Droit international général

The Court decided, as had been proposed by AG Szpunar (see our post on the Opinion), that the first and fourth subparagraphs of Article 3(1) of the EIR(Recast) must be interpreted as meaning that the presumption established in that provision for determining international jurisdiction for the purposes of opening insolvency proceedings, according to which the centre of the main interests of an individual not exercising an independent business or professional activity is his or her habitual residence, is not rebutted solely because the only immovable property of that person is located outside the Member State of habitual residence.

MH and NI, a married couple who, since 2016, have been resident in Norfolk (United Kingdom) where they pursue an activity as employed persons, applied to the Portuguese courts to open insolvency proceedings against themselves. The court of first instance hearing the application declined international jurisdiction to hear that application on the ground that, under the fourth subparagraph of Article 3(1) of Regulation 2015/848, the centre of the main interests of the applicants in the main proceedings was their habitual residence, which was in the United Kingdom, and that consequently the courts of that Member State had jurisdiction to open insolvency proceedings. MH and NI lodged an appeal against the judgment given at first instance before the referring court claiming that that judgment was based on a misinterpretation of the rules laid down in Regulation 2015/848. They claim that the centre of their main interests is not their habitual residence in the United Kingdom, but rather it is in Portugal, the Member State where the sole immovable asset which they own is located and where all the transactions and all the contracts leading to their insolvency were conducted and concluded. Furthermore, there is no connection between their place of habitual residence and the events that led to their insolvency, which occurred entirely in Portugal. MH and NI therefore ask that the Portuguese authorities be recognised as having international jurisdiction.

Article 3 of the EIR (Recast) provides:

1.The courts of the Member State within the territory of which the centre of the debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings (‘main insolvency proceedings’). The centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.

In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. That presumption shall only apply if the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of an individual exercising an independent business or professional activity, the centre of main interests shall be presumed to be that individual’s principal place of business in the absence of proof to the contrary. That presumption shall only apply if the individual’s principal place of business has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of any other individual, the centre of main interests shall be presumed to be the place of the individual’s habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.

The Court explained:

„[24] … [T]he relevant criteria for determining the centre of the main interests of individuals not exercising an independent business or professional activity are those connected with their financial and economic situation which corresponds to the place where they conduct the administration of their economic interests or the majority of their revenue is earned and spent, or the place where the greater part of their assets is located.

[25] In the second place, it is necessary to clarify the scope of the presumption established in the fourth subparagraph of Article 3(1) of Regulation 2015/848. It follows from the actual wording of that provision, read in the light of the first subparagraph of Article 3(1) of that regulation, that individuals not exercising an independent business or professional activity are presumed, in the absence of proof to the contrary, to conduct the administration of their interests on a regular basis in the place of their habitual residence, since there is a strong possibility that that place corresponds to the centre of their main economic interests. It follows that, as long as that presumption is not rebutted, the courts of the Member States where that residence is located have international jurisdiction to open insolvency proceedings against that individual.“

[26] However, the fourth subparagraph of Article 3(1) of Regulation 2015/848 provides that that presumption applies only until there is proof to the contrary, and recital 30 of that regulation states that it should be possible to rebut that presumption, for example where the major part of the debtor‘s assets is located outside the Member State of the debtor’s habitual residence, or where it can be established that the principal reason for moving was to file for insolvency proceedings in the new jurisdiction and where such filing would materially impair the interests of creditors whose dealings with the debtor took place prior to the relocation.

[27] As the Advocate General stated in point 55 of his Opinion, the mere fact that circumstances referred to in that recital are present is not sufficient to rebut the presumption set out in the fourth subparagraph of Article 3(1) of Regulation 2015/848.

[28] Although the location of the debtor’s assets is one of the objective criteria, ascertainable by third parties, to be taken into consideration when determining the place where the debtor conducts the administration of his or her interests on a regular basis, that presumption may be reversed only following an overall assessment of all the objective criteria. It follows that the fact that the only immovable property of an individual not exercising an independent business or professional activity is located outside the Member State of his or her habitual residence is not sufficient on its own to rebut that presumption.“

The full text of the judgment is here.

