Droit international général

Call for papers – New Zealand Yearbook of International Law

Conflictoflaws - mar, 04/20/2021 - 07:03

The New Zealand Yearbook of International Law (Brill) is an annual, internationally refereed publication. The Editors call for both short notes and commentaries, and longer in-depth articles, for publication in Volume 18 of the Yearbook (2020), which will be published in early 2022.

Notes and commentaries should be between 3,000 to 7,000 words. Articles may be from 8,000 to 15,000 words.

The Editors seek contributions on any current topic in public or private international law. The Editors particularly encourage submissions that are relevant to the Pacific, the Southern Ocean and Antarctica, and New Zealand.

Submissions will be considered on a rolling basis. However, the closing date for submissions for Volume 18 is 15 July 2021.

Contributions must be original unpublished works and submission of contributions will be held to imply this. Manuscripts must be word-processed and in compliance with the fourth edition of the Australian Guide to Legal Citation. The Guide is available online at: http://law.unimelb.edu.au/mulr/aglc/about.

Submissions should be provided in English, using MS Word-compatible word processing software, and delivered by email to the General Editor at james.mehigan@canterbury.ac.nz.

Choice of Law in International Commercial Contracts

EAPIL blog - lun, 04/19/2021 - 08:00

Daniel Girsberger, Thomas Kadner Graziano and Jan L. Neels are the editors of Choice of Law in International Commercial Contracts, which has been published by Oxford University Press in the Oxford Private International Law Series.

The blurb reads as follows.

Although the possibility of making a choice of law in respect of international commercial contracts has become widely accepted, national law still diverges in many respects with regard to the scope and relevance of, and the limitations on, party autonomy, leading to uncertainty in international commercial relations. This book compares the Hague Principles on Choice of Law in International Commercial Contracts (2015) with national, regional, supranational, and international rules on choice of law around the world in order to chronicle the divergent approaches which exist today.

The work is introduced by a comprehensive comparative report which sets out the similarities and differences between the featured national, regional, supranational, and international rules, comparing such rules with those of the Hague Principles, thereby initiating a discussion on further harmonization in the field. Another report focuses on the application of the Hague Principles in the context of international commercial arbitration. Dedicated chapters analyse the Hague Principles from a historical, theoretical, and international organizational point of view. Finally, examining each jurisdiction in detail, the book presents sixty national and regional article-by-article commentaries on the Hague Principles written by experts from all parts of the world. This dedicated and in-depth global comparative study of national, regional, supranational, and international rules provides a definitive reference guide to the key principles in respect of choice of law for international commercial contracts.

A webinar will take place on 4 May 2021 at 2 pm CEST to launch the book. Prior registration (here) is required.

See here for more information on the book.

International Commercial Arbitration in the European Union – Brussels I, Brexit and Beyond

Conflictoflaws - dim, 04/18/2021 - 18:20

With a comprehensive and informative manuscript, in International Commercial Arbitration in the European Union – Brussels I, Brexit and Beyond (Edward Elgar, 2020, 320 pp.: see here a previous announcement of the publication) Chukwudi Ojiegbe provides a wide-ranging overview of the status quo of international commercial arbitration in the European Union, also duly taking into account the effects arising, in this specific area of the law, from the withdrawal of the United Kingdom from the European Union.

By means of a detailed historical and policy-oriented reconstruction, the Author assesses the history of the Brussels I Recast as it pertains to the provision on the arbitration exclusion. With careful analysis, he considers the implications of the nuanced and debated interface between arbitration and litigation in accordance with the Brussels I Regime as well as the consequences of such interface for the EU exclusive external competence in aspects of international commercial arbitration. Against this background, and further contributing to this complex area of the law, he sets out the findings on the impact of the United Kingdom’s withdrawal from the European Union.

In anticipation of a possible future recast of the Brussels I Regime, the Author argues in favour of the inclusion of specific rules that will allow the Member State court with jurisdiction under the Brussels I Regime the possibility of staying the litigation in favour of the arbitral tribunal. As he observes, the coordination between the jurisdiction of the courts of the Member States and arbitral tribunals would increase legal certainty, alleviating the problem of parallel court/arbitration proceedings and the risk of conflicting decisions.

Overall, this volume contributes clarity and advances the academic debate on the EU arbitration/litigation interface. By offering clear historical reconstructions and putting forth solutions to this longstanding problem, it will undoubtedly prove to be of interest to scholars and practitioners but it will also be a useful source for students who wish to deepen their understanding of this area of the law.

1st Conference on Private International Law – University of São Paulo, 5-9 July 2021

Conflictoflaws - dim, 04/18/2021 - 16:23

Under the coordination of Gustavo Ferraz de Campos Monaco, the Faculty of Law of the University of São Paulo is hosting its 1st Conference on Private International Law.

For all those interested in submitting papers or attending the conference, further information in English is available here.

Out now: Martin Gebauer / Stefan Huber, Politisches Kollisionsrecht, Tübingen 2021, pp. 133

Conflictoflaws - sam, 04/17/2021 - 10:38

Another treat for German-reading friends and colleagues of CoL: On the occasion of Erik Jayme’s 85th birthday on 7th June 2019, Martin Gebauer and Stefan Huber, both at the University of Tübingen (one of the few „Universities of Excellence“ in Germany), convened the symposium “Politisches Kollisionsrecht: Sachnormzwecke, Hoheitsinteressen, Kultur”. Friends and colleagues, many of them originating academically from the University of Heidelberg (another one of the few „Universities of Excellence“) and its Institute for Comparative Law, Conflict of Laws and International Business Law, or with close ties to this place, gathered. The book that emerged from this inspiring event collects the prints of the presentations and includes fascinating contributions. Martin Gebauer, for example, deconstructs the myth of “classical” private international law in an eye-opening historical analysis, and Stefan Huber deals with the interplay, and symptomatic antinomies, of substantive law objectives and notions of procedural justice in relation to heads of jurisdiction for the protection of weaker parties under the Brussels regime. The volume is wrapped up by an introduction rich of insights and thoughts by Gebauer and Huber on “Politisches Kollisionsrecht” and by wonderful “news from the academic world” by Erik Jayme in which he shares memories and anecdotes from his rich life as one of the most renowned scholars of private international law worldwide. Highly recommended!

Cuadernos de Derecho Transnacional, 2021/1

EAPIL blog - sam, 04/17/2021 - 08:00

The Spanish online journal Cuadernos de Derecho Transnacional, edited by the University Carlos III of Madrid under the directorship of Professors Calvo Caravaca and Castellanos Ruiz, and bearing the quality seal of the Spanish Foundation for Science and Technology (FECyT), has just released the first issue of 2021 (volume 13).

As usual, the journal is composed of four sections: Estudios (in-depth scientific analysis of topics related to Private International law, Uniform law and Comparative law); Varia (comprising shorter studies and notes on case law); Congresos; and Reseñas (book reviews). The whole content is open-access.  Most of the contributions of this issue are written in Spanish, all of them with a summary in English.

Under the heading Estudios the current issue comprises 27 articles. Among the many topics addressed are the following: Brexit and its impact for cross-border litigation in contractual and insolvency matters; family law, in particular in relation to child abduction (but not only); the protection of personality rights in cross-border settings; Covid-19 and its legal consequences on international contracts; competition law (commercial practices based on big data and algorithms, but also the liability of subsidiaries for antitrust infringements of the parent company); legal and bioethical implications of artificial intelligence; smart contracts and lex cryptographia.

Under Varia, this issue of CDT compiles notes to all recent decisions of the CJEU on PIL – maintenance, successions, contract and tort-, together with annotations to Spanish decisions on appeal or second appeal addressing PIL issues.

The second issue will be published in October; contributions should follow the guidelines for authors and are accepted until June. All submissions are peer reviewed.

