Droit international général

This post, written by Pascal de Vareilles Sommières, who is a Professor at the University of Paris 1 Panthéon-Sorbonne, is the seventh in a series concerning the proposed codification of French Private International Law. Previous posts relating to the French Draft Code addressed the issues of renvoi, foreign law, the recognition of marriages, companies and parentage. A German perspective on the draft was also offered here.

Article 15 is the first provision in the title II of the French Project of Code of Private International Law (the Code project), on “Jurisdiction of courts”. It reads as follows:

Unless provided otherwise in this code, jurisdiction of French courts results from the rules on venue in domestic procedural law, which are extended to international matter – subject to their adjustment as it may be required for that matter –, especially the rule on venue based on the domicile or on the habitual residence of the defendant.

Overview of Article 15

Under Article 15, legal bases for jurisdiction of French courts over cross-border disputes are basically to be found in the French rules on venue (place of the lawsuit) as they apply in domestic proceedings, except if a specific rule on jurisdiction has been codified and applies to the case. A striking feature of this rule is that it does not address the jurisdictional issue by itself, but by reference to other rules that were made for domestic litigation. It has been coined as a default rule – or a “principle” in the words of the Report to the Minister of Justice on the project of Code of Private International Law (the Report), recalling (p. 15) that it comes from a former ruling by the Cour de cassation (see the Report, p. 15 at footnote 5, referring to Cass. Civ. 19 October 1959 Pelassa, and Cass. Civ. 30 October 1962 Scheffel). As a default rule, the rule applies in any particular case with the proviso that the case is not covered by a specific rule on jurisdiction within the Code project. As such, it has the importance of a general principle: exceptions may exist, but they keep the status of exceptions, inspired by data specific to the category for which they are provided, and applying only to cases falling in that category.

One particular jurisdiction basis for French courts that draws on this rule is where the domicile or the habitual residence of the defendant is in France: Article 15 expressly mentions the extension of the corresponding venue rule (French Code of civil procedure, Article 42) to disputes arising in an international setting. Such a jurisdiction rule (well known in Latin: Actor sequitur forum rei), is classical in comparative private international law and consequently gained its status as a principle in EU jurisdiction rules in civil and commercial matters (Article 4 of the Brussels I bis Regulation). Needless to say, Actor sequitur… is not the only rule on venue in the French Code of civil procedure, and, under Article 15 of the Code project, others shall extend to international litigation before French courts – at least, each time they are not ruled out by a specific provision on jurisdiction that the Code project enacts.

In some cases, the Code project sets up straightforward specific rules on jurisdiction for international litigation before French courts, as in the field of personal status, where Article 34 provides for jurisdiction of French courts if the domicile or habitual residence of the person whose status is at stake is located in France at the time when the dispute is introduced before the court.

Rules on jurisdiction in the field of contractual and non-contractual obligations (Articles 88 and 91) are good examples of less straightforward jurisdiction rules laid down by the Code project. On the one hand, they draw on rules of venue applying to domestic litigation (French Code of civil procedure, Article 46) and, to that extent, they belong to these venue rules adjusted to international litigation mentioned by Article 15 (see the Report, p. 16). On the other hand, they appear within the Code project as specific legal rules (Article 88 §2; Article 91 §2), proper to international disputes. Under these provisions, in contractual matters, legal bases for jurisdiction of French courts are the place of delivery of the goods and the place of provision of the service; in extra-contractual matters, legal bases for jurisdiction of French courts are the place of the harmful event and the place where the damage is suffered. Of course, in both fields, French rules on jurisdiction apply subject to international convention or EU law (Article 88 §1; Article 91 §1); and we all know that EU law in civil and commercial matters does not rule out the rules on jurisdiction of Member State courts, if the defendant is domiciled in a country which is not a EU Member State (Article 6 of the Brussels I bis Regulation).

General Assessment of Article 15

Is the rule laid down by the Code project in Article 15 a satisfactory one? We must confess our frowning on reading it. The reason is that, in our opinion, the reference to rules on venue in domestic disputes, as default rules on jurisdiction issues in international litigation, made by Article 15 of the Code project, falls beside the point.

The mere fact for the Report to emphasize that the general rule provided by Article 15 belongs to those provisions, in the Code project, intending to consolidate advances previously gained (“acquis”), or to maintain traditional solutions in spite of scholarly criticism (p. 15), remains unsatisfactory to us.

A first reason for scepticism is that the extension of domestic rules on venue to international litigation, when it comes to determining legal bases of jurisdiction of a country’s courts, is enshrined in the Code project, even though this extension principle is said to fall under criticism of commentators: one expects a response to that criticism by the drafters of the Code project prior to have it set aside. A second reason is that it is awkward for the Code project drafters to set up, as a default rule or principle on jurisdiction of courts in international disputes, a mere reference to rules on venue  made for domestic disputes, especially when it is simultaneously admitted that “no one today denies the specificity” of the nature of international jurisdiction of a country’s courts and of the rules laid down to fix it, compared to domestic venue (see the Report, p. 15).

Everyone interested in EU law on jurisdiction in civil and commercial matters knows the huge amount of dissatisfaction left in practice by criteria like the place of performance of obligation, the place of delivery of goods, and the place of provision of service, as grounds for jurisdiction in the field of contracts. The same dissatisfaction stems from criteria like the place of the harmful event and the place of damages, used for the same purpose in the field of torts. Having them endorsed by French rules on international litigation just because they are used as venue grounds in domestic proceedings is at least questionable, as is questionable the assertion by the Report that “the extension principle [of domestic venue provisions] has the advantage that it provides for a connecting factor easy to implement each time one cannot find in the Code project a specific rule for the relevant matter” (p. 15). The sentence would be more correct saying “easy to find” rather than “easy to implement”. But the mere fact, for a criterium used by a provision addressing a given issue, to be easy to find does not make this criterium reasonable and reliable when drafting another provision on a different issue.

So, if the point is to avail of default rules proper to answer the question whether or not a particular case falls within the jurisdiction of French courts (so that they may handle the jurisdiction issue even though there is no jurisdiction rule specific to the matter to which that case belongs), it is suggested here that a good approach would have been to listen to scholarly criticism and to assess counterproposals. Unfortunately, space lacks – due to the format of this blog – to develop here on this issue. This quick overview will only express our disappointment that the only other idea mentioned in the Report (and actually used in the Code project), for assertion of jurisdiction by French court where no ground specific to the matter can be found, is about resorting to the “natural judge theory” (doctrine du juge naturel) and consequently sticking to the French citizenship as a default basis for jurisdiction of French courts (see Code project, art. 17, and the Report, p. 16 to 18).

A Few Suggestions

Beside the well-known usual criticism under which citizenship/nationality of one of the litigants falls as a ground of jurisdiction in civil and commercial matters, another remark finds its way here: why did the Report and the Code project give short shrift to other possible solutions?

Extension of Brussels I reg. recast (2012) rules on jurisdiction, especially where the defendant is not domiciled in a EU Member State, could have been explored: there are pros and cons.

How about the forum legis jurisdiction? Comparative private international law shows a tendency for this ground of jurisdiction, formerly unfashionable, to come back to the forefront. EU jurisdiction law shows that providing for jurisdiction of the courts of a given country over a case, where the law of that country is applicable to that case, may well prove satisfactory (Articles 5 to 7 of Regulation No 650/2012 in matters of succession). An article recently published depicted quite clearly the influence, before common law courts, of the idea that, for a court, applicability of the law in force in its forum is a relevant basis for the jurisdiction of that court (R. Garnett, “Determining the Appropriate Forum by the Applicable Law”, [ICLQ vol 71, July 2022 pp 589–626]). Even in France, voices make the case for a better relation between forum and jus in private international law (see, among others, S. Corneloup, « Les liens entre forum et ius : réflexions sur quelques tendances en droit international privé contemporain », in Mélanges B. Ancel, LGDJ/IPROLEX, 2018, p. 461-475). This tendency probably finds its rationale in this idea that where a country claims applicability of its law through its choice-of-law rule, the best way to increase efficiency of this claim is to support it by an additional claim, made by that country through its choice-of-court rules, that its courts have jurisdiction. This jurisdiction should certainly not be exclusive of jurisdiction of the courts of any other country (at least in principle), but making it available to the parties is good for them, in terms of predictability, and good for the country whose law claims to be applicable, in terms of authoritativeness of its law.

Whether this point is decisive is open to debate, but one may expect from a lawmaker that it addresses such an issue when codifying its private international law.

by Ilaria Pretelli 

On Friday October 21 the Comité français de droit international privé held a special session devoted to the last and possibly final version of the project of code of private international law. As such, the project consists of 207 articles divided into 6 books: general rules, special rules, procedure, recognition and enforcement of foreign acts and judgments, provisional and protective measures, transitional provisions.

The session was held “à huis clos” with the discussion among members stimulated by foreign guests specially invited to have a perspective from abroad. Not surprisingly, due weight was given to Switzerland and Belgium, as the former is considered to have a model legislation on the discipline and the latter has the “youngest” statute of continental Europe. Marc Fallon underlined the very different circumstances in which the Belgian legislation was constructed, since it came from a private initiative of Belgian academics, only at a later stage submitted to the Belgian legislator. The opposite path has led to the drafting of the French project, which stems directly from an initiative of the Ministry of Justice. In France, this project is the fourth in time after those by Niboyet (1950), Batiffol (1959) and Foyer (1967). If successful, it will bring to an end the essentially doctrinal and jurisprudential character of French private international law. These traditional characteristics of French private international law were recalled by Pierre Mayer in an already nostalgic note. Andrea Bonomi offered both a Swiss and European perspective, with laudatory remarks on the main innovations of the project: the codification of rules on procedure and on procedural measures, and the codification of the “méthode de la reconnaissance”. Reference is thereby made to the renowned French theory which has developed Picone’s observations on the opportunity of recognising the competence of a legal order (l’ordinamento competente) as a whole to decide a cross-border issue, instead of applying such a foreign order’s rules to decide the same cross-border issue within the forum. This method (or methods, according to subsequent works of the author of the theory, Pierre Mayer), is gaining importance in contemporary practice. On the one hand, the increasing mobility of citizens raises the number of conflicts of laws and creates an appetite for hard and fast solutions. A method allowing to displace the discussion from substance to competence of the authority serves this need. In addition, it is particularly welcome in the EU, where it is coherent with the prevalence of the evaluations of the “country of origin”.

