Droit international général

The Supreme Court of Canada has released its decision in Chevron Corp v Yaiguaje (available here).  The issue before the court was whether the Ontario courts have jurisdiction to recognize and enforce an Ecuadorian judgment (for over $US 18 billion) where the foreign judgment debtor Chevron Corporation (“Chevron”) claims to have no connection with the province, whether through assets or otherwise.  On one view, because the process for enforcing a foreign judgment is to commence a new domestic proceeding and thereby sue on the foreign judgment, the enforcement proceeding must have its own independent analysis of jurisdiction.  Put another way, there cannot be a proceeding in respect of which the court does not have to have jurisdiction.  On a different view, because the analysis of the claim on the foreign judgment considers, among other things, the sufficiency of the rendering court’s jurisdiction (Chevron defended on the merits in Ecuador), that is the only required analysis of jurisdiction and there is no need for a separate consideration of the enforcing court’s jurisdiction.  The Supreme Court of Canada, agreeing with the Court of Appeal for Ontario, has held that the latter view is correct.

In summarizing its conclusion (para 3) the court stated “In an action to recognize and enforce a foreign judgment where the foreign court validly assumed jurisdiction, there is no need to prove that a real and substantial connection exists between the enforcing forum and either the judgment debtor or the dispute.  It makes little sense to compel such a connection when, owing to the nature of the action itself, it will frequently be lacking. Nor is it necessary, in order for the action to proceed, that the foreign debtor contemporaneously possess assets in the enforcing forum.  Jurisdiction to recognize and enforce a foreign judgment within Ontario exists by virtue of the debtor being served on the basis of the outstanding debt resulting from the judgment.”

While the court does not say that NO jurisdictional basis is required, it states that the basis is found simply and wholly in the defendant being served with process (see para 27).  This runs counter to the court’s foundational decision in Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 which separated the issue of service of process – a pure procedural requirement – from the issue of jurisdiction.  To say the service itself founds jurisdiction is arguably to have no jurisdictional requirement at all.

Interestingly, a recent paper (subsequent to the argument before the court) by Professor Linda Silberman and Research Fellow Aaron Simowitz of New York University (available here) considers the same issue in American law and concludes that the dominant view of courts there remains that an action to enforce a foreign judgment requires a “jurisdictional nexus” with the enforcing forum.  They note that only a minority of countries allow enforcement of a foreign judgment without any jurisdictional threshold for the enforcement proceedings.  They argue that the New York decisions which subsequently are relied on by the Supreme Court of Canada (para 61) are the outliers.

Had the Supreme Court of Canada required a showing of jurisdiction in respect of the enforcement proceeding, it would have had to address how that requirement would be met.  Of course, in most cases it would be easily met by the defendant having assets in the jurisdiction.  The plaintiff would not have to prove that such assets were present: a good arguable case to that effect would ground jurisdiction.  Evidence that assets might, in the future, be brought into the jurisdiction could also suffice.

While the court is correct to note that the considerations in defending the underlying substantive claims are different from those involved in defending enforcement proceedings (para 48), the latter nonetheless allow reasonable scope for defences to be raised, such as fraud, denial of natural justice or contravention of public policy.  With no threshold jurisdiction requirement, judgment debtor defendants will now be required to advance and establish those defences in a forum that may have no connection at all with them or the judgment.

The enforcement proceedings were also brought against Chevron Canada, an indirect subsidiary of Chevron that does have a presence in Ontario, although it is not a named defendant in the Ecuadorian judgment.  The Supreme Court of Canada held that the Ontario court had jurisdiction over Chevron Canada based on its presence, with no need to consider any other possible basis for jurisdiction.  The decision is thus important for confirming the ongoing validity of presence-based jurisdiction (see paras 81-87).

On a pragmatic level, eliminating an analysis of the enforcing court’s jurisdiction may simplify the overall analysis, but hardly by much.  The court notes (para 77) that ” Establishing jurisdiction merely means that the alleged debt merits the assistance and attention of the Ontario courts.  Once the parties move past the jurisdictional phase, it may still be open to the defendant to argue any or all of the following, whether by way of preliminary motions or at trial: that the proper use of Ontario judicial resources justifies a stay under the circumstances; that the Ontario courts should decline to exercise jurisdiction on the basis of forum non conveniens; that any one of the available defences to recognition and enforcement (i.e. fraud, denial of natural justice, or public policy) should be accepted in the circumstances; or that a motion under either Rule 20 (summary judgment) or Rule 21 (determination of an issue before trial) of the Rules should be granted.”  And in respect of Chevron Canada (para 95), the “conclusion that the Ontario courts have jurisdiction in this case should not be understood to prejudice future arguments with respect to the distinct corporate personalities of Chevron and Chevron Canada.  [We] take no position on whether Chevron Canada can properly be considered a judgment-debtor to the Ecuadorian judgment.  Similarly, should the judgment be recognized and enforced against Chevron, it does not automatically follow that Chevron Canada’s shares or assets will be available to satisfy Chevron’s debt.”

Uglješa Grušić, The European Private International Law of Employment, Cambridge University Press, 2015, pp. 382, ISBN: 9781107082946, GBP 79,99.