European and International Civil Procedural Law: Some views on new editions of two leading German textbooks

Conflictoflaws - ven, 04/16/2021 - 10:36

For German-speaking conflict of law friends, especially those with a strong interest in its procedural perspective (and this seems to apply to almost all of them by now, I guess), the year 2021 has begun beautifully, as far as academic publications are concerned. Two fantastic textbooks were released, one on European civil procedural law, and one on international civil procedural law:

After more than ten years the second edition of Burkhard Hess’s 2nd edition of  his textbook on „Europäisches Zivilprozessrecht“ is now on the table, 1026 pages, a plus of nearly 300 pages and now part of the renowned series „Ius Communitatis“ by DeGruyter. It is a fascinating account of the foundations („Grundlegung“, Part 1, pp. 3 – 311) of European civil procedure as well as a sharp analysis of the instruments of EU law („Europäisches internationales Zivilprozessrecht“, Part 2, pp. 313 – 782). Part 3 focuses on the interplay between autonomous and European procedural law (pp. 783 – 976). Extensive tables of the cases by the ECJ and the ECtHR as well as a large subject index help to access directly the points in question. The foreword rightly points out that European civil procedural law has reached a new phase. Whereas 10 years ago, the execution of the agenda under the then still new competency in (now) Article 81 TFEU was at issue, today enthusiasm and speed have diminished. Indeed, the ECJ had to, and still has to, defend „the fundamental principles of EU law, namely mutual trust and mutual recognition, against populist attacks and growing breaks of taboos by right-wing populist governments in several Member States“ (Foreword, p. 1, translation here and all following ones by myself; see also pp. 93 et seq. on the struggle for securing independence of the national judge in Hungary and Poland as a matter of the EU‘s fundamental values, Article 2 TEU). At the same time, the EU legislator and the ECJ had shown tendencies towards overstreching the legitimatory potential of the principle of mutual trust before the EU returned to „recognition with open eyes“ (as is further spelled out at para. 3.34, at p. 119), as opposed to blind trust – tendencies that worried many observers in the interest of the rule of law and a convincing balancing of the freedom of movement for judgments and other juridical acts. The overall positive view by Hess on the EU’s dynamic patterns of judicial cooperation in civil matters, combined with the admirable clarity and comprehensiveness of his textbook, will certainly contribute considerably to address these challenges.

Equally admirable for its clarity and comprehensiveness is Haimo Schack’s 8th edition of his textbook on „Internationales Zivilverfahrensrecht“, including international insolvency and international arbitration, 646 pp., now elevated from the „short textbook series“ to the „large textbook series“ at C.H.Beck. The first part addresses foundations of the subject (pp. 1 – 68), the second part describes the limits of adjudicatory authority under public international law (pp. 69 – 90), the third part analyses all international aspects of the main proceedings (pp. 91 – 334), the fourth part recognition and enforcement (pp. 335 – 427), the fifth and sixth part deal with insolvency (pp. 428 – 472) and arbitration (pp. 473 – 544). Again, an extensive table of cases and a subject index are offered as valuable help to the user. Schack is known for rather sceptical positions when it comes to the narrative of mutual trust. In his sharp analysis of the foundations of international procedural law, he very aptly states that the principle of equality („Gleichheit“) is of fundamental relevance, including the assumption of a principal equivalence of the adminstrations of justice by foreign states, which allows trust in and integration of foreign judicial acts and foreign laws into one’s own administration of justice: „Auf die Anwendung eigenen Rechts und die Durchführung eines Verfahrens im Inland kann man verzichten, weil und soweit man darauf vertraut, dass das ausländische Recht bzw. Verfahren dem inländischen äquivalent ist“ (We may waive the application of our own law and domestic proceedings because and as far as we trust in the foreign law and the foreign proceedings are equivalent to one’s own, para. 39, at p. 12) – a fundamental insight based, inter alia, on conceptual thinking by Alois Mittermaier in the earlier parts of the 19th century (AcP 14 [1831], pp. 84 et seq., at pp. 95, justifying recognition of foreign judgments by the assumption that the foreign judge should, in principle, be considered „as honest and learned as one’s own“), but of course also on Friedrich Carl v. Sagigny, which I allowed myself to further substantiate and transcend elsewhere to the finding: to trust or not to trust – that is the question of private international law (M. Weller, RdC, forthcoming). In Schack’s view, „the ambitious and radical projects“ of the EU in this respect „fail to meet with reality“ (para. 126, at p. 50). Equally sceptical are his views on the HCCH 2019 Judgments Convention („Blütenträume“, para. 141, at p. 57, in translation something like „daydreams“).

Perhaps, the truth lies somewhere in the middle, namely in a solid „trust management“, as I tried to unfold elsewhere.

The Methodology of Overriding Mandatory Provisions in Modern Conflicts of Laws

EAPIL blog - ven, 04/16/2021 - 08:00

The public policy exception is used as a shield to protect fundamental domestic values in case of a contradiction between the applicable foreign law and fundamental principles of justice of the forum. Alongside the public policy exception, the instrument of “overriding mandatory provisions” – or “public policy rules” – was established in the middle of the 20th century and is today codified in many acts of European Private International Law (see e.g. Article 9 of the Rome I Regulation). Overriding mandatory provisions are rules of outstanding importance for public order, which the legislator intends to be respected even where a case is governed by foreign law under ordinary conflict-of-laws rules.

The Book

In his PhD thesis Die Methodik der ‘Eingriffsnorm im modernen Kollisionsrecht, published in German and recently honoured with the prestigious Gerhard Kegel Prize, Adrian Hemler describes the problem of applying of overriding mandatory provisions as a symptom of numerous fundamental uncertainties in the doctrines of PIL. In his view, the theory of overriding mandatory provisions obscures the fact that PIL needs further differentiation through conflicts-of-laws rules yet to be developed. Based on this, he sees the function of the public policy exception as a safeguard of the supremacy of constitutional law. In sum, he traces overriding mandatory provisions back to the well-known principle lex specialis derogat legi generali, while also basing the public policy exception on the principle lex superior derogat legi inferiori.

Flash Back

The thesis opens with an in-depth historical analysis. Hemler points out that the distinction between the “positive” enforcement of individual rules through overriding mandatory rules on the one hand and the “negative” protection of fundamental principles through the public policy exception on the other hand has not been made until the second half of the 20th century. In addition, he shows how overriding mandatory provisions have been gradually isolated as rules that seemingly do not fit into the ordinary system of “neutral” conflicts-of-laws rules.

Overriding Mandatory Rules and Public Law

Hemler demonstrates that the isolation of overriding mandatory provisions arises from the tendency to implicitly identify these rules with national public law. He shows how this equation leads to the application of principles (seemingly) governing conflicts of public law rules. Up to now, it was widely assumed that the application of foreign public law would impossible, as it would amount to allowing a foreign state to exercise power on the national territory of another. Hemler criticises this assumption by explaining the general methodology of conflicts-of-laws rules. Following a theory developed by Boris Schinkels, he divides each legal rule analytically into a “rational” and an “imperative” element. The rational element describes a universal idea needed for the proper resolution of a legal conflict. An example of the rational element is the written form requirement for certain contracts, e.g. those concerning the transfer of land. The imperative element, in contrast, describes the state’s order to apply the rule. In the example of the written form requirement, the imperative element would be the legislator’s intent relating to the enforcement of the requirement to all land situated on its country’s territory.

Within this structure of legal provisions, Hemler views the position of autonomous conflicts-of-laws rules as follows: Since citizens have a right to decide for themselves which rules are to be applied in their country, its courts cannot just bow to the will of another state. On the other hand, it would go too far to exclude the application of foreign law altogether. Rather, the forum issues its own imperative command regarding any rules of foreign law, which leads to the exclusive applicability of the foreign rule’s rational element. The disregard of the foreign imperative is a direct consequence of the modern, autonomous structure of conflicts of laws. Hence, courts only transpose the foreign “idea of what ought to be” without any elements of foreign sovereignty. This isolated application of the foreign rational element and its combination with a domestic imperative element leads to the creation of a domestic legal norm with a foreign ratio (a “synthesised” legal norm, so to speak).

