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“From 9 to 11 November 2022, the First Meeting of the Special Commission (SC) on the Practical Operation of the 2000 Protection of Adults Convention was held in The Hague. […] The meeting resulted in the adoption of over 70 Conclusions & Recommendations […] Among other things, the SC confirmed that, in general, the Convention is operating smoothly and is fit for purpose. It also stressed the importance of seeing more States join the Convention. The SC also approved, in principle, the draft Practical Handbook, Implementation Checklist, and Country Profile under the 2000 Protection of Adults Convention, subject to their amendment in light of the latest comments by HCCH Members, the discussions that took place at the SC and their outcome, to be submitted for endorsement by the Council on General Affairs and Policy (CGAP). Delegates also discussed habitual residence, ex lege representation, instructions given and wishes made by an adult in anticipation of a future impairment, issues of recognition and enforcement, Central Authority co-operation, the use of existing recommended Model Forms, direct judicial communications, and possible amendments to the 2000 Protection of Adults Convention. The Conclusions & Recommendations adopted by the SC are available” at https://assets.hcch.net/docs/06db03d0-812c-42fb-b76d-4e6e05a91b3b.pdf.

Extract: “The SC recalled that the change of habitual residence is a question of fact which will be assessed by the competent authorities called upon to make a decision on this matter. The competent authority seised is the only one that has to determine the habitual residence of the adult and whether it has jurisdiction under the 2000 Convention. In this regard, the competent authority seised could consult, if necessary, the competent authorities of the former State of habitual residence, to obtain relevant information. For example, the competent authority seised can request information relevant to assess whether the habitual residence has changed, in order to determine if it can take jurisdiction under Article 5(2), or whether the former competent authority would continue to exercise jurisdiction under other grounds (e.g., Art. 7) or if it would be appropriate to request a transfer of jurisdiction under Article 8. Recalling Articles 32 and 34, the SC noted that cooperation can take place with a view to sharing information regarding the adult’s change of habitual residence. The SC further noted that this process should be conducted diligently and without delay. The SC reminded Contracting Parties that Article 29 generally provides Central Authorities with an opportunity to exchange information, including such information as may be relevant for the purposes of Article 5(2).

11 The SC noted that, where the habitual residence of the adult changes to another Contracting Party, the competent authorities of the new habitual residence will have primary jurisdiction. Through the

exchange of information under Articles 29 and 34, a competent authority may be alerted to the  change of residence of an adult, in order for this authority to determine whether it has jurisdiction to take measures of protection”

Source: https://www.hcch.net/en/news-archive/details/?varevent=884

Changmao Biochemical Engineering / Commission
Relations extérieures
Selon l’avocate générale Ćapeta, la Cour peut ne pas contrôler la conformité du règlement antidumping de base au regard du protocole d’accession de la Chine à l’OMC

ANTEA POLSKA e.a.
Liberté d'établissement
La protection de la confidentialité dans le domaine de la passation de marchés publics doit être mise en balance avec les exigences de transparence et d’une protection juridictionnelle effective

Volotea / Commission
Aide d'État
La Cour annule les deux arrêts du Tribunal ayant rejeté les recours de Volotea et d’easyJet contre la décision de la Commission concernant les aides d’État octroyées par l’Italie aux aéroports sardes

This post was written by Pietro Franzina and Thalia Kruger, and is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

The delegations of more than thirty Member States of the Hague Conference on Private International Law attended the first meeting of the Special Commission charged with reviewing the operation of the Hague Hague Convention of 13 January 2000 on the international protection of adults of 13 January 2000 on the international protection of adults. The meeting took place in The Hague and online from 9 to 11 November 2022 (for a presentation of the meeting, see this post on Conflictsoflaw.net and this one on the EAPIL blog). A dozen organisations, governmental and non-governmental (including the Council of the Notariats of the European Union, the Groupe Européen de Droit International Privé and the European Association of Private International Law), were also in attendance.

The discussion covered a broad range of topics, leading to the conclusions and recommendations that can be found on the website of the Hague Conference. The main takeaways from the meeting, as the authors of this post see them, are as follows.

The Hague Adults Convention Works Well in Practice

To begin with, the Special Commission affirmed that the Convention works well in practice. No major difficulties have been reported either by central authorities instituted under the Convention itself or by practitioners.

Doubts occasionally appear with respect to some provisions. Article 22 for example provides that measures of protection taken by the authorities of a Contracting State “shall be recognised by operation of law in all other Contracting States”, unless a ground for refusal among those listed in the same provisions arises. A declaration of enforceability, as stipulated in Article 25, is only necessary where measures “require enforcement” in a Contracting State other than the State of origin.

Apparently, some authorities and private entities (e.g., banks) are reluctant to give effect to measures of protection that clearly do not require enforcement, such as a judicial measure under which a person is appointed to assist and represent the adult, unless that measure has been declared enforceable in the State where the powers of the appointed person are relied upon. The Special Commission’s conclusions and recommendations address some of these hesitations, so that they should now prove easier to overcome. Regarding exequatur, see para. 33, noting that “measures for the protection of an adult only exceptionally require enforcement under Article 25”, adding that this may occur, for instance, “where a decision is taken by a competent authority to place the adult in an establishment or to authorise a specific intervention by health care practitioners or medical staff”, such as tests or treatments. Other doubts are dealt with in the practical handbook prepared by the Working Group created within the Hague Conference in view of the meeting of the Special Commission. The draft handbook (first version publicly available), which the Special Commission has approved “in principle”, will be reviewed in the coming weeks in light of the exchanges that occurred at the meeting, and submitted to the Council on the General Affairs and Policy of the Conference for endorsement in March 2023).

Situations Exist in the Field of Adults’ Protection that Are Not (Fully) Regulated by the Convention 

The Convention deals with measures of protection taken by judicial and administrative authorities, and with powers of representation conferred by an adult, either by contract or by a unilateral act, in contemplation of incapacity. By contrast, nothing is said in the Convention concerning ex lege powers of representation. These are powers of representation that the law of some States (Germany, Austria and Switzerland, for example) confers on the spouse of the adult or a close relative or family member, for the purpose of protecting the adult. Their operation is generally confined to situations for which no measures have been taken and no powers of representation have been conferred by the adult.

The Special Commission acknowledged that ex lege powers of representation fall under the general scope of the Convention, but noted that no provision is found in the Convention that deals specifically with such powers. In practice, ex lege powers of representation may be the subject of cooperation between the authorities of Contracting Parties (notably as provided for under Chapter V), but, where the issue arises of the existence, the extent and the exercise of such powers, the courts and other authorities of Contracting States will rely on their own law, including, where appropriate, their conflict-of-laws rules.

There is yet another gap that the Special Commission discussed. The Commission observed that instructions given and wishes made by an adult in anticipation of a future impairment of their personal faculties (e.g., in the form of advance directives), similarly fall within the general scope of the Convention and are subject, as such, to the cooperation provisions in Chapter V. Whether or not a particular anticipatory act constitutes a power of representation for the purposes of Articles 15 and 16, on powers of representation conferred by the adult, is to be determined on a case-by-case basis. Some unilateral acts plainly come within the purview of Articles 15 and 16, as they actually include a conferral of powers on other persons. Others do not, and may accordingly be dealt with by each Contracting State in conformity with their own law.

States Do Not Currently See an Interest in Modifying the Convention

The question has been raised in preparation of the Special Commission whether the Convention ought to be amended, namely by a protocol to be negotiated and adopted in the framework of the Hague Conference on Private International Law. In principle, a protocol would have provided the States with the opportunity to fill the gaps described above, and address other concerns. However, under international law only those Contracting States that ratify the protocol would be bound by the modifications.

The Special Commission witnessed that, at this stage, no State appears to see an amendment as necessary.

Only one issue remains to be decided in this respect, namely whether the Convention should be modified in such a way as to include a REIO clause, that is, a clause aimed at enabling organisations of regional economic integration, such as the European Union, to join the Convention in their own right. The matter will be discussed at the Council on the General Affairs and Policy of the Conference of March 2023.

The decision lies, in fact, in the hands of the Union and its Member States, as this is currently the only Regional Economic Integration Organisation concerned by such a clause. Their decision will likely be affected by the approach that should be taken in the coming weeks concerning the proposal for a regulation on the protection of adults that the Commission is expected to present in the first half of 2023.

Efforts Should Now Be Deployed Towards Increasing the Number of Contracting Parties

The main problem with the Convention lies in the fact that only relatively few States (fourteen, to be precise) have joined it, so far. Several States stressed the importance of further promoting ratification of, or accession to, the Convention.

It is worth emphasising in this respect that the Hague Adults Convention builds, to a very large extent, on cooperation between Contracting States. This means that a State cannot fully benefit from the advantages of the Convention by simply copying the rules of the Convention into its own legislation, or by relying on such rules on grounds of judicial discretion (as it occurs in the Netherlands and to a large extent in England and Wales), but should rather become a party to it.

