EAPIL blog

A Russian father, who was long since separated from the mother of his children in Russia, came to Finland with his two sons in September 2022 and applied for asylum. The mother in Russia pleaded in Finnish courts that the children should be returned to Russia in line with the 1980 Hague Convention on the Civil Aspects of Child Abduction (1980 Hague Convention), which the two countries are signatories to. The father stated that a return to Russia would not be in the best interest of the children and would constitute a breach of Finland’s international obligations to protect fundamental human rights.

In its judgment of 27 September 2023, the Finnish Supreme Court initially held that the prerequisites for return of the children were met as it was uncontested that the removal was wrongful. The issue for the court was whether a return to Russia could be refused despite this. Article 13.1.b of the 1980 Hague Convention allows for refusal if “there is a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” With reference to the Hague Conference on Private International Law’s Guide to Good Practice from 2020, the Finnish Supreme Court held that the ground for refusal should be interpreted narrowly.

As regards refusal on the grounds of Article 13.1.b, the Court emphasized that an assessment cannot be based on a  comparison of different general living conditions in the requested state and the state of potential return. Living conditions in another country can only be taken into consideration under Article 13.1.b if the fundamental needs of the children will not be met. Holding that it was not proven that the children would lack fundamental needs like food, rest, hygiene, or child-like activities in Russia, the Court found that there was no ground for refusal under Article 13.1.b. Nor was it claimed in the case that the children risked being involved in the Russian war on Ukraine. However, the father argued that the children’s learning of military skills in school was harmful. In this regard, the Supreme Court concluded that there are ideological and practical differences between the Russian and the Finnish school systems. This difference was not considered to reach the threshold for refusing the return of the children.

The Finnish Supreme Court also noted that Article 20 of the 1980 Hague Convention allows a state requested to return a child to refuse to do so if it is not permitted by its fundamental principles relating to the protection of human rights and fundamental freedoms. Here, the court argued that Finnish law has not implemented Article 20 of the Hague Convention and that it therefore could not be applied. Nonetheless, the Court added that a return of children to another country may be refused if it is in conflict with Section 9 of Finland’s Constitution which grants foreigners the right not to be sent to countries where they risk death penalty, torture or other treatment that violates their human dignity.

Lastly, the court also assessed the views of the children themselves. Under Article 13.2, the own views of the child can be taken into consideration if the child has attained such an age and degree of maturity that this is appropriate. Both children had a strong and genuine view that they wanted to stay with the father in Finland. However, the court held that it was only the older of the two children who had attained such an age and maturity that his views could be taken into account. Thus, the Finnish Supreme Court held that “the best interest of the child” as a whole prevailed over the older child’s own view of wanting to stay with the father in Finland.

Even if the judgment truly illustrates the strong principle of returning the child after a wrongful removal under the 1980 Hague Convention, I think that the Court’s non-application of Article 20 in the Hague Convention deserves some discussion. First, it is worth noting that Article 20 of the 1980 Hague Convention is not formulated as a traditional public policy exception. According to the explanatory report to the 1980 Hague Convention, Article 20 is a compromise of opposing views (see in particular paragraphs 31-34 of the explanatory report). On the one hand, the convention would risk being a “dead letter” if the requested state too easily could apply an exception. On the other hand, the most fundamental human rights must be protected by a requested state in all circumstances. To that extent, Article 20 serves as a public policy exception in practice. Even if the legal value of human rights has increased in Europe since the 1980 Hague Convention was adopted, one must also remember that every in casu-exception of the strong principle rule that abducted children must always be returned risk leading to a collapse of the system. This is especially true for two neighbouring countries with so fundamentally different ideological and political systems as Finland and Russia.

On 4 December 2023, at 6 p.m. CET, a free webinar will take place in preparation of the 2024 inaugural edition of the EAPIL Winter School on Personal Status and Family Relationships, which will be held on-site in Como between 12 and 16 February 2024 (a detailed brochure is available here).