Since the applied foreign rational element is stripped of any element of the exercise of foreign sovereignty, Hemler argues that the application of foreign law does not conflict with the sovereignty of the court’s country or that of a third country whose law is applicable under ordinary rules of private international law. Hence his conclusion that courts may apply foreign public law without any restrictions, especially without the need of the foreign law being “neutral” or “pre-state”.

No Need for Special Conflicts Rules Regarding Overriding Mandatory Provisions

Going further, Hemler shows that there are no convincing reasons to treat overriding mandatory provisions differently from other norms. In particular, he opines that these provisions do not call for a separate system of conflicts-of-laws rules. Hemler shows that the whole category of overriding mandatory provisions can be dispensed with and that one should instead focus on the development of a more differentiated set of conflicts-of-laws rules. He explains in detail how such special conflicts-of laws-rules are to be developed.

A New Understanding of the Public Policy Exception

His findings allow Hemler to shed also some light on the public policy exception. Given that every application of foreign law leads to a synthesised legal norm of the forum, he concludes that the public policy exception can actually be understood as a constitutional control device regarding “synthesised” law. In Hemler’s view, such an understanding facilitates the inclusion of numerous new phenomena into the methodology of private international law.

Conclusion

As this short overview demonstrates, this is a though-provoking book. Overriding mandatory provisions have so far played the role of a black box in private international law. After many failed attempts to “domesticise” these rules, this is the most serious theory to integrate these rules into the edifice of conflict-of-laws theory. Particularly striking is the breadth of the author’s perspective, which is not limited to overriding mandatory rules, but also includes the role of constitutional law, public law in general as well as the public policy exception. For the interested reader, this book is a good reason to brush up their German or start to learn it!

CJEU on Article 75 Maintenance Regulation

European Civil Justice - ven, 04/16/2021 - 00:53

The Court of Justice delivered today its judgment in Case C‑729/19 (TKF v Department of Justice for Northern Ireland), which is about the Maintenance Regulation:

“1. Article 75(2)(a) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations must be interpreted as applying only to decisions given by national courts in States which were already members of the European Union on the date of adoption of those decisions.

2. Regulation No 4/2009 must be interpreted as meaning that no provision of that regulation enables decisions in matters relating to maintenance obligations, given in a State before its accession to the European Union and before the date of application of that regulation, to be recognised and enforced, after that State’s accession to the European Union, in another Member State”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=239895&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8777055

AG Tanchev on the Rule of Law

European Civil Justice - ven, 04/16/2021 - 00:48

Advocate General Tanchev delivered today his opinion in case C‑508/19 (M.F. v J.M., joined parties: Prokurator Generalny, Rzecznik Praw Obywatelskich), which is about the Rule of Law:

“The right to a tribunal established by law, affirmed by the second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that, in circumstances such as those of the main proceedings, a person appointed to the position of judge of the Sąd Najwyższy (Supreme Court), Disciplinary Chamber, does not comply with that requirement if his act of appointment was delivered in flagrant breach of national rules governing the procedure for the appointment of judges of the Supreme Court, which is a matter for the referring court to establish. In the context of that assessment, the referring court must appraise the manifest and intentional character as well as the gravity of the breaches in question.

The second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter must be interpreted as meaning that a court chamber does not constitute an independent and impartial tribunal, within the meaning of those provisions, when the objective conditions in which it was created, its characteristics as well as the manner of appointment of its members are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that chamber to external factors, and, in particular, to the direct or indirect influence of the legislature and the executive, and as to its neutrality with respect to the interests before it and, thus, whether they may lead to that chamber not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court).

In such a situation, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply national law provisions which reserve jurisdiction to rule on actions, such as the one in the main proceedings, to such a chamber, so that those actions may be examined by a court which fulfils the requirements of independence and impartiality referred to above and which would have jurisdiction were it not for those provisions”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=239898&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=3157544

The continuing enigma that is the Brussels Ia arbitration exception. The Paris CFI on liability claims against arbitrators.

GAVC - jeu, 04/15/2021 - 19:07

Thank you indeed Gilles Cuniberti for flagging and discussing the end of March decision (Press Release only) by the Paris Court of First Instance in which it held that an action against an arbitrator for damages following his failure to disclose a conflict of interests, which led to the annulment of the award, fell within Brussels Ia despite its arbitration exception.

I have more sympathy for the decision than Gilles. At the very least I am not surprised national courts should be confused about the demarcation. Brussels Ia inserted the Smorgasbord of confusion following West Tankers, by collating an even prima facie conflicting array of ins and outs in its recital 12. Even before the entry into force of Brussels Ia, Cooke J in Toyota v Prolat held that recital 12 is of no use. Other than in fairly straightforward cases such as Premier Cruises v DLA Piper Russia, good argument might exist on many conceivable cases.

Deciding the demarcation with help from the New York Convention itself (one might have suggested that what is included in New York, should not be included in Brussels Ia) does not help in the case at issue for as ia Tadas Varapnickas notes, Uncitral and New York are silent on the status of the arbitrator.

Assuming BIa applies, there must be little doubt there is a contractual relation, even between the arbitrator and the party who did not appoint her or him, in the BIa Article 7(1) sense, following CJEU flightright.

Curial seat was Paris, yet hearings and deliberations had taken place in Germany. Forum contractus as a provision of services was held to have been Germany.

This is where Burkhard Hess, at the request of Gilles, took over: Burkhard further discusses the findings on arbitration, agrees with Germany as the forum contractus per ia CJEU Wood Floor Solutions, and suggests (see similarly Mann J in Philips v TCL) the German courts are bound by the Paris’ court’s findings per CJEU Gothaer.

Much relevant. I do not know whether appeal is being sought.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.4, para 2.110 ff.;

Bergé on Situations in Movement and the Law

EAPIL blog - jeu, 04/15/2021 - 08:00

As announced in this blog (here), Jean-Sylvestre Bergé (University of Côte d’Azur and French University Institute) has just published a monograph titled “Situations in Movement and The Law – A Pragmatic Epistemology” (Les situations en mouvement et le droit – Essai d’une épistémologie pragmatique, Dalloz, 2021).

The author has provided the following abstract in English:

The ambition underpinning this text is to establish a pragmatic epistemology for each time the law faces situations in movement. 

The movement of goods and persons across territories and through space, understood in its broadest sense, challenges the law in its primary task of locking situations into predefined legal frameworks, whether at a local, national, European, international or global level (laws on the freedom of movement, transport, trade, mobility, flows, international or European situations, etc.). 

This reflection is all the more important given that phenomena in movement now come in extreme forms with the increasingly observed hypothesis of circulation provoked by humans but completely out of their control (greenhouse gas emissions, spread of products and organisms of all kinds, pandemics, and the circulation of information, persons, data, capital, waste, etc.). 

What we know and don’t know about the law on circulation and its control merit discussion. 

A renewed approach to the assumptions about and mechanics of situations in movement is perhaps needed. All sorts of antecedents – magical, liberal, social, ontological, fundamental and modal – potentially at work allow us to lay down the terms and stakes of how we address the risk, most often denied or minimised, of losing control over flows. 

This essay is intended for both legal scholars and practitioners. It may also appeal to anyone from other disciplines interested in the way in which the law can be understood through its approach to dynamic phenomena, from the smallest to the largest scale. 

More information here.

Kehamilan Sehat: Ketahui 7 Ciri dan Cara Menjaganya

Aldricus - mer, 04/14/2021 - 17:38

Aldricus – Kehamilan sehat diikuti karena ada sepakan bayi yang makin kerap dan kuat. Supaya ibu hamil sehat, Anda dianjurkan untuk konsumsi vitamin prenatal sampai jauhi depresi.

Kehamilan sehat pasti harus dijaga untuk keselamatan ibu dan buah kesayangan. Jika ibu hamil alami keluh kesah kesehatan atau menderita penyakit tertentu, ini akan memberikan ancaman jiwa untuk ke-2 nya. Buah kesayangan bahkan juga dapat terjangkit penyakit dari ibunya. Untuk jaga ibu hamil sehat dan bayi yang dikandungnya, lakukan gaya hidup sehat sebagai jawaban yang akurat. Dengan mengaplikasikan gaya hidup sehat dalam beragam faktor kehidupan, ibu hamil bisa melahirkan bayi yang sehat.