[Dal sito dell’editore] The European Private International Law of Employment provides a descriptive and normative account of the European rules of jurisdiction and choice of law which frame international employment litigation in the courts of EU Member States. The author outlines the relevant rules of the Brussels I Regulation Recast, the Rome Regulations, the Posted Workers Directive and the draft of the Posting of Workers Enforcement Directive, and assesses those rules in light of the objective of protection of employees. By using the UK as a case study, he also highlights the impact of the ‘Europeanisation’ of private international law on traditional perceptions and rules in this field of law in individual Member States. For example, the author demonstrates that the private international law of the EU is fundamentally reshaping English conflict of laws by almost completely merging the traditionally perceived contractual, statutory and tortious claims into one claim for choice-of-law purposes.

Il sommario dell’opera può essere consultato qui. Ulteriori informazioni a questo indirizzo.

EU Cross-Border Insolvency Court-to-Court Cooperation Principles, a cura di Bob Wessels, Eleven International Publishing, 2015, pp. 136, ISBN 9789462365865, Euro 32,50.

[Dal sito dell’editore] This publication contains a set of 26 EU Cross-Border Insolvency Court-to-Court Cooperation Principles (‘EU JudgeCo Principles’) and 18 EU Cross-Border Insolvency Court-to-Court Communications Guidelines (‘EU JudgeCo Guidelines’). These EU JudgeCo Principles will strengthen efficient and effective communication between courts in EU Member States in insolvency cases with cross-border effects. They have been produced in a period of two years (2013-2014), developed by a team of scholars of Leiden Law School and Nottingham Law School, in collaboration with some 50 experts, including 25 judges representing just as many different EU countries. The principles are set in EU stone, in that they especially function within the framework of the EU Insolvency Regulation. The texts have been aligned with the text of the recast of the Regulation, as published early December 2014. The EU JudgeCo Principles try to overcome present obstacles for courts in EU Member States such as formalistic and detailed national procedural law, concerns about a judge’s impartiality, uneasiness with the use of certain legal concepts and terms, and, evidently, language. The texts further build on existing experience and tested resources, especially in cross-border cases in North America, but tailor-made into an EU insolvency law context. These Principles include a set of very practical EU JudgeCo Guidelines to facilitate communications in individual cross-border cases. The project was funded by the European Union and the International Insolvency Institute (III) (www.iiiglobal.org) and we thank both sponsors for their continued support.

Ulteriori informazioni a questo indirizzo.

Towards the end of July, the Court at Amsterdam applied the recent CJEU judgment in CDC, on the application of (now) Article 8’s rule on anchor defendants. The case also involved CDC – busy bees on the competition enforcement front, this time pursuing inter alia Kemira, a Finnish company, using Akzo Nobel NV, domiciled in The Netherlands, as anchor defendants.

The court referred in extenso to the CJEU’s CDC case, noting inter alia that it is not up to CDC to show that the suit was not just introduced to remove Kemira from the Finnish judge: that Kemira suggests that introduction of the suit in The Netherlands is not very logical given the absence of factual links to that Member State, does not suffice. The court also adopted the CJEU’s finding on choice of court and liability in tort. In the absence of specific proviso in standard contractual choice of court, liability such as here, for infringement of competition law, cannot be assumed.

Finally, at 2.18, the Court also referred to argument made by Kemira that Finish and Swedish law ought to apply to the interpretation (not: the validity) of the choice of court agreement. That would have been an interesting discussion. However in light of the court’s earlier judgment on the irrelevance of the court of choice, the court did not entertain that issue.

Geert.

Deniz Halil Deren has authored a book (in German) on expropriation in private international law (“Internationales Enteignungsrecht – Kollisionsrechtliche Grundlagen und Investitionsschutzfragen”). Published by Mohr Siebeck the book looks at issues of choice of law and investor protection.

The official abstract reads as follows:

Since the 20th century, states have extensively been exercising their right to expropriate private property. These expropriations have involved goods (such as works of art, means of production or natural resources) as well as shares, claims and intellectual property rights. Yet under what conditions does German law recognise expropriations performed by other states and what role does investment protection law play in this context?

Further information is available on the publisher’s website.

The Hague Academy of International Law has made available the programme of the 2016 summer courses of public and private international law.

The private international law course will run from 1 to 19 August 2016 and will be opened by an an inaugural lecture on Languages and Private International Law by Erik Jayme.

The general course (Private International Law: Aspirations and Realities) will be delivered by Symeon C. Symeonides.

Special courses will be given by Lotfi Chedly (The Effectiveness of International Commercial Arbitration), Lauro da Gama e Souza Jr. (The UNIDROIT Principles and the Law Governing International Trade Contracts), Michael Hellner (Private International Law Issues concerning Surrogacy Arrangements), Sergio Marchisio (The Legal Regime of International Space Activities: Between Public and Private Law), Cyril Nourissat (Restrictive Practices in Private International Law), Marta Pertegás Sender (Foreign Civil and Commercial Judgements: From Reciprocity to a Multilateral Scheme?) and Karsten Thorn (The Protection of Small and Medium Enterprises in Private International Law).