Various States expressed an interest in the Convention. The responses to the questionnaires circulated in preparation of the meeting of the Special Commission suggest that at least five States are actively contemplating ratification (Hungary, Italy, Luxembourg, Mexico and Sweden), and that others have considered ratification (Slovakia) or are considering it (Argentina). For its part, Malta signed the Convention on the occasion of the meeting of the Special Commission, and will likely ratify it in the not too distant future.

Tools to Enhance the Successful Operation of the Convention

Some of the practitioners present drew the participants’ attention to practical difficulties in the cross-border protection of adults. To minimise practical difficulties, the Permanent Bureau, in some instances together with the Working Group on the Adults Convention, developed a number of tools.

The first is an extensive country profile, to be completed by Contracting States and made available on the website of the Hague Conference. This profile includes various matters of national law, such as names and content of measures of protection, jurisdiction of courts or other authorities to issue these measures, transfer of jurisdiction, and names, forms and extent of powers of representation.

The second is a toolkit on powers of representation, which contains detailed information about the national laws of States that provided responses, on for instance who can be granted powers of representation, how this granting must take place, and the permitted extent of the representation.

Concluding remarks

All in all, the issue of the cross-border protection of Adults has rightly gained attention over the past ten years. While States amend their domestic legislation to be in conformity with the UN Convention on the Rights of Persons with Disabilities, they seem to be increasingly aware of the importance of ensuring cross-border continuity. This includes continuity of measures of protection issued by authorities such as courts, as well as the powers of representation granted by adults themselves. These matters of private international law require dialogue on the international and European Union level, more States to join the Convention, and tools to assist practice.

This post was written by Pietro Franzina and Thalia Kruger, and is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

The delegations of more than thirty Member States of the Hague Conference on Private International Law attended the first meeting of the Special Commission charged with reviewing the operation of the Hague Convention of 13 January 2000 on the international protection of adults. The meeting took place in The Hague and online from 9 to 11 November 2022 (for a presentation of the meeting, see this post on Conflictoflaws.net and this one on the EAPIL blog). A dozen organisations, governmental and non-governmental (including the Council of the Notariats of the European Union, the Groupe Européen de Droit International Privé and the European Association of Private International Law), were also in attendance.

The discussion covered a broad range of topics, leading to the conclusions and recommendation that can be found on the website of the Hague Conference (see here). The main takeaways from the meeting, as the authors of this post see them, are as follows.

The Hague Adults Convention Works Well in Practice

To begin with, the Special Commission affirmed that the Convention works well in practice. No major difficulties have been reported either by central authorities instituted under the Convention itself or by practitioners.

Doubts occasionally appear with respect to some provisions. Article 22 for example provides that measures of protection taken by the authorities of a Contracting State “shall be recognised by operation of law in all other Contracting States”, unless a ground for refusal among those listed in the same provisions arises. A declaration of enforceability, as stipulated in Article 25, is only necessary where measures “require enforcement” in a Contracting State other than the State of origin.

Apparently, some authorities and private entities (e.g., banks) are reluctant to give effect to measures of protection that clearly do not require enforcement, such as a judicial measure under which a person is appointed to assist and represent the adult, unless that measure has been declared enforceable in the State where the powers of the appointed person are relied upon. The Special Commission’s conclusions and recommendations address some of these hesitations, so that they should now prove easier to overcome. Regarding exequatur, see para. 33, noting that “measures for the protection of an adult only exceptionally require enforcement under Article 25”, adding that this may occur, for instance, “where a decision is taken by a competent authority to place the adult in an establishment or to authorise a specific intervention by health care practitioners or medical staff”, such as tests or treatments. Other doubts are dealt with in the practical handbook prepared by the Working Group created within the Hague Conference in view of the meeting of the Special Commission. The draft handbook (see here the first version publicly available), which the Special Commission has approved “in principle”, will be reviewed in the coming weeks in light of the exchanges that occurred at the meeting, and submitted to the Council on the General Affairs and Policy of the Conference for endorsement in March 2023).

Situations Exist in the Field of Adults’ Protection that Are Not (Fully) Regulated by the Convention

The Convention deals with measures of protection taken by judicial and administrative authorities, and with powers of representation conferred by an adult, either by contract or by a unilateral act, in contemplation of incapacity. By contrast, nothing is said in the Convention concerning ex lege powers of representation. These are powers of representation that the law of some States (Germany, Austria and Switzerland, for example) confers on the spouse of the adult or a close relative or family member, for the purpose of protecting the adult. Their operation is generally confined to situations for which no measures have been taken and no powers of representation have been conferred by the adult.

The Special Commission acknowledged that ex lege powers of representation fall under the general scope of the Convention, but noted that no provision is found in the Convention that deals specifically with such powers. In practice, ex lege powers of representation may be the subject of cooperation between the authorities of Contracting Parties (notably as provided for under Chapter V), but, where the issue arises of the existence, the extent and the exercise of such powers, the courts and other authorities of Contracting States will rely on their own law, including, where appropriate, their conflict-of-laws rules.

There is yet another gap that the Special Commission discussed. The Commission observed that instructions given and wishes made by an adult in anticipation of a future impairment of their personal faculties (e.g., in the form of advance directives), similarly fall within the general scope of the Convention and are subject, as such, to the cooperation provisions in Chapter V. Whether or not a particular anticipatory act constitutes a power of representation for the purposes of Articles 15 and 16, on powers of representation conferred by the adult, is to be determined on a case-by-case basis. Some unilateral acts plainly come within the purview of Articles 15 and 16, as they actually include a conferral of powers on other persons. Others do not, and may accordingly be dealt with by each Contracting State in conformity with their own law.

States Do Not Currently See an Interest in Modifying the Convention

The question has been raised in preparation of the Special Commission whether the Convention ought to be amended, namely by a protocol to be negotiated and adopted in the framework of the Hague Conference on Private International Law. In principle, a protocol would have provided the States with the opportunity to fill the gaps described above, and address other concerns. However, under international law only those Contracting States that ratify the protocol would be bound by the modifications.

The Special Commission witnessed that, at this stage, no State appears to see an amendment as necessary.

Only one issue remains to be decided in this respect, namely whether the Convention should be modified in such a way as to include a REIO clause, that is, a clause aimed at enabling organisations of regional economic integration, such as the European Union, to join the Convention in their own right. The matter will be discussed at the Council on the General Affairs and Policy of the Conference of March 2023.

The decision lies, in fact, in the hands of the Union and its Member States, as this is currently the only Regional Economic Integration Organisation concerned by such a clause. Their decision will likely be affected by the approach that should be taken in the coming weeks concerning the proposal for a regulation on the protection of adults that the Commission is expected to present in the first half of 2023.

Efforts Should Now Be Deployed Towards Increasing the Number of Contracting Parties

The main problem with the Convention lies in the fact that only relatively few States (fourteen, to be precise) have joined it, so far. Several States stressed the importance of further promoting ratification of, or accession to, the Convention.

It is worth emphasising in this respect that the Hague Adults Convention builds, to a very large extent, on cooperation between Contracting States. This means that a State cannot fully benefit from the advantages of the Convention by simply copying the rules of the Convention into its own legislation, or by relying on such rules on grounds of judicial discretion (as it occurs in the Netherlands and to a large extent in England and Wales), but should rather become a party to it.

Various States expressed an interest in the Convention. The responses to the questionnaires circulated in preparation of the meeting of the Special Commission suggest that at least five States are actively contemplating ratification (Hungary, Italy, Luxembourg, Mexico and Sweden), and that others have considered ratification (Slovakia) or are considering it (Argentina). For its part, Malta signed the Convention on the occasion of the meeting of the Special Commission, and will likely ratify it in the not too distant future.

Tools to Enhance the Successful Operation of the Convention

Some of the practitioners present drew the participants’ attention to practical difficulties in the cross-border protection of adults. To minimise practical difficulties, the Permanent Bureau, in some instances together with the Working Group on the Adults Convention, developed a number of tools.

The first is an extensive country profile, to be completed by Contracting States and made available on the website of the Hague Conference. This profile includes various matters of national law, such as names and content of measures of protection, jurisdiction of courts or other authorities to issue these measures, transfer of jurisdiction, and names, forms and extent of powers of representation.

The second is a toolkit on powers of representation, which contains detailed information about the national laws of States that provided responses, on for instance who can be granted powers of representation, how this granting must take place, and the permitted extent of the representation.

Concluding Remarks

All in all, the issue of the cross-border protection of Adults has rightly gained attention over the past ten years. While States amend their domestic legislation to be in conformity with the UN Convention on the Rights of Persons with Disabilities, they seem to be increasingly aware of the importance of ensuring cross-border continuity. This includes continuity of measures of protection issued by authorities such as courts, as well as the powers of representation granted by adults themselves. These matters of private international law require dialogue on the international and European Union level, more States to join the Convention, and tools to assist practice.

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of some aspects of a judgment concerning the EAPO Regulation rendered by the District Court of Žilina (Okresný súd Žilina), Slovakia.

