EAPIL blog

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.