EAPIL blog

On 10 February 2020, the European Commission announced its intention to open a process of consultation to get feedback from citizen and stakeholders on whether the EU should join the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters (the Hague Judgments Convention). 

In the words of the Commission, the EU has put in place a highly developed internal acquis for the cross-boder recognition and enforcement of judgments, as a necessary complement to its single market. By way of contrast, at the international level the recognition and enforcement of judgments in civil and commercial matters has, until recently, not been successfully regulated, even if some bilateral agreements between States exist.

Currently, civil or commercial judgments rendered by courts in the European Union can be recognised and enforced in a third country only in a limited number of situations, namely: (i) based on the 2005 Choice of Court Convention, which has a limited scope; (ii) in Iceland, Norway and Switzerland based on the Lugano Convention; (iii) based on a limited number of bilateral treaties between individual Member States and third States; (iv) based on multilateral treaties related to particular matters; or (v) on the basis of the national law of third States, sometimes subject to reciprocity. 

The Commission believes that the adoption in July 2019 of the Hague Judgments Convention may change the situation just described. Moreover, it claims that a future proposal for EU accession to the Judgments Convention would be in line with the objectives set out in the Political Guidelines for the European Commission (2019-2024), in particular related to “An economy that works for people”.

The policy objectives of the EU accession to the Judgments Convention would be: to enhance access to justice for EU businesses and citizens through a system that facilitates the recognition and enforcement of judgments everywhere in the world where the debtor happens to have assets; to increase legal certainty for those involved in international trade and investment; to reduce costs for businesses and citizens involved in international dealings or in international dispute resolution; to allow the recognition and enforcement of third-country judgments in the EU only where fundamental principles of EU law are respected, such as for instance the right to a fair trial, and which do not affect the EU acquis related to the internal recognition and enforcement of judgments.

As for the policy options, the Commission puts forward the following:

Option 0: Baseline scenario: no policy change. The Union will thus not accede to the Judgments Convention and the current status quo will continue. However, given the EU’s active involvement in these negotiations and the fact that its results reflect EU’s policy interests, this scenario is taken into account mainly as a benchmark in order to assess the other options.

Option 1a: The Union will accede to the Judgments Convention without making any declaration.

Option 1b: The Union will accede to the Judgments Convention, excluding certain matters reflecting the EU’s policy objective of protecting weaker parties, such as consumers, employees or, in matters relating to insurance, the policyholder, the insured or the beneficiary, or/and certain matters falling under the exclusive jurisdiction of EU courts, for instance with regard to disputes relating to tenancies or commercial lease of immovable property.

Option 1c: The Union will accede to the Judgments Convention excluding State entities from the application of the Convention

Option 1d: A combination of options 1b and 1c

The Commission’s preliminary assessment of acceding to the Convention points to a positive outcome in economic terms, coupled with an improvement of growth and investment, thus of employment (the Commission acknowledges nontheless that as trade and investment of companies from outside the EU might also increase, some negative economic impacts in the short term cannot be excluded for EU competitors).

From the point of view of access to justice, signing the Convention would have postive implications as well. In terms of administrative burdens, the Commission is once again optimistic: although some Member States with a simple system for recognition and enforcement would face some negative impact if the new system based on the Judgments Convention is implemented, the Commission believes that such possible negative impacts would be offset by the important economic benefits.

The public consultation on the above-mentioned policy objectives and options, and on the likely impacts of signing the Convention, will be launched in March/April 2020 and run for a minimum period of 12 weeks. It will be available via the Commission’s central public consultations page; the questionnaires will be available in English, French and German but the replies can be made in any of the 24 official languages.

An in-depth Study on the Hague Judgements Convention Draft of November 2017, requested by the JURI Committee of the EU Parliament, to a large extent, still valid under the final version, can be downloaded here; it includes a chapter devoted to the relationship with the EU rules, and policy recommendations on the position of the EU vis-à-vis the Convention. A detailed explanation of the Convention as adopted is provided by A. Bonomi (Professor at the University of Laussane) and C. Mariottini (Senior Research Fellow, Max Planck Institute Luxembourg) at the Yearbook of Private International Law, vol. 20 (2018/2019), pp. 537-567. 