The webinar will give a glimpse of what the Winter School will be about. Specifically, it will focus on selection of hot topics, such as the cross-border recognition of sex reassignment and the enjoyment of the right to name abroad.

The speakers are some of those who will be lecturing at the Winter School, namely Laura Carpaneto (University of Genova), Ester di Napoli (University of Ferrara), Cristina González Beilfuss (Unversity of Barcelona), Satu Heikkilä (LL.D., Administrative Law Judge), Silvia Marino (University of Isnubria), Nadia Rusinova (Hague University), Michael Wildespin (Legal Advisor to the European Commission), Anna Wysocka-Bar (Jagiellonian University), and Mirela Župan (University of Osijek).

The webinar will also offer an opportunity to provide information about the EAPIL Winter School.

Join the free seminar to discover what awaits you during the Winter School week, and…if you want to know more, enrol and come to Como in February!

Those interested in attending the webinar may do so directly through this link. No prior registration is required.

More information on the Winter School is found here. To enrol in the Winter School, please fill in this form.

A seminar series on the recast of Brussels I bis Regulation, organized by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation), will take place during the 2023-2024 academic year, both in Paris and online (in French).

According to the scientific coordinators of the seminar series, Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne), the seminar series aims to provide a forum for French legal experts – academics and practitioners – to discuss the future reform of Brussels I bis Regulation and to propose key improvements to the text.

The first seminar will take place on 30 November 2023 (9.00 – 12.30 am, UTC+1). The objective will be to present the prospect of a recast, from a political and technical perspective, and to discuss different issues relating to the scope of a future “Brussels I ter Regulation”.

The list of speakers includes Pascal de Vareilles-Sommières, Tania Jewczuk, Marie-Elodie Ancel, François Ancel, Malik Laazouzi and Etienne Pataut.

The programme, as well as registration and access details can be found here. The conference series will take place at the Cour de cassation (Paris, France) and will also be broadcast live (see here).

The other seminars will take place in 2024 from 16.00 to 18.00 (UTC+1) on 18 January, 26 February, 18 March, 22 April, 30 May and 24 June.

A post published a few days ago on this blog presented, and briefly discussed, the private international law issues raised by the case of Indi Gregory, the critically ill eight-month-old child that parents wanted to transfer to Italy, to avoid the withdrawal of the life-sustaining treatment she was receiving at a hospital in England.

In fact, the child’s doctors at Queen’s Medical Centre in Nottingham had assessed that withdrawing the life-sustaining treatment would be in Indi’s best interests, having regard to the pain she was enduring because of the treatment itself and the lack of prospects of improvement. The parents disagreed, and sought to have the treatment extended for as long as possible.

As explained in more detail in the post mentioned above, the English High Court ruled in favour of the hospital trust in October 2023, and authorized the withdrawal of the treatment. A request for permission to appeal against the ruling was dismissed, and so was a subsequent application to the High Court whereby Indi’s parents sought to have the initial ruling reconsidered in light of new circumstances, including the fact that a hospital in Rome had expressed its availability to provide Indi with the extended treatment that parents were seeking.

Several readers will likely be aware by now of the dramatic developments of the case, as these were largely reported in the media throughout Europe and elsewhere. Indi was eventually transferred to a hospice in England, where she died on 13 November 2023, soon after the first steps for the court-approved withdrawal plan were put in place.

Before this tragic epilogue occurred, Indi’s parents had sought permission to appeal against an additional order given by Peel J for the High Court. Specifically, the parents had challenged the decision whereby the removal of invasive mechanical ventilation, i.e., extubation, that Peel J had previously authorised, should take place at a hospice. Their case was that Indi should be rather extubated at home.

On 10 November 2023, the Court of Appeal of England and Wales dismissed the application, assessing that no grounds appeared to exist to reconsider the order. The Court held, in particular that, contrary to the parents’ submission, they had not suffered from any unfairness in the proceedings before the High Court (Indi’s father claimed, inter alia, that he did not know that he had the opportunity to get his own evidence about the issue of the location of extubation at the hearing held before Peel J), and that the conditions for reopening a court’s earlier determination of a child’s best interests were not met in the circumstances.