Tidak menstruasi adalah pertanda kehamilan. Tetapi, untuk memperoleh jawaban yang lebih tepat, Anda dapat memakai testpack. Umur kehamilan sebetulnya dihitung dari hari awal haid paling akhir (HPHT).Untuk ketahui kehamilan sehat, ada pertanda yang seharusnya Anda perhatikan, yakni:

1. Mual dan muntah

Kehamilan sehat biasanya diikuti dengan rasa muntah dan mual atau morning sickness pada awal kehamilan. Menurut penelitian terbitan BMJ Clinical Evidence, pertanda ibu hamil sehat ini karena ada kenaikan hormon kehamilan, yakni human Chorionic Gonadotropin (hCG).

2. Bau dan aroma terasa lebih menyengat

Walau kedengar lucu, ini sebagai pertanda kehamilan sehat. Ini ternyata banyak dirasakan ibu hamil. Bisa dibuktikan, indra penciuman juga jadi lebih peka pada trimester pertama kehamilan. Ciri-ciri ibu hamil sehat ini sanggup memacu morning sickness.

3. Sering terasa ingin buang air kecil

Ibu hamil sehat diikuti dengan rasa ingin buang air kecil terus-terusan. Ini karena ada kenaikan volume darah saat hamil. Oleh karenanya, darah ginjal juga harus hasilkan urine dengan volume yang semakin banyak.Disamping itu, hormon kehamilan dan bertambahnya ukuran kandungan sebagai factor pemicunya pertanda ibu hamil sehat ini.

4.Mudah lelah

Kelelahan menjadi satu diantara pertanda kehamilan sehat. Di trimester pertama kehamilan, hormon progesteron juga alami kenaikan. Ini mengakibatkan badan santai. Tetapi, karena santai, ibu juga condong berasa gampang capek dan mengantuk.Jika gampang capek dituruti dengan pertanda, seperti pucat, napas sesak, sakit di kepala, jantung berdebar-debar, sampai telapak kaki dan tangan berasa dingin, cermati tanda-tanda anemia saat hamil.

5. Nyeri payudara

Semenjak masuk awalnya kehamilan, payudara yang dirasa ngilu dan jadi membesar sebagai ciri-ciri kehamilan sehat.Karena, pada ibu hamil sehat, hormon estrogen dan progesteron juga bertambah. Ini mempengaruhi payudara.Disamping itu, saat hamil, badan juga menyiapkan menyusui. Oleh karenanya, kelenjar susu juga badan.Saluran darah juga bertambah. Peralihan juga kelihatan pada puting dan areola yang lebih menghitam.

6. Mood swing

Emosi yang tidak konstan ini dikuasai beragam jenis factor. Biasanya, terjadi karena peralihan hormon, depresi, sampai kecapekan. Ini berpengaruh pada neurotransmiter atau zat kimia dalam otak.Jika suasana hati swing terjadi lebih dari dua minggu, ini tak lagi memberikan indikasi kehamilan sehat. Karena itu, selekasnya jumpai psikiater dan psikolog. Emosi yang tidak teratasi beresiko kelahiran prematur sampai stres pascamelahirkan.

7. Gerakan janin terasa

Bila Anda dapat rasakan janin menyepak perut Anda, ini memiliki arti ibu hamil sehat. Karena, kehamilan sehat diikuti karena ada perubahan janin, seperti sepakan yang semakin kuat dan kerap.

The post Kehamilan Sehat: Ketahui 7 Ciri dan Cara Menjaganya appeared first on Aldri Blog.

European Parliament Resolution on corporate due diligence and corporate accountability

Conflictoflaws - mer, 04/14/2021 - 15:13

Our blog has reported earlier on the Proposal and Report by the Committee on Legal Affairs of the European Parliament for a Resolution on corporate due diligence and corporate accountability. That proposal contained recommendations to amend the EU Regulations Brussels Ia (1215/2015) and  Rome II (864/2007). The proposals were discussed and commented on by Jan von Hein, Chris Tomale, Giesela RühlEduardo Álvarez-Armas and Geert van Calster

On 10 March 2021 the European Parliament adopted the Resolution with a large majority. However, the annexes proposing to amend the Brussels Ia and Rome II Regulations did not survive. The Resolution calls upon the European Commission to draw up a directive to ensure that undertakings active in the EU respect human rights and the environment and that they operate good governance. The European Commission has already indicated that it will work on this.

Even if the private international law instruments are not amended, the Resolution touches private international law in several ways.

*  It specifies that the “Member States shall ensure that relevant provisions of this Directive are considered overriding mandatory provisions in line with Article 16 of Regulation (EC) No 864/2007” (Art. 20). It is a bit strange that this is left to national law and not made an overriding mandatory provision of EU law in line with the CJEU’s Ingmar judgment (on the protection of commercial agents – also a Directive). Perhaps the legislator decides otherwise.

* It proposes a broad scope rule covering undertakings “operating in the internal market” and encompassing activities of these undertakings or “those directly linked to their operations, products or services by a business relationship or in their value chains” (Art 1(1)). It thus imposes duties on undertakings to have due diligence strategies and communicate these even if the undertakings do not have their seat in an EU Member State. In this way it moves away from traditional seat theories and place of activities tests.

 

 

Recognition and Registration of Same-sex Parentage Established Abroad as Mission Impossible for the Bulgarian Authorities

EAPIL blog - mer, 04/14/2021 - 14:00

The author of this post is Nadia Rusinova, Lecturer in International/European Private Law at The Hague University of Applied Sciences.

In October 2020, the Administrative Court of the City of Sofia in Bulgaria requested a preliminary ruling from the Court of Justice of the European Union (CJEU) in a case concerning the refusal by the Sofia municipality to issue a birth certificate for a child, born in Spain, whose birth was attested by a Spanish birth certificate naming V.M.A. and K.D.K., who are both females, as the child’s mothers.

The case, which is registered as C-490/20, V.M.A. v. Stolichna Obsthina, Rayon ‘Pancharevo’ (Sofia municipality, ‘Pancharevo’ district), poses a question of great importance, and one that has been often asked, including in a recent report prepared for NELFA, the Network of European LGBTIQ* Families Associations: may EU law require an EU Member State to recognize the legal ties between the children and both of their same-sex parents as these have already been legally established elsewhere?

This question remains unanswered to date. It is clear that if the host Member State does not legally recognize the familial ties already enjoyed by the members of a same-sex family moving to its territory from another Member State, this can amount not only to a breach of the free movement of persons provisions. Such failure will amount also to violation of Article 8 and possibly of Article 14 ECHR, as it constitutes breach of the right to private life of the parents, and breach of their and the child’s right to family life.

In the present case – C-490/20 – one hearing of four hours already took place on 9 February 2021, and opinion of AG is expected on 15 April 2021. Therefore, clarity will be provided soon and this post does not have the purpose to predict what the outcome of this case will be.

The aim is rather to provide some insights in the light of the Bulgarian legislation, case law and administrative authorities approaches, to define where the main problem lies and to explain why it appears impossible for the Bulgarian authorities to register same-sex parents in the birth act of the child.

It will also argue that the problem is not only the registration as such, but also the refusal to recognize parentage, established abroad, which constitutes important private international law issue with severe consequences for the parents and the child.

Facts of the Case and the Request for Preliminary Ruling

V.M.A. is a Bulgarian national married to a UK national, K.D.K. They are both females. The couple resides in Spain and have entered into a civil marriage in Gibraltar, United Kingdom, on 23 February 2018. On 8 December 2019, a child, S.D.K.A., was born to them and a Spanish birth certificate was issued, mentioning both V.M.A. and K.D.K. as ‘mother’. In January 2020 V.M.A. requested Sofia municipality, ‘Pancharevo’ district, to issue a Bulgarian birth certificate for the child S.D.K.A.