Can insolvency practitioners apply for a European Account Preservation Order (“EAPO”) against insolvent debtors to freeze their bank accounts? The District Court of Žilina (Okresný súd Žilina) in Slovakia confronted this issue in an EAPO application it received on January 2022. The EAPO Regulation expressly excludes the use of the EAPO Regulation for “claims against a debtor in relation to whom bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings have been opened” (Art. 2(2)(c) EAPO Regulation). This is the same exclusion that can be found in Art. 1(2)(b) the Brussels I bis Regulation. Recital 8 of the EAPO Regulation reiterates that the Regulation “should not apply to claims against a debtor in insolvency proceedings” remarking that the EAPO “can be issued against the debtor once insolvency proceedings as defined in Council Regulation (EC) No 1346/2000 (now Regulation No 2015/848)”. At the same time, Recital 18 states that that exclusion should not prevent the use of an EAPO “to secure the recovery of detrimental payments made by such a debtor to third parties”.

In the instant Slovakian case, an insolvency practitioner requested an EAPO application against an insolvent debtor. The objective was to integrate the funds recovered through the EAPO into the insolvency estate. The insolvency practitioner applied for the EAPO once no assets were found in Slovakia. The EAPO application included a request to investigate the debtors’ bank accounts in Austria. One of the creditors suspected the debtor “had misappropriated funds and stashed them in offshore accounts”. The District Court of Žilina (Okresný súd Žilina) considered that, since the EAPO was requested against the debtor, such a request fell within the insolvency exclusion. Thus, the EAPO Regulation was not applicable. This court embraced the most literal sense of the insolvency exclusion. However, from a teleological perspective, the insolvency exclusion aims at preventing individual creditors from using the EAPO to undermine an insolvency estate during bankruptcy proceedings. In this case, the EAPO was used in favour of the insolvency estate. Had the EAPO been successful, it would have served to increase it.

The present case serves as an example to show that the boundaries of the EAPO insolvency exclusion are blurred. Perhaps, in the future, a similar case might reach the CJEU and help cast further light on the EAPO’s insolvency exclusion.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLV Seminar entitled “Private International Law in the conformation of a new international order” (el derecho internacional privado en la conformación de un nuevo orden internacional) from 23 to 25 November 2022.

This will be a hybrid event. The seminar will take place at the Escuela Libre de Derecho (Mexico City). The registration fee is $300 MXN for students and $500 MXN for general public.

This event will be streamed live on AMEDIP’s social media channels. Participation is free of charge but there is a fee of $500 MXN if a certificate of attendance is requested (80% of participation in the event is required).

For more information, click here.

The program is available below.

 

Programa.

MIÉRCOLES 23 DE NOVIEMBRE DE 2022.

10:10 a 10:20 HRS. INAUGURACIÓN.

Mario Héctor Blancas Vargas

Vocal de la Junta Directiva

Escuela Libre de derecho

 

Elí Rodríguez Martínez.

Presidente de la Academia Mexicana de Derecho Internacional Privado y Comparado (AMEDIP).

  10:20 a 11:00 HRS CONFERENCIA MAGISTRAL    

Leonel Pereznieto Castro

“El Pluralismo de Leyes frente al Derecho Internacional Privado”

   

receso

11:00 – 11:10 hrs.

   

11:10 a 12:10 HRS. MESA I

 

“COOPERACIÓN PROCESAL INTERNACIONAL Y EL PROYECTO DE CÓDIGO NACIONAL DE PROCEDIMIENTOS CIVILES Y FAMILIARES”

 

Moderadora: Ligia C. González Lozano

Miembro de Número

Ponente

  Tema 1. José Roberto de Jesús Treviño Sosa.

(México) “La Cooperación Procesal Internacional en el marco del Proyecto de código Nacional de Procedimientos Civiles y Familiares”.

 

  2.  Carlos e. Odriozola Mariscal.

(México) “La regulación de la cooperación procesal internacional en el próximo Código Nacional de Procedimientos Civiles y Familiares: Reflexiones sobre su eficacia”.

  3. Jorge Alberto Silva Silva.

(México) “Cláusula de reciprocidad en el Proyecto de Código Nacional de Procedimientos Civiles y Familiares”.

  4. Nuria Marchal Escalona.

(España) “Hacia la digitalización en el ámbito de la cooperación transfronteriza en la justicia civil”.  

Preguntas y Respuestas

(20 mins).  

receso

12:30 – 12:50 hrs.

   

12:50 a 13:40 HRS. Mesa II

 

“CONTRATACIÓN INTERNACIONAL”

 

Moderadora: María Mercedes Albornoz.

Miembro de Número

  Ponente

  Tema 1. James A. Graham/Christian López Martínez.

    (México) “La Ley Aplicable a la Autonomía de la Voluntad en materia contractual”.

  2. Diego Robles Farías.

(México) “El desarrollo de la Cláusula ‘Rebus Sic Stantibus’ en el Derecho Comparado y en los instrumentos de Derecho Uniforme que regulan los contratos internacionales.”. 3. Alfonso Ortega Giménez.

(España) “Derecho Internacional Privado de la unión Europea y ‘Smart Contracts’ (contratos Inteligentes): Problemas de Competencia Judicial Internacional y de Determinación de la Ley Aplicable”.

   

Preguntas y Respuestas

(20 mins).

   

receso

14:00 – 16:00 hrs.

   

16:00 – 17:00 HRS.  

“PRESENTACIÓN DEL LIBRO: La Gestación por Sustitución en el Derecho Internacional Privado y Comparado”

 

Moderadora: Nuria González Martín.

Secretaria General de la Junta de Gobierno

  Participan: Adriana Dreyzin de Klor (Argentina)   Rosa Elvira Vargas Baca (México)   María Mercedes Albornoz (México)   Nuria González Martín (México)  

Preguntas y Respuestas

(20 mins).

   

receso

17:20 – 17:30 hrs.

  17:30 a 18:00 HRS.  Entrega de Constancias a Miembros Eméritos y de Número

 

Moderador: Elí Rodríguez Martínez.

Presidente de la Junta de Gobierno

 

JUEVES 24 DE NOVIEMBRE DE 2022.

 

10:00 a 10:40 HRS. CONFERENCIA MAGISTRAL

Miguel Ángel Reyes Moncayo

Consultor Jurídico Adjunto “A”

Secretaría de Relaciones Exteriores

 

Moderadora: Rosa Elvira Vargas Baca.

Vicepresidente de la Junta de Gobierno

 

Preguntas y Respuestas

(20 mins).

   

receso

11:00 – 11:10 hrs.

   

11:10 a 12:10 HRS.  

MESA III

“DERECHO INTERNACIONAL DE LA FAMILIA”

 

Moderadora: Martha Álvarez Rendón.

Vínculo Institucional con S.R.E.

Ponente

  Tema 1. María Mayela Celis Aguilar.

(Países bajos)

  “La implementación del Convenio de la Haya de 1980 sobre los Aspectos Civiles de la Sustracción Internacional de Menores en los regímenes nacionales: el caso de América Latina y México”.

  2. Manuel Hernández Rodríguez.

(México) “Los retos en México de la Adopción Internacional”.

 

  3. María Virginia Aguilar.

(México) “La Convención sobre los Derecho de las Personas con Discapacidad, un buen documento con ausencia de efectividad, errores y posibilidades”.

  4. Jorge Orozco González.

(México) “Consideraciones en torno a la compensación conyugal por causa de muerte. Análisis de la sentencia de amparo directo en revisión 3908/2021”.

   

Preguntas y Respuestas

(20 mins).

   

receso

12:30 – 12:45 hrs.

  12:45 – 13:40 HRS

  MESA IV

“NACIONALIDAD/PROTECCIÓN DEL PATRIMONIO CULTURAL EN EL DERECHO INTERNACIONAL PRIVADO”

 

Moderadora: Yaritza Pérez Pacheco

Coordinadora Editorial

  Ponente

  Tema 1. Pedro Carrillo Toral

(México)

  “La doble Nacionalidad en México: Privilegio o Restricción”

  2. Lerdys Saray Heredia Sánchez

(España)

  “La inadecuada regulación de los supuestos de plurinacionalidad en Derecho Internacional Privado Español”

  3. Ana Elizabeth Villalta Vizcarra

(El Salvador)

  “La protección de los Bienes Culturales en el Derecho Internacional Privado” 4. Rosa Elvira Vargas Baca

(México)

  “La protección de bienes culturales de conformidad con el Convenio de UNIDROIT de 1995”.

   

Preguntas y Respuestas

(20 mins).

   

receso

14:00 – 16:00 hrs.

 

 

16:00 a 17:00 HRS. MESA V

“Responsabilidad Civil Extracontractual/ Temas Selectos de Derecho Internacional Privado-I”

 

Moderadora: Anahí Rodríguez Marcial.

Coordinadora de Seminario

  Ponente

  Tema 1. Francisco de Jesús Goytortúa Chambón.

(México)

  “Criterios del Derecho Aplicable en la Responsabilidad Extracontractual” 2. Mario de la Madrid Andrade.

(México) “La responsabilidad de la empresa en los Principios de Derecho Europeo sobre la Responsabilidad Civil Extracontractual”

  3. Carlos Gabuardi.

(México) “Nuevos desarrollos evolutivos del Derecho Internacional Privado”.  