The Court of Appeal had not been asked to deal with issues of private international law for the purposes of fiving the ruling of 10 November. In a significant obiter, however, the Court did address such issues.

It is worth recalling that on 6 November 2023 the Italian Government decided to grant Italian citizenship to Indi Gregory, and that, shortly afterwards, the Italian Consul in Manchester, acting as a “guardianship judge” pursuant to Italian legislation, took two measures. First, as reported by the Court of Appeal, the Consul issued a decree – arguably, one taken as a matter of urgency – whereby he appointed a guardian for Indi and authorised her removal to Italy for treatment. Secondly, the Consul wrote to the High Court requesting that that he be authorised to exercise jurisdiction over the case in accordance with Article 9(1) of the Hague Convention of 19 October 1996 on the Protection of Children, which permits such a request where the requesting authority considers that they are better able to assess the child’s best interests. compared with the authorities in the State where the child is habitually resident.

The Court of Appeal, in the words of Peter Jackson, criticised the latter moves in unusually strong terms. Having noted that the “only basis upon which such a request could even theoretically be made in Indi’s case is that she was granted Italian citizenship”, the Court observed that in hearings before the High Court and before the Court of Appeal itself, Indi’s father had “accepted that decisions about Indi’s welfare are to be made by [English] courts”, adding that

in any case, the argument that the Italian authorities are better able than the English court to determine Indi’s best interests is in our view wholly misconceived and a request of this nature is clearly contrary to the spirit of this important international convention.

The Court did not elaborate on the denounced misconception nor on the spirit of the Convention.

Arguably, the obiter reflects an understanding of the Hague Convention on the Protection of Children that could be summarised as follows.

1. The Convention, as stated in the preamble, aims to “improve the protection of children in international situations”. It does so by avoiding (or managing) conflicts between their Contracting States’ legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children.

2. Contracting States share the view that, as stated in the United Nations Convention on the Rights of the Child and recalled in the Hague Convention’s own preamble, “the best interests of the child are to be a primary consideration”. The Convention, based as it is on the assumption that the protection of children is best ensured in a cross-border cases through international cooperation, builds on mutual trust among Contracting States. It is in fact mutual trust, combined with the primary consideration owed to the best interests of the child, that suggests that the authorities of a State other than the State of habitual residence of the child should refrain, in principle, from exercising their jurisdiction over the child, let alone disregarding the measures taken by the authorities of the State of habitual residence.

3. The substantive and procedural rules applied in one Contracting State may differ from those in force in another, but such differences do not mean that Contracting States may, as a matter of principle, step out from the framework of cooperation established by the Convention, and depart from its rules (engaging with differences is precisely the purpose of private international law, generally). Put in another way, it may be that the (political) institutions of a Contracting State disagree with the way in which a particular case is handled by the (judicial) authorities of another (including because of the rules and standards applied by such authorities to decide the case differ from the rules and standard that the former institutions would follow in the circumstances), but the Convention does not permit the former State to interfere, on this ground, with the work carried out by the authorities of the latter State, notably by issuing competing orders.

4. Habitual residence is the key connecting factor under the Convention for the purposes of allocating jurisdiction. It was chosen on the assumption that, generally, the authorities of the State where the centre of the child’s interests are located, regardless of the child’s nationality, are best placed to assess his or her interests. Nationality, too, may play a role, but only insofar as the circumstances indicate that the authorities of the State of nationality would be better place to assess the child’s interests in the particular case concerned, provided, in any case, that the authorities of the State of habitual residence agree with this finding. The mere fact that a child possesses the nationality of a Contracting State does not confer as such on the authorities of the State of nationality the power to rule on the child.

Dear readers, dear EAPIL Members,

You might have received the email below, from gilles.cuniberti@gmx.de.