The authorities requested evidence of the child’s parentage with respect to the biological mother. V.M.A. responded she was not required to do so in accordance with Bulgarian law. On 5 March 2020, Sofia municipality, ‘Pancharevo’ district in a letter refused to issue a Bulgarian birth certificate on the grounds that there is lack of sufficient information regarding its biological mother, and that the registration of two female parents on a child’s birth certificate is inadmissible, as same-sex parentage (as well as same-sex marriages) is currently not permitted in the Republic of Bulgaria and such a registration was contrary to public policy.

V.M.A. appealed the refusal before the Administrativen sad Sofia grad (Administrative Court of the City of Sofia), stating that the refusal to issue a Bulgarian birth act infringes both substantive and procedural law. This Court referred to the ECJ and requested preliminary ruling, formulating four interrelated questions on how the EU law on the discretion on rules for establishing parentage and registration of birth acts should be interpreted.

The Acquisition of Bulgarian Nationality in Respect to the Child

Several organizations, including ILGA EUROPE assumed that the child had been deprived of Bulgarian, and therefore European citizenship, and was at risk of statelessness. So, the first and most important question is did the child acquire Bulgarian nationality, or she has been deprived of it and there is a risk of statelessness?

To answer, we need to take closer look at the referring court’s arguments. The court says that

The failure to issue a Bulgarian birth certificate does not constitute a refusal of Bulgarian nationality. The minor is a Bulgarian national by operation of law notwithstanding the fact that she is currently not being issued with a Bulgarian birth certificate.

Stating that the refusal itself does not preclude acquisition of Bulgarian nationality for the child, the court implies that the parentage is established as it is in the Spanish birth certificate. This conclusion might well be on first glance questionable. Is the recognition of the parent-child relationship, established abroad, prerequisite for acquiring Bulgarian citizenship? The answer is likely to be negative and the court assessed it correctly.

Obviously, the acquisition of Bulgarian nationality in this case is by descent (jus sanguinis), as the child is born on the territory of Spain and jus soli cannot be applied. According to Article 8 of the Law on Bulgarian Nationality, Bulgarian national of origin is anyone to whom at least one parent is a Bulgarian citizen.‎ This provision is in accordance with the Council of Europe European Convention on Nationality, which ensure that children acquire nationality ex lege if one of its parents possesses, at the time of the birth of these children, the nationality of that State Party, subject to any exceptions which may be provided for by its internal law as regards children born abroad.

This provision should not be interpreted restrictively. States have to decide whether they want to restrict the acquisition of the nationality by parentage in cases of birth abroad, and Bulgaria did not explicitly envisage any restrictions in this regard, neither the domestic law requires formal recognition of familial links. As a result, the child indeed acquired Bulgarian nationality at the time of its birth by operation of law. The recognition of the parentage appears irrelevant and the fact that the applicable Bulgarian law does not allow this same-sex couple and their child to legally establish their familial links does not change the origin as such.

What Exactly the Refusal Concerns – Recognition of Legal Parentage, or Registration of Birth Act in the Civil Registry?

Interestingly enough, it appears that in the present case the parentage is in some way technically recognized for purposes of nationality, to a high extend due to the existence of harmonized domestic and international legislation. This same parentage however is not recognized for the purpose of establishing legal parent-child relationship in the Bulgarian legal order, which poses the question where the main issue lies – is it conflict of laws, or pure administrative formality?

It is appropriate to clarify that recognition of a foreign civil status, its registration, and issuance of civil status certificates are three separate issues. The first one – recognition of a foreign civil status – falls within the scope of the private international law and is therefore a legal problem, and the latter two are merely administrative services. Naturally, a civil status cannot be registered if it is not firstly recognized.

Here it would be useful to provide brief explanation on one purely linguistic issue, which however might majorly impair the translation and contribute to the confusion. In Bulgarian “issuance of birth act” means the act of registration or transcription of the (foreign) birth act in the civil registry, and at the same time this expression is used to describe the administrative service to provide the entitled person with the birth certificate (in Bulgaria the birth certificates are only issued on paper, not digitally). In this sense, “birth act” and “birth certificate” in Bulgarian in many cases even in the legal literature are used interchangeably, which in the present case can impede the correct interpretation of the legal issue.

From this perspective there is one very important question to be answered. What exactly the refusal pertains to – to the recognition of legal parentage, or to the registration of birth act in the Bulgarian civil registry? According to the official translation, the Administrative Court in its first question to the CJEU uses the expression “refusal to issue a Bulgarian birth certificate”, but the issuance of birth certificate, as pointed above, is a simple administrative service, which has its grounds on and respectively follows the registration of the birth act in the civil registry, which on its turn is based and follows the recognition of the parentage. In this sense, if Bulgarian birth certificate is issued or not cannot be the main problem that needs solution.

In para 23 and 26 the Administrative Court states that

only the legislature is in a position to exercise its sovereignty and decide whether a child’s parentage can be determined not only from one mother but from two mothers and/or fathers […] The issue before the Administrative Court of the City of Sofia […] relates to two persons of the same sex being recognized as mothers of a child of Bulgarian nationality born in another Member State by having their names included on the child’s Bulgarian birth certificate. Unlike in Coman, this question is linked to the method of establishing the parentage of a Bulgarian national.

The doubts of the Court here clearly refer to the recognition of parentage, which in this case appears to be problematic under the Bulgarian domestic law.

What then the authorities actually refused – the recognition of familial link, or its registration? The short answer is both, simply because recognition of established parentage under the Bulgarian law is done throughregistration of the birth act. There is no separate procedure to recognize the legal parentage before the registration of the birth act. The competent authorities are the administrative ones – according to the Ordinance on the functioning of the system for civil registration, the civil status officers in the respective municipality department are responsible for this registration, and therefore for the actual recognition of the familial ties, which is a prerequisite for the registration. This way the recognition occurs simultaneously with the registration, and the assessment of these two different in their substance issues – the private international law matter of recognition and the administrative matter of registration – are solely in the hands of the civil registry officers.

The Inconsistent Approach of the Bulgarian Authorities in Recognizing and Registering Same-sex Parentage

It must be noted that entering of two same-sex parents in the birth act, as pointed in the request to the CJEU, is just not possible under the Bulgarian law. Only one approved model of birth act and certificate, which comply with the Bulgarian legislation, exists, and the data on the child’s parents is divided into two columns – “mother” and “father”, respectively. In this sense, the administrative authority cannot technically issue a birth act, to the extent that it does not provide for entry of two mothers.

Due to the legislative imperfections, mentioned above, the discussed three issues – recognition of foreign civil status, its registration, and the issuance of civil status acts and certificates – are not treated as separate matters by the courts in the Bulgarian case law. Examples from the recent years of different instances, including the Supreme Administrative Court of Bulgaria, show that the authorities often mix all three and do not provide arguments in respect to their different natures in their court acts. One thing is consistent – the absolute refusal to recognize same-sex parentage, which is however reached by various ways and accompanied by various reasons.

One of the inconsistencies concerns the following question: Is the refusal to register birth of a child to same sex parents in the civil registry an “individual administrative act” within the meaning of the Administrative Procedural Code (APC), which would make its appeal admissible? According to one of the judgments, the refusal, incorporated in a letter, is indeed an administrative act within the meaning of Article 21, para. 3 of the APC, and appeal before the competent court is procedurally admissible. The reasoning is that it contains a statement of sovereign will – a refusal to issue a birth act.

This approach is endorsed by the Supreme Administrative court, confirming that refusal to issue a birth act is a refusal to perform an administrative service and therefore constitutes an individual administrative act within the meaning of the abovementioned provision. This would be the correct interpretation of the law, providing the parties with the possibility for judicial review.

On the contrary, in another judgment (which concerns different-sex parents but the same legal issue, i.e. recognition of parentage and issuance of Bulgarian birth act) the court holds that such decision does not constitute an administrative act, subject to judicial review under APC.