4. Adriana Patricia Guzmán Calderón/

Sara Ximena Pinzón Restrepo.

    (Colombia)  

“¿Cuáles son los desafíos de la normatividad de la propiedad intelectual frente al surgimiento de los NFTs? Análisis de los NFTs en el Marco de la Propiedad Intelectual en Colombia”.

 

 

 

Preguntas y Respuestas

(20 mins).

   

receso

17:20 – 17:30 hrs.

   

17:30 a 18:00 HRS.  

Entrega de Constancias a Miembros Supernumerarios

 

Moderador: Elí Rodríguez Martínez.

Presidente de la Junta de Gobierno

 

 

VIERNES 25 DE NOVIEMBRE DE 2022.

 

10:00 a 10:30 HRS.  

CONFERENCIA MAGISTRAL

Roberto Ruíz Díaz Labrano

“Las fuentes del Derecho Internacional Privado en la Actualidad”.

(Paraguay)

 

Moderadora: Wendolyne Nava gonzález

Coordinadora Editorial

 

Preguntas y Respuestas

(20 mins).

   

receso

10:50 – 11:00 hrs.

   

11:00 – 12:00HRS.  

Mesa VI

“TECNOLOGÍA Y DERECHO INTERNACIONAL PRIVADO/TEMAS SELECTOS DE DERECHO INTERNACIONAL PRIVADO-II”

Moderadora: Martha Karina Tejada Vásquez.

Prosecretaria de la Junta de Gobierno

  Ponente Tema 1. Roberto Antonio Falcón Espinosa.

(México) “Los datos personales biométricos y el Derecho Internacional Privado”

  2.  Nayiber Febles Pozo

(España) “Desafío del Derecho Internacional Privado ante las relaciones en el ciberespacio: Relación de continuidad o cambio de paradigma”.

  3. Francisco José Contreras Vaca.

(México) “Conflicto de Leyes en materia del Trabajo”.

 

  4. Wendolyne Nava González.

(México) “Justicia Descentralizada: Obstáculos y Consideraciones Jurídicas”

 

   

Preguntas y Respuestas

(20 mins).

   

receso

12:20 – 12:40

   

12:40 – 13:25 HRS.  

Mesa VII

 

“TEMAS SELECTOS DE DERECHO INTERNACIONAL PRIVADO-III”

 

Moderadora: Mónica María Antonieta Velarde Méndez.

Consejera de la Junta de Gobierno

  1. Juan Manuel Saldaña Pérez.

(México) “Cooperación Procesal Internacional en Materia Aduanera”.

  2. Máximo Romero Jiménez

(México) “Implementación del Anexo 31-A del T-MEC”.

  3. Vladia Ruxandra Mucenic.

(Rumania) “Participación de Accionistas Extranjeros en Asambleas Virtuales de Sociedades Mexicanas”.  

Preguntas y Respuestas

(10 mins).

   

receso

13:35 – 13:45

 

 

 

13:45 a 14:00 HRS.  

Entrega de Constancias a Miembros Asociados

 

Moderador: Elí Rodríguez Martínez.

Presidente de la Junta de Gobierno

 

14:00 HRS. CLAUSURA.

 

*Por definir

Escuela Libre de Derecho (ELD)

 

 

 

Elí Rodríguez Martínez.

Presidente de la Academia Mexicana de Derecho Internacional Privado y Comparado (AMEDIP).

 

 

 

Pays-Bas / Commission
Aide d'État
Le Tribunal annule la décision de la Commission européenne validant la compensation pour la fermeture de centrales électriques au charbon opérant aux Pays-Bas

As announced in the first post in this series, I will continue my empirical analysis of the ECJ’s case law in the field of EUPIL. I refer back to that blog post as concerns the definition of “EUPIL” and the general methodological framework upon which this research is based.

The focus of this second post is on the participation of States, parties and, more generally, institutions in (EUPIL) preliminary reference procedures. I will first summarize the legal framework governing the observations filed with the ECJ (A) and give some additional information on the collection of data on this topic, which is essential to the correct interpretation of the Charts presented hereunder (B). After some brief considerations on the practical importance of observations in EUPIL cases (C), I will present the collected data from a double perspective: a general one, which looks at the overall level of engagement of States with preliminary references procedures on EUPIL instruments (D); and a subject-specific one, that accounts for the peculiar sectorial interests of some States (E).

A. General Legal Framework for Filing Observations with the ECJ

The participation of States, parties and institutions in the preliminary reference procedure can take the form of either written observations, lodged with the Registrar, or oral submissions at the hearing before the Court.

The legal framework applicable to the filing of written observations is set out by Articles 23 and 23a of the ECJ’s Statute and complemented by its Rules of Procedure (Rop), notably by Article 96. In short, upon reception of a request for a preliminary ruling, the ECJ’s Registrar notifies the order issued by the referring court to the Member States and to the Commission, as well as to the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute. All of these, in addition to the parties to the main proceedings pending before the referring court, are entitled to file written observations (Article 96 RoP). Moreover, said notification is sent to the States, other than the Member States, which are parties to the EEA Agreement, to the EFTA Surveillance Authority and to non-Member States which are parties to an agreement relating to a specific subject-matter, where a question concerning one of the fields of application of those Agreements is referred for a preliminary ruling. These (non-Member) States are also entitled to submit written observations.

In any case, non-participation in the written part of the procedure does not preclude participation in the hearing during the oral part of the procedure.

Not all preliminary reference proceedings encompass an oral procedure: according to Article 76 RoP, the ECJ may decide not to hold a hearing if it considers, on reading the written pleadings or observations lodged during the written part of the procedure, that it has sufficient information to give a ruling. Nonetheless, a hearing shall be held if it is requested by a party or an interested person referred to in Article 23 of the Statute, who did not participate in the written part of the procedure.

Special rules, relating to both written and oral participation, apply to the expedited (PPA) and urgent (PPU) preliminary reference procedures.

The former provides for derogatory rules in relation both to the time limits for filing observations and the scope of the subject-matter addressed thereby, that could be limited to “the essential points of law” raised by the request for a preliminary ruling (Article 105 RoP).

The latter follows a special regime that limits participation into the written part of the procedure: the order of the referring court is notified solely to the Member State from which the reference is made (and not to all Member States), to the European Commission and to the institution which adopted the act the validity or interpretation of which is in dispute (Article 109 (2) RoP). In cases of “extreme urgency”, the written part of the procedure can even be completely omitted (Article 111 RoP).  The other interested persons referred to in Article 23 of the Statute will just receive a communication of the request for a preliminary ruling and of the date of the hearing, with a view to enable their eventual participation into the oral procedure.

B. Methodological Issues Relating to the Collection of Data on Observations Filed in EUPIL Cases

This blog post builds on data collected based on the information systematically included in all ECJ’s judgments. In this respect, it is important to note that the drafting style adopted by the ECJ provides a consistent framework for all decisions issued by the Court. Against this backdrop, the first part of judgments and orders currently lists the submissions made with the Court, without nonetheless distinguishing between oral and written observations. If it is true that certain AGs are systematically introducing this distinction in their Opinions, the fact remains that, nowadays, a) not all the AGs consistently follow this practice and b) not all cases are decided with the support of an Opinion (while a hearing could be held even in cases with no Opinion: see, as an example C-436/13). As a result, the distinction between oral and written submissions could not be correctly apprehended based on the available public data. The limitations to the participation in the written part of the procedure, which are inherent to PPU cases, have therefore no impact on the statistical results presented in this blog post.

The Charts presented below will refer to States’ participation to the preliminary ruling proceedings in general, without distinguishing between oral and written part of the procedure.

C. The Practical Usefulness of Observations in EUPIL Cases

Concerning the objectives pursued through the filing of observations, EUPIL cases are no different from other preliminary references procedures. Nonetheless, this section will be the opportunity to present some preliminary statistical data which are specific to EUPIL cases.

According to point 11 of the ECJ’s Practice directions to parties concerning cases brought before the Court, written observations are a way for the interested persons referred to in Article 23 of the Statute to “set out their point of view on the request made by the referring court or tribunal” and to “help clarify for … the scope of that request, and above all the answers to be provided to the questions referred” by the domestic court. Therefore, States’ observations are, first and foremost, a tool for enlarging the circle of participants in the legal debate before the ECJ. Far from being a face-to-face conversation between the Luxembourg and the referring court, the preliminary reference procedure seeks to involve a larger number of institutional subjects. This approach is consistent with the wide-ranging effects of the judgment rendered by the ECJ at the end of such procedure, stemming from the precedential value of preliminary rulings.

In addition to this more general function, the observations filed by the subjects identified by Article 23 of the Statute and Article 96 RoP have a remarkable practical importance for the correct assessment and understanding of the preliminary questions referred in the specific case. Again, according to the aforementioned Practice directions, observations play “an essential role” in the ECJ’s understanding of the legal problem at stake, as it can thus acquire a detailed and accurate idea of the issues raised by the referred case. In my view, it is useful to distinguish, in this respect, between:

1. the observations filed by the parties to the domestic proceedings;
2. the observations filed by the government of the State to which belongs the referring court;
3. the observations of the Commission;
4. the observations filed by States other than the forum State.