This is a fraud, please do not answer.

GC

Dear xx,

How are you doing today?.

Please, I need your assistance for the EAPL.

Get back to me by email so I can explain further.

Best regards

Gilles Cuniberti

—
Gilles Cuniberti
President of European Association of Private International Law (EAPL)
Professor of Comparative and Private International Law
Université du Luxembourg
4, rue Alphonse Weicker
L-2721 Luxembourg

This is the second of a series of posts which will present how the issue of the applicable law to the time limit to enforce or recognise foreign judgments is addressed in comparative private international law. The first post presented the view of the Swiss federal tribunal.

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) confirmed its traditional position by ruling that the French 10 year time limit applies to the enforcement of foreign judgments in France and that foreign time limits may indirectly be taken into consideration by denying standing to the party seeking a declaration of enforceability.

For more than 30 years, the Cour de cassation has ruled that the enforcement of foreign judgments in France is governed by the applicable French time limit. For years, there was no specific time limit applicable to the enforcement of judgments, and French courts would thus apply the general time limit of 30 years. Since 2008, a specific rule was included in article L 111-4 of the Code of Civil Enforcement Proceedings providing for a time limit of 10 years.

In order to justify the application of French law to the issue, the Cour de cassation has consistently held that the subject matter of the time limit was the enforcement of a judgment. In other words, the issue was identified as concerned with a particular effect of the judgment, namely enforcement.

In a judgment of 4 November 2015, the court clarified that the starting point of the time limit was the date of the French order declaring the foreign judgment enforceable in France. This has been convincingly interpreted by French scholars as meaning that the subject matter of the time limit was, in an international context, the enforcement of a French judgment rather than a foreign one, i.e. the exequatur order. A possible rationale for such a proposition is that, under the French common law of judgments, a foreign judgement cannot, strictly speaking, be enforced. Only a French exequatur order can. In other words, the enforcement of foreign judgments in France is not, strictly speaking, a problem of private international law. It is a matter a domestic enforcement (of a French exequatur judgment).

This approach works fine under the French common law of judgments. But it is unclear whether it works as under the European law of judgments. In the 2023 judgment, the Cour de cassation repeated the traditional rule in the context of the Lugano Convention. Under the Lugano Convention, foreign judgments can only be enforced on the basis of a declaration of enforceability. Is it exactly the same as an exequatur order under the common law of judgments of the Member States? It seems that the Cour de cassation thought so.

All this begs the question of the time limit applicable to the enforcement of a judgment under the Brussels I bis Regulation. In the absence of any declaration of enforceability, it is hard to consider that the foreign judgment is not enforced as such.

The judgment of 11 January 2023 also confirms that the Cour de cassation would still take into account the time limit of the country of origin of the judgment to assess whether the judgment creditor would have standing to seek enforcement of the judgment in France.

The reasoning of the Cour de cassation starts from the premice that the foreign judgment may only be declared enforceable in France if it is enforceable in its country of origin. As a result, a judgment creditor of a foreign judgment time barred in its country of origin would lack standing to seek a declaration of enforceability in France, as the foreign judgment would not be enforceable in its country of origin.

The consequence of this rule is that, at least until the foreign judgment has been declared enforceable in France, it is, in effect, also subject to the time limit of its country of origin, to the extent to such time limit would affect its enforceability.

The case leading to the judgment of 11 January 2023 was concerned with the enforcement in France of a Swiss judgment. The Lugano Convention applied. The Cour de cassation does not underscore that peculiarity, which does not seem to be relevant for the court. The issue arises, however, whether the proposition that an action seeking a declaration of enforceability under the Lugano Convention might be found inadmissible comports with the rule that the only grounds for denying such declaration are the limited grounds found in Art 34 of the Convention (Case C-139/10, Prism Investments). True, the Cour de cassation does not rule that it would dismiss the application on the merits, but rather that it would find it inadmissible. Is the issue of admissibility governed by the law of the Member States?