By Saloni Khanderia (Jindal Global Law School, India) and Sagi Peari (Faculty of Law, University of Western Australia) in the Commonwealth Law Bulletin, available for download here

The outbreak of the COVID-19 pandemic will affect the performance of several contracts and is likely to increase the number of disputes before the courts. In agreements with a foreign element, the adjudication of the rights and liabilities will depend on the applicable law. Most legal systems have embraced the doctrine of party autonomy and, accordingly, permit the parties to expressly select the law to govern the disputes that arise from international contracts. India and Australia are no exception to this trend. In general, the courts in both the commonwealth countries have reported being influenced by judicial practices of one another to develop their own law. Despite their common-law roots, the interpretations attached to the doctrine of party autonomy in the choice of law have varied in some respects in these countries. The paper analyses the judicial trends on the subject and demonstrates the role that party autonomy will play in resolving international disputes where the performance has been affected by the eventualities such as the COVID-19 pandemic in India and Australia. The paper delves into the manner in which the courts in India and Australia may offer reciprocal lessons to each another to revolutionise the interpretation of the doctrine of party autonomy in the choice of law.

Dear Friends and Colleagues,

Kindly allow us to inform you about the following decisions we had to take in view of our conference, originally scheduled for 25 and 26 September 2020:

As the University of Bonn does not allow on site events of a larger scale until the end of the Winter Semester 2020/2021 (31 March 2021) in order to avoid any Covid-19 risks and as we are also concerned about the risks you would take while travelling to our place, we decided against an on site event.

Originally, we thought that in this case a video conference would be a good substitute. However, after months of video conferences, classes and meetings, all of us are probably feeling quite exhausted, and another round of two long days looking at the screen did no longer appear appealing to us, all the more since we have gathered such a distinguished group of speakers, with whom the audience would certainly like to interact directly, to say nothing of ourselves. This is why we decided, in close cooperation with the HCCH, to reschedule our Conference at Bonn University on Monday and Tuesday, 13 and 14 September 2021.

Additionally, in order to keep our topic connected with the period of the German Presidency of the EU Council and also in order to react to requests by a number of interested colleagues from far distances who would have difficulties travelling to Bonn, we decided to offer a Pre-Conference Video Roundtable “The HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation between the EU and Third States” on Thursday evening, 29 October 2020, 6 to 8 p.m. As things are standing at the moment, the Secretary General of the HCCH, Dr Christoph Bernasconi, will give us the honour to join us “live” and open this session, and an edited version of the Explanatory Report might be out at this point of time.

If you are interested in participating in the video conference, please register with sekretariat.weller@jura.uni-bonn.de. You will then receive an email with the access code to the video conference (via zoom) the day before the event.

We will inform you about the precise programme of our video round table in due time.

We do hope that you agree with our decisions. Looking forward to seeing you via video in October 2020 and on site in September 2021.

With best wishes from Bonn,

Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Philipp Reuß, Matthias Weller

Pravovedenie, an academic peer-reviewed legal journal published quarterly in Russia is calling for papers to be included in a special issue of the journal.

The special issue will be about Ensuring the Best Interests of the Child in International Family Procedures. Contributions should deal with the cooperation of States in ensuring the implementation of international legal instruments regulating relations to protect the best interests of the child, as well as in evaluating the necessary efforts to be made by States parties to international treaties to remove obstacles to the implementation of international treaties in the field of international family law.

Submissions are expected by 1 June 2021 at the latest, but the editors encourage interested authors to notify their intention to contribute to the special issue in advance.

A detailed description of the topic of the special issue, together with practical information on submissions, can be found here.

The Court of Justice of the European Union has delivered its ruling in the Novo Banco case (C‑253/19) on 16 July 2020.

The issue before the Court was the determination of the center of main interests (COMI) of individuals not exercising an independent business or professional activity under the Insolvency Regulation, and thus the jurisdiction of the courts of the Member States to open insolvency proceedings against such individuals.

Article 3(1) of the Insolvency Regulation provides that the COMI of such individuals is presumed to be at their place of habitual residence. The issue was more precisely how this presumption could be rebutted.

In this case, the individuals were English residents who were employed in Norfolk. Yet, they claimed that the centre of their main interests was not their habitual residence in the United Kingdom, but rather in Portugal, the Member State where the sole immovable asset which they own was located and where all the transactions and all the contracts leading to their insolvency were conducted and concluded. Furthermore, there was no connection between their place of habitual residence and the events that led to their insolvency, which occurred entirely in Portugal.