The 12th edition of the leading French treatise on private international law of Prof. Pierre Mayer (Panthéon-Sorbonne University) is out. The book is now primarily updated  by Vincent Heuzé (Panthéon-Sorbonne University) and Benjamin Remy (Cergy Pontoise University).

The book covers all traditional dimensions of the conflict of laws and, in keeping with the French tradition, the law of citizenship and immigration.

More details can be found here.

Maria Caterina Baruffi and Matteo Ortino (both University of Verona) have edited Trending topics in international and EU law: legal and economic perspectives.

The book collects the proceedings of the #TILT Young Academic Colloquium, held in Verona on 23-24 May 2019. The event, targeted to Ph.D. students and early career scholars, was organised by the Law Department of the University of Verona in collaboration with the Ph.D. School of Legal and Economic Studies and the European Documentation Centre.

The volume is divided into four parts, respectively devoted to public international law, including papers on human rights, international criminal law and investment law; private international law ; EU law, both in its general aspects and its policies; and law and economics.

The table of contents can be found here. See here for further information.

Luis de Lima Pinheiro (university of Lisbon) has posted Public Policy and Private International Law – Portugal on SSRN.

The abstract reads:

The present report is aimed at describing the concept, legal framework, and features of the public policy clause in the Portuguese legal order, and at giving an account of the main applications of this clause in modern Portuguese case law and literature (marriage, children, custodianship, succession, contract, non-contractual obligations, property, intellectual property, and corporate).

The report deals mainly with choice of law, but reference is also made to the recognition of foreign judgments, since the public policy features and applications are to a large extent common in both contexts.

Portuguese courts tend to respect the exceptionality of the public policy clause. In recent case law, only a few judgments have deviated from this guideline, namely concerning the right of some heirs to a legal portion of the estate. In the vast majority of situations, the arguments based upon international public policy considerations were not accepted by the courts.

The paper is forthcoming in Public Policy and Private International Law (Olaf Meyer ed., Edward Elgar). It can be downloaded here.

In 2006 a German patient received, in Germany, defective breast implants manufactured by Poly Implant Prothèse SA (‘PIP’), a French undertaking that is now insolvent. The patient seeks compensation before the German courts from Allianz IARD SA, the French insurer of PIP.

In France, manufacturers of medical devices are under a statutory obligation to be insured against civil liability for harm suffered by third parties arising from their activities (see Article L.1142‑2 of the Public Health Code). That obligation led PIP to conclude an insurance contract with Allianz, which contained a territorial clause limiting the cover to damage caused on French territory only. Thus, PIP medical devices that were exported to another Member State and used there were not covered by the insurance contract.

In this context, the Oberlandesgericht Frankfurt am Main enquires whether the fact that PIP was insured by Allianz for damage caused by its medical devices on French territory only, to the exclusion of that potentially caused in other Member States, is compatible with Article 18 TFEU and the principle of non-discrimination on grounds of nationality contained therein.

The referring court asked first whether Article 18 has a direct third-party effect; subsidiarily, it asked about an indirect discrimination on the basis of nationality on the side of the competent French authority – as an emanation of the State -, who did not object to the territorial clause mentioned above (two further questions followed, for the case of an affirmative reply to the first one).

AG’s Bobek opinion on the case (case C-581/18) was published on 6 February 2020. It contains principally reflections on the autonomous application of Article 18 TFUE. Additionally, in response to a first point of disagreement among the parties presenting observations, it explores the criteria determining whether a subject matter falls under the scope of application of EU.

Mr. Bobek rejects an interpretation of Article 18 TFEU as an autonomous provision creating enforceable obligations not already laid down by one of the four fundamental freedoms, or specifically provided for in any other instrument of EU law: and this, for structural reasons (as he says, in order to respect the regulatory logic of the internal market). According to Mr. Bobek (at 110), otherwise Article 18 TFEU would be turned

into a limitless provision, by virtue of which any issue, however remotely connected to a provision of EU law, could be harmonised by judicial means. It would furthermore turn regulatory competence within the internal market on its head, generating irreconcilable future conflicts of competence between the Member States.