The observations of the parties to the main proceedings could be extremely helpful in clarifying the factual context in which the dispute arose. While, in EUPIL cases, the ECJ does not adjudicate on facts, these remain extremely important for the correct understanding of the legal questions submitted to the Court. Facts may also help the ECJ in fulfilling its institutional mission, that is making sure that the answer provided to the referring court is as useful as possible for the solution of the problems raised by the dispute pending before it, without nonetheless venturing in factual determinations and legal assessments that rest solely with domestic courts. From this standpoint, the parties to the main proceedings could either complement, specify or even contest the description of the facts made by the referring court. It is  interesting to note that in 79 % of the inventoried EUPIL cases, at least one of the parties to the main proceedings has presented written and/or oral observations before the ECJ. This percentage drops to 67 % in family law cases and 42 % in succession cases.

The observations of the government of the State to which belong the referring court can be equally useful to clarify the factual background of the disputes, especially where one of its public bodies is involved. The point of view of the forum state is also particularly important for clarifying the content and interpretation of the domestic legal framework (procedural or substantive) applicable the specific case. Overall, the forum State has filed observations in 64% of the inventoried EUPIL cases. More detailed data on this aspect will be presented in section D.

The observations of the Commission may provide for an “institutional” point of view on the interpretation of a provision of EU Law. They may also offer interesting insights on the legislative history of the provision or instrument subject to interpretation. Albeit arguably institutional, this point of view is never binding for the Court. The Commission has systematically filed written and oral observations in all EUPIL preliminary references for which there has been a written procedure (this excludes, in practice, most of the cases decided with a reasoned order ex Article 99 RoP and some of the cases that have been deemed inadmissible ex Article 53 (2)). The observations filed by the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute pursue a similar purpose. Admittedly, these are not very common in the field of EUPIL. I could only find 4 of such cases: C-501/20 and C-522/20, with observations by the Council of the EU, as well as joined Cases C-453/18 and C-494/18 with observations of both the EU Parliament and the Council of the EU.

As concerns the observations of States other than the forum State, they mostly serve to introduce multiple points of view into the debate before the ECJ. It is very difficult, if not impossible, to gauge all the possible reasons that may prompt one of these States to participate in the preliminary reference procedure. Intuitively, the objective or subjective connections with one of the “foreign elements” of the dispute at stake might play a role. For example, Cyprus only ever participated twice in a EUPIL preliminary reference procedure: once as the forum State (C-519/13) and once in the Apostolides case, referred by a British court with respect to facts which largely occurred in Cyprus and upon which the courts of this country had adjudicated. C-157/12 is the only EUPIL case where Romania has intervened in a preliminary reference procedure not triggered by its own domestic courts. The case originated from Germany and concerned a dispute between two companies, one of which established in Romania, the courts of this country having also rendered the judgment whose recognition was a stake. The nationality of the parties, or other relatable interests, may also play a role (for example, Greece also submitted observations in Apostolides, the applicant being a member of the Greek Cypriot community). Any further discussion on the reasons behind States’ interventions would be entirely speculative in nature: any of the States identified by Article 23 of the Statute is free to participate in the procedure before the ECJ to submit its own point of view on the interpretative solution to be given to the preliminary questions, without having to substantiate a specific interest to these purposes.

D. Data from Existing Case Law

Coming to the concrete results of my analysis, the review of 46 years of ECJ case law on EUPIL instruments evidences a remarkable engagement of States with such preliminary reference procedures. Only 8 % of the total cases have elicited no observations from the side of at least one State.

In Chart 1 below, States on the y axis are ordered based on the total number of observations filed in EUPIL cases (orange column).

Chart 1

The blue column on the left indicates the total number of EUPIL preliminary references raised by the domestic courts of the concerned country. This datum should be read in conjunction with that portrayed by the gray column, showing the number of observations submitted by the government of each State in cases referred by its own domestic courts. The yellow column on the right show the number of observations filed by each government in EUPIL cases referred by courts of other Member States.

With the sole exceptions of the Netherlands, Belgium, Cyprus and Bulgaria, the orange column (which corresponds to the sum of the gray and yellow columns) is systematically taller than the blue one, showing that national governments tend to be more engaged in the dialogue with the ECJ than their domestic courts are. Particularly remarkable are the results pertaining to the Czech Republic, Spain and Portugal: despite the low number of EUPIL referrals raised by their respective national courts, the governments of these countries have consistently intervened in cases filed by other Member States’ courts in a variety of legal fields (cf. Charts 5, 6, 7 and 8 below).

Chart 2 is a specification of the relationship between the blue and the gray columns of Chart 1. It expresses, in percentage value, the rate of participation of each national government in the cases referred by its own domestic courts.

Chart 2

Incidentally, the States with the highest intervention rate (100%) are those whose domestic courts have been only moderately active in referring EUPIL cases to the ECJ, as evidenced by the blue columns of Chart 1 above. This may suggest that States with a higher number of domestic referrals might have to optimize the use of their resources, by choosing a participation strategy that contemplates no systematic engagement with “domestic” cases, this being forsaken where the legal question raised therein is not deemed sufficiently important or significant. This could explain, for example, the relatively low engagement of the Austrian and German governments with domestic cases.

Concerning the continuity of  States’ engagement over time, the analysis of a sample of States (the three States having filed the highest number of observations) evidence that it tends to be relatively constant, with a slight drop towards the end of the last decade. The line in orange, which is constant in the three countries, indicates the temporal progression of the totality of EUPIL preliminary rulings requested from the ECJ.

Chart 3

 

As mentioned in my previous post, the UK began to participate in preliminary reference procedures relating to the 1968 Convention even before it formally became a Party to that international treaty. This was justified in the light of the obligation to ratify that Convention upon accession to the EU, set out by its Article 63, and the prospective precedential value that the ECJ’s judgments would have acquired in the domestic legal system. To the contrary, the Swiss government submitted its first observations in case C-133/11, lodged on 18 March 2011. The Lugano II Convention entered into force for Switzerland on 1 January 2011. From that moment onward, the Swiss government has been quite active before the ECJ (all of its observations concern the Brussels-Lugano regime, except for one case on the Service Regulation), its overall engagement with EUPIL cases having nonetheless dropped in recent years.

Chart 4

 

E. States’ Sectorial Interests

It is noteworthy that the States’ engagement with EUPIL cases tends to be sector-specific. Charts 5, 6 and 7 8 are breakdowns of Chart 1, accounting for the number of observations filed by each national government in four macro-areas: the Brussels-Lugano regime (Chart 5), which comprises the 1968 Brussels Convention, the Lugano II Convention and Regulations 44/2001 and 1215/2012; family law (Chart 6), composed by Regulations 1347/2000, 2201/2003,  4/2009 and 1259/2010 ; successions (Chart 7), ie Regulation 650/2012 and the “smaller”/procedural regulations (EAPO, EPO, EEO, ESC Regulations; Chart 8).

Chart 5

Chart 6

Chart 7

Chart 8

See here for additional charts and data relating to the observations filed in cases on the Rome regime (the 1980 Rome Convention and Regulations 593/2008, 864/2007) and the Service and Evidence Regulations.

Again, the Member States on the y axis are ordered based on the overall number of the observations filed in each domain, and the logic behind the columns’ colours is the same as that described in relation to Chart 1. It is very apparent that the balances of forces among States vary considerably from one domain to the other, following a logic that is not always perceivable by the external observer. Quite remarkable, in this respect, are the attitudes of Spain and Hungary under the Succession Regulation. These Member States have systematically filed observations in this domain, despite the absolute lack of domestic referrals. In fact, Oberle is the only (admissible) succession case where the Spanish government did not file observations. Lacking any other self-evident explanation, it must assumed that this sectorial engagement is tied with domestic policies in the concerned area of law.

The Grand Chamber of the Court of Justice delivered today its judgment in case C‑646/20 (Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht v TB, intervening parties: Standesamt Mitte von Berlin, RD), which is about Article 2(4) and Article 21 Brussels II bis and the concept of ‘judgment’: “Article 2(4) of Council Regulation (EC) No 2201/2003 […] must be interpreted, in particular for the purpose of the application of Article 21(1) of that regulation, as meaning that a divorce decree drawn up by a civil registrar of the Member State of origin, containing a divorce agreement concluded by the spouses and confirmed by them before that registrar in accordance with the conditions laid down by the legislation of that Member State, constitutes a ‘judgment’ within the meaning of Article 2(4)”.

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=268381&part=1&doclang=EN&text=&dir=&occ=first&cid=367004

Yesterday (14 November 2022), Botswana acceded to the Hague Child Abduction, Adoption and Child Support Conventions, i.e. respectively: the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, and the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. The Child Abduction Convention will enter into force for Botswana on 1 February 2023, the Adoption Convention on 1 March 2023 and the Child Support Convention on 16 November 2023.

Last month, on 4 October 2022, Cabo Verde acceded to the Hague Child Abduction and Child Protection Conventions, i.e. respectively the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. The Child Abduction Convention will enter into force for Cabo Verde on 1 January 2023 and the Child Protection Convention on 1 August 2023.