The Court ruled:

28 Although the location of the debtor’s assets is one of the objective criteria, ascertainable by third parties, to be taken into consideration when determining the place where the debtor conducts the administration of his or her interests on a regular basis, that presumption may be reversed only following an overall assessment of all the objective criteria. It follows that the fact that the only immovable property of an individual not exercising an independent business or professional activity is located outside the Member State of his or her habitual residence is not sufficient on its own to rebut that presumption.

29 In the present case, the applicants in the main proceedings also argue before the referring court that Portugal is not only the Member State where their only immovable property is located but also the Member State where all the transactions and all the contracts leading to their insolvency were conducted and concluded.

30 In that regard, although the cause of the insolvency is not, as such, a relevant factor for determining the centre of the main interests of an individual not exercising an independent business or professional activity, it nevertheless falls to the referring court to take into consideration all objective factors, ascertainable by third parties, which are connected with that person’s financial and economic situation. In a case such as the one in the main proceedings, as was observed in paragraph 24 above, that insolvency situation is located in the place where the applicants in the main proceedings conduct the administration of their economic interests on a regular basis or the majority of their revenue is earned and spent, or the place where the greater part of their assets is located.

31 In view of all of the foregoing factors, the answer to the question is that the first and fourth subparagraphs of Article 3(1) of Regulation 2015/848 must be interpreted as meaning that the presumption established in that provision for determining international jurisdiction for the purposes of opening insolvency proceedings, according to which the centre of the main interests of an individual not exercising an independent business or professional activity is his or her habitual residence, is not rebutted solely because the only immovable property of that person is located outside the Member State of habitual residence. 

This post is authored by Ana Coimbra Trigo (Associate Lawyer at PLMJ Law Firm; PhD Candidate at NOVA Lisbon Univ.; LL.M. China-EU School of Law (China Univ. Political Science and Law, conferred by Univ. Hamburg); Law Degree from Univ. Coimbra), with contributions from Gustavo Moser.

Today, on 7 August 2020, Decree 5/2020 of the Council of Ministers approved the United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention), making Portugal its newest signatory state (link to the official publication here). The Convention will enter into force, in respect of Portugal, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of approval.

Portugal joins the Convention alongside two historic moments. First, this is the year that marks the 40th anniversary of the Convention, and second, the current Secretary General of the UN, António Guterres, is a Portuguese national.

Portugal was in fact active in the preparatory works at UNCITRAL and present at the diplomatic conference that adopted the CISG in 11 April 1980. Although “arriving late to the party”, it is foreseen that the CISG will be advantageous for Portugal, both at the legal and commercial level.

First, as is well known, the CISG provides a uniform and neutral regime for cross-border transactions regarding carriage of goods, and related dispute settlement. The text is based on a common set of remedies inspired by the principle of favor contractusand structured to maximize economic benefits of the contract.

Second, the CISG provides for overall legal certainty, especially in cases where there is and there is not a (valid) choice of law. It is drafted in plain language and this is particularly advantageous for small and medium-sized companies.

Third, scholars highlight the balanced system of solutions included in the Convention that allowsefficiencies in transaction costs and thus more competitive prices for imported and exported goods. This is beneficial for overall trade, but from a Portuguese viewpoint, will also allow Portuguese final users to get more value for their money, and Portuguese exporters to sell their products at lower prices in global markets.

Fourth, the above benefits are emphasized when one considers that the CISG has been ratified already by93 states. This includes 24 of 27 EU Member-States (excluding UK, Ireland, Malta and not for long Portugal) and also the United States of America, Canada, Brazil, China, Japan and South Korea. Some of these countries are relevant trade partners of Portugal.

Lastly, Portugal will now benefit from 40 years of scholarly writings and decisions for guidance, including in the Portuguese language, since Brazil recently became the first Lusophone country to adopt the CISG.

The increased availability of materials on the CISG in Portuguese may boost capacity building and contribute to the affirmation of the CISG in other Lusophone countries.

Scholars and diplomats have clamoured about this potential accession over the years, so we anticipate that this will be viewed positively by the local and international legal community.