The directors of studies will be Maxi Scherer and Sabine Corneloup.

Interested applicants will be able to register online as of November 1st, 2015, by filling out the relevant registration forms on the Academy’s website.

A posting out off the box here, so bear with me. Neither Brussels I nor the Recast include many requirements with respect to (now) Article 8(1)’s rule on joinders. A case against a defendant, not domiciled in the court’s jurisdiction, may be joined with that against a defendant who is so domiciled, if the cases are ‘so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments’. There is of course CJEU case-law on what ‘so closely connected’ means however that is outside the remit of current posting.

As I reported recently, the CJEU has introduced a limited window of abuse of  process viz Article 8(1), in CDC. The Court’s overall approach to Article 8(1) is not to take into account the subjective intentions of plaintiff, who often identify a suitable anchor defendant even if is not the intended target of their action. The Court does make exception for one particular occasion, namely if it is found that, at the time the proceedings were instituted, the applicant and that defendant had colluded to artificially fulfil, or prolong the fulfilment of, (now) Article 8’s applicability.

What if at the time the proceedings were instituted, applicant artificially ignores the fulfilment of, (now) Article 8’s applicability?

The Aldi rule of the courts of England and Wales, and its recent application in Otkritie, made me ponder whether there is merit in suggesting that the CJEU should interpret Article 8(1) to include an obligation, rather than a mere possibility, to join closely connected cases. I haven’t gotten much further than pondering, for there are undoubtedly important complications.

First, a quick look at the Aldi rule, in which the Court of Appeal considered application of the Johnson v Gore Wood principles on abuse of process of the (then) House of Lords, to an attempt to strike out a claim for abuse of process on the basis that the claim could and should have been brought in previous litigation. Aldi concerned complex commercial litigation, as does Otkritie. The result of Aldi is that plaintiffs need to consult with the court in case management, to ensure that related claims are brough in one go. Evidently, the courts need to walk a fine rope for the starting point must be that plaintiffs have wide discretion in deciding where and when to bring a claim: that would seem inherent in Article 6 ECHR’s right to a fair trial.

In Otkritie [the case nota bene does not involve the Brussels Regulation], Knowles J strikes the right balance in holding that the Aldi requirement of discussing with the court had been breached (and would have cost implications for Otkritie in current proceedings) but that otherwise this breach did not amount to abuse of process.

Now, transporting this to the EU level: to what degree could /should Article 8 include a duty to join closely related proceedings? Should such duty be imposed only on plaintiff or also on the court, proprio motu? A crazy thought perhaps for the time being, but certainly worthwhile pondering for future conflicts entertainment.

Geert.

The European Commission has issued a call for proposals concerning action grants to support transnational projects on judicial training covering civil law, criminal law, fundamental rights and fight against terrorism and radicalisation.

Proposals presented under the civil law priority shall focus notably on legal instruments in family matters and successions, in particular Regulation No 650/2012 successions upon death; legal instruments in civil and commercial matters, in particular Regulation No 805/2004 creating a European Enforcement Order for uncontested claims, Regulation No 1896/2006 creating a European Order for Payment Procedure, Regulation No 861/2007 establishing a European Small Claims Procedure, Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia); Regulation No 655/2014 creating a European Account Preservation Order.

The Commission also calls for proposals aimed at training enforcement authority agents as regards instruments in the area of civil judicial cooperation, in particular: Regulation No 2201/2003 on matrimonial matters and the matters of parental responsibility (Brussels IIa); Regulation No 805/2004 creating a European Enforcement Order for uncontested claims and Regulation No 655/2014 establishing a European Account Preservation Order.

The deadline for applications is 16 November 2015.

Further information available here.

The Oberlandesgericht of Munich has recently lodged a request for a preliminary ruling concerning the interpretation of Regulation No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, ie the Rome III Regulation (Case C-281/15, Soha Sahyouni v Raja Mamisch).

The request provides the ECJ with the opportunity of delivering, in due course, its first judgment relating specifically to the Rome III Regulation.

To begin with, the referring court asks the ECJ to provide a clarification as to the scope of the uniform conflict-of-laws regime set forth by the Regulation. In particular, the German court wonders whether the Regulation also applies to ‘private divorces’, namely divorces pronounced before a religious court in Syria on the basis of Sharia.

If the answer is in the affirmative, the referring court asks whether, in the case of an examination as to whether such a divorce is eligible for recognition in the forum, Article 10 of the Regulation must also be applied. According to the latter provision, where the law specified by the Regulation to govern the divorce or the legal separation “does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex”, the lex fori applies instead.

Should the latter question, too, be answered in the affirmative, the referring court wishes to know which of the following interpretive options should be followed in respect of Article 10: (1) is account to be taken in the abstract of a comparison showing that, while the law of the forum grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to different procedural and substantive conditions than access for the first spouse? (2) or, does the applicability of Article 10 depend on whether the application of the foreign law, which is discriminatory in the abstract, also discriminates in the particular case in question?

Finally, were the ECJ to assert that the second of these options is the correct one, the Oberlandesgericht of Munich seeks to know whether the fact that the spouse discriminated against has consented to the divorce — including by duly accepting compensation — constitutes itself a ground for not applying Article 10.