Other rules applauded by the audience were those on public policy and fraude à la loi, although regret was expressed over the fact that these well-known denominations are not mentioned in the corresponding rules (Articles 11 and 12). The rule on public policy is among the many of the project that reveals a constant attention by the drafters to coordinate national rules with the European ones: it explicitly grants a role to the “European notion of public policy”.

Possibly the most controversial rules are those on filiation resulting from IVF with a donor and on surrogacy (Articles 62 and 63). In this respect, the project breaks with French precedent and adopts a solution based on the respect of the legitimate expectations of donors, intended parents and the gestational mother: the lex loci actus.

According to the drafters, legal certainty for all parties involved points to the application of the law of the country in which assisted reproductive technology (ART) was performed or surrogacy was agreed by contract and implemented. These rules represent an exception to the general ones (Article 59), which point to the law of the child’s citizenship at the moment of birth. Article 62 seems to be of limited utility, since it merely confirms that French clinics need to follow French law and vice versa. However, as regards the filiation of children born with the employment of a donor by means of an IVF performed in a foreign fertility clinics, the applicable law will dependt on the place of birth. The presumptions of paternity of French domestic law will apply in the first place. The scope of application of the foreign law of the country in which the clinic is based will thus be limited to the aspects related to the right of the child to have access to information regarding the donor. In addition, the lex loci actus would open the French border to reproductive tourism and, in so doing, would create the conditions to prevent the need of further strategic litigation before the ECHR in order to decriminalise surrogacy. Some critical voices have observed that the present domestic and international context are too fragile for such a solution to be welcome. The inherent risk is that the advancement in a wider recognition of “a right to parenthood”, including “parenthood for all” may increase existing divisions and undermine the credibility of the universal character of the principle of non-discrimination.

Divisions also exist as regards the timeliness of the code. Paul Lagarde raised his authoritative voice, in the columns of the last issue of the Revue critique, against the very idea of devoting energies to a national code of private international law. The engagement for the French code reveals, he argued, the availability of resources that could have been better employed to contribute to the drafting of a comprehensive code of European private international law based on the numerous existing regulations.

The four panels of the debate allowed a comprehensive analysis:

1. structure of the code, articulation of sources, general rules of choice of law (chaired by Marie-Laure Niboyet)
2. Procedure, Effect of foreign judgments and public acts (chaired by Jean-Pierre Rémery)
3. Roundtable on family law
4. Ccompany law – collective labor law ( chaired by Etienne Pataut).

All distinguished participants engaged in the rich and deep discussion triggered by the analysis of the project are looking forward to future arenas where the debate can continue.

In the context of the Vici project ‘Affordable Access to Justice’ conducted by the Erasmus School of Law (Rotterdam) and financed by the Dutch Research Council – NWO, the project team is organizing a seminar titled ‘Third-Party Funding: Trends, Developments, and the Future’ (online).

The seminar is scheduled for Wednesday, 7 December 2022 (10:00-12:15 CET) and it will feature presentations by: Xandra Kramer (Erasmus University Rotterdam/Utrecht University, Netherlands), Stefaan Voet (KU Leuven, Belgium), Masood Ahmed (University of Leicester, UK), Adrian Cordina (Erasmus University Rotterdam, Netherlands), Michael Legg (UNSW Sydney, Australia), David Capper (Queen’s University Belfast, UK).

The complete program and information for the online registration are available here.

For updated information on the project, you may follow the Project’s LinkedIn page.

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

The Austrian Constitutional Court proceeds further on the way to equal treatment of heterosexual and homosexual couples. In its decision of 30 June 2022, it ruled that the requirements for establishing parenthood of same-sex partners must not be stricter than the ones for opposite-sex partners.

Facts of the Case

Two women lived together as registered partners with a child. After the child’s birth, the partner of the mother sought to be legally registered as the child’s parent. This request was refused by the authorities, as she could not be considered the “father” in the sense of the law and the child had been conceived naturally and not through artificial insemination, as required for the registration as a co-mother. Thereupon, she filed a complaint with the Austrian Constitutional Court on the grounds of the discriminatory nature of the legal provisions applied in the case at hand.

Legal Problem

Under the current Austrian statutory law, the registered female partner of the biological mother can be considered as the “other parent” only in the case of medically assisted reproduction (Section 144(2) ABGB).

In cases where the biological mother and her female partner are married to each other, as well as in cases where the birth was not preceded by medically assisted procreation, Austrian law does not provide any possibility for the acknowledgement of parenthood.

In order to legally become the “other parent”, the only way left is via “stepchild adoption” (section 197(4) ABGB), which is neither a duty nor a right. This situation differs from the case of heterosexual spouses: the man who is married to the mother at the time of the child’s birth is ex lege considered to be its father, never mind how the child is conceived. Moreover, a man may acknowledge fatherhood even if the child was conceived by someone else (whether through natural or medically assisted reproduction). Neither of these options are available to the wife or female partner of the biological mother.

Decision

The Austrian Constitutional Court considers this statutory situation as an unjustified unequal treatment of the mother’s female partner with regard to her legal status as “other parent” in comparison to a man in the same constellation. The court invoked in particular the right to private life and the principle of equality (Articles 14 and 8 ECHR, which form an integral part of Austrian constitutional law). Furthermore, it referred to the legal interest of the child (particularly Article 8 ECHR and the implementation of the UN Charter on the Rights of the Child) and that of a legal parent who wants to take responsibility for the child.

The Constitutional Court rejects the objections by the Federal Government, who argued that the unequal treatment under the law would be justified. According to the Court, a man’s fundamental aptitude for natural procreation is not sufficient to tie paternity to less stringent conditions than the parenthood of a woman who cannot have “fathered” the child. The Court was moreover not persuaded by the approval of the German legal situation by the ECtHR, which puts same-sex couples in a significantly worse position than the Austrian one due to the mere possibility of adopting the child.

Assessment

Following the decision concerning the implementation of marriage for homosexual couples, the direction the Constitutional Court has taken this time is hardly surprising. In stating that the unequal treatment of homosexual and heterosexual couples cannot be justified, the Court finds itself in agreement with large parts of the Austrian literature. Certainly, the Court does not deny the existence of factual differences between men and women with respect to natural procreative capacity. The prohibition of discrimination, however, prevents the legislature from attaching different legal consequences to this gender-specific distinction and the sexual orientation. The provision of the ABGB was therefore repealed as unconstitutional and as further consequence, will be ceased to be in force by the end of 2023.

The question arises which implications the decision will have for national conflict-of-law rules. De lege lata, the latter only explicitly governs descent from the father. A possible solution would be to apply the general clause in Section 1(1) IPRG and thus extend the rule on paternity to co-motherhood. Accordingly, the common nationality of both married parents or that of the child in the case of unmarried parents would determine the applicable law. Nevertheless, a clear solution would be preferable also in this matter.

It remains to be seen whether the Austrian legislator will find a solution that does justice to the desire for permanence of parenthood, the protection of the social family, and the best interests of the child.

Written by Mark Weidemaier, the Ralph M. Stockton, Jr. Distinguished Professor at the University of North Carolina School of Law, and Mitu Gulati, the Perre Bowen Professor of Law at the University of Virginia School of Law.

Governments with no realistic prospect of paying their debts often gamble for redemption, trying desperately to avoid default. Political leaders, with good reason, fear that a debt default will get them thrown out of office. But in trying to hold power, sometimes by borrowing even more, they often make matters worse for the country and its people. A prime example involves the collateralized bonds issued by Venezuelan state oil company, PDVSA.

Venezuela’s Gamble

In 2016, PDVSA was about to default on its debt, as was the Venezuelan state itself. At that stage, it was already well beyond the point where the debt should have been restructured, given worsening domestic conditions. Instead, the Maduro government gambled. It conducted a debt swap in which investors exchanged unsecured PDVSA bonds for new ones due in 2020. To sweeten the deal, the PDVSA 2020s were backed by collateral in the form of a 50.1% interest in CITGO Holding, the parent company of U.S. oil refiner CITGO Petroleum. The deal bought a few extra years but put at risk the country’s primary asset in the United States.

Even at the time, it was uncertain whether Venezuelan law authorized the transaction. The Venezuelan Constitution requires legislative approval for contracts in the national public interest. Maduro did not seek approval because opposition lawmakers controlled the National Assembly and had made clear they would not grant it. The deal went ahead anyway.

Times have changed. The United States recognizes Juan Guaidó as Venezuela’s interim president (for now). The PDVSA 2020 bonds are in default. The bondholders want their collateral. PDVSA has challenged the validity of the bonds. But the bonds include a choice-of-law clause designating the law of New York. Does this mean that validity is to be determined under New York law? John Coyle recently wrote a terrific post about the case and its significance on this blog. We write to provide some broader context, drawing from our article, Unlawfully Issued Sovereign Debt.

Sovereign Debt and Choice-of-Law Clauses

The story of the PDVSA 2020 bonds is a common one in government debt markets. A government borrows money in dodgy ways or at a time of financial distress. Arguably, the debt contravenes domestic law, although the government may obtain legal opinions affirming its validity. The debt also includes a choice of law clause providing for the application of foreign law, typically that of New York or England. Later, a new government comes to power and disputes the validity of the debt. We have seen this pattern in Venezuela, Mozambique, Ukraine, Zambia, Liberia, Puerto Rico, and in other sovereign and sub-sovereign borrowers. (The pattern goes back even further – for a delightful treatment of the hundreds of such cases from the 1800s involving municipal debt, see here).