Moreover, this can be seen as strategic boost for Portugal in international trade in this demanding international context.

Shawn He reported recently on a Chinese judgment refusing the declaration of enforceability of an arbitral award issued by the Independent Film & Television Alliance Arbitration Court.

The Tianjin Intermediate People’s Court dismissed the application on two grounds: No standing to be sued of the Chinese company, and notification vices.

One point which should be highlighted is the duration of the proceedings: The application was filed on March 2018, and the judgment (in first instance) was rendered on May 2020…

On 16 July 2020, the Government of Portugal decided to start the process whereby Portugal will, in due course, become a party to the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Today, the Convention is internationally in force for 93 States. Once in force for Portugal, it will be binding on all the current members of the European Union, with the exception of Ireland and Malta.

by Professor Dr Robert Magnus

The chair of civil law III at the Faculty of law and economics of the University of Bayreuth offers a position as a

Doctoral researcher / PhD Student (m/w/d)

which should be filled as soon as possible. The position is limited for a period of two years and is preferably granted for the purpose of preparing a doctoral thesis. The position is part-time (50 % of regular working hours) with the salary and the benefits of a public service position in the state of Bayern, Germany (TV-L E13, 50 %).

The Doctoral researcher will be working in the department of law. His main task will be to assist the research projects of his supervisor in the area of civil law, civil procedural law, arbitration law, conflict-of-laws and comparative law. The position includes the possibility to prepare a doctoral thesis. Applicants should fulfill the requirements to prepare a doctoral thesis under the doctoral degree regulation of the University of Bayreuth. It is expected that the first state examination is accomplished at least with the grade “vollbefriedigend”. The position additionally requires the Applicant to be proficient in German.

Furthermore, the Applicant should be interested in the areas of expertise of the supervisor; preferably there is already knowledge in these fields. Desirable are good skills in English and IT-expertise.

Applicants with a disability as described in SGB IX (§ 2 Abs. 2, 3) will be preferred in case of equal qualifications. The advertising chair of civil law as well as the University of Bayreuth are interested in increasing the quota of women; therefore, we strongly encourage female candidates to apply.

Please send your application with the usual documents (especially CV, Abitur certificate, transcript of records, State Examination certificate(s) via email (preferably in a pdf file) to Ms. Birgit Müller, chair of civil law III at the Faculty of Law and economics, University of Bayreuth, 95440 Bayreuth, Tel.: +49 (0)921 – 55-6071, E-Mail: ze3.sekretariat@uni-bayreuth.de.

The French Committee for private international law will hold a conference on the codification of private international law in the afternoon of 9 October 2020, in Paris.

The first speaker will be Geraldine Gazo, who practices in Monaco, and who will present the recent law on private international law adopted by Monaco in 2017.

The second speaker will be Justice Jean-Pierre Ancel, who is a former president of the first civil Chamber of the Cour de cassation, and now presides over a working group on the codification of French private international law.

The exact time and location are to be announced on the website of the Committee.

Woo-jung Jon is the author of Cross-border Transfer and Collateralisation of Receivables – A Comparative Analysis of Multiple Legal Systems, published by Hart Publishing.

Legal systems around the world vary widely in terms of how they deal with the transfer of and security interests in receivables. The aim of this book is to help international financiers and lawyers in relevant markets in their practice of international receivables financing. Substantively, this book analyses three types of receivables financing transactions, ie outright transfer, security transfer and security interests. This book covers comprehensive comparison and analysis of the laws on the transfer of and security interests in receivables of fifteen major jurisdictions, encompassing common law jurisdictions, Roman–Germanic jurisdictions and French–Napoleonic jurisdictions, as well as relevant EU Directives. To be more specific, this book compares and analyses the relevant legal systems of the US, Canada, New Zealand, Australia, Korea, Japan, France, Belgium, England, Hong Kong, Singapore, China, Germany, Austria and the Netherlands. Furthermore, in order to analyse those legal systems from the international perspective, this book compares relevant international conventions; it also proposes to establish an international registration system for the transfer of and security interests in receivables.

More information here.

On 31 July 2020, the Depositary (i.e. the Ministry of Foreign Affairs of the Kingdom of the Netherlands) notified that the Marshall Islands acceded to the HCCH Service Convention. A six-month period for filing objections has been set to run from the date of the Depositary’s notification until 31 January 2021. In the absence of any objection from an already ratifying State, the Convention will enter into force for the Marshall Islands on 1 February 2021.