Source: https://www.hcch.net/en/news-archive/details/?varevent=883 et https://www.hcch.net/en/news-archive/details/?varevent=877

The 9th Journal of Private International Law conference will be hosted by the Yong Pung School of Law, Singapore Management University on 3rd to 5th August 2023. A reminder that the deadline to submit abstracts is Friday 16 December 2022. The Call for Papers can be found here and the conference website is available here. The conference organisers look forward to welcoming you to Singapore next year.

It does not happen often that the Grand Chamber of the Court of Justice delivers a judgment on interpretation of EU private international law instruments. In fact, as the highly interesting study of Martina Mantovani on EAPIL blog shows, this field of EU law is characterized by a relatively low number of Grand Chamber cases – less than one per year.

The case Senatsverwaltung für Inneres und Sport, C-646/20 is one of the rare occurrences where the Court decided to have recourse to that option. It did so in order to clarify whether an extrajudicial act on divorce can constitute a ‘judgment’ under the Brussels II bis Regulation and enjoy automatic recognition.

 

Context of the request for a preliminary ruling and the legal issue at hand

The situation that led to the case being brought before the Court can be summarized as follows:

A German authority is faced with a request to enter an Italian extrajudicial act on divorce in the register of marriages. The authority considers that the act should be subject to the recognition procedure and rejects the request. The case is brought before the national courts.

Ultimately, the German Federal Court brings its request for a preliminary ruling before the Court asking, in essence, whether that ‘act’ has to be considered as a ‘judgment’ within the meaning of Article 2(4) of the Brussels II bis Regulation and, thus, be automatically recognized in Germany.

In the preliminary questions themselves, the referring court does not describe the modalities of such an ‘extrajudicial’ act. In the wording of those questions, the referring court confines itself to mentioning the provisions of Italian law providing for a divorce by mutual consent and explains those modalities in its request for a preliminary ruling.

Back in May, AG Collins presented his Opinion in that case, proposing to the Court to answer the preliminary questions in a following manner:

‘The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of [the Regulation].’

 

Court’s findings

At the outset, the Courts affirms that the notion of ‘judgment’ within the meaning of Article 2(4) of the Brussels II Regulation has to be given an autonomous meaning (para. 41).

It turns next to the primary law (Articles 67 and 81 TFEU) to observe that, in order to establish the area of freedom, security and justice, the EU develops the judicial cooperation in civil matters having cross-border implications and, doing so, it ensures the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases (para. 42).

Interestingly, from the methodological standpoint, the Court has already relied on primary law to interpret the Brussels II bis Regulation and decide on its scope in its judgment in in UD, C-393/18 PPU, para. 38. While the judgment at hand echoes that approach, it also takes it further. The Treaty provides that the EU ‘shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases’, yet the Court states that the EU the ensures, when necessary (and, as we learn from subsequent paragraphs of the judgment – it does so through the Brussels II bis Regulation) the recognition and enforcement of extrajudicial decisions.

It is only then that the Court mentions other provisions of the Regulation in order to find, in essence, that the notion of ‘judgment’ shall receive a broad understating, including the decisions adopted extra-judicially. Doing so, the Court invokes, in particular, Article 2(1) of the Brussels II bis Regulation according to which the notion of ‘court’ shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation (paras. 44 et seq.).

The Court attempts next to benchmark that finding against its previous judgment in Sahyouni, C 372/16. In this regard, it notes that in order to deliver a ‘judgment’, the authority must retain control of the pronouncement of the divorce. In the context of decisions on divorce by mutual consent, such control has to involve the examination as to whether the conditions for divorce provided for in the national law has been met and the consent of the spouses has been real and valid (para. 54).

Those findings lead to Court to the conclusion that an a divorce decree drawn up by the civil registrar of a Member State, containing a divorce agreement concluded by the spouses and confirmed by them before that registrar in accordance with the conditions laid down by the legislation of that Member State, constitutes a ‘judgment’ within the meaning of the Brussels IIa Regulation (para. 67).

 

The judgment can be found here (in French, no English version at the time of posting), accompanied by a press release (in English).

In GW Pharma Ltd & Anor v Otsuka Pharmaceutical Co. Ltd [2022] EWCA Civ 1462, the Court of Appeal confirmed jurisdiction for the courts of England and Wales, confirming the first instance judgment which I reviewed here.

The first instance judgment dismissing GW Pharma’s application decided three issues: jurisdiction under the Moçambique principle, foreign act of state and a distinct application for a stay on forum non conveniens grounds.

Arguments on appeal are listed [20] ff:

GW Pharma’s grounds 1 and 2 address the Moçambique principle and its application. GW Pharma contend that the judge erred in applying an overly restrictive test for the purposes of the Moçambique principle and further erred in his application of that test to the facts.

Ground 3 addresses the foreign act of state doctrine, and the common law public policy exception. The submission is that the judge erred in law in holding that the act of state doctrine (or common law public policy) did not require the court to decline jurisdiction.

Ground 4 relates to forum non conveniens, contending that the judge erred in declining a stay on those grounds.

Otsuka’s case is that the judge was right for the reasons he gave but Otsuka also advances two additional points in support of the judge’s overall conclusion. The first point is that as well as the exception to the Moçambique rule based on whether a validity challenge is direct or not which the judge applied, there is a second exception – for claims which relate to a contract. This case would also fall within that exception. The second point is a submission that GW Pharma’s case would necessarily involve a country-by-country approach, contrary to the approach adopted by the English courts in related contexts (citing the Supreme Court in Unwired Planet v Huawei [2020] UKSC 37). The relevant principles ought not to be applied so as to prevent Otsuka from bringing its contractual royalty claim against GW Pharma in a single set of proceedings in GW Pharma’s home jurisdiction.

Birss LJ [26] notes, with common sense, that Brussels Ia authority still has relevance, despite the Regulation no longer applying

the fact the Regulation does not apply is a different thing from the question whether aspects of the thinking behind the Brussels Regulation may illuminate questions which do arise.

[29] the main point of UKSC Lucasfilm is summarised as the

modern trend [being] in favour of the enforcement of foreign intellectual property rights, particularly where there is no issue as to validity.

That modern trend of course provokes discussion as to when a claim engages validity as opposed to mere infringement, with Chugai a classic illustration. The judge here sometimes necessarily skates on thin ice for creative counsel may direct the end-result by claim formulation. Here Birss LJ offers a relevant distinction between direct challenges to the validity of a patent, as opposed to proceedings being ‘principally concerned with’ such challenges:

In Chugai there is reference to both the idea of whether a validity challenge is a direct one and also to whether proceedings are “principally concerned with” validity. These two expressions are performing different tasks and it is worth keeping them distinct. A claim consisting of nothing other than a claim for infringement, in which the defendant does not claim that the patent is invalid, but merely requires the court to ask itself, as a guide to construction, what would be the hypothetical consequences for validity if there was infringement, does not involve a direct challenge to validity. Such a claim is also not principally concerned with validity. On the other hand a claim consisting of nothing other than a request for revocation on the ground of invalidity or a declaration of invalidity would be a direct challenge to validity, and would be principally concerned with validity. However a claim raising multiple issues might well properly be said not to be principally concerned with validity, even if one of the subsidiary issues was a direct challenge to validity; but in such a case the court’s response would depend on the circumstances. The court might not decline jurisdiction over the dispute as a whole but might address individual issues separately. If the direct challenge only arises on a contingent basis then the right response might involve case management. Unlike the judge below, I would not describe this latter situation as one in which what was really a direct validity challenge was rendered not a direct challenge owing to its subsidiary nature in the action as a whole. The nature of the challenge is a direct one, but its status in the proceedings as a whole means that they are not principally concerned with it.

This is a discussion which to my mind is also useful for the A24(4) discussion in Brussels Ia, sub judice in BSH Hausgeräte v Electrolux.

[38] ff discusses the long standing exception to the Moçambique rule concerning contracts and equitable obligations. [40] There are said to be two questions in the present case about the contract exception. One is whether it depends on the existence of an exclusive jurisdiction clause in the contract  (answered [42] in the negative] and the other is about the extent of the exception itself. Would it, for example, allow the court to entertain a direct challenge to the validity of a foreign patent which the court would not have had jurisdiction to determine in the absence of the relevant contract (or equitable obligation)? : [43]:

In a way the question is whether the exception really is an exception to a rule that the court has no jurisdiction to determine a claim principally concerned with title (etc.) to foreign land or whether it is really just a manifestation of the proper application of the test for what it does or does not mean to say that a claim is principally concerned with title (etc.). Or putting it another way, can the court, when considering a contract claim, decide on title to foreign land, and by extension the validity of a foreign patent?

[46] that question is answered with reference to the classic in rem v in personam discussion that is part of the original Moçambique rule (and A24(1)BIa)

The contract exception does not allow the court to make a decision about the validity of a foreign patent in rem but it would allow the court to address the validity of a foreign patent in the course of making a decision concerning contractual rights in personam, assuming (such as if the Lear point does work in the way I have described) such a question was relevant to the contract decision.