He goes on to say (at 112) that

it is also clear from the discussion of the present case that if Article 18 TFEU were allowed to operate as a free-standing, substantive obligation in the way implied by the referring court in its questions, its reach would go beyond anything that the free movement case-law ever contemplated, including the case-law on goods pre-Keck. Interpreted in that way, there would be no limit to the scope of Article 18 TFEU: that provision would be turned into a Dassonville formula on steroids. In today’s interconnected world, sooner or later, there is inevitably some sort of interaction with goods, services or persons from other Member States. If that were enough to trigger the independent applicability of Article 18 TFEU, every single rule in a Member State would be caught by that provision.”

And adds later (at 114, 115)

the rules on free movement, as well as Article 18 TFEU, logically only cover the free flow of goods or services across borders, including exit and entry. Unless expressly harmonised by the EU legislature, the rules on their subsequent use are a matter for the Member States where they are used (…). In other words, the fact that goods once came from another Member State is not a sufficient reason to suggest that any matter later concerning those goods is covered by EU law.

From a legal point of view, the opinion is most probably correct (the practical outcome, “vous auriez dû aller vous faire soigner en France”, may be morally regrettable; but an expansive interpretation of Article 18 is not the appropriate way to avoid it). However, I have to admit I do not follow him when he seeks support on PIL arguments. This happens at 113, where he puts forward a possible consequence of an independent applicability of Article 18 TFEU:

To take just one example: imagine that, while drafting this Opinion, I am injured — hopefully not too seriously — because the computer I am typing on explodes. The various parts of the computer are likely to have been produced in a Member State other than Luxembourg, more likely even, in the age of integrated supply chains, in several Member States, if not also third countries. Absent any specific contractual terms concerning applicable law and jurisdiction between the producer of that computer and myself, therefore assuming normal rules on tort (delict) were to apply, the applicable law governing any damages claim is likely to be Luxembourg law, as the law of the State in which the accident occurred. Should I then, if I were to find Luxembourg law unsatisfactory for my damages case, have the possibility of relying on Article 18 TFEU in order to invoke the law of the place of production of the computer, or perhaps even the place of production of any of the components of the computer, and have my claim enforced before a Luxembourg court?

Nor do I understand either, at 115, why his recollection of the statutory doctrine:

If that logic were to be embraced, by a questionable interpretation of Article 18 TFEU, the movement of goods in Europe would become (once again) reminiscent of medieval legal particularism, whereby each product would, like a person, carry its own laws with it. Goods would be like snails, carrying their homes with them in the form of the legislation of their country of origin, to be applicable to them from their production to their destruction.

I was looking for conflict-of-law echoes in the Opinion, thus I was happy to find them; but (surely my fault) I fail to see the link of this line of argument with the case at hand. Anyway, one does not need to agree with each single point of an Opinion to approve of it. And it is always fun to read Mr. Bobek.

As reported earlier in this blog, the Queen Mary University of London will host a series of workshops on Private International Law after Brexit.

The first workshop of the series, scheduled for 28 February 2020, is sold out. The second and third workshop will be held on 1 and 2 April 2020, and will focus on the future development of private international law in the UK in relation to commercial law and family law, respectively.

More on the events can be found here.

On 29 January 2020, the District Court of The Hague dismissed the claim of a Palestinian-Dutch Citizen against the Chief of General Staff and Air Force Chief of the Israeli Army. The popular press has reported that one of the two Israeli generals was Benny Gantz, a recent contender to Benyamin Netanyahou in Israel politics.

The plaintiff was claiming compensation for the consequences of an air strike occurred on 20 July 2014 in the context of the Israeli military operation in the Gaza Strip, Operation Protective Edge. He claimed that the air strike targeted family homes, including one where six of his family members died.

Unsurprisingly, the State of Israel asserted immunity from jurisdiction for the defendants with regards to acts performed in their official capacity. The existence of the functional immunity of foreign officials was not disputed. The only issue was whether an exception existed for international crimes. After noting that the concept of international crime was not well defined, the court explained that it would only assume their existence for the sake of the argument and for assessing whether this would limit the immunity of the defendants.

The Hague Court first noted that both the International Court of Justice and the European Court of Human Rights (ECtHR) had ruled that States could not be deprived from immunity for serious violations of international human rights law. It further noted that none of the parties had been able to produce either an international or a national case ruling otherwise since then.