Surprisingly, the appeal is therefore dismissed on the following grounds:

By its legal nature, the recognition of an act of a foreign authority constitutes a declarative statement by the authority concerned to respect the legal effects of that act … In its declaratory content, the contested act includes only‎‎ ‎‎a statement of disregard for the legal consequences – the declaratory effect of the foreign act.‎ The refusal at hand does not constitute an individual administrative act within the meaning of Article 21(1) of the APC and is not subject to judicial review.

For the parties here there is no possibility to appeal and the only way left, as the Court mentions in this act, is to follow the procedure enshrined in Article 118 para 2 of the Private International Law Code – to bring legal action before the Sofia City Court to rule on this dispute over the conditions for recognition of a foreign decision.

Other inconsistency concerns the Courts’ approach in case of judicial review of the refusal to register birth of a child to same-sex parents in the civil registry. Once admitted to appeal, the courts interpret the law differently and offer substantively different solutions, of course all with the same result – endorsing the refusal.

In the majority of the cases the Court would hold as a ground for refusal that the registration of two same-sex parents is contrary to the public policy (which will be discussed below). As an example, the Supreme Administrative Court holds in one of the judgments that:

The opinion is fully shared that according to the Bulgarian legislation it is inadmissible to register two female parents, as same-sex marriages in the Republic of Bulgaria are currently inadmissible.

The same issue is pointed by the administrative authority in Case C-490/20 – according to the defendant, entry of two female parents is inadmissible as same-sex marriages in the Republic of Bulgaria at the moment are inadmissible, and such an entry would be contrary to the public policy.

In case No. 2784/2020 the Administrative Court-Sofia City takes even more surprising recourse, placing the marriage of the parents as pre-condition to the recognition of the legal parentage. It concerns a child born in USA; the parents are two mothers in same-sex relationship and they request respectively the birth (not the marriage) to be registered in Bulgaria. The refusal to register the act followed shortly and the administrative actis reasoned as follows:

it is not clear from the submitted birth certificate who is the mother is and who is the father of the child, as only “parents” are present in the foreign birth act […] From the submitted documents it is not clear as well whether the marriage between the parents is recognized in the manner prescribed by law, respectively whether its execution is allowed.

In subsequent appeal the Court endorses this approach:

A birth certificate, in which two people are entered as parents, without determining which of these persons is the mother, respectively the father of the child, makes it impossible for the administrative body to fulfill its obligations, resp. to issue a birth act. In this case it is also important to recognize in the appropriate order the marriage between L. E. M. and V. M. M. … there must be a valid and recognized by the competent authority marriage between L. E. M. and V. M. M. so that the child is Bulgarian citizen, and then it to be subject to civil registration.

These examples show that for one or another reason, entering same-sex parents in the birth act is inadmissible for the Bulgarian authorities. But what is the correct action? The conflict comes from the fact that there is no provision allowing the administrative authority to simply refuse registration. Such possibility is not mentioned at all in the applicable Ordinance, where the options are exhaustively listed:

Art. 10. (1) The civil status official shall obligatorily verify the data for the parents, entered in the received notice for birth, with the data in the register of the population, including the determined origin from father. In case of ascertained incompleteness or discrepancies, the civil status official has the right to supplement or correct the birth notification with data from the population register, as well as to determine the origin according to the Family Code. When the origin of a parent (mother and / or father) is not established, when compiling the birth certificate, the relevant field intended for the data for this parent shall not be filled in and crossed out.

Analyzing this provision, we should therefore conclude one more time that since there is no option to refuse registration of the birth act, the main issue in case C-490/20 remains to be refusal of recognition of parentage, which is already established by foreign civil act. However, in the cases pointed above, the administrative authorities have chosen exactly to refuse registration, despite it remains unclear where they derive this option from. In the cases when they (correctly) did not refuse registration, they pursued the only option left under the abovementioned provision, which is even more inappropriate – the origin of the child to be established in relation only to his/her mother. In this case the administrative authority accepts that the origin of the father has not been established as it does not comply with the Bulgarian legislation, and applies the provision of Article 12(3) ‎‎of the Ordinance by not filling in the corresponding field on the birth act intended for the data of that parent. Not including the provided particulars would not lead to its illegality. Such solution is offered by the Administrative Court here and endorsed by the Supreme Administrative court.

This is exactly the reason why the administrative authorities in Case C-490/20 initially obliged the applicants to provide information which one of the same-sex parents is the biological mother. In case the mothers would have provided such information, the authorities would have recognized only the parentage established in respect to the biological mother and would have left empty the space intended to enter the father of the child. In this case the child would have been with status “father unknown”.

The problematic nature of such approach is clear and it would for sure violate the right to respect for family life not only of the both mothers, but mostly of the child. The Supreme Administrative Court, foreseeing the problems that can arise from this quite imperfect solution, even goes further and suggests in the future the interested parties to take action and conduct a procedure under Article 118(2) of the Private International Law Code. Following this suggestion, in the course of this judicial procedure the parties are supposed to clarify the issues related to the completion of the information missing in the act issued by the municipal authorities, which would only lead to additional lengthy, and expensive court battles with unclear outcome.

The Application of the Public Policy Exception by the Bulgarian Authorities

The main issue pointed by the administrative authority in Case C-490/20 as ground for refusal is that entry of two female parents appears inadmissible, as same-sex marriages in the Republic of Bulgaria at the moment are inadmissible, and such an entry would be contrary to the public policy.

The legal basis for this assessment is a general provision. Article 117(5) of the International Private Law Code of Bulgaria states that decisions and acts of foreign courts and other bodies are recognized and declared enforceable, if this is not contrary to Bulgarian public policy. However, as pointed here, CJEU leans towards a strict interpretation of the public-policy exception in matters of conflict of laws. Several questions then remain unanswered, when analyzing how the Bulgarian authorities assessed the contradiction between entering same-sex parents in the birth act and Bulgarian public policy. Where is the direct link between joint parentage of same-sex couple and the ban for same-sex marriages in regard to the public policy exception? Why the authorities avoid clear reasoning in this direction and resort to ambiguous arguments? Based on which concrete arguments the public policy does not allow same-sex couple to be legal parents to a child?

The “Bulgarian public policy” in this regard is an issue that remains unspecific. It is discussed in the light of same-sex marriage for example in case No 7538/2017, Administrative Court Sofia City. The Court states that even if the marriage between same-sex Bulgarian citizens does not contradict the law of the country in which it is concluded, this marriage contradicts the Bulgarian “public order”. “Public order” is defined as mandatory norms and principles in the administration of justice, which have universal significance, not taking into account a contradiction of a specific legal norm, but a contradiction that would lead to a violation of the public and personal interest of the citizens, and to violation of basic values ​​in society. However, the Court refrains from pointing any particular arguments and again refers to the legislative restrictions.

The constitutional ban on same sex marriages naturally would lead to refusal to recognize and register this particular marriage, but might have as direct consequence only the impossibility to apply the pater estpresumption to the children born to this marriage as contrary to the public policy. If the public policy exception is to be applied by the administrative or judicial authority in cases like C-490/20, then specific argumentation must be provided. Such argumentation to the best of my knowledge is not yet provided in any Bulgarian case law, neither it exists in whatever practical directions or ordinances that civil registration officers can use for reference.

In regard to the constitutional identity and national identity as separate grounds to justify the refusal of recognition of the same-sex parentage, indeed as pointed in the request for preliminary ruling the Bulgarian constitutional tradition and Bulgarian family and inheritance law should be considered. This is of course true, but here balance must be sought as the negative views on LGBTQ rights in Bulgaria are incredibly persistent and, in some way, seen as traditional.

Conclusion

In several EU Member States same-sex couples are neither allowed de facto to become joint parents of a child nor can they be legally recognized as joint legal parents. In these legal systems same-sex couples and their children are not allowed to legally establish their familial links, and Bulgaria is to this date one of them. Case with the same subject – A.D.-K. and others v. Poland, Application no. 30806/15, is currently pending before the ECtHR and communicated on 26 February 2019. There is not much to add, but only to hope that the laws of all Member States will in the near future be applied in a non-discriminatory manner and with respect for fundamental rights, especially when they have a direct impact on the enjoyment of EU citizenship.