These cases raise what seems like a simple question: Does an international bond—i.e., one expressly made subject to foreign law—protect investors against the risk that the bond will later be deemed in violation of the issuer’s domestic law? Despite seeming simple, and how frequently the question arises, there is little clarity about the answer. New York law governs a big part of the sovereign debt markets, and the choice-of-law question in the PDVSA 2020 case has been certified to the New York Court of Appeals. Will that court’s decision offer clarity?

Variations in Clause Language

Count us skeptical. The problem is not just the unpredictability of choice of law rules. It is that many choice-of-law clauses are drafted in perplexing ways, which leave unclear the extent of protection they offer to investors. Consider three examples. The first is from the PDVSA 2020 bond itself where the relevant language is capitalized (as if capitalization has some magic effect):

THIS INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THIS INDENTURE AND THE NOTES AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY WHATSOEVER TO THIS INDENTURE AND THE NOTES (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)

This clause apparently seeks to extend New York law to the widest possible range of questions. Whether that includes the question of whether the bonds were validly issued is, as John’s post puts it, the “billion-dollar question.” And the answer is not clear. The decision by the New York Court of Appeals might provide some clarity on it . . . maybe.

But now consider this clause, from a Brazilian bond (emphasis ours):

The indenture and the debt securities will be governed by, and interpreted in accordance with, the laws of the State of New York without regard to those principles of conflicts of laws that would require the application of the laws of a jurisdiction other than the State of New York . . .; provided, further, that the laws of Brazil will govern all matters governing authorization and execution of the indenture and the debt securities by Brazil.

Does the bold text mean that investors cannot enforce a loan issued in violation of Brazilian law? We aren’t sure. As we discuss in the paper, it can be hard to identify questions of “authorization” and “execution,” especially in the context of sovereign borrowing. Consider the question whether a loan violates a constitutional or statutory debt limit. Does the debt limit negate the sovereign’s capacity to borrow, limit the authority of government officials to bind the sovereign, or make the loan illegal or contrary to policy? How one categorizes the issue will affect the answer to the choice-of-law question. Carve outs like this—which reserve questions of authorization and execution for resolution under local law—appear in around half the New York-law sovereign bonds we examined.

Finally, consider this clause from a Turkish bond (again, emphasis ours):

[The] securities will be governed by and interpreted in accordance with the laws of the State of New York, except with respect to the authorization and execution of the debt securities on behalf of Turkey and any other matters required to be governed by the laws of Turkey, which will be governed by the laws of Turkey

What now? This “other matters” carve out is even odder than the one for questions of authorization and execution. It hints that additional, unspecified matters might be governed by the sovereign’s local law. Indeed, it implies that the sovereign’s own law might determine which issues fall within the “other matters” exception. If so, the clause potentially allows the government to create new exceptions to the governing law clause.

Conclusion

Our discussions with senior sovereign debt lawyers have done little to dispel our uncertainty about the meaning of these clauses. They seem just as confused as we are. All we can say with confidence is that many choice of law clauses include traps for unwary investors. Until drafting practices converge on a consistent and coherent model, the choice-of-law question is likely to remain fodder for litigation.

[This post is cross-posted at Transnational Litigation Blog.]

Filip Šaranović (Queen Mary University of London) is the author of Freezing Injunctions in Private International Law, recently published by Cambridge University Press.

The blurb reads:

The extent of available pre-judgment asset preservation relief is widely regarded as a unique characteristic of English law and one of the key factors attracting international commercial litigation to the English courts. By taking a novel view of the theoretical foundations of a freezing injunction, this book challenges the long-established view that such an injunction is an in personam form of relief whose sole purpose is to prevent unscrupulous defendants from making themselves judgment-proof. Dr Šaranović combines historical and comparative perspectives to identify several theoretical flaws in the court’s jurisdiction to grant this popular form of interim relief. The book demonstrates that the current application of private international law rules in this field leads to inequality among litigants and illegitimate encroachment upon the sovereignty of foreign states. It proposes a range of possible solutions to alleviate concerns about the scope of freezing injunctions both in the domestic and international arena.

Further information available here.

A series of webinars will be held every Thursday in November 2022 at 5 pm (Argentina time, 9 pm CET time) in Spanish. The topics range from international family law to environmental justice to the consequences of the conflict in Ukraine for Private International Law.

Registration is free of charge. To register, click here.

The program is available below:

 

On 9, 10 and 11 November 2022, a Special Commission devoted to the Hague Convention of 13 January 2000 on the international protection of adults will meet in the Hague.

The Hague Adults Convention applies in international situations to the protection of persons aged 18 or more who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. It lays down a comprehensive set of private international law rules in this area: rules on jurisdiction to give measures of protection, on the law applicable both to measures of protection and powers of representation conferred by an adult in contemplation of a possible loss of autonomy, on the recognition and enforcement of measures of protection across Contracting States, and on cooperation between the authorities of such States.

Today, fourteen States are bound by the Hague Adults Convention, the latest to join being Greece (actually, the Convention entered into force for Greece yesterday, 1 November 2022).

Why a Special Commission, and How It’s Been Prepared

While the Hague Adults Convention has generally proved to work well in practice, the Council on General of Affairs and Policy of the Hague Conference on Private International Law considered, in 2019, that the time had come to convene a Special Commission for the purpose of reviewing the practical operation of this instrument.

Preparation work began shortly afterwards, with a questionnaire addressed to States aimed to determine the issues that the Special Commission ought to address (the responses are found here), followed by a questionnaire on the practical operation of the Convention (see here the responses).

Since April 2021, a working group constituted for this purpose has been meeting regularly with the aim to draft a Practical Handbook on the Convention and, more generally, to discuss the various documents that the Special Commission will consider in its meeting (or serve as a background to it). As a member of the working group, the author of this post enjoyed the intense and fruitful exchanges that occurred among the members, and witnessed the amazing job carried out by the Permanent Bureau to assist the group and, generally, to get everything ready for the Special Commission.

The meeting of the Special Commission will only open to delegates designated by States and invited observers (by the way, the European Association of Private International is among the observers: as the readers of the blog may recall, EAPIL received a similar invitation in May 2022 to attend the first meeting of the Special Commission on the Hague Maintenance Convention and Protocol). Of course, the Conclusions that the Special Commission will adopt will be made available once the meeting is over.

What to Expect from the Meeting (1): A Substantial Contribution to the Understanding of the Convention

The November 2022 meeting is the first such meeting devoted to the Hague Adults Convention. In fact, the work carried in preparation of the Special Commission over the last year and a half, and its finalisation by the Special Commission, represents the first major collective exercise of this kind regarding the Convention.

This is in itself remarkable, especially if one considers that, over the years, several Special Commission meetings have taken place to discuss the operation of other Hague instruments. For instance, the Special Commission charged with reviewing the operation of the Hague Convention of 1980 on the civil aspects of international child abduction has met seven times, and the next meeting – due to take place in October 2023 – is already under preparation.

As a matter of fact, some practically important issues regarding the Hague Adults Convention had not been the object of detailed analysis before the working group and the Permanent Bureau engaged in this exercise.

One such issue is whether, and in which manner, the Convention applies to ex lege powers of representation, that is powers of representation that, according to the law of some States, a person close to the adult (e.g., their spouse) is entitled to exercise for the purposes of protecting them. A preliminary document, drawn up by the Permanent Bureau with the assistance of the working group provides an account of the questions that surround these powers, and discusses how they could (or should) be dealt with under the Convention.

Doubts have been raised in literature and among practitioners as regards the way in which the Hague Adults Convention deals with advance directives concerning matters of health, welfare and other personal matters. This topic, too, is the object of a preliminary document.

The Special Commission will offer a unique opportunity to collect the views of States and observers on these and several other issues. The finalised Practical Handbook (the latest revised draft is available here) will eventually help shape a common understanding of the operation of the Convention, notably as regards the issues that have prompted doubts and disputes.

While the Practical Handbook and the Conclusions of the Special Commission will not be formally binding on State courts and other authorities, the consensus that the Commission will be able to record on the various topics under discussion will in fact serve as a guideline for anybody having to do with the Convention.

What to Expect from the Meeting (2): A New Wave of Ratifications

One recurring criticism concerning the Hague Adults Convention is that it is in force only for relatively few States. Admittedly, the pace of ratifications has been disappointing.

Experts generally agree that the Convention significantly facilitates the handling of cross-border cases, and authorities in Contracting States frequently report about the benefits offered by the Convention in cases governed by its rules, compared with cases for which the Convention is of no avail (e.g., when the need arises to coordinate proceedings before local courts with proceedings in a State that is not bound by the Convention). Yet, several States have apparently never considered joining the Convention, and many among those that have expressed an interest in ratifying the Convention have so far contented themselves with taking preliminary steps in that direction.

The Special Commission of November 2022 is likely to encourage new ratifications and accessions. There are various reasons for that.

To begin with, the Convention has slowly come under the limelight, these last years. There has been an increase in the number of scholarly writings and academic initiatives regarding the protection of adults, and the practical importance of the topic is no longer challenged. The Special Commission itself is meant, inter alia, to draw the attention of States and stakeholders on the problems surrounding the international protection of adults, and will further increase the visibility of the Convention. All this will plausibly lead more States to consider joining the Convention, or work at its ratification.

Secondly, the Special Commission will enable States to develop a more thorough understanding of the Convention. The benefits of ratification should in fact prove easier to assess based on the information collected in preparation of the Special Commission. The work that individual Contracting States are expected to carry out in the future should also be of help in this respect. Reference is made to the “Country Profiles” that States are invited to prepare in accordance with a draft that the Commission will discuss. The States that will join the Convention in the future will thus be able to rely on a rich collection of data produced both by the Hague Conference and by the current parties. The will not bear the price, in terms of information, that “pioneer” States must face when joining a uniform regime whose actual functioning has not been fully tested or is not thoroughly documented.

What to Expect from the Meeting (3): A Step Towards a Limited Amendment to the Convention Itself?

