the rules [of private international law] into a whole”, to borrow the words of Rémy Cabrillac.

In a second article, Djoleen Moya (Catholic University of Lyon) discusses the evolving role of courts in applying choice of law rules, using divorce law as a case study (Vers une redéfinition de l’office du juge en matière de règles de conflit de lois ? L’exemple du divorce international).

The latest developments in matters of divorce, both in domestic law and in private international law, have largely renewed the question of the obligation for a judge to apply choice-of-law rules. Traditionally, the Cour de cassation considers that in matters of divorce, judges must apply, if necessary ex officio, the applicable conflict rule, because unwaivable rights are concerned. However, this solution is under discussion. First, the qualification of divorce as an unwaivable right is questionable, especially since the admission of a purely private divorce by mutual consent in French law. But above all, the Europeanisation of the applicable choice-of-law rules seems likely to call for a new definition the judges’ procedural obligations. If we add to this the recent reorientation of the Cour de cassation’s position and the solutions stated in the draft Code of Private of International Law, the question undoubtedly calls for a reassessment.

In the third article, Sara Tonolo (University of Padova) examines the role of private international law in fundamental rights disputes in the context of a recent ECtHR case dealing with surrogate motherhood and cross-border recognition of civil status record (Les actes de naissance étrangers devant la Cour européenne des droits de l’homme. À propos de l’affaire Valdís Fjölnisdóttir et autres c/ Islande).

The European Court of Human Rights ruled on the recognition of the filiation status within surrogacy in the Valdís Fjölnisdóttir and others v. Iceland case. This perspective leaves many questions unanswered and prompts further reflection, particularly with regard to the role that private international law can play in the protection of human rights, in the context of the difficult balance between the protection of the right to private and family life and the margin of appreciation reserved to member states.

The table of contents of the issue can be accessed here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 31 August 2023 at 14:30 (Mexico City time – CST), 22:30 (CEST time). The topic of the webinar is the Applicable Law to Investment Arbitration and the Future Guide of the Organization of American States (OAS) and will be presented by Dr. José Antonio Moreno Rodríguez (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/89032691768?pwd=R3pJTnJsSEg5U0o3QmJqR3dwOWdIdz09

Meeting ID: 890 3269 1768

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

Earlier this month, the Inter-American Juridical Committee of the Organization of American States (OAS) adopted a Guide to Best Practices in International Jurisdictional Cooperation for the Americas. It is available here (in English) and here (in Spanish).

See in particular questions 5 and 7, which relate to electronic service and videoconferencing (pp. 18 and 26). The actual Guide begins in page 38.