The court then rejected the argument of the plaintiff according to which an exception could exist for claims directed against individuals, as opposed to States. The reason was that such developments are limited to prosecutions before international tribunals and do not apply to proceedings before national courts. The court held:

In short, individual responsibility and dual attribution only apply to international courts, which take a fundamentally different position than national courts. Unlike international courts, national courts function in the horizontal relationship between States when prosecuting subjects of foreign States, to which the customary international-law principle of equality of States applies. Unlike for international courts, functional immunity from jurisdiction is the starting point for national courts.

Finally, the court explored whether there might be a limitation of functional immunity from jurisdiction in criminal proceedings before national courts under customary international law.

For that purpose, it assessed whether there was a general State practice and general acceptance that such practice was law. It found that this was not the case. Contrary to courts in other European states (and indeed the ECtHR) which relied on international conventions which are not in force and on explanatory reports which had not even made it into actual provisions of such conventions, the court noted the progressive work on the International Law Commission which introduced such limitations, but found that they were not adopted by consensus, and that it could thus not be said that this work had codified, or was representative of, customary international law.

The court then turned to Dutch opinion and cited a number of declarations of the Dutch government stating that it considered the limitation to exist. The court concluded, however:

The court will not delve deeper into the opinion of the Dutch court and the discussion on the Dutch criminal law practice as alleged by [claimant], as these do not reflect the current status of customary international law. As has been stated above, a limitation to functional immunity from jurisdiction is not accepted under customary international law in the prosecution of international crimes by national courts. The court must apply customary international law and is not bound by the opinion of the Dutch government. 

The court then moved to confront this outcome with the guarantees under Art 6 ECHR and the right of access to court. The Strasbourg court has ruled that the right of access to court is not absolute, and can be restricted for a legitimate purpose and with measures proportionate to that purpose.

The ECtHR has held repeatedly that sovereign immunities have a legitimate purpose. With respect to proportionality, the Strasbourg court has refused to check on states following customary international law and ruled that the proportionality test is met where the rule comports with customary international law.

It was then easy for the Dutch court to rule that, after finding that the alleged limitation to the functional immunity of jurisdiction is not accepted by customary international law, the result was necessarily compliant with the right of access to court.

The only assessment a court must carry out in examining the proportionality requirement is whether or not the functional immunity from jurisdiction for [defendant I] and [defendant II] is in agreement with customary international law. The court has established previously that this is the case. The proportionality requirement has therefore been met.

Finally, the plaintiff had argued that it was impossible for him to bring proceedings in Israel, as “Israeli law, as applied by the Israeli courts, raises all sorts of legal and practical obstacles to Palestians from the Gaza Strip”. He claimed, therefore, that he had no alternative forum to bring his claim, and that the existence of a forum necessitatis was mandated by European human rights law.

The Hague court dismissed the argument by distinguishing the judgment of the ECtHR in Naït-Liman and by ruling that the existence of an alternative forum was only relevant in the context of the immunity of international organisations, and not in the context of State immunity. The cases where the ECtHR insisted on the existence of an alternative forum were indeed all concerned with the immunity of international organisations (the UN, in particular, in Stichting).

An English version of the judgment can be found here.

Intersentia has recently published a monograph by Ayse Nihan Karadayi Yalim (University of Antwerp) on Interpretation and Gap Filling in International Commercial Contracts.

The blurb reads:

With the growth of cross-border business, the rather important but complex and controversial topic of interpretation and gap filling in international commercial contracts receives more and more attention. International legal instruments such as CISG, UNIDROIT Principles, PECL and DCFR provide rules in order to interpret international commercial contracts in a uniform way. However, while these instruments may bring together already existing national concepts, they must of course be understood beyond the domestic concepts and approaches as such. This book is an autonomous comparison across the above-mentioned international legal instruments, with a focus on the rules on interpretation and gap filling that provides the necessary theoretical background and case law to understand the rules in practice. Interpretation and Gap Filling in International Commercial Contracts examines the uniform and harmonised set of rules in their own right; without comparison to national laws, but in their own unique setting of international commercial contracts. It is a practical user guide for both scholars and practitioners.

For more information see here.