Or should the issue of lack of enforceability of the foreign judgment be addressed at the stage of enforcement of the declaration of enforceability (and the foreign judgment)? This is what the Swiss federal Tribunal ruled in its judgment of 2 August 2022.

This post has been written by Jacco Bomhoff (LSE), Uglješa Grušić (UCL), and Manuel Penades (KCL).

As previously announced, the LSE Law School hosted a symposium to celebrate the scholarly work of Emeritus Professor Trevor C. Hartley on 17 October 2023.

The Symposium brought together around 70 participants, colleagues, and friends from the UK and abroad, who celebrated and discussed Trevor’s many contributions.

The first contribution to the Symposium was a keynote by Professor David Kershaw, Dean of the LSE Law School. He reminded us that Trevor came to LSE from the University of Western Ontario in 1969 and taught at LSE for a record-breaking 54 years. In that time, Trevor firmly established himself as a leading scholar in private international law and EU law, and inspired many generations of law students.

Subsequently, Lord Collins gave another keynote in which he commented on Trevor’s contributions to private international law. Trevor has pursued many topics in the field, but is perhaps best known for his work on mandatory rules, choice-of-court agreements, and comparative international civil and commercial litigation. He joined the team of editors of Dicey and Morris on Conflict of Laws (as it then was) in 1985 and was one of the specialist editors responsible for 10 chapters in the 11th edition (1987) and 12 chapters in the 12th edition (1993). He sat on the Lord Chancellor’s Committee for Private International Law, gave a Hague Academy special course on the common law approach to mandatory rules in international contracts in 1997 and a general course on the modern approach to private international law in 2006, and was a rapporteur on the 2005 Hague Choice-of-Court Convention. Trevor has authored many books in the field, including a student textbook on International Commercial Litigation (CUP, now in its 3rd edition from 2020), and monographs on Civil Jurisdiction and Judgments in Europe (OUP, now in its 3rd edition from 2023) and Choice-of-Court Agreements under the European and International Instruments (OUP, 2013).

These keynotes were followed by the first panel of the day, which focused on global and comparative private international law, one of the main themes of Trevor’s scholarship. This panel was chaired by Dr Roxana Banu (Oxford), who noted that the aim of the Symposium was to celebrate Trevor and, through Trevor, the field of private international law.

The first speaker in this panel, Professor Paul Beaumont (Stirling), outlined the 2019 Hague Foreign Judgments Convention and explained its relationship with the 2005 Hague Choice-of-Court Convention. He commented on key features of the 2019 Convention, such as the broad range of judgments that come within its scope, the broad set of indirect jurisdictional rules, and exclusion of arbitration. Furthermore, he noted that the 2019 Convention supplements the 2005 Convention in different ways, for example by covering non-exclusive choice-of-court agreements, providing for a defence of breach of a jurisdiction agreement, and covering asymmetric choice-of-court agreements (as confirmed in Etihad Airways PJSC v Flother, where the Court of Appeal referred to the Hartley and Dogauchi Explanatory Report at [85]). Finally, Professor Beaumont confirmed that the two conventions should be interpreted in a systematic way. The 2005 and 2019 Conventions represent two key pieces of the Hague global justice system, which is a fitting legacy for Trevor’s excellent work on the 2005 Convention.

Professor Alex Mills (UCL) commented on the importance of the 2005 Convention. He remarked that the fact that the 2005 Convention exists and is in force is important for the Hague Conference and global private international law. However, a relatively modest number of ratifications demonstrates challenges of international harmonisation. Nevertheless, the success of a treaty is not measured only in terms of number of ratifications – the 2005 Convention crystalised the importance and acceptance of party autonomy in the field of jurisdiction and foreign judgments, and is an important sign of consensus in this respect. The 2005 Convention is important for the London litigation market because it provided a degree of continuity after Brexit. Finally, Professor Mills noted the value of the Hartley and Dogauchi Explanatory Report for interpreting and applying the treaty, and its contribution to the success of the treaty.