So far, the Hague Adults Convention has been ratified only by European States. Apart from Switzerland, Monaco and the UK, all of the States parties to the Convention are also Members of the European Union.

As the readers of this blog know, EU institutions have on various occasions expressed the view that the protection of adults in cross-border deserves greater attention on the part of Member States and the Union itself.

Building on the conclusions adopted by the Council in June 2021, the European Commission launched a public consultation in December 2021 on the measures that the Union should adopt in this field (EAPIL issued a position paper in response to that consultation), and published a study on the matter. The Commission is reportedly working at an impact assessment study that would accompany a possible proposal for a regulation.

One of the hurdles that the Union faces in this area is that the EU cannot itself become a party to the Hague Adults Convention, for this is only open to States. This means that the EU could, at best, authorise the Member States that have not yet done so to ratify the Convention “in the interest of the Union”, as it occurred with the Hague Convention of 19 October 1996 on the protection of children.

At a workshop organised by the Czech Presidency of the Council of the EU in September 2022, the question has been put forward by the First Secretary of the Hague Conference, Philippe Lortie, of whether it would make sense to amend the Convention so as to include a “REIO clause”, i.e., a clause that would enable regional economic integration organisations, such as the EU, to join the Convention. Other provisions in the Convention could be amended on the same occasion: these additional changes would not alter the substance of the Convention, but rather clarify the meaning of provisions whose uniform interpretation could otherwise be difficult to achieve. The possible scope of the various amendments, together with the issues that this move would entail, are outlined in a dedicated preliminary document that has also been prepared in view of the Special Commission.

The prospect of a direct involvement of the EU as a party to the Hague Convention raises some politically sensitive questions, both for the Member States (external action by the Union is a delicate subject) and for the Union itself. One should consider, among other things, that an amendment to the Convention would take several months to complete: if that path were to be taken, the plans of the European Commission regarding new legislation in this area would likely need to be put on hold for some time, and adapted to the changed context.

The implications of the Union becoming a party to the Convention, however, would also be practically significant. Among other things, the Court of Justice would find itself in a position to issue preliminary rulings on the Convention, thereby in fact playing a key role in the uniform interpretation of its provisions.

It remains unclear whether States (not just EU Member States) may in fact have an appetite for this and/or other changes to the Convention. The Special Commission will provide a first opportunity to discuss this prospect. The topic, however, will likely be rediscussed in the broader context of the next meeting of the Council on General Affairs and Policy of the Conference, due to be held in March 2023.

AG Pikamae delivered on 20 October 2022 his opinion in case C‑393/21 (Lufthansa Technik AERO Alzey GmbH), which is about the European Enforcement Order for uncontested claims. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

Suggested decision : “L’article 23 du règlement (CE) no 805/2004 […] doit être interprété en ce sens que : l’expression « circonstances exceptionnelles », visée à cette disposition, couvre le préjudice grave et irréparable pouvant être causé au débiteur par l’exécution immédiate de la décision certifiée en tant que titre exécutoire européen, caractérisant une situation d’urgence qu’il revient au débiteur d’établir. Dans l’affirmative, il appartient à la juridiction ou à l’autorité compétente de l’État membre d’exécution de procéder à une mise en balance des intérêts en présence au regard de l’ensemble des circonstances pertinentes du cas d’espèce.

Seules les mesures de limitation de la procédure d’exécution visées à l’article 23, sous a) et b), de ce règlement peuvent faire l’objet d’une application combinée.

2)      Les articles 6 et 11 du règlement no 805/2004 doivent être interprétés en ce sens que :

lorsque le caractère exécutoire de la décision certifiée en tant que titre exécutoire européen a été suspendu dans l’État membre d’origine et que le certificat prévu à l’article 6, paragraphe 2, de ce règlement a été transmis à l’instance compétente dans l’État membre d’exécution, cette dernière est tenue, dans le cadre de la mise en œuvre des règles nationales applicables, d’assurer le plein effet de l’article 11 dudit règlement en suspendant la procédure d’exécution”.

Source : https://curia.europa.eu/juris/document/document.jsf?docid=267418&mode=req&pageIndex=3&dir=&occ=first&part=1&text=&doclang=FR&cid=363782

AG Szpunar delivered on 20 October 2022 his opinion in case C‑291/21 (Starkinvest SRL), which is about the European Account Preservation Order. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

Context: “1. Le présent renvoi préjudiciel trouve son origine dans une procédure dans le cadre de laquelle la société de droit belge Starkinvest SRL demande l’autorisation de procéder à une saisie-arrêt conservatoire européenne de compte bancaire sur les sommes se trouvant potentiellement sur le compte bancaire français d’une société de droit irlandais.

2. Par cette procédure, la requérante au principal cherche à garantir une créance sur des astreintes qui seraient dues par cette société de droit irlandais sur la base d’une décision judiciaire rendue en Belgique l’obligeant, sous peine d’une astreinte de 2 500 euros par infraction, à cesser certains comportements.

3. [] le règlement (UE) nº 655/2014 prévoit des conditions différentes pour la délivrance d’une ordonnance européenne de saisie conservatoire des comptes bancaires (ci-après l’« OESC ») selon que le créancier a déjà obtenu ou non un titre exigeant du débiteur le paiement de sa créance dans l’État membre d’origine. Dans le premier cas, le créancier ne doit démontrer que le caractère urgent de la mesure du fait de l’existence d’un danger imminent, tandis que, dans le second cas, il doit également convaincre la juridiction du fumus boni iuris.

4. Dans la présente affaire se pose la question de savoir si le créancier, qui a obtenu une décision judiciaire condamnant le débiteur au paiement d’une astreinte en cas de violation d’un ordre de cessation imposé par cette décision, dispose d’un titre remplissant les conditions requises par le règlement nº 655/2014 et s’il est, dès lors, dispensé de l’obligation qui est exigée dans ce second cas de figure”.

Suggested decision : « L’article 7, paragraphe 2, du règlement (UE) no 655/2014 […] doit être interprété en ce sens que : une décision judiciaire signifiée condamnant le débiteur au paiement d’une astreinte en cas de violation d’un ordre de cessation ne constitue pas une « décision exigeant du débiteur le paiement de [la] créance » au sens de cette disposition, de sorte que la juridiction saisie d’une demande d’ordonnance européenne de saisie conservatoire des comptes bancaires par laquelle le créancier cherche à garantir le paiement de la créance relative à cette astreinte doit examiner l’existence et le montant de cette créance ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=267415&mode=req&pageIndex=4&dir=&occ=first&part=1&text=&doclang=FR&cid=365262

The Court of Justice delivered on 20 October 2022 its judgment in case C‑604/20 (ROI Land Investments Ltd), which is about employment law and Brussels I bis and Rome I. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« 1) L’article 21, paragraphe 1, sous b), i), et paragraphe 2, du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, doit être interprété en ce sens que : un travailleur peut attraire devant la juridiction du dernier lieu où, ou à partir duquel, il a accompli habituellement son travail une personne, domiciliée ou non sur le territoire d’un État membre, avec laquelle il n’est pas lié par un contrat de travail formel, mais qui est, en vertu d’un accord de garantie dont dépendait la conclusion du contrat de travail avec un tiers, directement responsable envers ce travailleur de l’exécution des obligations de ce tiers, à condition qu’il existe un lien de subordination entre cette personne et le travailleur.

2) L’article 6, paragraphe 1, du règlement no 1215/2012 doit être interprété en ce sens que : la réserve relative à l’application de l’article 21, paragraphe 2, de ce règlement exclut qu’une juridiction d’un État membre puisse se fonder sur les règles de cet État en matière de compétence judiciaire lorsque les conditions d’application de cet article 21, paragraphe 2, sont réunies, quand bien même ces règles seraient plus favorables au travailleur. En revanche, lorsque les conditions d’application ni dudit article 21, paragraphe 2, ni d’aucune des autres dispositions énumérées à l’article 6, paragraphe 1, dudit règlement ne sont réunies, une telle juridiction est libre, conformément à cette dernière disposition, d’appliquer lesdites règles pour déterminer la compétence judiciaire.

3) L’article 17, paragraphe 1, du règlement no 1215/2012 et l’article 6, paragraphe 1, du règlement [] (Rome I), doivent être interprétés en ce sens que : la notion d’« activité professionnelle » recouvre non seulement une activité indépendante, mais également une activité salariée. En outre, un accord conclu entre le travailleur et une personne tierce à l’employeur mentionné dans le contrat de travail, en vertu duquel celle-ci est directement responsable envers le travailleur des obligations de cet employeur découlant du contrat de travail, ne constitue pas un contrat conclu en dehors et indépendamment de toute activité ou finalité d’ordre professionnel pour l’application de ces dispositions ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=267403&mode=req&pageIndex=4&dir=&occ=first&part=1&text=&doclang=FR&cid=367019

This is the second and final part of a post contributed by Estelle Gallant, regarding the provisions on parentage in the proposed codification of French PIL. The first part can be found here. 

As explained in the first part of this post, the French draft code of private international law devotes an entire sub-section to parentage. After the presentation of the general choice of law rule related to biological parentage (Article 59), it is proposed to shed light on the two special rules in the same matter (Articles 60 and 61).

As regard the general rule codified in Article 59, the substitution of the national law of the child for the national law of the mother is the most positive contribution of the draft. By contrast, the two special rules of the draft, namely Articles 60 and 61, fall short of expectations, not always providing the expected simplifications or clarifications.

Special Rule on Voluntary Acknowledgement of Children (Article 60)

While innovative in certain respects, Article 60 of the draft Code is – for the most part – a reworking of positive law, resulting from a combination of Article 311-17 of the Civil Code and its interpretation by the courts. Although some of the difficulties pointed out in the literature and not necessarily resolved in the case law have been resolved by the draft, not all have been.

Specifically devoted to the voluntary acknowledgement of a child (i.e. declaration of a person that s/he is the parent of the relevant child), whether paternal or maternal, Article 60 distinguishes between substantive validity and formal validity of the acknowledgement, which is a novelty compared with the current system.