The author of this post is François Mailhé (University of Picardy – Jules Verne).

“Nul n’a de droit à l’enfant”, that is, no one has a right to a child. This is the first amendment the French Senate has recently added to the latest reform of the Bioethics Act 1994 under discussion in Parliament this month, and which is intended to introduce Title VII of the First book of the civil code “on filiation”.

The Senate is the higher chamber of Parliament, with members elected by elected officials from local governments. It participates in the discussion of all legislative projects with the National Assembly (lower chamber), but the latter would ultimately prevail in case of conflict.

I reported earlier on the three judgments of the French supreme court for civil and criminal matters (Cour de cassation) which, on 18 December 2019, extended the recognition on foreign surrogacies in France. These judgments were expressly based on an advisory opinion concerning the recognition of legal parent-child relationships between a child born through a gestational surrogacy arrangement abroad and the intended mother, given by the European Court of Human Rights (ECtHR) in April 2019.

Surprisingly, the Cour de cassation had gone much further than the ECtHR, though, allowing direct recognition of the filiation for all parents appearing on the birth certificate, while the ECtHR had only required for the recognition of the biological father one.

What happened next is even more surprising if not unique in French legislative history.

On 7 January 2020, the Senate chose to oppose the Cour de cassation case-law, on a private international law issue, to better align French law on the ECHR solution. Amendment No 333 to the Bioethics Act reform would, if passed, create a new article 47-1 of the Code civil, drafted as follows:

Any civil status record or judgment for a French citizen or a foreigner made in a foreign country and establishing the filiation of a child born as a result of a surrogacy agreement shall not be transcribed in the registers in so far as it refers as mother to a woman other than the one who gave birth or when it mentions two fathers.

The provisions of the preceding paragraph shall not prevent the partial transcription of this act or judgment or the establishment of a second parent-child relationship under the conditions of Title VIII of this Book [on adoption], where such conditions are met.

The Amendment would in fact bring the French system back to what it was after the rulings rendered by the Cour de cassation in July 2017, and in line with the ECtHR opinion of April 2019. In practice, the biological father would be the only “intended parent” to be recognised as such through direct transcription. His husband or wife would only have a right to adopt the child at a later stage (as long as the procedure of adoption is not unreasonably long, which should not be the case under French law for the adoption of the husband’s child).

As the government backed a similar amendment, though milder than the one eventually adopted, it seems probable the National Assembly will not much alter it.

The change brought about by the rulings of the Cour de cassation of 4 October and 18 December 2019 may therefore be short-lived.

Foreign surrogacy agreements may not be so much welcome in France after all.

In 2009, AGL, a dual Italian-Israeli citizen, and SRL, an Israeli citizen, married in Milan. The spouses, who were both Jews, married religiously.

Jewish religious marriages celebrated in Italy may be given effect in the Italian legal order provided that certain requirements, set forth in an understanding concluded between the Italian government and the Union of the Italian Jewish Communities, are met. The requirements in question basically refer to the marriage process. In particular, a notice of marriage must be filed with the local civil status office prior to celebration, in accordance with the Italian civil code.

In the circumstances, the prior notice and other requirements had not been complied with. As a result, the marriage of AGL and SRL was, from the standpoint of the Italian legal system, a purely religious one.

A few months later, the spouses – who always resided in Israel – seised the Rabbinical Court of Tel Aviv seeking a declaration that their marriage was valid.

Rabbinical Courts are part of the Israeli judiciary. They deal, inter alia, with matters concerning marriage and divorce, parental responsibility and succession. Their rulings have force in the legal system of Israel.

The Tel Aviv Rabbinical Court declared the marriage between AGL and SRL to be valid.

Next, the couple sought to have the Rabbinical Court judgment recognised in Italy. Based on the provisions of the Italian Statute on Private International Law concerning the (automatic) recognition of foreign judgments, they asked the civil status officer of Milan to record the judgment in the civil status registries, so that the marriage could be regarded as producing civil  effects in Italy, as well.

The officer denied the request. He argued that the rules on the recognition of judgments had no role to play in the circumstances. At issue, in his view, was whether the marriage celebrated in Milan in 2009 ought to be given effect in Italy, not whether the Rabbinical Court’s judgment ought to be recognised. The latter, he contended, merely acknowledged that the marriage had taken place and that it had been performed in accordance with the relevant Jewish rules — two circumstances that were already known to Italian authorities and were, as such, uncontroversial.