[48] ff Lord Justice Birss summarises:

Bearing all this in mind, I would state the Moçambique rule as explained and formulated in Lucasfilm, and as it applies to patents in the following way:

First, in a case in which the courts of England and Wales have in personam jurisdiction over a defendant, then the courts have jurisdiction in proceedings for infringement of a foreign patent save where those proceedings are principally concerned with a question of the validity of that patent. The proceedings will not be principally concerned with validity only because the defendant, who does not claim that the patent is invalid, requires the court to ask itself as a guide to construction, what would be the hypothetical consequences for validity if there was infringement. However what the rule does not permit is a direct challenge to the validity of a foreign patent, and (subject to the exception below) the court has no jurisdiction to determine a claim that the foreign patent is invalid.

Second, this Moçambique principle is also subject to a contractual exception. If the case is one in which the court is asked to enforce a contract between the parties then in addition to questions of patent scope/infringement, if and only to the extent that questions of the validity of foreign patents need to be addressed in order to decide on the true nature and scope of the parties’ contractual obligations to one another, then the court can do so.

Applying this summary to the first instance judgment, that judgment is confirmed [60].

The third ground of appeal then invokes the foreign act of State doctrine, in that is is said that (certain) intellectual property rights may be said to depend on the grant or registration by the state. Birss LJ dismisses the argument [73] essentially by suggesting it harks back to bygone notions of intellectual property rights:

even absent the authorities I would hold that as a matter of principle the modern grant of a patent for an invention does not fit within the act of state doctrine as it stands today for two reasons. The first reason relates to the exercise of grant itself. The very word “grant” harks back to a past time, before the Statute of Monopolies 1623, when letters patent were granted on the whim of the Stuart monarchs (and similarly I suspect the Danish monarchy in Blad v Bamfield). Today there is no such condescension by the sovereign power in the grant of a patent by the Comptroller of the Patent Office. Once a properly constituted patent application has been examined and found to comply with the requirements of the law, the Comptroller is required by statute to grant the patent. The relevant words are in s18(4) of the Patents Act 1977 which provide essentially that if the applicant’s application is all in order then ‘the comptroller shall … grant him a patent.’ The second reason follows on from this and was given by Henry Carr J in Chugai at paragraph 68. He observed that once the patent had been granted, any party can challenge the validity of the patent and then can do so in a manner and on grounds which are quite different from an attempt to challenge legislation or government acts such as requisition.

Conclusion on this ground [75]

on grounds of authority and principle, I agree with the judge below that the act of state doctrine is not relevant to the analysis of the court’s jurisdiction in this case.

The first instance judge’s finding on forum non is also confirmed and the appeal therefore dismissed.

I do not know whether, if sought, permission to appeal to the Supreme Court will be granted, but it seems unlikely. The appeal judgment in my view includes important instruction in particular on the ‘principally concerned with’ issue however it largely applies existing UKSC authority.

Geert.

EU Private International Law, 3rd ed. 2021, 2.196 ff.

Court of Appeal rejects appeal against finding of jurisdiction in foreign #patent case
Rule in Moçambique confirmed as not engaged
See here https://t.co/hHZdeXVpCb for first instance judgment

GW Pharma v Otsuka Pharmaceutical Co. Ltd [2022] EWCA Civ 1462 https://t.co/GLsmtCRNtZ

— Geert Van Calster (@GAVClaw) November 8, 2022

Senatsverwaltung für Inneres und Sport
Espace de liberté, sécurité et justice
Reconnaissance automatique des divorces extrajudiciaires : un acte de divorce établi par l’officier d’état civil d’un État membre, qui comporte un accord de divorce conclu par les époux et confirmé par ceux-ci devant cet officier en conformité avec les conditions prévues par la réglementation de cet État membre, constitue une décision au sens du règlement Bruxelles II bis

The fourth issue of the Journal du droit international for 2022 has just been released. While it contains a number of case notes relating to private international law issues, it is mainly conceived as a tribute to the late Emmanuel Gaillard and publishes a number of contributions to the conference Emmanuel Gaillard Theory in Action which held last spring in Paris (see also the announcement on this blog).

Most of the articles discuss the contributions of Gaillard to international arbitration.

One of them, however, discusses more specifically the contribution of Gaillard to private international law (by Jean-Michel Jacquet, IHEID Geneva). The English summary reads:

The contribution of Emmanuel Gaillard’s thought to the law of international arbitration has been considerable. Throughout his career, Emmanuel Gaillard has sought to establish the philosophical foundations of international arbitration. He has also contributed to search of the most appropriate rules and solutions to the many questions raised by international arbitration. In this perspective, the question of the role played by private international law arises. In Emmanuel Gaillard’s thinking this role differs according to the angle from which international arbitration law is considered. When it comes to understanding the arbitral phenomenon, the proposals of private international law do not seem to provide the best insight into the question. When it comes to understanding the arbitral process, private international law is back in the picture. But the arbitrator’s point of view cannot be that of a judge. Thus, to a certain extent, a private international law of the arbitrator is developing. But the latter must also take into account the « private international law of others ».

Also of interest for the readers of this blog might the contribution of Eric Loquin (University of Dijon) on the arbitral legal order. The English summary reads:

This article aims to analyse the concept of an arbitral legal order as conceived by Emmanuel Gaillard in his famous special course given at The Hague Academy of International Law in 2007, entitled « Legal Theory of International Arbitration ». This concept is based on the observation that the binding nature of international arbitration is not anchored in a single state legal order, but in a third one, characterised as the arbitral legal order. This legal order was intended and created by the international community of states who were favourable to the resolution of international commercial disputes through arbitral, and whose laws have recognised the autonomy of arbitration towards state legal orders.

The article explores the objections and discussions that have been initiated by this concept regarding both its nature and its existence. One view would be that the arbitral legal order results from the private nature of arbitration rather than the actions of the states, thus making arbitration a non-state phenomenon but a legal order subject to natural law and freed from positive law. Another view of international arbitration would deny that it exists as an autonomous legal system and would consider it as a tool created by the states to be used by private transnational legal orders as their adjudicating body (such as the international community of merchants’ legal order, or the transnational sports legal order). International arbitration would thus be used as an instrument for the coordination of these legal orders and that of the international community of states.

Finally, the issue offers one article unrelated to the conference in which Dr. Estelle Fohrer-Dedeurwaerder (University of Toulouse) explores the effects of Brexit on the recognition and enforcement of English judgments on both sides of the channel (L’effet du Brexit sur la reconnaissance et l’exécution des jugements des deux côtés de la Manche). The English summary reads:

The Brexit has put an end to any judicial cooperation in civil and commercial matters between the UK and the EU as the Trade and Cooperation Agreement contains no provision on this point. Despite the desire of some to re-implement the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, and the steps taken by the UK to accede to the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, neither of these two conventions will find application in Anglo-European relations. However, judicial cooperation between the United Kingdom and the Member States is not excluded if bilateral conventions concluded before the 1957 Treaty of Rome (or before accession to the EEC or EC), such as the 1934 Franco-British Convention, become fully effective as a result of Brexit. Their conciliation with the Treaties having the same object, in particular with the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, will then arise, unless States refuse to revive them, in which case their common law will be implemented. However, the latter scenario is not desirable if the density of socio-economic exchanges between France and the United Kingdom is to be maintained.

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

Aygun Mammadzada (Swansea University) will be the main speaker at the upcoming MECSI Seminar, scheduled to take place on 22 November 2022, at the Catholic University of the Sacred Heart in Milan.

The title of the seminar is The Relationship between the Hague Choice of Court and the Hague Judgments Convention – A Major International Breakthrough?

Zeno Crespi Reghizzi (University of Milan) will serve as discussant.

Attendance is free, on site and on line (via MS Teams). Further information, including the link to join the seminar on line, are found here.

For queries, write an e-mail to pietro.franzina@unicatt.it.

Szpunar AG opined a few weeks back in C-423/21 Grand Production v GO4YU  ea. The case involves a variety of issues related to streaming and VPNs, many of which concern telecoms law yet one is of interest to the blog: namely the question whether

in the event of an allegation of infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs – because the territoriality principle precludes domestic courts from having jurisdiction to determine and examine the facts in relation to foreign acts of infringement – or can or must that court also rule on offences committed outside that territory (worldwide), as alleged by the author whose rights were allegedly infringed?

It transpires from the Opinion however that the case in the national court does not involve one for damages, yet rather one for a temporary injunction prohibiting distribution. To the degree this is aimed at the Serbian defendants at issue, these are domiciled outside the EU and hence not subject for actions in tort, to Brussels Ia. Against the Austrian defendants, the case is subject to full jurisdiction under A4 forum re, hence not triggering the full or partial jurisdictional issues of the relevant CJEU case-law (Bolagsupplysningen etc.).

The AG suggests inadmissibility of the Brussels Ia question.

Geert.