The Oberlandesgericht of Munich has recently lodged a request for a preliminary ruling concerning the interpretation of Regulation No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, ie the Rome III Regulation (Case C-281/15, Soha Sahyouni v Raja Mamisch).

The request provides the ECJ with the opportunity of delivering, in due course, its first judgment relating specifically to the Rome III Regulation.

To begin with, the referring court asks the ECJ to provide a clarification as to the scope of the uniform conflict-of-laws regime set forth by the Regulation. In particular, the German court wonders whether the Regulation also applies to ‘private divorces’, namely divorces pronounced before a religious court in Syria on the basis of Sharia.

If the answer is in the affirmative, the referring court asks whether, in the case of an examination as to whether such a divorce is eligible for recognition in the forum, Article 10 of the Regulation must also be applied. According to the latter provision, where the law specified by the Regulation to govern the divorce or the legal separation “does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex”, the lex fori applies instead.

Should the latter question, too, be answered in the affirmative, the referring court wishes to know which of the following interpretive options should be followed in respect of Article 10: (1) is account to be taken in the abstract of a comparison showing that, while the law of the forum grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to different procedural and substantive conditions than access for the first spouse? (2) or, does the applicability of Article 10 depend on whether the application of the foreign law, which is discriminatory in the abstract, also discriminates in the particular case in question?

Finally, were the ECJ to assert that the second of these options is the correct one, the Oberlandesgericht of Munich seeks to know whether the fact that the spouse discriminated against has consented to the divorce — including by duly accepting compensation — constitutes itself a ground for not applying Article 10.

Konrad Duden from the Max Planck Institute in Hamburg has authored a book (in German) on surrogate motherhood in private international law and the law of international civil procedure (“Leihmutterschaft im Internationalen Privat- und Verfahrensrecht. Abstammung und ordre public im Spiegel des Verfassungs-, Völker- und Europarechts”). Published by Mohr Siebeck, the book looks at filiation and public policy in the light of constitutional, international and European law. The official abstract reads as follows:

More and more Germans seek out foreign surrogate mothers to bear children which they will then raise as their own. But does a child legally belong to these parents once they return to Germany? Surrogate motherhood raises questions, regardless of the fact that the fundamental and human rights of the child often prescribe clear answers.

Further information is available on the publisher’s website.

Il Max Planck Institute for International, European and Regulatory Procedural Law di Lussemburgo offre anche per il 2016 alcune borse di studio rivolte a dottorandi di ricerca interessati a trascorrere un periodo di studio presso l’Istituto.

Le candidature possono essere presentate entro il 15 settembre 2015.

Ai dottorandi assegnatari della borsa di studio verrà data la possibilità di avere uno spazio di lavoro nella sala di lettura della biblioteca e di partecipare attivamente alle attività di ricerca dell’Istituto.

Ulteriori informazioni sono disponibili qui.

This post is meant to remind our readers that the Academy of European Law (ERA) will host an international conference on recent experience and current trends in international commercial litigation, with a special focus on European private international law. The event will take place in Trier (Germany), on 8-9 October 2015. While registration will still be possible after 8 September 2015, this date marks the deadline for the „early bird“ rebate. Even after this deadline, however, discounts will be available for young lawyers and academics.

This conference will bring together top experts in international commercial litigation who will report on their experiences in this field including litigation strategy and tactics. An updated conference programme is available here.

Key topics will be:

• Recent case law of the CJEU on business litigation in light of the changes brought by the recent recast of the Brussels I Regulation
• Forthcoming changes after the entry into force of the new Hague Choice of Court Convention in June 2015
• The recast of the Insolvency Regulation in summer 2015
• The revision of the Small Claims Procedure in 2015
• The Regulation establishing a European Account Preservation Order

The conference language will be English. The event is organized by Dr Angelika Fuchs, ERA, in cooperation with Professor Jan von Hein, University of Freiburg (Germany). The speakers are

• Robert Bray, Head of Unit, Secretariat, Committee on Legal Affairs, DG Internal Policies, European Parliament, Strasbourg/Brussels
• Professor Gilles Cuniberti, University of Luxembourg
• Raquel Ferreira Correia, Counsellor, Lisbon
• Emilia Fronczak, Loyens & Loeff, Luxembourg
• Sarah Garvey, Counsel and Head of KnowHow in the Litigation Department, Allen & Overy LLP, London
• Jens Haubold, Partner, Thümmel, Schütze & Partner, Stuttgart
• Professor Jan von Hein, Director of the Institute for Foreign and International Private Law, Dept. III, University of Freiburg
• Brian Hutchinson, Arbitrator, Mediator, Barrister, GBH Dispute Resolution Consultancy; Senior Lecturer, University College Dublin
• Professor Xandra Kramer, Erasmus University Rotterdam; Deputy Judge of the District Court of Rotterdam
• Alexander Layton QC, Barrister, Arbitrator, 20 Essex Street, London.

For further information and registration, please click here.