So far the Marshall Islands has made no declarations under the treaty (think for example of Articles 8, 10, 15 and 16). Nor has it designated Central Authority. While this can be done at a later date, it is undoubtedly of great importance that the designation of Central Authority be made as soon as possible for the treaty to operate smoothly and avoid potential objections, even if this is only a theoretical possibility as the objection-mechanism has never been used in practice.

In the Pacific region, there are a few other States already a party to the Service Convention, such as the Philippines (date of entry into force: 1 October 2020!), Japan and Australia.

The HCCH news item is available here.

The Hague Conference announced today that the Marshall Islands ratified on 29 July 2020 the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which will enter into force for this country on 1 February 2021.

Source: here

Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012  has been published today at the OJEU (L 249, 31.7.2020, p. 49).

Readers of this blog will be interested in particular by Article 1 paragraphs 1 to 9.

The Directive should be read with the declaration of the European Commission on the “Mobility Package I on road transport”, equally published at the OJEU (C 252, 31.7.2020, p. 1).

Sources: here et there

Recently published paper The Reception of Collective Actions in Europe: Reconstructing the Mental Process of a Legal Transplantation, authored by Csongor István Nagy, Professor at the University of Szeged, is a must read for those studying collective actions in EU. It is intended to identify the differentia specifica of the European collective actions as opposed to those in US, which in itself is not an easy task as there are various models in different Member States. However, the paper elegantly navigates these waters and offers a firm grasp of the history and present state on this increasingly important topic on this side of the Atlantic (you may track the EU developments at the legislative train site). For the rest, you need to read the paper…

It is published in Journal of Dispute Resolution, Vol. 2020, No. 2, pp. 413-443 (2020), and also available at SSRN.

Apostolos Anthimos has posted on SSRN a paper titled Recognition and Enforcement of Foreign Judgments in the Field of Bilateral Conventions of Greece with Balkan States.

The purpose of this paper is to present the current legislative framework and the practice of Greek courts with respect to the recognition and enforcement of foreign judgments falling under the scope of bilateral conventions signed with Balkan States. Prior to presenting individual conventions and related case-law, few brief remarks are given on the role of bilateral treaties in the Greek landscape. A special chapter is dedicated to the conditions for recognition and enforcement, cutting horizontally through all conventions included in the scope of this paper. The findings of the research suggest that, on a bilateral level, judgments from the Balkan States are generally recognized in Greece.

Readers of this blog may be interested to hear of a new textbook on private international law, recently published by LexisNexis. The Conflict of Laws in New Zealand is the first comprehensive treatment of the subject from a New Zealand perspective. Drawing on principles developed in common law countries while adopting a comparative perspective, it explains how New Zealand law has developed into an indigenous body of rules to deal with problems of jurisdiction, choice of law, recognition of judgments and international civil procedure. The textbook may be of interest to scholars and academics outside New Zealand who are looking for a comparative treatment of problems in modern private international law, as well as any lawyers who find themselves interacting with New Zealand law in practice.

The first part of the book covers the four distinct functions of the conflict of laws: adjudicatory jurisdiction (including personal and subject-matter jurisdiction), choice of law, recognition and enforcement of judgments, and international civil procedure. The second part of the book addresses the conflict of laws rules as they relate to the main subject areas of private law, including obligations, property and trusts, succession, family law and corporations and insolvency

After years of discussion the Council of the European Union and the European Parliament have finally reached agreement on the reform of the Evidence and the Service Regulation. The new rules aim to improve the cross-border taking of evidence as well as the cross-border service of documents in particular through an enhanced use of information technology (notably electronic communication and videoconferencing).

The European Parliament’s official press release is available here. For a more detailed coverage see the contributions on the International Litigation Blog and the EAPIL Blog. 

Written by Vito Bumbaca, University of Geneva

On 16 July the CJEU issued its preliminary ruling in case E.E. & K.-D. E. (CJEU, C-80/19, ECLI:EU:C:2020:569, not yet available in English). The case concerned, inter alia, the assessment of the deceased’s habitual residence under the EU Succession Regulation No. 650/2012. Given the novelty of the ruling, which represents the very first CJEU assessment of the deceased’s habitual residence under the EU Succession Regulation, we will focus on this particular aspect only.