Substantive Validity of Voluntary Acknowledgement

Article 60(1) is innovative since it presents itself as an exception to the general provisions.

The solution of the derogation closes a doctrinal controversy that concerned both the methodological nature of the rule in Article 311-17 of the Civil Code and its scope of application. By making the rule on voluntary acknowledgement a derogation from the general rule, it follows that the general rule is purely and simply put aside as soon as an acknowledgement of a child is concerned. This solution is problematic under the current regime because it contributes to putting aside the law of the mother which may validate voluntary acknowledgement, but it is no longer problematic in the context of the draft: even by derogating from the general rule, the special rule merely offers an additional alternative connecting factor to that contained in the general rule. The derogation thus no longer seems to be contrary to the spirit of favouring the establishment of parentage out of marriage which is the overarching principle of the provisions on voluntary acknowledgement.

The conflict-of-laws rule (Article 60(1)) contains an alternative connecting factor to validate the acknowledgement of a child: the national law of the person making the acknowledgement or the national law of the child on the day of the acknowledgement. This is the same rule as the one currently found in the civil code (Article 311-17). The methodological nature of this rule is unclear: is it a “substance-oriented” choice of law rule, a rule of necessary application, a substantive domestic rule ordering the taking into consideration of foreign laws or perhaps even a rule of recognition of a situation? The drafters of the draft Code have remained deaf to these questions and have reproduced the provision almost identically. This being said, the methodological nature of the text is less important once its scope is clearly established and its implementation clarified.

The draft Code contains (in Article 60(4)) what may again be analysed as a special public policy clause, allowing recourse to French law in cases where neither of the two national laws referred to in Art 60(1) allows the validation of the acknowledgement. The purpose of the provision is to further strengthen the principle of favouring the establishment of parentage by voluntary acknowledgement. The provision is similar to the one that is proposed under Article 59, but the triggering factor is different. In the case of acknowledgement, French law will displace the foreign law that does not allow acknowledgement only in the event that the child is domiciled in France.

Lastly, it is regrettable that the draft code has not cared to define the notion of voluntary acknowledgement of children. Case law has revealed a difficulty of characterisation in situations that would have deserved particular attention, such as the case where the child has a birth certificate mentioning the mother’s name or the father’s name (Civ. 1ère, 28 May 2015, no. 14-18.100). Such cases have been dealt with under Article 311-17 of the Civil Code, whereas such a solution would certainly be worth discussing.

Challenges to Voluntary Acknowledgement

Following on from Article 60(1), Article 60(2) codifies judge made rules accepted since 1999 (Civ. 1ère, 6 July 1999, no. 97-19.453).  Disputes as to the truthfulness of the acknowledgement or to its validity, are subject cumulatively to the national law of the author and the national law of the child on the day of the acknowledgement. While acknowledgement is favoured by alternative connecting factors and the requirement that only one of these laws validates the acknowledgement, challenges to acknowledgements are disfavoured by the requirement that the requirements of two laws are applied cumulatively. Since the solution is not without criticism (in particular, why should preventing a child from destroying a parentage be more protective than the reverse?), it is regrettable that it has not been rethought.

Formal Validity of the Act of Voluntary Acknowledgement.

Article 60(3) provides a rule concerning the conditions of form for validly registering of voluntary acknowledgement of a child.  It adds to the two alternative connecting factors already provided for the substantive conditions of acknowledgement, a third connecting factor involving the law of the State in whose territory the act of acknowledgement is drawn up. This is a traditional solution as regards the form of documents and makes it possible not to penalise excessively for reasons of form a document which would otherwise be valid in substance.

Substantive Rule

As indicated earlier in the commentary on Article 59, Article 60(5) contains a substantive rule specific to conflicts of filiation/parentage and, more specifically, to conflicts of acknowledgements. Based on a chronological principle, the text indicates that “an acknowledgement, as long as it is not annulled, deprives of effect any subsequent acknowledgement of the child in the same line”. It is thus understood that in the presence of two voluntary acknowledgements established in two different States, the first should first be contested in order to be able to rely on the second. The solution is to be approved; it might have deserved to be generalised to all modes of establishment of filiation.

Special Rule on Enjoyment of a Status (Article 61)

Article 61 of the draft code of private international law more or less reproduces the current Article 311-15 of the Civil Code by giving effect to the substantive provisions of domestic law relating to “enjoyment on a status” (possession d’état) a concept specific to French law which draw consequences from the fact that a person raises a child as if s/he was his own. However, two clarifications are made by the draft text.

On the one hand, it limits the scope by referring only to provisions concerning the establishment of filiation (for example, Article 314 of the Civil Code, which allows the restoration of the presumption of paternity of the husband).

On the other hand, it indicates that the provision applies only by way of derogation from the preceding provisions, i.e. both with regard to the general rule and with regard to the special rule on voluntary acknowledgement. The clarification regarding the scope of the exception is interesting, as the solution contradicts that adopted very recently by the Court of Cassation. In a judgment of 23 March 2022, the Court of Cassation ruled that Article 311-15 of the Civil Code constituted a derogation only from Article 311-14 and not from the rule in Article 311-17. In other words, according to this judgment, as soon as Article 311-17 is applicable, it excludes Article 311-15 of the Civil Code.

Even if it has been cleaned up in this way, it is surprising that this provision relating to the French rules on enjoyment of a status has been retained in the draft Code: the complexity of the rule has been denounced many times, its application is extremely rare and its usefulness is unconvincing.

CALL FOR PAPERS

The International Society of Family Law is holding its 18th (Golden Jubilee) World Conference in Antwerp on 12-15 July 2023. The topic is “Rethinking Law’s Families & Family Law?”

The call for papers is now open. Interested persons are invited to submit abstracts for individual presentations or collective panels by 16 November 2022  by email to conveners@isfl2023.org.

Among other themes, panels may cover legal aspects of reproduction, (minor and adult) siblings, migration, and juvenile law. These of course also include matters of private international law.

The conference will be on-site in Antwerp and in English; proposals for limited French or Dutch panels are also welcome.

More information is available on the website of the University of Antwerp.

This November, more precisely on Tuesday 15, The Court will hand down the decision in C-646/20, Senatsverwaltung für Inneres und Sport, a request from the German Bundesgerichtshof on the Brussels II bis Regulation. The issue is whether a private divorce granted in Italy further to concurring statements by the spouses before the civil registrar can be recorded in the German register of marriages without any additional recognition procedure. Here the questions referred to the Court of Justice:

Is the dissolution of a marriage on the basis of Article 12 of Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’) a divorce within the meaning of the Brussels IIa Regulation?

If Question 1 is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of DL No 132/2014 to be treated in accordance with the rule in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements?

A short description of the facts can be read here.

As our editor Martina Mantovani has already reported, the case is one of few on PIL allocated to the Grand Chamber (Lenaerts, Bay Larsen, Arabadjiev, Prechal, Regan, Rodin, Jarukaitis, Ilešič, Bonichot, Safjan, Kumin, Arastey Sahún, Gavalec, Csehi, Spineanu-Matei, and Safjan as reporting judge). Advocate General Collins’s opinion was delivered on 5 May 2022. In his view,

The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of Council Regulation (EC) No 2201/2003.

For a short comment on the Opinion see Francesca Maoli in this blog.

A second decision will be handed down on Thursday 24, on C-358/21, Tilman. Tilman SA, a company governed by Belgian law, concluded in 2010 with Unilever Supply Chain Company AG, a company governed by Swiss law, an agreement by which the appellant undertook to wrap and package boxes of tea bags for a fixed price. In 2011, the parties signed a second agreement amending the price agreed. A dispute arose later in relation to the increase in the price charged by the appellant; the respondent paid the invoices only in part. The appellant brought proceedings in Belgium for payment of the outstanding amounts.

Before the court of first instance, the respondent contended that, in accordance with its general terms and conditions, only the English courts have jurisdiction to hear and determine the dispute. By judgment of 12 August 2015, the court of first instance ruled that the Belgian courts have jurisdiction to hear and determine the dispute, but that the contract is governed by, and must be interpreted in accordance with, English law.

The appellant lodged an appeal against that judgment. In its view, the contract must be governed by, and interpreted in accordance with Belgian law. The respondent brought a cross appeal, claiming that it is not the Belgian courts which have jurisdiction but rather the English courts.

The judgment delivered on 12 February 2020 by the Cour d’appel de Liège (Court of Appeal, Liège) (‘the judgment under appeal’)  upheld the plea alleging a lack of jurisdiction raised by the respondent and held that, pursuant to the clause conferring jurisdiction contained in the respondent’s general terms and conditions, the Belgian courts have no jurisdiction to hear and determine the dispute.

Before the Court of Cassation, the appellant does not contest that it signed a contract containing a reference to the respondent’s general terms and conditions, which are available on the latter’s website. By contrast, it claims that the judgment under appeal wrongly treats the agreement at issue in the same way as a ‘contract concluded online’ in the context of which the buyer is required ‘to tick a box indicating (that he) accepts the seller’s general terms and conditions before being able to finalise his purchase’. The appellant was in no way prompted to accept the respondent’s general terms and conditions formally by clicking on the corresponding box on the latter’s website. It therefore concludes that the judgment under appeal is not legally justified: it fails to ensure that the conditions, in particular the jurisdiction clause, were actually communicated to the appellant and that it expressly agreed to them.

The Belgium court has referred the following question on the 2007 Lugano Convention to the Court of Justice:

Are the requirements under Article 23(1)(a) and (2) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007, satisfied where a clause conferring jurisdiction is contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website?

The case has been assigned to a chamber of three judges (Arastey Sahún, Passer,  Biltgen – as reporting judge). It did not required the AG’s opinion.