Opinion first Advocate General Szpunar this morning on VPNs, #copyright and platform streaming, including the jurisdictional aspects: forum delicti under A7(2) Brussels Ia

Grand Production v GO4YU eahttps://t.co/D7Uaor19wO

— Geert Van Calster (@GAVClaw) October 20, 2022

Written by Martina Ticic, University of Rijeka, Faculty of Law; Croatian Science Foundation (HRZZ) doctoral student

For anyone interested in the area of private international law, the Hague Academy of International Law and its Summer Courses on Private International Law have been one of the must-do’s ever since the Academy opened its doors in 1923. Each year, hundreds of students, academics and practitioners attend the courses given by renowned lecturers, while the Academy also offers multiple social and embassy visits, an access to the famous Peace Palace Library, as well as ample opportunities for discussion between the attendees who all come from different backgrounds. It seems that this report comes in quite timely as the programme for the 2023 Summer Course has just been announced.

The 2022 edition once again proved the immense value that the Summer Courses offer. From 1 to 19 August, the Academy hosted the attendees of over 60 different nationalities, providing them with lectures and seminars on various relevant topics, some time for research and visits to many of the Hague’s international organisations, but also an opportunity for exchange of ideas, networking and creating friendships. As such, the Academy was truly a place to be this summer for everyone wanting to learn more on the matters of private international law, as well as to connect with others who share the same or similar interests.

After the welcome speech by prof. Jean-Marc Thouvenin, Secretary-General of the Academy, this year’s inaugural lecture was given by Dominique Hascher, judge at the Supreme Judicial Court of France. Judge Hascher opened the Summer Courses with the lecture on ‘The Role of International Law in the Review of Awards’.

The General Course was given by Louis d’Avout, a professor of private international law at the Université Paris II Panthéon-Assas. Titled ‘Towards Worldwide Law Consistency’, the course provided the attendees with an overview of the core idea on which the discipline of conflict of laws was built upon: the coherence of rules of individual conduct on the global level. By analysing the sole definition of private international law, coordination mechanisms, the concept of legal relativity, connecting rules and factors, transnational cooperation and vertical disciplines in the regional context, prof. d’Avout offered a holistic view on the discipline of private international law itself, making the course a necessity for anyone wishing to excel in this area of law, either as a practitioner or as an academic. Through his lecture, prof. d’Avout invited all of the participants, particularly the younger generation of lawyers, to work towards the global coherence of law, as the desirable state of the system of law in general is that of a ‘social construction’ which guarantees predictability and security for its subjects that are faced with various sources of law and modes of conflict resolution. The course lasted for two weeks, which meant that there was plenty of time for participants to acquaint themselves with the matter at hand. Two of the seminars on the chosen topics were also held in the course of the two weeks.

Prof. Arnaud Nuyts, from the Université Libre de Bruxelles, held a Special Course on ‘The Forum for Cyber-Torts’, which is an excellent topic in today’s day and age. He highlighted the diversity of civil cyber-torts, as well as the challenges of locating the torts that are committed on-line. The course also touched particularly upon European legal framework and the guiding principles of its case law, while also analysing the ‘trichotomy’ of the forum for cyber-torts: the forum for the place of the causal event, the forum for the place of accessibility of the website and the forum for the centre of interests of the victim.

Prof. Ulla Liukkunen, from the University of Helsinki, presented her Special Course on ‘Mandatory Rules in International Labour Law’, another important topic considering the rising number of cross-border workers. As labour law is often connected to domestic rules, it is interesting to observe more closely the relationship between labour law and private international law. Throughout the course, the special nature of cross-border employment was acknowledged and the participants were acquainted with the concepts of triangular contracts, weaker-party protection, International Labour Organisation, the ‘decent work’ objective, etc. Prof. Liukkunen particularly highlighted the pluralism of regulatory sources in international labour law, and pointed to the fact that labour rights-based approach to decent work in developing regulatory private international law would advance the necessary protection for workers and ensure decent work for all.

Prof. Tiong Min Yeo, from the Singapore Management University, held a Special Course titled ‘Common Law, Equity, and Statute: Effect of Juridical Sources on Choice of Law Methodology’. The course offered insight into the topic of choice of law methodology and the analysis that must be done in order to select the applicable law rules. It presented three juridical sources in hierarchy: statute, equity and common law. The analysis of various case law served to explain the effects that these sources have on the choice of law methodology.

Prof. Kermit Roosevelt III, from the University of Pennsylvania Carey Law School, presented the topic of ‘The Third Restatement of Conflict of Laws’. Throughout this Special Course, the history of American choice of law was examined so as to better understand the context of the Third Restatement of Conflict of Laws, a current project of the American Law Institute. From the beginnings of American choice of law characterised by territorialist approach in the First Restatement and the Second Restatement as a ‘transitional document’, to the goals and framework of the Third Restatement, the course portrayed the full picture of the American choice of law rules. One of the core ideas that prof. Roosevelt developed throughout the course is that there are two different sets of values that a choice of law system should promote: so-called ‘right answer’ values and ‘systemic’ values. While the former one relates to selecting the law of the state with the best claim to regulatory authority, the latter relates to the certainty, predictability, uniformity and ease of application of the system.

Prof. João Bosco Lee, from the Universidade Positivo Brazil, presented an arbitration-related topic titled ‘The Application of International Conventions by Arbitrators in International Trade Disputes’. On the one hand, this Special Course examined the application of international conventions pertaining to the law applicable to the merits of the dispute in international commercial arbitration, either according to the choice of the parties or by the effect of determination of the lex cause by the arbitrator(s). On the other hand, the participants got the chance to study the cases in which international conventions could intervene in the resolution of international commercial arbitration without being the applicable law on the merits.

Prof. Marco Frigessi di Rattalma, from the Brescia University, held a Special Course on the ‘New Trends in the Private International Law of Insurance Contracts’. By focusing on the specific cases that emerged in the recent years in the field of private insurance, the attendees of the course were immersed in diversity of topics relating to jurisdiction and applicable law in the matters of insurance contracts, the specific types of insurance contracts, compulsory insurance against civil liability in respect of the use of motor vehicles, as well as the impact of fundamental rights on such matters. Prof. Frigessi di Rattalma posed various important questions during his analysis of the relevant issues, e.g. what can characterise as an insurance contract; whether EU law may permit derogation from the equal treatment of men and women provided by insurance contracts in accordance with the applicable national law to persist indefinitely; what exactly falls under the notion of ‘use of vehicles’ in regards to Directive 2009/103 on the insurance against civil liability in respect of the use of motor vehicles; etc.

Additionally, special lectures were given in tribute to the late Professor Emmanuel Gaillard who was originally meant to hold the General Course at the 2022 Summer Courses. These lectures were held by Yas Banifatemi, Diego P. Fernandez Arroyo, Dominique Hascher, Horatia Muir Watt and Luca Radicati di Brozolo respectively, each of them focusing on a particular issue related to arbitration, the topic most dear to prof. Gaillard, as well as familiarising the attendees with the persona of Emmanuel Gaillard.

In the afternoons, participants could attend seminars and some of the lectures on specific topics which were organised each week, e.g. Lecture on the Permanent Court of Arbitration by Brooks Daly, Lecture on the use of the Library by Candice Alihusain, Lecture on the International Court of Justice by Florence Zaoui, Lecture on ‘Fighting Human Trafficking: the Dutch Approach’ by Warner ten Kate, Lecture on the Hague Conference on Private International Law by Philippe Lortie, and ‘International Commercial Arbitration: the Role of Private International Law in the Lifespan of an Arbitral Procedure’ by Gerard Meijer and Camilla Perera-de Wit. For those eager to learn more, two extra short courses were held in addition: one on the law of the European Union held in the span of the first week and given by dr. Thomas Vandamme, and the other on the matters of Comparative Law, held on Saturday of the first week and given by dr. Brooke Marshall.

The participants were also given an opportunity of visiting some of the international organisations that are stationed in the Hague. For this year’s session, the Academy planned visits to the Hague Conference on Private International Law, the International Criminal Court, the Kosovo Specialist Chambers, the Organisation for the Prohibition of Chemical Weapons and the Residual Special Court for Sierra Leone. By visiting various organisations that deal with such variety of matters, the attendees got a truly immersive experience. Besides the international organisations, visits to multiple embassies were organised, so the participants also got the feel of diplomacy. Various other activities were also held, e.g. a reception at the City Hall, Beach Party, Grotius Peace Palace Library Tour and a visit of the extraordinary Peace Palace itself.

During the Courses, the most advanced attendees had the opportunity to attend the Directed Studies sessions which delved deep into many intricate questions of private international law. An even smaller fraction of those students in the end got the chance to participate in the prestigious Diploma Exam of the Academy. In this year’s Private International Law session, one Diploma by the Academy was awarded to Ms. Madeleine Elisabeth Petersen Weiner.

As it is obvious from the overview presented above, the 2022 Summer Courses on Private International Law were, as always, a huge success. Over 200 participants from all over the world and from various professional backgrounds got the experience of a lifetime thanks to the Academy, its Summer Courses and all the additional benefits that come with it. For anyone still doubting whether the Summer Courses, or perhaps the newer addition of the Winter Courses, are worth to attend, this post can serve as a clear answer and affirmative one at that.