In any case, the officer contended, the judgment given by the Tel Aviv Rabbinical Court ought to be denied effect in Italy on grounds of public policy. By seeking a judicial statement of the existence of their marriage, the spouses aimed in fact to evade the Italian provisions that determine the conditions subject to which a Jewish religious marriage may be given effect in the Italian legal system.

By a decision of 29 January 2020, the Court of Appeal of Milan, seised of the matter, ruled in favour of the couple.

The Court conceded that the marriage between AGL and SRL was initially, as a matter of Italian law, devoid of civil effects. However, as a result of the Tel Aviv judgment, the marriage had acquired civil effects in the legal system of Israel. Based on this finding, the Court of Appeal found that, contrary to the civil status officer’s opinion, what was at issue was indeed the recognition of the Rabbinical Court’s judgments, and of the civil effects it added to the marriage.

The Court went on to assess whether the conditions contemplated in the Italian Statute on Private International Law for the recognition of foreign judgments were met in the circumstances. It found that the Tel Aviv judgment complied all such conditions. In particular: the judgment originated from the country of residence and nationality of the spouses at the time when the Rabbinical Court was seised; it represented the outcome of fair proceedings; it did not contradict any previous Italian judgment.

Furthermore, the Court observed, the judgment could not be characterised as inconsistent with the ordre public of Italy. The public policy defence, it recalled, operates as an exception and can only be invoked where the recognition of a foreign judgment or the application of a foreign law would be at odds with the fundamental principles of the Italian legal order.

In the Court’s view, this did not occur in the circumstances. The non observance of the Italian rules on the marriage process does not amount, as such, to a violation of the public policy of Italy, as long as it is established that the spouses’ consent was expressed freely by each of them.

The Court noted that the fundamental principles of Italy would rather be challenged if the judgment were denied recognition. Article 8 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights in Wagner v Luxembourg and other rulings, indicates that family status validly created abroad, insofar as they correspond to an established social reality, cannot be denied recognition unless very strong reasons require otherwise.

— Thanks to Marzia Ghigliazza, family lawyer and mediator in Milan, for drawing my attention to the ruling of the Court of Appeal.

In 2016, an application for the recognition of a judgment rendered by the Southern District Court of New York against the State of Iran, some of its emanations and other non-State parties was filed with a Luxembourg court.

If recognised, this U.S. judgment, which awarded 1.3 billion USD of compensatory damages and 4.7 billion USD of punitive damages to the victims of the terrorist attacks of 9 September 2001 and/or their families, would have enabled the claimants to seize Iranian assets held with a Luxembourg-based clearing house.

As it happens, the application was not not successful.

A recently published Working Paper of the MPI Luxembourg series (also available on SSRN) puts the American decision into a broader context and provides for an in-depth analysis of the grounds for refusal from the point of view of both private and public international law.

The paper takes stock of the attempts made by the families of the victims of the 9/11 terrorist attacks to enforce the New York judgment in Europe.

It brings together four different contributions, focusing on specific aspects of the Havlish saga.

To set the scene for the proper understanding of the Havlish litigations, Stephanie Law analyses the development of the U.S. legal framework on the state-sponsored terrorism exception and its impact on the U.S. proceedings, which resulted in the judgment whose recognition and enforcement is being sought in Europe.

The ruling given in March 2019 by the Luxembourg court is analysed by Vincent Richard and Edoardo Stoppioni, who deal in turn with the arguments set forth vis-à-vis non-State parties and with the use, by the Luxembourg Court, of the law on State immunity as it applies to the Iranian State and its emanations (see further on this judgment Burkhard Hess “Keine juristische Fussnote: Klagen aus 9/11 vor Luxemburgischen Gerichten”, IPRax, 5/2019, p. 442-446).

Finally, Martina Mantovani addresses the parallel attempts made by the U.S. claimants to enforce the Havlish judgments in other European Jurisdictions, which have given rise to ongoing exequatur procedures in England and in Italy.