As of today, a hearing is foreseen in C-658/22, Rzecznik Praw Dziecka et Prokurator Generalny, on child abduction, for early December; it may take place earlier, though. The referring court is the Sąd Apelacyjny w Warszawie ((Court of Appeal, Warsaw, Poland). In the main dispute, the Prokurator Generalny (Public Prosecutor General) and the Rzecznik Praw Dziecka (Commissioner for Children’s Rights) are seeking the suspension of the enforcement of the final order given by the Regional Court of Wrocław on 15 June 2022, and of the final order given by the Sąd Apelacyjny w Warszawie on 21 September 2022 in the action brought by T.C., with M.C. as an intervening party, to obtain an order requiring children to be returned to Ireland, and the application lodged by T.C. seeking a declaration stating that the final decision is enforceable.

Conventions & Instruments

On 1 October 2022, the 2007 Child Support Convention entered into force for the Philippines. At present, 44 States and the European Union are bound by the Convention. More information is available here.

On 4 October 2022, Cabo Verde deposited its instrument of accession to the 1980 Child Abduction Convention and 1996 Child Protection Convention. With the accession of Cabo Verde, the Child Abduction Convention now has 102 Contracting Parties. It will enter into force for Cabo Verde on 1 January 2023. For the Child Protection Convention, with the accession of Cabo Verde it now has 54 Contracting Parties. The Convention will enter into force for Cabo Verde on 1 August 2023. More information is available here.

 

Meetings & Events

From 18 to 20 October 2022, HCCH Asia Pacific Week was held in Manila in hybrid format. The conference provided the opportunity for the exchange of ideas and viewpoints from across Asia and the Pacific on some of the most prominent HCCH Conventions and instruments, as well as on the HCCH’s ongoing normative projects and possible future work, in the areas of transnational litigation and legal cooperation, international family and child protection law, and commercial, digital, and financial law. More information is available here.

From 17 to 21 October 2022, the Experts’ Group on Parentage / Surrogacy met for the twelfth time. The Group discussed the content of the final report that is to be presented to the Council on General Affairs and Policy at its 2023 meeting, in which the Group will present its assessment of the feasibility of one or more private international law instruments on legal parentage. More information is available here.

 

Upcoming Events

To celebrate the tenth anniversary of the HCCH Regional Office for Asia and the Pacific, a workshop on the HCCH Conventions in the area of transnational litigation in civil or commercial matters will be held on 8 November, as part of Hong Kong Legal Week 2022. Participation is free of charge, although advance registration is required. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

This post, written by Estelle Gallant, who is a Professor at the University of Toulouse Capitole, is the sixth in a series of posts concerning the proposed codification of French Private International Law. It is split into two parts: part one appears below, whereas part two will be published tomorrow. Previous posts relating to the French Draft Code addressed the issues of renvoi, foreign law, the recognition of marriages and companies. A German perspective on the draft was also offered here.

The French draft code of private international law devotes an entire sub-section to parentage, comprising five subdivisions (labelled ‘paragraphes’ in French). They distinguish various aspects of international parentage, which is certainly a good initiative: biological parentage, medically assisted parentage with a third-party donor, surrogate motherhood carried out abroad, the effects of parentage and adoption are thus covered by Articles 59 to 70 of the draft code.

Currently, the French Civil Code contains fragmented provisions on biological filiation (Articles 311-14 to 311-17), on the one hand, and adoption, on the other (Articles 370-3 to 370-5). Case law has supplemented these provisions.

The draft Code devotes a first subdivision to biological parentage, containing three articles articulated around a general rule (Article 59 of the draft Code) and two special rules (Articles 60 and 61 of the draft Code). These three provisions are presented by the drafters (see page 35 of the report on the draft code) as a recast of the existing system (see above, Articles 311-14 to 311-17 Civil Code). Indeed, analysis shows that the draft takes up the existing legal structure and system. Only the general rule is really recast, the two special rules being merely reworded and clarified at the margin.

This commentary will briefly present the general rule on biological parentage pursuant to Article 59 of the draft code; the special rules laid down in Articles 60 and 61 will be analysed in a later post. Within the general rule, the replacement of the national law of the mother by the national law of the child is the most positive contribution of the draft (see infra).

By stating that “unless the present Code provides otherwise, the establishment and contesting of parentage” are governed by the national law of the child, the rule in Article 59 is presented as a general  principle. It means that the rule applies in the absence of a special rule.

Scope of Article 59

Article 59(1) of the draft Code refers to “the establishment and contesting of parentage”, whereas the provision currently in force refers to “parentage”. The clarification is useful in that it improves the readability of the provisions.

The text contains an unprecedented clarification as regards the inclusion in the scope of the article of the settlement of conflicts of parentage (Article 59(2)). The solution is marked by a certain logic and has to be combined with the special rule in Article 60. This latter provision is specifically concerned with voluntary acknowledgements of children (ie declaration by a person that he is the parent (typically father) of the child) and will be analysed in a later post.

New Connecting Factor

The current Article 311-14 of the Civil Code, by designating the national law of the mother on the day of the child’s birth to govern his or her filiation, is now the subject of unanimous criticism, in particular for its unequal and unspecific nature. The draft thus seeks to respond to the criticism by designating the child’s national law, a proposal that had been made by scholars as early as 1972. That said, the solution will remain relatively isolated, since in comparative private international law it is the connection to the child’s habitual residence that is generally retained.

Like the current text, the draft provides a solution to the change of nationality (conflit mobile) by fixing the connection to the child’s nationality on the day of birth. The solution is to be approved.

Public Policy Clause

One of the strongest criticisms levelled at the connection to the mother’s nationality was that it had the defect of preventing the establishment of the paternal parentage when the mother was of a personal status prohibiting the establishment of paternal parentage out of marriage, even in the presence of a French defendant or a French child or a child residing in France. Although the public policy exception may have been used by case law to cancel this result, its systematic use in such cases is only recent (Civ. 1ère, 26 October 2011, no. 09-71.369 ; Civ. 1ère,  27 September 2017, no. 16-19.654 ; Civ. 1ère, 16 December 2020, no. 19-20.948).

It may be noted that the draft Code provides for precisely this hypothesis in Article 59(3):

If, by reason of discrimination related to the circumstances of his or her birth, the [applicable] law denies the child the right to establish his or her filiation, French law shall apply, provided that the French courts have jurisdiction under the present Code.

The rule can be analysed as a special public policy clause allowing French law to be substituted for the prohibitive foreign law, if the French courts are seised. The link required between the situation and the territory of the forum for the exception to be triggered is fulfilled if French courts have jurisdiction under French rules of international jurisdiction. Pursuant to Article 34 of the draft Code, the courts with jurisdiction in matters of filiation are those of the place of domicile or habitual residence of the child.

The alignment between the criterion of jurisdiction and the criterion of triggering public policy is interesting and will make it possible, more than in the past, to cover all situations that are likely to trigger the public policy exception, i.e in case of strong proximity to France (e.g. French child or child residing in France, but also, above all, French defendant or defendant residing in France).

On Wednesday, 16 November 2022, Professor Philippa Webb and Associate Professor Rishi Gulati will host a (hybrid) conference on “Accountability of Transnational ORgnisations” at King’s College London.

The conference will bring together academics, practitioners, and international organisation officials to discuss key developments around the legal accountability of transnational institutions.

The use of the term ‘transnational’ is deliberate. The aim is not just to consider accountability concerns relating to public international organisations (IOs), but also ones relevant to multinational corporations (MNCs) and non-governmental organisations (NGOs). The focus is on legal accountability, including the notion of access to justice for alleged victims of institutional conduct and due diligence obligations increasingly imposed on transnational institutions.

If interested, please register below:

https://www.eventbrite.co.uk/e/accountability-of-transnational-organisations-conference-tickets-441537238767?aff=ebdssbdestsearch

Kingdom of Sweden v Serwin & Ors [2022] EWHC 2706 (Comm) concerns an attempt by Sweden to gain compensation of a number of defendants whom it alleges were parties to a substantial fraud.  The fraud resulted in the misappropriation of in excess of €115m from the pension saving accounts of some 46,222 Swedish pension savers.

I may have to think one or two things through however I wanted to collect my initial thoughts at any rate.

Of note is that the application was one for summary judgment and that quite a few of the respondents did not file an acknowledgment of service or a defence. However, Sweden obtained permission from the court to obtain summary judgment on the merits even against them, rather than entering judgment in default (ia because that makes enforcement more straightforward). Other defendants are serving prison sentences in Sweden and they did enter a defence.

I do not want to turn this post into a banking and finance one however some background is required: [20] ff

The Swedish pension system has various types of pension provision, including a compulsory premium pension (PPM), in which a percentage of a pension saver’s earnings is put into an account, which is invested in investment funds selected by the pension saver from an online platform that the Swedish Pension Authority (SPA) maintains. Each pension saver has a PPM account. Among the investments which might be made were investments in so-called UCITS funds where these had been approved by the Swedish Financial Supervisory Authority (SFSA). UCITS funds are those meeting the requirements of the Undertakings for Collective Investment in Transferable Securities Directive 209/65/EC.

A company that wished to participate in the PPM was required to
enter into a cooperation agreement with the SPA. This case arises from two UCITS funds which were listed on the PPM online platform:

i)            the Optimus High Yield Fund (Optimus), managed by Optimus Fonder which entered into a co-operation agreement with the SPA on 26 March 2012; and

ii)          the Falcon Funds SICA V plc (Falcon) which entered into a co-operation agreement with the SPA in relation to three funders under its management.

The events concerning these two separate funds have been described in the evidence as the Optimus phase and the Falcon phase..

There was consensus ([38]) that the law applicable to the Swedish claims so far as they concerned the Optimus phase was Swedish law, whether by virtue of Article 4(1) or (3) Rome II. That Sweden’s claims relating to the Optimus phase were barred by the doctrine of res judicata, merger, cause of action estoppel or the allied doctrine in Henderson v Henderson, was dismissed by Foxton J [44].

Falcon then was incorporated and authorised by the Maltese Financial Services Authority as a UCITS fund on 22 November 2013. Sweden’s summary judgment claim in relation to the Falcon phase argued that its claims in delict and for breach of fiduciary duty relating to that phase are governed by Maltese law and not Swedish law.