La famiglia si trasforma. Status familiari costituiti all’estero e loro riconoscimento in Italia, tra ordine pubblico ed interesse del minore, a cura di Grazia Ofelia Cesaro, Paola Lovati e Gennaro Mastrangelo, Franco Angeli Editore, 2014, pp. 144, ISBN 9788820452018, Euro 19.

[Dal sito dell’editore] Questo volume raccoglie gli interventi dell’incontro di studio intitolato “Nuove famiglie e circolazione dei nuovi status familiari: le risposte del diritto interno tra interesse del minore ed ordine pubblico”, tenutosi a Milano il 26 ottobre 2012. Esso rappresenta la prima pubblicazione dove giuristi, psicologi, magistrati, avvocati, sociologi si interrogano sul tema. Che cosa accade quando adozione del single, maternità surrogata, fecondazione eterologa, stepchild adoption, genitorialità omosessuale, adozione legittimante del single pronunciate all’estero chiedono di essere riconosciute nel diritto interno? Basterà la clausola di ordine pubblico ad impedire al minore e al suo/suoi genitori, il riconoscimento di tali diritti? È giuridicamente possibile uno status familiare scisso, cioè valevole solo nello Stato in cui è stato prodotto ma non in Italia? Quale peso annettere all’interesse del minore nelle decisioni dell’autorità giudiziaria? Questi interrogativi, nuovi per la realtà italiana, non lo sono in altri Paesi, per cui le relazioni pubblicate esaminano l’esperienza inglese, francese e statunitense per trovare possibili soluzioni.  Il volume rappresenta un’utile raccolta interdisciplinare per approfondire alcuni temi che si porranno sempre di più nella pratica giudiziaria. È infatti certo che l’internazionalizzazione degli status familiari porrà all’interprete sempre maggiori interrogativi.

Maggiori informazioni a questo indirizzo.

Konrad Duden, Leihmutterschaft im Internationalen Privat- und Verfahrensrecht — Abstammung und ordre public im Spiegel des Verfassungs-, Völker- und Europarechts, Mohr Siebeck, 2015, pp. 392, ISBN 9783161540240, Euro 69.

[Dal sito dell’editore] – Was macht eine Frau zur Mutter? Moderne Leihmutterschaft erschüttert grundlegend unser Verständnis von Familie und Elternschaft: Frauen tragen für Andere Kinder aus, die meist genetisch nicht von den Leihmüttern abstammen. In Deutschland ist dieses Verfahren verboten. Wie geht das Recht jedoch damit um, wenn Paare ins Ausland reisen, um dort durch Leihmutterschaft ihren Kinderwunsch zu erfüllen? Konrad Duden analysiert am Beispiel von sechs Rechtsordnungen, in denen Leihmutterschaft zulässig ist, wer aus Sicht des deutschen Rechts die Eltern solcher Kinder sind. Dabei stellt er fest, dass den Kindern vielfach eine Abstammung von den Wunscheltern verwehrt bleibt. Diesen Befund kontrastiert er mit den Grund- und Menschenrechten der Beteiligten. Insbesondere die Rechte des Kindes fordern, dass das Kind grundsätzlich in eine rechtliche Familie mit den Wunscheltern integriert werden kann.

Ulteriori informazioni a questo indirizzo.

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

Christoph Benicke, Die Anknüpfung der Adoption durch Lebenspartner in Art. 22 Abs. 1 S. 3 EGBGB
In Germany, step child adoption by the partner of a same sex civil union (registered partnership) has been legal since 2004, but was restricted to the other partner’s biological child. 2014, following a landmark ruling by the German Constitutional Court the German Parliament has enacted legislation that rescinded this restriction and allowed thereby partners of registered same-sex couples to legally adopt the other partner’s adoptive child. Not mandated by the Constitutional Court’s ruling the legislator stopped short of totally putting same sex registered partnerships on equal footing with traditional marriages. The joint adoption by both partners is still reserved to the spouses of a heterosexual marriage.
On the occasion of this new legislation, a special choice of law rule for the adoption by same sex partners has been enacted. The general choice of law rule (Art. 22 par. 1 s. 2 EGBGB) calls for the national law of the adoptive parent. In the case of the adoption by one or both spouses of a heterosexual marriage the law applicable to the general effects of the marriage (Art. 14 EGBGB) is to be applied. This holds true for the joint adoption by both spouses or for the single (step parent) adoption by only one spouse. The new rule for same sex partners (Art. 22 par. 1 s. 3 EGBGB) follows the example of the rule for married couples, in that it calls for the application of the law that governs the general effects of the registered partnership, i.e. the law of the registering state (Art. 17b par. 1 EGBGB). However, the new rule for same sex partners limits itself to the case of the adoption by only one partner, leaving unregulated the choice of law question of a joint adoption by both partners. The single and only reason for this limitation is the ban on joint adoption by same sex partners in German internal adoption law, not taking into account, that the laws of other countries allow the joint adoption by same sex partners. As there is no valid reason for this limitation in regard to the choice of law question this same rule must be extended to cover the joint application for the adoption by both partners. The general choice of law rule would lead to a quite preposterous result as it would call for the joint application of the national laws of both partners, whereas in the case of the adoption by only one partner the law that governs the effects the same sex partnership would apply.
The new legislation also casts new light on the discussion of the ramifications of Art. 17b par. 4 EGBGB. This rule limits the effects of a same sex partnership that was registered in another country and therefore is governed by this other country’s laws. The legal effects cannot exceed the effects of a registered same sex partnership under German internal law. Under the previous law the majority opinion was that Art. 17b par. 4 EGBGB bans same sex partners from adopting jointly in Germany even if the joint adoption was legal under the applicable foreign adoption law. In granting the unrestricted step child adoption German law effectively allows partners to adopt a child jointly, just in two immediately consecutive proceedings. Therefore, there are no real differences left in regard to the legal effects of a registered partnership under a foreign law that allows the simultaneous joint adoption by same sex partners in one and only proceeding.