Facts:

A Lithuanian mother and her son moved to Germany to live with the mother’s husband. Prior to her death in Germany, she drew up a testament in Lithuania, naming her son as her sole heir. The mother owned an apartment in Lithuania and when she died (in Germany), her son approached a notary in Lithuania concerning the apartment and in order to obtain a Certificate of Succession. This notary refused both requests based on their interpretation of the EU Succession Regulation according to which the deceased’s last habitual residence was in Germany at the time of death. The deceased’s son appealed against such a decision; subsequently the proceedings reached the Lithuanian Supreme Court (Lietuvos Aukš?iausiasis Teismas), which decided to stay proceedings and ask the preliminary ruling of the CJEU. The CJEU found that a person can have only one habitual residence.

Relevance:

This is the first CJEU ruling on the determination of the deceased’s habitual residence under the EU Succession Regulation.

It is  welcomed to the extent that it provides a guiding assessment of the hierarchical order and practical implementation of recitals 23, 24 and 25. These are considered as explanatory rules for the determination of international competence and applicable law in matters of EU 25 cross-border succession based on habitual residence as a primary connecting factor.

Specifically, the Court clarifies which key factors should be assessed in the determination of the deceased’s habitual residence by virtue of the above-mentioned recitals and in line with the objectives followed by the EU Succession Regulation. Furthermore, it confirms that, when assessing the deceased’s habitual residence at the time of death, a lengthy determination of the deceased’s life circumstances preceding his/her death should be made. Lastly, it leaves unresolved the factual assessment of the manifestly closest connection criterion applicable on an exceptional basis.

Brief analysis:

According to the Court, the deceased cannot simultaneously have more than one habitual residence at the time of death (§ 41). This however does not exclude the possibility of acquiring an alternative and consecutive habitual residence at different points in time during the deceased’s life. The Court indicated that by virtue of recital 23 the main element in determining the deceased’s habitual residence is the stability of his/ her stay, and therefore of his/ her physical presence, at the time of death (§ 38). In the absence of stability, therefore on a subsidiary basis (§ 39), recital 24 advises national authorities, in some circumstances including notaries (§ 46), to refer to the deceased’s nationality (personal factor) and/ or assets (economic factor). Finally, the criterion relating to the “manifestly closest connection” in relation to the determination of applicable law will have to be applied in a strict manner and not subsidiary to the complex determination of habitual residence, in accordance with the principles of predictability and legal certainty as provided for by the EU Regulation (§ 37). The exceptional use of the “manifestly closest connection” criterion, however, is left to the judicial discretion of the first seised national courts (§ 45).

Ultimately, according to the Court’s reasoning, which follows the Advocate General’s Opinion of 26 March 2020 (§ 52), the element of stability relating to the deceased’s physical presence at the time of death must be sought in the reasons (subjective element) and the conditions (objective element) of his/ her stay showing a close and stable link between the succession and the given State, in line with the objectives of the EU Succession Regulation (§ 37). The assessment of both objective and subjective elements, and generally of habitual residence, should consider the deceased’s life circumstances at the time of death and the years preceding his/ her death (§ 23). Such a “lengthy” determination of the deceased’s life assessment leaves the debate open as to its pertinence in an increasingly globalised society within which cross-border settlements regularly occur, in particular when involving expats holding multiple nationalities and various assets in different countries.

Lastly, the Court has made clear that the habitual residence assessment must be twofold in matters of competence and threefold in relation to applicable law. With regard to competence, according to the Advocate General, the Court first seised will have to look primarily at the duration and regularity of the deceased’s settlement and subsidiarily at his/ her nationality and/ or assets. In relation to the deceased’s settlement, the Advocate General clarified that duration (time factor) cannot be considered, in itself, a decisive element and that it should be accompanied by other relevant factors such as the deceased’s family and social integration, or his/ her proximity to the State in question (Advocate General’s Opinion, § 54). Furthermore, the Advocate General confirmed that, in line with recital 24, the contexts typically falling under the subsidiary assessment of the deceased’s nationality and/ or assets are: (i) the scenario involving expats; and (ii) that involving a “peripatetic” cross-border movement and life not allowing the establishing of stable connection (Advocate General’s Opinion, § 55-57).