As far as the delict issue is concerned (misappropriation), application of A4(2)  to some of the defendants was clear, and Sweden argued application of A4(1) for the remainder, seemingly arguing (judgment is a bit unclear on this point) that the damage was suffered in Malta when funds held in Falcon were applied to the various classes of loss-making investments.  Reference was made by counsel and judge to Dicey 16th ed. 35-027: “in misappropriation cases … it seems appropriate to locate damage at the place where an asset … is taken from the control of the claimant or another person with whom the claimant has a relationship” – the judge held that it is strongly arguable that this happened when Sweden’s funds became subject to the control of Falcon and the powers of its directors or those operating behind the scenes; the judge seems to locate this in Sweden, not Malta, and to some degree it does not matter for with reference ia to Avonwick and reasons listed [81] it is held that A4(3) arguably is engaged to make the lex causae Swedish law.

[86] reference is again made to Dicey for the applicable law issue as far as breach of fiduciary duties is concerned: Dicey, Morris & Collins [36-069]-[36-070]:

i)                 If equitable obligations of a fiduciary character arise in the context of a contractual relationship, there is a strong argument that the law applicable to the parties’ contractual relationship under Rome I determines whether a fiduciary relationship exists and the nature and content of the duties imposed.

ii)               If, however, the equitable obligations are characterised as incidents of a company law relationship rather than as “contractual”, common law principles determine the applicable law ( company law matters are excluded from Rome I and Rome II).

iii)             If a fiduciary duty arises where the parties were not in a prior relationship, such as in the case of a recipient of trust property, then the “better view” is that the obligation is non- contractual in nature and falls within the ambit of Rome II.

Unlike Sweden, the judge holds there are strong arguments that Swedish law applies, by reference it seems to Dicey, above, i) and with the ‘anchor’ agreement being the one by which Falcon becomes eligible to received PPM funds. Rule ii) seems to be moved aside by the judge here, and at any rate the extent of that rule is not clear-cut (see the CJEU itself recently). It is clear and it was correct to hold that the discussion is not one for summary judgment material.

An interesting final, obiter point comes [91] ff re the ‘reflective loss’ rule (a shareholder (and some others) cannot claim for a fall in the value of their holdings due to loss suffered by the company, if and when the company has a cause of action against the same wrongdoer) under Maltese law. Falcon itself is currently asserting claims against some of the alleged wrongdoers in relation to those same misappropriations, however Sweden argues an exception to that rule on the basis of Maltese expert evidence that was not considered to be robust enough for the summary judgment stage.

I wonder though whether the suggested relevance of the reflective loss rule, does not serve as ammunition for the suggestion that Rome I and II’s corporate carve-out is engaged viz the breach of fiduciary duties claim. For is the DNA of the rule not one of clear lex incorporationis?

To be further pondered.

Geert.

Partially successful application for summary judgment
Some of the implications of lex causae under Rome II for breach of fiduciary duty have to go to trial

Kingdom of Sweden v Serwin & Ors [2022] EWHC 2706 (Comm) https://t.co/JgLAba8zI2
via @legalstyleblog

— Geert Van Calster (@GAVClaw) October 27, 2022

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

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

 

U. Janzen/R. Wagner: The German implementing rules for the Brussels II ter Regulation

When the original version of the Brussels II Regulation was adopted in 2000, it was not certain whether this regulation would be such a success. In the meantime, the regulation has become one of the most important legal instruments for judicial cooperation in civil matters. The regulation has recently been revised for the second time. The following article presents the German implementing rules for this recast.

 

R. Magnus: A new Private International Law and new Procedural Rules for Adoptions in Germany

As a result of two recent reforms the German private international and procedural laws applicable to adoptions have changed quite substantively. Article 22 (1) sentence 1 of the Introductory Act to the German Civil Code (EG-BGB) now refers to the lex fori as the law applicable for all domestic procedures, and section 1 (2) of the Adoption effects Act (AdWirkG) introduces an obligatory recognition procedure for many foreign adoptions. The effects of these and other innovations are examined and evaluated in detail in this article.

 

H.-P. Mansel: Liberalization of the Private International Law of Marriage and Registered Civil Partnership: Remarks on the Place of Marriage and Registration as Connecting Factors

According to the new proposal of the German Council for Private International Law, the law of the “place of marriage” is to govern the establishment of a marriage or registered civil partnership. The article deals with this proposal and explores the question of how this place is to be determined in the case of an online marriage. It argues for the application of the law of the state where the register is kept.

 

B. Laukemann: Protecting procedural confidence against the insolvency estate?

According to Union law, the effects of insolvency proceedings on a pending lawsuit are governed by the lex fori – and thus not by the law of the opening Member State (s. Art. 18 European Insolvency Regulation [EIR], Art. 292 Directive 2009/138, Art. 32 Directive 2001/24). At first glance, the distinction between the lex fori and the lex concursus raised here does not cause any major problems of interpretation. But can the lex fori and its regulatory purpose, which is to guarantee protection of confidence and legal certainty in civil proceedings, also be brought into position against the liability regime of foreign insolvency proceedings? A look at Art. 7(2)(c) EIR, which, in turn, allocates procedural powers of a debtor and insolvency practitioner to the lex fori concursus, reveals the difficulties of a clear-cut demarcation between the law of the forum and the law governing insolvency proceedings. The present contribution seeks to pursue this classification problem, equally relevant in legal and practical terms, for the relevant pieces of secondary EU legislation. Recently, this legal question was submitted to the CJEU – due to the liquidation of an insurance company within the scope of the Solvency II Directive. The decision gives rise to critically examine the delimitation approach of the CJEU and to ask in general how the protection of procedural confidence, on the one hand, and insolvency-related liability interests of the creditors, on the other, can be brought into an appropriate balance.

 

J. Kondring: International Service by WhatsApp: Reflections on the Hague Service Convention and the 1928 Anglo-German Convention in Judgement and Recognition Proceedings

In times of electronic communication, the question arises whether cross-border service by means of electronic communication is possible. The Higher Regional Court (OLG) of Frankfurt a.M. had to decide this question in recognition proceedings for a Canadian-German service by WhatsApp. Neither the Hague Service Convention nor bilateral agreements such as the Anglo-German Convention of 1928 allow service by WhatsApp. In this respect, the article also ex-amines the interaction of section 189 German Code of Civil Procedure (ZPO) and Art. 15 of the Hague Service Convention in both judgment and recognition proceedings, including the relationship to the parallel Anglo-German Convention of 1928. In certain cases, Art. 15 of the Hague Service Convention moves aside and “neutralises” section 189 German Code of Civil Procedure and its legal consequences. For the recognition proceedings, Art. 15 of the Hague Service Convention will also have to be taken into account in the context of the examination of the regularity of service of the document instituting the proceedings.

 

S. Arnold: Applicability of Article 15(1)(c) Lugano II in cases of subsequent relocation of consumers

In its judgment (C-296/20), the ECJ follows the consumer-friendly course already taken in the mBank decision. It interpreted Article 15(1)(c) Lugano II (and by doing so also the corresponding Article 17(1)(c) Brussels Ibis Regulation). The court clarified that the provision governs the jurisdiction of a court also in such cases where a consumer who has contracted with a professional counterparty subsequently relocates to another contracting State. Thus, it is not necessary for the cross-border activities of the professional party to have already existed at the time the contract was concluded. Rather, the subsequent move of the consumer also constitutes the “pursuit” of the professional or commercial activity in the consumer’s member state. Consequently, the court strengthens the position of consumers. Even in the event of a subsequent move, they can rely on the (passive) forum of protection of Article 16(2) Lugano II and the (active) forum of Article 16(1) Lugano II at their place of residence. The burden that this decision places on the professional counterparty – the risk of foreign litigation even if the matter was purely domestic at the time the contract was concluded – seems reasonable, as choice of forum agreements (Art. 17 No. 3 Lugano II) remain possible as a means of protection.

 

A. Staudinger/F. Scharnetzki: The applicable law for the internal settlement between two liability insurances of a tractor-trailer combination – Karlsruhe locuta, causa non finita.

If in a tractor-trailer combination the owners of the tractor unit and the trailer are not the same person and two different liability insurers cover the respective operating risk, the question arises as to the internal settlement between the two liability insurances. Here, first the conflict-of-law issue to be dealt with is the source of law that is to be used to determine the relevant statute for recourse. In its decision of 3 March 2021, the Federal Court of Justice endorsed an alternative approach based on Article 19 of the Rome II Regulation and Article 7 para. 4 lit. b) of the Rome I Regulation in conjunction with Article 46d para. 2 of the Introductory Act to the German Civil Code (EGBGB) for a situation in which a German liability insurer of the tractor seeks half compensation from a Czech trailer insurer. In the opinion of the authors, the IV. Civil Senate had, in light of the European Court of Justice’s decision of 21 January 2016 in the joined cases C-359/14 and C-475/14, an obligation to refer to the Court in Luxembourg under Article 267 para. 1 lit. b), para. 3 TFEU. So, the solution via Art. 19 Rome II Regulation seems hardly convincing, at most a special rule on conflict of laws like Art. 7 para. 4 lit. b) Rome I Regulation. Whether and to what extent Article 7 para. 4 lit. b) Rome I Regulation can be instrumentalized to enforce § 78 para. 2 VVG old version via Article 46d para. 2 EGBGB, however, should have been finally clarified by the European Court of Justice. In particular, it seems doubtful whether Article 46d para. 2 EGBGB as a national rule, which goes back to Art. 7 para. 4 lit. b) Rome I Regulation, allows a provision such as § 78 para. 2 VVG old version to be applied as a mere recourse rule between two insurers. This applies all the more since no special public interests or interests of injured parties worthy of protection are affected here.