Christoph Thole, The differentiation between Brussels I and EIR in annex proceedings and the relation to art. 31 CMR
On the occasion of the ECJ ruling (4.9.2014 – C-157/13), the author discusses the precedence of special conventions (CMR) according to art. 71 (1) Brussels I-reg. and the question of the criteria necessary for the application of art. 3 EIR. With respect to art. 3 EIR, the ECJ rightly concludes that an action for the payment of a debt based on the provision of carriage services taken by the insolvency administrator of an insolvent undertaking in the course of insolvency proceedings is covered not by the EIR, but is a civil matter within the Brussels I-reg. However, once again, the Court has failed to further elaborate on the criteria necessary for the classification of an action as an insolvency-related action within the meaning of art. 3 EIR and art. 1 para. 2 lit. b Brussels I-reg.
With respect to art. 71 Brussels I-reg., it is a step forward that, in contrast to earlier verdicts, the ECJ itself decided upon the compatibility of the convention with the principles of EU law, instead of referring the matter to state courts. It would have been even more conclusive to rely on the wording of Art. 71 (1) Brussels I-reg. and omit the unwritten necessity of compatibility with EU Law entirely.

Burkhard Hess/Katharina Raffelsieper, Debtor protection within Regulation 1896/2006: Current gaps in European procedural law
Regulation 1896/2006 does not provide for effective debtor protection in cases when a European Order for Payment was not properly served on the debtor. As a result of the unilateral nature of the procedure for issuing the order, the order will be declared enforceable if the defendant does not challenge it within a period of 30 days. However, the service of the payment order shall safeguard the right to a defense. When the defendant has never been informed about the ongoing procedure, he should be able to easily contest the Order for Payment even after it has been declared enforceable. Yet, the text of the Regulation does not provide for a remedy in this situation. In a reference for a preliminary ruling, the Local Court Berlin-Wedding asked the European Court of Justice which remedy should apply. The referring court suggested an application by analogy of the review proceedings provided for in Article 20 of Regulation 1896/2006 in order to ensure an effective right to a defense. Regrettably, the CJEU did not endorse this solution. It declared national procedural law applicable in accordance with Article 26 of the Regulation. As a consequence, parties are sent to the fragmented remedies of national procedural laws. As the efficiency and uniform application of Regulation 1896/2006 is no longer guaranteed, the European lawmaker is called to remedy the insufficient situation. This article addresses the final decision of the Local Court which implemented the CJEU’s judgment.

Peter Huber, Investor Protection: Lugano Convention and questions of international insolvency law
The article discusses a recent decision of the German Bundesgerichtshof which primarily deals with matters of international jurisdiction in tort claims under Article 5 No. 3 of the Lugano Convention. In doing so, the author also analyses to what extent the decision is in line with the more recent judgment of the ECJ in Kolassa v Barclays Bank. A second issue of the decision is how provisions of foreign insolvency law which modify a creditor’s claim against a (not insolvent) co-debtor of the insolvent party should be characterised under domestic German private international law.

Christoph Thole, Porsche versus Hedgefonds: The requirements for lis pendens under Art. 32 reg. 1215/2012 (Art. 30 reg. 44/2001)
Porsche SE, which is currently trying to fend off several actions for damages connected to the failed takeover of Volkswagen, has reached a partial success before the OLG Stuttgart. The OLG has ruled that the negative declaratory action against an institutional investor in Germany takes precedence over the action for performance filed in London. The proceedings clearly demonstrate how fiercely disputes concerning the place of jurisdiction in capital market law are fought. Specifically, the court needed to judge upon the necessary requirements for lodging the claim with the court under Art. 30 of the Brussels I-reg. (Art. 32 Reg. No. 1215/2012). The decision as well as most of the reasoning is convincing.

Peter Mankowski, Lack of reciprocity for the recognition and enforcement of judgments between Liechtenstein and Germany
Liechtenstein fashions a system of recognition and enforcement of foreign judgments with a strict and formal requirement of reciprocity in the Austrian tradition. In particular, judgments from Germany are not recognised in Liechtenstein. The retaliative price Liechtenstein has to pay is that judgments from Liechtenstein are not recognised in Germany, either, for lack of reciprocity. Methodologically, German courts are idealiter required to research whether reciprocity is guaranteed in a foreign country in relation to Germany. The popular lists in the leading German commentaries should only serve as a starting point.