ILA “Kyoto Guidelines on Intellectual Property and Private International Law” published with comments

Conflictoflaws - mer, 04/14/2021 - 12:05

Written by Toshiyuki Kono, Pedro de Miguel Asensio and Axel Metzger

The International Law Association’s Committee on “Intellectual Property and Private International Law” has finished its work with the adoption and publication of the “Kyoto Guidelines on Intellectual Property and Private International Law”. The Guidelines are the outcome of an international cooperation of a group of 36 scholars from 19 jurisdictions lasting for ten years under the auspices of ILA. The Kyoto Guidelines have been approved by the plenary of the ILA 79th Biennial Conference, held (online) in Kyoto on December 13, 2020. The Guidelines provide soft-law principles on the private international law aspects of intellectual property, which may guide the interpretation and reform of national legislation and international instruments, and may be useful as source of inspiration for courts, arbitrators and further research in the field. Different from older regional projects, the Kyoto Guidelines have been prepared by experts from different world regions. The Guidelines have now been published with extended comments as a special issue of the Open Access journal JIPITEC: https://www.jipitec.eu.

The ILA Committee on “Intellectual Property and Private International Law” was created in November 2010. Its aim was to examine the legal framework concerning civil and commercial matters involving intellectual property rights that are connected to more than one State and to address the issues that had emerged after the adoption of several legislative proposals in this field in different regions of the world. The work of the Committee was built upon the earlier projects conducted by the Hague Conference of Private International Law as well as several academic initiatives intended to develop common standards on jurisdiction, choice of law and recognition and enforcement of judgments in intellectual property matters.

In the initial stages of the activities of the Committee it was agreed that its overall objective should be to draft a set of model provisions to promote a more efficient resolution of cross-border intellectual property disputes and provide a blueprint for national and international legislative initiatives in the field. Therefore, the focus of its activities has been the drafting of a set of guidelines with a view to provide a valuable instrument of progress concerning private international law aspects raised by intellectual property. Furthermore, the Committee conducted a number of comparative studies and monitored the developments in different jurisdictions around the world. The Committee also worked in collaboration with several international organizations, particularly the World Intellectual Property Organization and the Hague Conference on Private International Law.

The final text of the Guidelines consists of 35 provisions, which are divided in four sections: General Provisions (Guidelines1-2), Jurisdiction (3-18), Applicable Law (19-31) and Recognition and Enforcement of Judgments (Guidelines 32-35). As suggested by the term “Guidelines”, this instrument contains a set of provisions intended to guide the application or reform of private international laws in this field. The Guidelines restate certain well-established foundational principles such as the lex loci protectionis rule and aspire to provide concrete solutions for pressing contemporary problems, in areas such as multi-state infringements and cross-border collective copyright management. In order to make explicit the influence of the previous projects in the field and to facilitate the comparison with them, the short comments are preceded by the reference to the similar provisions adopted previously in the ALI Principles[1], CLIP Principles[2], Transparency Proposal[3] and Joint Korean-Japanese Principles[4]. As an additional instrument to facilitate the uniform interpretation of the Guidelines, the Committee has prepared a set of extended comments to all the provisions.

The Guidelies have now been published together with extended comments written by members of the ILA Committee which explain the background and application of the Guidelines.

 

[1]  American Law Institute, Intellectual Property: Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes, ALI Publishers, 2008.

[2] European Max Planck Group on Conflict of Laws in Intellectual Property, Conflict of Laws in Intellectual Property (Text and Commentary), OUP, 2013.

[3] Japanese Transparency Proposal on Jurisdiction, Choice of Law, Recognition and Enforcement of Foreign Judgments in Intellectual Property, see the English text in J. Basedow, T. Kono and A. Metzger (eds.), Intellectual Property in the Global Arena – Jurisdiction, Applicable  Law, and the Recognition of Judgments in Europe, Japan and the US, Mohr Siebeck, 2010, pp. 394-402.

[4]  Joint Proposal by Members of the Private International Law Association of Korea and Japan, see The Quarterly Review of Corporation Law and Society, 2011, pp. 112-163.

AMEDIP: Webinar by Professor Aline Beltrame de Moura on the Choice of the Law Applicable to International Contracts in the Brazilian Legal System – 15 April 2021 at 5 pm (Mexico time – CDT), 7 pm (BRT time), 12:00 am (CET time) – in Spanish

Conflictoflaws - mer, 04/14/2021 - 09:24

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 15 April 2021 at 5:00 pm (Mexico City time – CDT), 7 pm (BRT time), 12:00 am (CET time). The topic of the webinar is the Choice of the Law Applicable to International Contracts in the Brazilian Legal System and will be presented by Professor Aline Beltrame de Moura (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/86169347236?pwd=ZFVFSmtZYUJ0SHk0MSt0VXg4Rk5wdz09

Meeting ID: 861 6934 7236

Password: BMAAMEDIP

Participation is free of charge.

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

 

Kyoto Guidelines on Intellectual Property and Private International Law

EAPIL blog - mer, 04/14/2021 - 08:00

The following text has been kindly provided by professors Toshiyuki Kono, Pedro de Miguel Asensio and Axel Metzger.

The International Law Association’s Committee on Intellectual Property and Private International Law has finished its work with the adoption and publication of the Kyoto Guidelines on Intellectual Property and Private International Law.

The Guidelines are the outcome of an international cooperation of a group of 36 scholars from 19 jurisdictions lasting for ten years under the auspices of ILA. The Kyoto Guidelines have been approved by the plenary of the ILA 79th Biennial Conference, held (online) in Kyoto on 13 December 2020.

The Guidelines provide soft-law principles on the private international law aspects of intellectual property, which may guide the interpretation and reform of national legislation and international instruments, and may be useful as source of inspiration for courts, arbitrators and further research in the field. Different from older regional projects, the Kyoto Guidelines have been prepared by experts from different world regions.

The Guidelines have now been published with extended comments as a special issue of the Open Access journal JIPITEC.

The ILA Committee on Intellectual Property and Private International Law was created in November 2010. Its aim was to examine the legal framework concerning civil and commercial matters involving intellectual property rights that are connected to more than one State and to address the issues that had emerged after the adoption of several legislative proposals in this field in different regions of the world. The work of the Committee was built upon the earlier projects conducted by the Hague Conference of Private International Law as well as several academic initiatives intended to develop common standards on jurisdiction, choice of law and recognition and enforcement of judgments in intellectual property matters.

In the initial stages of the activities of the Committee it was agreed that its overall objective should be to draft a set of model provisions to promote a more efficient resolution of cross-border intellectual property disputes and provide a blueprint for national and international legislative initiatives in the field. Therefore, the focus of its activities has been the drafting of a set of guidelines with a view to provide a valuable instrument of progress concerning private international law aspects raised by intellectual property.

Furthermore, the Committee conducted a number of comparative studies and monitored the developments in different jurisdictions around the world.

The Committee also worked in collaboration with several international organizations, particularly the World Intellectual Property Organization and the Hague Conference on Private International Law.

The final text of the Guidelines consists of 35 provisions, which are divided in four sections: General Provisions (Guidelines1-2), Jurisdiction (3-18), Applicable Law (19-31) and Recognition and Enforcement of Judgments (Guidelines 32-35).

As suggested by the term “Guidelines”, this instrument contains a set of provisions intended to guide the application or reform of private international laws in this field. The Guidelines restate certain well-established foundational principles such as the lex loci protectionis rule and aspire to provide concrete solutions for pressing contemporary problems, in areas such as multi-state infringements and cross-border collective copyright management.