Symeon Symeonides posted on SSRN the Annual Survey of American Choice-of-Law Cases for 2019, now in its 33rd year.

This is the Thirty-Third Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws. It is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States. Its purpose remains the same as it has been in the previous 32 years: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2019 and posted on Westlaw by December 31, 2019. Of the 1,404 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law—and in particular choice of law. The Survey proceeds in four parts. The first describes fourteen cases decided by the United States Supreme Court. The second part discusses judgments delineating the reach of federal law in cases with foreign elements (extraterritoriality). The third part focuses on the choice-of-law part of conflicts law, in both interstate and international cases. The fourth part deals with the recognition of sister state and foreign country judgments, as well as domestic and international arbitral awards.

Compared to January (with the hearings I had announced here, plus AG Szpunar’s opinion on Rina, delivered on the 14th), February 2020 will be a quiet month at the Court in terms of private international law, with just AG Bobek’s opinion in FX v GZ (case C-41/19) being scheduled for the 27th.

The case concerns both the Maintenance Regulation and the Brussels I bis Regulation, in the context of judicial proceedings instituted in Germany whereby the applicant, residing in Germany, tries to resist the enforcement of a Polish decision to pay monthly maintenance for his daughter.

As grounds for his application, the applicant argues that the defendant’s maintenance claim underlying the Polish decision had been settled by payment (for the record, the Polish judgment was given in 2009; the request for enforcement in Germany was filed in 2016).

The referring court hesitates about its jurisdiction. If the application opposing enforcement made by the applicant constitutes a matter relating to maintenance for the purposes of Article 1 of the Maintenance Regulation, then no international jurisdiction of the court seised results from the Regulation, since the conditions of Article 3 of the Maintenance Regulation are evidently not satisfied.

By contrast, the courts in Poland, where the order was made, would, pursuant to Article 3(a) and (b) of the Regulation, be directly called upon to deal with the applicant’s defence of fulfilment. Conversely, the view that applications opposing enforcement are not matters relating to maintenance within the meaning of the maintenance Regulation is the prevailing opinion in Germany, where it is argued that the objective of an application against opposing enforcement is directed solely against the enforcement itself, which is not covered by the manintenance Regulation.

Should the latter view on the interpretation of the maintenance Regulation be right, the question arises whether proceedings concerned with the enforcement of judgments within the meaning of Article 24(5) of the Brussels I bis Regulation are involved. In this regard, the German court claims that an answer is not apparent from the decisions of the Court of Justice in AS Autoteile Service (case C-220/84) and in Prism Investments (case C-139/10).

At the same time, because both decisions concerned general civil and commercial matters and were delivered before the entry into force of the Maintenance Regulation and the Brussels I bis Regulation – which, according to its Article 1(2)(e), is not intended to cover matters relating to maintenance – the court doubts they are transferable to matters relating to maintenance.

While waiting for AG Bobek’s opinion, I would like to add that another request for a preliminary ruling on the maintenance Regulation is pending (still at an early stage) where its relationship with the Brussels I bis Regulation for the purposes of interpretation is also at stake.

Today, 31 January 2020, at midnight (11 PM GMT), the United Kingdom will leave the European Union. This is a historic event with innumerable implications, amongst others, for private international law.

However, during the transition period – which expires earliest at the end of 2020 – most things will stay the same. This is thanks to the Withdrawal Agreement, which governs the UK’s divorce from the Union.

The UK will apply EU law, and the EU will, in principle, treat the UK as if it were a Member State (Article 127(1) and (6) of the Withdrawal Agreement). The main exceptions are some institutional provisions, e.g. the participation of the UK in EU bodies, where it will no longer have voting rights (see Article 7(1) and 128(1) of the Withdrawal Agreement).

What will happen after the end of transition period, nobody knows for sure, as the EU and the UK have just started negotiating their future relationship. However, the Withdrawal Agreement makes some provision for the post-transitional period.

Basically, the Regulations on Judicial Cooperation (Brussels I bis, II bis, Rome I, II, the Insolvency Regulation, the Maintenance Regulation, amongst others) will continue to apply to proceedings that have been “instituted” before the end of the transition period, i.e. before 31 December 2020 (Article 66-69 of the Withdrawal Agreement).