Lars Klöhn/Philip Schwarz, The residual company’s applicable law
The “theory of the residual company (Restgesellschaft)” deals with legal problems that may arise in the context of winding-up companies doing business in at least two countries. In Germany, the theory applies in particular to English private companies limited by shares (“Limited”) with assets in Germany. If a Limited is dissolved in its home country, the residual company will come into existence and be considered as the owner of the company’s “German” assets. The discussion in the literature as well as recent case law by Higher Regional Courts (Oberlandesgerichte) has focused on the question which law applies to the residual company. This paper analyzes the newest judgement on this issue by the Higher Regional Court of Hamm, which states that German law applies. The authors agree with this result while pointing out that this conclusion will be reached regardless of whether one follows the theory of domicile (Sitztheorie) or the theory of establishment (Gründungstheorie). Furthermore, German law applies irrespective of whether the company is still doing business or has already entered into liquidation.

Piotr Machnikowski/Martin Margonski, Rechtskrafterstreckung auf Vorfragen im internationalen Zuständigkeitsrecht: Anerkennung von punitive damages- und actual damages-Urteilen in Polen
The case note concerns the judgment of the Polish Supreme Court of October 11, 2013 on the enforceability of US-American punitive damages and judgments on actual damages in Poland. The enforceability has been rejected in case of punitive damages which, as a rule, are contrary to Polish public policy as such. Polish civil law is governed by the principles of compensation and restitution of the damage. The damage should be repaired to the condition that would have existed had the wrong not occurred. The injured party may not be enriched as a result of the damages awarded. The compensation law in Poland does recognize some exceptions to that rule which allow to grant compensation not closely based on the value of the restored damage. Such exceptions are, however, justified under the constitutional proportionality principle. Punitive damages do not meet such requirements to the extend they peruse penal objectives. They are permissible only to the extent they perform a compensatory function and are linked to the damage suffered. In case of actual damages, such conflict with the Polish public order does not occur by nature of the legal instrument. Yet, the said proportionality principle may lead to only a partial enforceability of a US-American actual damages judgment. The crucial factor here is how closely the factual setting of the case is connected to Poland. The judgment in question addresses the general problem of partial enforceability of foreign judgments, which has been found possible in case of divisible obligations. Despite some critique on detailed aspects of the findings, the case note positively appraises the judgment.

Bernhard König, Austrian money judgments which do not finally determine the amount of payment
Judgments given in a Member State which are enforceable in that State are enforceable in other Member States. Difficulties could arise if a money judgment was given in a Member State which does not require a final determination of the amount of the payment in the judgment itself and has to be enforced in a Member State which national law requires the final determination of the amount of payment already in the judgment. This paper offers a glimpse to the question if and to what extent other Member States will have to deal with Austrian judgments which have not finally determined the amount of the payment.

Miguel Gómez Jene/Chris Thomale, Arbitrator liability in International Arbitration
Recent decisions by Spanish courts raise questions upon the conditions as well as the extent of arbitrator liability. Authors suggest a distinction between qualified adjucative and simple managerial tasks: It is only when acting as a quasi-adjudicative agent that arbitrators should be essentially exempt from personal liability. Conversely, as far as an arbitrator’s conduct of an arbitration procedure is concerned, he should assume general tort liability for negligence.

Jürgen Samtleben, The New Panamanian Code of Private International Law – A Kaleidoscope of Conflict of Laws
Panama is known as an important banking center and as the registered office of many internationally active corporations. Therefore, international relations between private subjects need specific regulation. Up to now, the private international law of Panama found its basis in individual provisions of the Civil Code, the Family Code and some special laws. These provisions were replaced by Law 7 of 2014, which contains in 184 articles a comprehensive regulation of nearly all conflict-of-law topics. The following article gives an overview of the new Law. As a result, it must be stated that the Law contains many flaws, due to insufficient coordination between the different parts and a lack of careful editing of the individual articles. In Panama, as well, the law has been criticized and there is a call for its thorough reform.

Asian Conflict of Laws: East and South East Asia, a cura di Alejandro Carballo Leyda, Wolters Kluwer, 2015, pp. 336,  ISBN: 9789041147561, Euro 160.

[Dal sito dell’editore] An essential resource for both practitioners and academics, Asian Conflict of Laws: East and South East Asia, provides a comprehensive overview of the various approaches to private international law among the crucially important trade jurisdictions of East and South East Asia. Gain expert guidance from local specialists who deliver thorough commentary and analysis on fourteen jurisdictions of the People’s Republic of China, Hong Kong, Indonesia, Japan, the Republic of Korea, Macau, Malaysia, Mongolia, The Philippines, Singapore, Taiwan, Thailand, Timor-Leste, and Vietnam. With a lack of legal harmonization between these countries, this useful book will be an essential resource for both practitioners and academics operating in this region. The authors describe, in a clear and logically structured way, practice and procedure regarding: codification of private international law and relevance of case law; jurisdiction of local courts in foreign-related cases (including choice of court and arbitration clauses); applicable law; international civil procedure; recognition and enforcement of foreign (judicial and arbitral) decisions.