In order to make explicit the influence of the previous projects in the field and to facilitate the comparison with them, the short comments are preceded by the reference to the similar provisions adopted previously in the ALI Principles (American Law Institute, Intellectual Property: Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes, ALI Publishers, 2008), CLIP Principles (European Max Planck Group on Conflict of Laws in Intellectual Property, Conflict of Laws in Intellectual Property (Text and Commentary), OUP, 2013), Transparency Proposal (Japanese Transparency Proposal on Jurisdiction, Choice of Law, Recognition and Enforcement of Foreign Judgments in Intellectual Property, see the English text in J. Basedow, T. Kono and A. Metzger (eds.), Intellectual Property in the Global Arena – Jurisdiction, Applicable  Law, and the Recognition of Judgments in Europe, Japan and the US, Mohr Siebeck, 2010, pp. 394-402) and Joint Korean-Japanese Principles (Joint Proposal by Members of the Private International Law Association of Korea and Japan, see The Quarterly Review of Corporation Law and Society, 2011, pp. 112-163).

As an additional instrument to facilitate the uniform interpretation of the Guidelines, the Committee has prepared a set of extended comments to all the provisions.

The Guidelines have now been published together with extended comments written by members of the ILA Committee which explain the background and application of the Guidelines.

UK Accession to Lugano Convention: Commission Backtracks from Approval

EAPIL blog - mar, 04/13/2021 - 09:20

Oft expectation fails, and most oft there
Where most it promises…

William Shakespeare

Yesterday has been an emotional rollercoaster for those interested in European judicial cooperation. After initial reports in the Financial Times about an impending recommendation in favour of the UK’s accession to the Lugano Convention, the journal later reported that the Commission has (again) changed its mind. It now opposes the UK’s application to join the Convention.

Apparently, the decision was made behind closed doors. The only formal ground reported is the missing membership of the post-Brexit UK in either the European Economic Area (EEA) or the European Free Trade Association (EFTA), to which all other members of the Lugano Convention are parties. This is however a specious argument because judicial cooperation has a much further reach than economic cooperation and builds on other criteria, such as trust in the quality of the other state’s judiciary (see Matthias Lehmann and Eva Lein, ‘L’espace de justice à la carte? La coopèration judiciaire en Europe à géométrie variable et à plusieurs vitesses’, in: Marie-Elodie Ancel et al. (eds.), Le Droit à L’Èpreuve des Siècles et des Frontières – Mélanges en l’honneur du Professeur Bertrand Ancel, Paris 2018, p. 1093 – 1120).

It is to be hoped that this is not the end of the story. The Commission has merely issued a recommendation; the final decision lies with the European Parliament and the Council. Even though especially France seems to be very reserved about the British accession, it remains to be seen how these bodies will act. Moreover, the Lugano Convention’s Art 72(3) only says that the signatories “shall endeavour” to give their consent within one year after an application to join, without setting any hard deadline. The EU thus has ample time to make up its mind. Should it reject the UK’s application, the latter is free to file it again under more favourable political conditions.

The above quote, by the way, is from Shakespeare’s play “All’s Well That Ends Well”. Let us hope that this will also be true for the UK and the Lugano Convention.

Is a Maltese Ship Mortgage an Authentic Instrument for the Purposes of Article 57 of the Brussels I Regulation?

EAPIL blog - mar, 04/13/2021 - 08:00

In a recent ruling (No 120 of 23 February 2021, unreported) the Court of Appeal of Piraeus was asked to determine whether, for the purposes of exequatur under Regulation No 44/2001 (Brussels I), a Maltese ship mortgage is considered an authentic instrument.

The issue had the following practical ramifications. A classification of the mortgage as an authentic instrument for the purposes of the Regulation would entail that immediate enforcement ought to be stayed by virtue of Article 37 as a result of the lodging of an appeal. Instead, if the ship mortgage were seen as falling outside the scope of the Regulation, domestic law would apply, which does not provide for an automatic stay of execution if the debtor challenges the enforceability of the foreign title.

The Facts

A Greek bank granted in 2011 a loan of nearly 12 million Euros to a company seated in La Valetta (Malta). In oder to secure the bank’s claim, a mortgage was registered on a ship belonging to the debtor, registered in Malta. Due to delays in payment, the bank seised the Court of First Instance of Piraeus seeking a declaration of enforceability of the ship mortgage. It relied for this on Article 905 Greek Code of Civil Procedure.

The court granted the application. The company filed a third-party opposition, i.e. the remedy available under Greek law, arguing that the court had failed to apply the Brussels I Regulation. The move was successful. The bank appealed.

Legal Framework

Article 57(1) of the Brussels I Regulation reads as follows:

A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Member State shall, in another Member State, be declared enforceable there, on application made in accordance with the procedures provided for in Articles 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the Member State addressed.

The Report by Jenard and Möller on the 1988 Lugano Convention  1988 (para. 72) posed the following conditions for the application of Article 50 of the Lugano Convention, which addresses the same issue as Article 57 of the Brussels I Regulation (formerly, Article 50 of the 1968 Brussels Convention):

The authenticity of the instrument should  have  been  established  by a public  authority; this  authenticity  should  relate to  the  content  of  the  instrument  and  not  only,  for  example,  the  signature; the  instrument  has to be enforceable  in  itself  in  the  State in  which  it originates.

In Unibank, the CJEU ruled as follows:

An acknowledgment of indebtedness enforceable under the law of the State of origin whose authenticity has not been established by a public authority or other authority empowered for that purpose by that State does not constitute an authentic instrument within the meaning of Article 50 of the [1968 Brussels Convention].

Maltese law regulates the matter under Chapter 234 of the Merchant Shipping Act. Article 38(1) provides that:

A registered ship or a share therein may be made a security for any debt or other obligation by means of an instrument creating the security (in this Act called a “mortgage”) executed by the mortgagor in favour of the mortgagee in the presence of, and attested by, a witness or witnesses.

Article 41(2) states that

A registered mortgage shall be deemed to be an executive title for the purposes of Article 253 of the Code of Organization and Civil procedure.

The latter provision, in turn, regards the following as enforceable titles:

(b) contracts received before a notary public in Malta, or before any other public officer authorised to receive the same where the contract is in respect of a debt certain, liquidated and due, and not consisting in the performance of an act.

The Ruling

The company submitted a legal opinion signed by a foreign lawyer, according to which a ship mortgage is considered as a ‘public deed’, given that it was received in accordance with the law by a public functionary, entrusted to give full faith and credit to the document in question. In addition, the authenticity of the signature of the ship registrar had been certified by an apostille pursuant to the Hague Apostille Convention, which referred to the ship mortgage as a public deed.

The company referred also to the Scottish public register of deeds as an example of authentic instrument, in order to convince the court to consider the ship mortgage as an authentic instrument for the purposes of the Brussels I Regulation.

The Court of Appeal of Piraeus granted the bank’s appeal. Relying on Article 57 of the Brussels I Regulation, the Jenard-Möller Report and the judgment of the Court of Justice in Unibank, it noted that an authentic instrument is a document which has been formally drawn up or registered as such.

In addition, Che court emphasized on the lack of any involvement of the Register of Ships in regards to the content of the mortgage. Contrary to the first instance judgement, the court considered that the mere registration in the Valetta ship registry does not suffice. The act of the Register of Ships does not attribute the nature of an authentic instrument to a document drawn and signed by two private parties.

The Court made extensive reference to the opinion of the Advocate General La Pergola in the Unibank case, stating that the authenticity of the document’s content had not been examined by the registrar. In other words, the sole registration without any examination of the content, does not attribute to the ship mortgage the nature of an authentic instrument. It is just a formal procedure for the purposes of solemnity and publicity.

In addition, the Court of Appeal clarified that the reference of the registrar to the document as a public deed does not hinder the court to examine the ship mortgage from the Regulation’s point of view.

Comments

The core issue is whether the procedure followed for the registration of a Maltese ship mortgage entails any participation of a public authority, i.e. the decisive factor according to the Court of Justice in Unibank.

The Court of First Instance answered in the affirmative, whereas the Court of Appeal took the opposite view.

The judgment demonstrates the variety of legal documents balancing between the private and public divide. It serves as an additional example for the interpretation of Article 57 Brussels I Regulation and Article 58 Brussels I bis Regulation.

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