 

C. Mayer: Relevance of the place of marriage for determining the applicable law in relation to the formal requirements of proxy marriage and online marriage

The decisions of the Federal Court of Justice and the Düsseldorf Administrative Court concern a double proxy marriage in Mexico and an online marriage via live video conference with an official from the US state of Utah. In both cases, the spouses were themselves in Germany. Both decisions focus on the conflict of law determination of the applicable law in relation to the formal requirements of marriage. Due to the German conflict of law rules in Art. 11 and Art. 13 Para. 4 EGBGB, the place of marriage is decisive. The Federal Court of Justice concludes that the double proxy marriage took place in Mexico, which is why the marriage was formally valid under the applicable local law. The Dusseldorf Administrative Court rules that the online marriage was concluded in Germany, so that only German law is applicable and the marriage is therefore formally invalid due to the lack of participation of a registrar. Both cases reveal inconsistencies in German conflict of laws.

 

S. Deuring: The Purchase of Trees Growing in Brazil: Not a Contract Relating to a Right in rem in Immovable Property or a Tenancy of Immovable Property

ShareWood, a company established in Switzerland, and a consumer resident in Austria had entered into a framework agreement and four purchase contracts for the acquisition of teak and balsa trees in Brazil. When the consumer demanded the termination of the purchase contracts, the question arose of whether this demand could be based on Austrian law, even though the parties had agreed that Swiss law should apply. Siding with the consumer, the ECJ ruled that contractual arrangements such as the present one cannot be considered contracts relating to a right in rem in immovable property or tenancy of immovable property pursuant to Art. 6(4)(c) of the Rome I Regulation. The non-applicability of this provision entails the applicability of Art. 6(2) cl. 2 of the Rome I Regulation. According to the latter, a choice of law may not have the result of depriving consumers of the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence. In consequence, the consumer could, in fact, base his action on Austrian law.

 

C. Benicke/N. Suchocki: Judicial approval for disclaimer of interests given by parents for their minor children – Polish cases of succession at German courts and the role of the special escape clause in Art. 15 (2) CPC 1996

Polish probate courts demand for judicial approval of any disclaimer of interest given by parents for their minor children, even if such an approval is not required under the law applicable according to Art. 17 of the Child Protection Convention 1996. If German law is applicable due to Art. 17 CPC 1996, in most cases a judicial approval for the disclaimer of interest is not required according to § 1643 (2) p. 2 BGB. As a consequence, German family courts having jurisdiction to issue a judicial approval according to Art. 5 (1) CPC 1996 cannot do so, because under German law, applicable according to Art. 15 (1) CPC 1996 no judicial approval can be issued if not required by the substantive law applicable according to Art. 17 CPC 1996. This leads to the situation that no valid disclaimer of interest can be made, even though both jurisdictions would allow it in a purely domestic case. Therefore, the question arises as to whether in such cases a German family court may issue a judicial approval due to Art. 15 (2) CPC 1996, which exceptionally allows to apply or take into consideration the law of another State with which the situation has a substantial connection. One of the various regulatory purposes of the special escape clause in Art. 15 (2) CPC 1996 consists in allowing the court to adjust the lex fori in order to solve an adaptation problem as it is in this case. The Higher Regional Court Hamm issued such a judicial approval in taking into consideration that the Polish law requires a judicial approval for the disclaimer of interest. We agree with the OLG Hamm in the result, but not in the justification. As Art. 15 (2) CPC 1996 refers only to Art. 15 (1) CPC 1996 the taking into consideration of Polish law cannot overrule that the law applicable according to Art. 17 CPC 1996 does not require a judicial approval. To solve the adaptation problem, it suffices that German law applicable according to Art. 15 (1) CPC 1996 is modified in so far that it allows the formal issuance of a judicial approval even though such an approval is not required by the substantive law applicable according to Art. 17 CPC 1996.

 

R. Hüßtege: German procedural law for obtaining a decision that the removal or retention of a child was wrongful – present and future

Art. 15 of the Hague Convention on the civil aspects of international child abduction requests that the applicant should obtain from the authorities of the State of the habitual residence of the child a decision that the removal or retention was wrongful within the meaning of Article 3 of the Convention. The procedure for obtaining the decision is regulated incomplete in the German implementation law. Most of the problems raised will, however, be remedied by the reform of the German implementing act.

 

P. Schlosser: Recognition even if service of the document initiating the proceedings had not taken place?

The author is submitting that Art. 22 of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides only one alternative for refusing recognition to a maintenance Judgment (“may be refused”) and that, therefore, more liberal provisions in national Law are upheld. The German code of civil procedure, § 328, seems not to be more liberal, but must be seen in the light of the overwhelming principle of safeguarding the right to be heard in court. Yet, this principle is well safeguarded, if the proposed victim in the subsequent proceedings of exequatur gets a chance to assert what he would have asserted in the original litigation but, thereby, he had no chance to achieve a different result. Under these circumstances the contrary solution would amount to a refusal of justice to the other party.

 

B. Heiderhoff: Refugees and the Hague Child Abduction Convention:

The ECJ held that the removal of a child cannot be wrong ful in the sense of Article 2(11) of Regulation No 2201/2003 (now Article 2 sec 2(11) of Regulation No 2019/1111), if the parent has complied with a decision to transfer under Regulation (EU) No 604/2013 by leaving the country. This decision makes a valid point, but seems too general and reaches too far. The contribution shows that the integration of family law and migration law is insufficient and urges better coordination between the actors to achieve better protection of the child.

 

T. Frantzen: Norwegian International Law of Inheritance

Norway adopted a new act on inheritance and the administration of estates in 2019. The act came into force on 1 January 2021. The new act is based on the principles of the act on inheritance from 1972 and the act on administration of estates from 1930. This means that descendants may claim a forced share of 2/3 of the estate, however with a limitation of approximately 150,000 Euro. With the new act the amount has been increased, and it is regulated each year. A surviving spouse may, as before, claim a legal share. The spouse may alternatively choose to take over the so-called undivided estate. This means that the division of the estate is postponed.

Until the new succession act was adopted, Norwegian choice of law rules on succession were based on customary law. The general principle was that succession was governed by the law of the State in which the deceased had her/his last domicile, and that there was no, or a very limited space, for party autonomy.

The new act decides that the administration of estates may take place in Norway if the deceased had her/his last habitual residence in Norway. When it comes to succession, the main rule is that succession is governed by the law of the State where the deceased had her/his last habitual residence. Party autonomy is introduced in the new act, as a person may choose that succession shall be governed by the law of a State of which he or she was a national. The decision on the choice of law is however not valid if the person was a Norwegian citizen by the time of death. The few provisions on choice of law are based on the EuErbVO.

 

C. Jessel-Holst: Private international law reform in North Macedonia

In 2020, North Macedonia adopted a new Private International Law Act which replaces the 2007 Act of the same name and applies from 18.2.2021. The new Act amounts to a fundamental reform which is mainly inspired by the Acquis communautaire. It also refers to a number of Hague Conventions. The Act contains conflict-of-law rules as well as rules on procedure. Many issues are regulated for the first time. The concept of renvoi is maintained but the scope of application has been significantly reduced. As a requirement for the recognition of foreign judgments the Act introduces the mirror principle. As was previously the case, reciprocity does not constitute a prerequisite for recognition and enforcement.

Diego Zambrano, Mariah Mastrodimos and Sergio Valente (Stanford Law School) have posted The Full Faith and Credit Clause and the Puzzle of Abortion Laws on SSRN.

The abstract reads:

Even before Dobbs overturned Roe v. Wade, states and legal observers were debating the constitutionality of another abortion-related law: Texas SB8. In mid-2021, Texas adopted a powerful new anti-abortion bill that barred anyone from performing abortions in the state of Texas starting at six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, SB8 relied entirely on private lawsuits. The Texas abortion law triggered a discussion over the use of private enforcement actions to attack federal constitutional rights. Critics argued that Texas indirectly nullified the then-established constitutional right to abortion, that the Supreme Court surrendered traditional tools to review state legislation, and that SB8’s private enforcement regime was a procedural Frankenstein that violated due process norms. These discussions remain relevant even after the Supreme Court’s overturning of Roe because blue counties with elected prosecutors may refuse to enforce state criminal abortion laws, and states will continue to consider private enforcement schemes to regulate abortion, interstate travel, and other individual rights. Indeed, California recently adopted a gun control statute that is modeled on SB8’s private enforcement scheme.

Most importantly, for our purposes, some states like California have countered SB8 with legal provisions that seek to shield in-state residents from out-of-state claims and even prohibit the enforcement of SB8 awards. The question, then, is not only whether new private enforcement schemes can survive constitutional challenges but whether other states can respond by shielding their own residents.

In this essay we focus on the constitutionality of one legislative response to SB8 adopted by California—AB 1666, a law that seeks to shield in-state medical providers from SB8-style actions by prohibiting California courts from serving as a venue for SB8 claims and barring enforcement of Texas SB8 judgments. California’s main concern was that California doctors could face crippling liability under SB8 for prescribing abortion pills via telemedicine to patients in Texas. The Constitutional problem, however, is that AB1666’s provisions will face challenges under the Full Faith and Credit Clause of Article IV (the “FFC”). This raises a wealth of questions about conflict of laws, interstate relations, horizontal federalism, and the federal Constitution.

In a sense, the FFC is the unheralded workhorse of the original constitution, single-handedly maintaining a system of federalism in which states are obligated to recognize and enforce other states’ laws and judgments. Without it, states would be free to ignore each other’s’ laws, weakening any semblance of a national union and lending a hand to political polarization. Indeed, growing polarization will increase pressure on the FFC, as states seek ways to battle each other over topics like abortion, guns, and LGBTQ related laws.

Focusing specifically on the interaction of California’s AB1666, Texas SB8, and the FFC, we argue that California will probably be able to take advantage of exceptions to the FFC to defend its pro-choice laws. An analysis of recent doctrine demonstrates that California’s venue bar is likely constitutional. The judgment enforcement provision, however, will face trickier challenges and its constitutionality under the FFC is too close to call. The central question going forward is whether courts will interpret the FFC in a flexible and pragmatic manner—allowing for capacious exceptions—or will, by contrast, apply a tight leash on state legislative schemes.