L’indice del volume è reperibile qui. Ulteriori informazioni sono disponibili a questo indirizzo.

Paul Beaumont, Professor of European Union and Private International Law and Director of the Centre for Private International Law, University of Aberdeen (Scotland/UK), and Jayne Holliday, Research Assistant and Secretary of this Centre, have published an insightful and carefully researched new working paper on “Recent Developments on the Meaning of ‘Habitual Residence’ in Alleged Child Abduction Cases” in the series of the Aberdeen Centre for PIL (Working Paper No. 2015/3, the full content is available here). The highly recommended article is based on an overview of the recent developments within European and International Family Law that was presented by Professor Beaumont at the conference on “Private International Law in the Jurisprudence of European Courts – Family at Focus” held in Osijek, Croatia, June 2014. Drawing from that presentation, the working paper focuses on the recent developments on the meaning of habitual residence in child abduction cases from the UK Supreme Court and the Court of Justice of the European Union (CJEU). In particular, the authors analyze the move by the UK Supreme Court towards a more uniform definition of habitual residence in line with the jurisprudence of the CJEU under the Brussels IIbis Regulation.

The authors summarize their findings as follows:

“Over the past 30 years the concept of habitual residence of the child in the UK has developed from one which put weight on parental intention to a mixed model, which takes a more child centric and fact based approach. By following the jurisprudence of the CJEU, the UK Supreme Court has made a genuine and conscious attempt to provide a uniform interpretation of the 1980 Abduction Convention. This will hopefully have the effect of creating a more uniform approach to the definition of habitual residence amongst all Contracting States to the Hague Abduction Convention. […] If enough weight is given to parental intention of the custodial parent(s) of newborns then physical presence is not required to establish habitual residence. This is an easier solution to arrive at if the myth that habitual residence is a pure question of fact is abandoned. Whilst a mixed question of fact and law is the best way to analyse the ‘habitual residence’ of the young child, it is not appropriate to introduce into the equation a suggestion that somehow habitual residence cannot change when the custodial parent lawfully removes a child to another country just because that decision was still subject to appeal in that country even though the appeal did not suspend the custodial parent’s right to take the child out of the country lawfully. Such an appeal should not prevent the loss of the child’s habitual residence in the country where the appeal is made and should not impact on the ‘stability’ of the child’s residence in the new jurisdiction to prevent habitual residence being established there within a few months of the residence beginning.”

Matthias Weller is Professor for Civil Law, Civil Procedure and Private International Law at the EBS University for Economics and Law Wiesbaden and Director of the Research Center for Transnational Commercial Dispute Resolution (www.ebs.edu/tcdr) of the EBS Law School.

Mutual trust amongst the Member States of the European Union in other legal systems is a prerequisite for the expansion of the free movement of judgments and judicial titles within the European Judicial Area. To justify such mutual trust amongst the European Member States requires, inter alia, the definition of common minimum standards in the various judicial systems.

A joint project between the law faculties of the University of Regensburg (Prof. Dr. Christoph Althammer) and the EBS Law School in Wiesbaden (Prof. Dr. Matthias Weller, Mag.rer.publ.) has set itself the goal to search for and explore further such minimum standards in the judicial systems within the European Judicial Area. After the first conference in Wiesbaden in 2014 (see conference report earlier on this blog here), where the discussion has been initiated from a broader perspective, the project will be continued with the upcoming two-days-conference in Regensburg (conference language: German) that is dedicated to a central issue within this field: European minimum standards for judicial bodies.

The focus will be on three main requirements (independence, efficiency, specialization) which will be presented by experts from both academia and legal practice. These topics will be complemented by a legal comparative analysis with regard to the French, Greek and Italian legal system before the discussion will conclude with a final synthesis.

We would like to cordially invite you to join the discussion! For registration and the conference flyer see here.

On 23 June 2015, the European Parliament and the Council of the European Union reached a compromise concerning the amendment of Regulation N0 861/2007, establishing the European Small Claims Procedure.

The text of the amending Regulation, as contemplated by the compromise, may be found here. The actual legislative measure will be formally adopted in the coming months.

Under the reformed Regulation, the European Small Claims Procedure will apply to “civil and commercial matters in cross-border cases … where the value of a claim does not exceed EUR 5000 at the time when the claim form is received by the court or tribunal with jurisdiction, excluding all interest, expenses and disbursements”. The current ceiling is 2000.

In five years’ time the Commission shall present a report on the operation of the Regulation, including an evaluation as to whether a further increase of the threshold above. On the same occasion, the Commission will look into the possibility of extending the scope of the European Small Claims Procedure so as to “facilitate access to justice for employees in cross-border employment disputes with their employer, in particular to claims for remuneration”.

The amended Regulation, though less innovative than the Commission had originally proposed, will have an impact on a number of practical issues raised by the application of the existing rules, including issues relating to the court fees charged to claimants (fees will have to be proportional to the value of the claim, but there will be no fixed cap) and the payment of such fees (Member States will be under an obligation to accept electronic payments).

Videoconferencing and, more generally, the use of remote communications technology, will be encouraged, although the Member States will not be under a legal duty to make the relevant equipment available to courts and litigants.