Naturally, those EU texts to which the UK was never subject will also not apply after 2020, such as the Succession Regulation.

These transitory provisions seem rather straightforward. However, as always, the devil is in the detail. For starters, it is not easy to determine when proceedings are ‘instituted’ (see this study for the European Parliament, p. 15-16). Moreover, Article 66-69 of the Withdrawal Agreement originally referred only to provisions on ‘jurisdiction’ and ‘recognition and enforcement’. The provisions regarding lis pendens have been later included at the beginning of Article 67 of the Withdrawal Agreement. This is not a model for clear drafting!

One must also not forget that Brexit will change the UK’s relation to non-EU Member States, such as Switzerland, Norway and Iceland. With the withdrawal from the EU, the Lugano Convention will no longer apply to the UK. As a consequence, British judgments will be subject to the recognition procedure under national law in the three Lugano States Switzerland, Norway and Iceland, and vice versa. This effect already applies as of tomorrow (1 February 2020)!

The Withdrawal Agreement between the EU and the UK has no impact on this, as it only concerns the relationship between those two parties. Article 129(1) of the Withdrawal Agreement binds the UK to “the obligations stemming from the international agreements concluded by the Union”, but cannot impose obligations on third parties.

The UK has, however, received assurances by Switzerland, Norway and Iceland that they support the UK’s accession to the Lugano Convention before the end of the transition period. What is missing so far is the EU’s consent.

One can only hope that the relevant political actors will come to their senses and reestablish the network of binding texts as soon and as comprehensively as possible. Judicial Cooperation is about much more than trade deals. It directly affects every day life of ordinary people.

Symeon Symeonides compiled a bibliography, available on SSRN, of books and articles in English in the field of private international law published 2019.

This bibliography covers private international law or conflict of laws in a broad sense. In particular, it covers judicial or adjudicatory jurisdiction, prescriptive jurisdiction, choice of forum, choice of law, federal-state conflicts, recognition and enforcement of sister-state and foreign-country judgments, extraterritoriality, arbitration and related topics. It includes books and law journal articles that appeared in print during 2019, or earlier but were not included in the 2018 bibliography. It does not include articles or essays published in books (as opposed to journals), or writings appearing only in electronic form.

Lydia Lundstedt and Erik Sinander (both  Stockholm University) have published Enhancing Critical Thinking in Private International Law in The Law Teacher.

The abstract reads:

This article describes and evaluates the reforms that the authors (as course managers) introduced to enhance critical thinking in the compulsory course on private international law in the Master of Laws programme at Stockholm University. The reforms were made in response to a decision by the Stockholm University Law Faculty Board to develop the “Stockholm Model” in an effort to strengthen students’ critical and scientific approach to law. The Stockholm Model aims to place law in a broader context so students can understand its relation to and impact on society. It also shifts the focus from an orthodox teaching of the doctrinal subject areas to facilitating the students’ ability to apply legal and other social science methods to analyse and develop the law. The article evaluates the success of the measures and reflects on what more can be done to improve critical thinking.

The article can be read here.

A collection of essays edited by Elisabetta Bergamini (University of Udine) and Chiara Ragni (University of Milan) has recently been published by Intersentia under the title Fundamental Rights and the Best Interest of the Child in Transnational Families.

The blurb reads:

Families in Europe are increasingly shaped by the mobility of persons and multicultural backgrounds. This book is focusing on the protection of children in cross-border situations. What are the fundamental rights of children in transnational families, what is in their ‘best interest’, and how can their rights be safeguarded? There is much controversy on these rights and the accompanying uncertainty has resulted in considerable practical difficulties for those trying to implement them. In order to provide a clearer scope and insights into the nature of children’s fundamental rights and their best interests, this book examines solutions provided by both EU and international law to the questions raised by the increasing incidence of transnational families as regards the protection of minors. It covers both substantive and conflict-of-laws rules. Differences in the substantive family laws of Member States still prevent an effective protection of the child or its family unit. This includes cases of migration, asylum, forced marriage, kafalah, but also rainbow families. Further, the role of human rights (mutual recognition of status and surrogacy agreements, adoption) and procedural rights (child abduction, Brussels II bis recast) in cross-border cases must be considered carefully.

The table of contents can be found here.