In relation to applicable law, the Court first seised should consider, as a last resort when none of the above elements can be traced, specific factors indicating a situation falling under “manifestly closest connection”. According to the EU Succession Regulation, and confirmed by the Advocate General (§ 25 of the Opinion), a typical situation falling under “manifestly closest connection” is when the deceased moved to his/ her new habitual residence fairly recently before his/ her death. Nonetheless, the Court has not yet identified any specific elements for the determination of the exceptional “manifestly closest connection” criterion (§ 59).

The number of transnational couples continuously increases within the European Union. At the same time, there are still large differences between the national rules on matrimonial property regimes and on the property consequences of registered partnerships. These disparities do not only affect the property relations among such couples themselves, but also – and even more – third parties contracting with transnational couples.

Some jurisdictions provide, for instance, that contracts between one spouse and a third party are not legally effective without the consent of the other spouse, especially in case of real estate transactions. One example of such a rule is the notorious Article 215(3) of the French Code Civil.

Third parties can be surprised by such limitations because they may not be aware that the law of another jurisdiction applies. In many cases, third parties may not even know at all that their business partner belongs to a couple with a transnational background. There is thus a strong need for third party protection not only on the national level, but also in private international law.

In the future, these conflict-of-laws problems must be solved on the basis of the new Council Regulations (EU) 1103/2016 and 1104/2016, which became applicable in their entirety on 29 January 2019. The scope of the Regulations explicitly includes third-party relations. However, the Regulations only provide fragmentary rules on third party protection. A new book analyses these provisions, identifies open questions and submits proposals how the gaps in the Regulations could be filled (Stephan Gräf, Drittbeziehungen und Drittschutz in den Europäischen Güterrechtsverordnungen, Mohr Siebeck 2019).

As the title indicates, the book is written in German. It starts with a comparative analysis of the differences between the national rules on matrimonial property regimes focussing on third party effects. In a subsequent chapter, the author outlines the conflict of law rules of the Regulations and points out that the applicable law can hardly be foreseen by third parties.

On this basis, Stephan Gräf analyses the core provision of third-party protection in both Regulations, namely their respective Article 28 (protection of the good faith of third parties). Although the provision appears to be quite detailed, it is in fact merely fragmentary and partially inconsistent. For example, it does not mention the exact subject of the required good faith of the third party (the applicable law, the particular matrimonial regime within the applicable law or the particular legal effect of the applicable law?). The provision also does not clarify that it is restricted to contractual transactions.

The Regulations furthermore contain provisions for the protection of third-party rights in case of a change of the applicable law with retroactive effect. The wording of the provisions, however, is extremely short. Many questions are left to the interpretation by the courts. Stephan Gräf analyses the scope and the legal consequences of these provisions. He shows, for instance, that they also apply when the applicable law changes only with effect for the future.

The book furthermore deals with the highly controversial coordination between international property law (lex rei sitae rule) on the one hand and the international matrimonial law on the other hand. This matter also affects third parties contracting with married persons. The author argues for the primacy of the lex rei sitae in so far as immovable property is concerned. On this point, he disagrees with the Kubicka decision of the European Court of Justice, which deals with the relationship between the EU Succession Regulation and the lex rei sitae rule.

Additionally, the book addresses the Regulations’ rules on jurisdiction (Articles 4 et seq.). It focuses on the question whether these rules apply in disputes between married persons and third parties. Despite its relevance this question has rarely been discussed so far. The Regulations lack explicit provisions on this matter. Relying on the ECJ’s approach on Article 27 of the Brussels I Regulation (recast: Article 29), Stephan Gräf argues that Articles 4 et seq. of the Regulations govern where matrimonial property law is the “heart of the action”. In disputes with third parties, this is rarely the case, as matrimonial property law typically only becomes relevant on the level of preliminary questions.

Overall, this new book provides valuable insights on the relation of Regulations on matrimonial property regimes and on the property consequences of registered partnerships with the rights and obligations of third parties. Interestingly, the author not only addresses the protection of spouses, but also that of third parties that do not know about the family relation. The Regulations are still young, and is to be expected that this book will influence their interpretation and application in practice.