Professor Koji Takahashi (Doshisha) commented on comparative private international law by pointing out that the relationship between the common law and civil law systems in private international law is often analysed in terms of well-known dichotomies. One of those dichotomies is pragmatism v dogmatism (idealism). Nevertheless, Professor Takahashi noted that all private international law systems combine elements of both pragmatism and dogmatism. He demonstrated this point by showing the pragmatic aspects of pleading and proof of foreign law, renvoi, and the choice-of-law rules for divorce in Japanese law. The application of these doctrines often allows Japanese courts to apply Japanese law.

Professor Veronica Ruiz Abou-Nigm (Edinburgh) closed the first panel by discussing the protection of global commons in private international law, a subject that Trevor touched on in his 2009 Revue Hellenique de droit international article on ‘Multinational Corporations and the Third World’. Prof Ruiz Abou-Nigm did this by drawing out attention to three points: (1) power imbalances and access to justice, particularly in the context of business and human rights litigation; (2) accessibility of the private international law logic to ordinary people and lawyers; and (3) impact of differentials in capacity and expertise. Professor Ruiz Abou-Nigm concluded by remarking on the importance of local solutions to global problems such as sustainable development, and by recognising the importance of academic activism.

This panel was followed by a third keynote given by Professor Hans van Loon, who, as former Secretary General of the Hague Conference, is particularly well placed to comment on Trevor’s contribution to the work of the Conference. Professor van Loon expressed a view that the Hartley and Dogauchi Explanatory Report is a “masterpiece”. Professor Van Loon also reminded us that Trevor is a key member of the European Group of Private International Law (GEDIP).

A fourth keynote was given by Professor Carol Harlow (LSE, emerita). Since Professor Harlow and Trevor joined LSE at around the same time, she was able to comment on Trevor’s contributions to the LSE Law School, as well as on Trevor’s contributions to public law and EU law scholarship. Some readers of the blog may not know that Trevor was a pioneer in EU law in the UK and that his book on the Foundations of European Community Law (Clarendon Press, 1981) had a significant impact in the English-speaking world.

The day’s second panel was chaired by Professor Pippa Rogerson (Cambridge). Its remit was Trevor ’s well-known ICLQ article on the CJEU’s “systematic dismantling of the common law” in its decisions in Gasser v Misat, Owusu v Jackson, and Turner v Grovit. The panel’s task was to revisit the article, almost 20 years after its publication, and in light of all that has happened in the law of civil jurisdiction since.

Professor Andrew Dickinson (Oxford) spoke first, on anti-suit injunctions. Professor Dickinson sketched a contrast between Trevor’s view of anti-suit injunctions, which he characterized as one of “wary receptiveness”, and his own, which was “warier and less receptive”. Zooming out from the discussion of Turner v Grovit, Dickinson also looked further back – to the Privy Council’s seminal decision in Aérospatiale v Lee Kui Jak, on which Trevor recently published a case comment – and to more recent developments, notably the CJEU’s decision in Charles Taylor Adjusting Ltd v Starlight Shipping Co. Professor Dickinson’s conclusion was that “[The] anti-suit injunction is as controversial as it ever was, and the issues that it throws up have become more complex as the world and the ways in which legal systems interact with one another have evolved over time. It is a good thing that Trevor has been willing to serve as one of our principal guides, highlighting the trade-offs involved in choosing between unilateralism and multilateralism.”

Professor Jonathan Harris (KCL) discussed forum non conveniens, taking up not just the ICLQ article just mentioned, but also Trevor’s book on Civil Jurisdiction and Judgments (Sweet & Maxwell, 1984), and his 1992 comment in the European Law Review on the Court of Appeal’s decision in Re Harrods (Buenos Aires) Ltd [1992] Ch 72. Professor Harris noted how Trevor thought the Court of Appeal had reached the right decision in that case, and how he “did not hold back” in his later criticism of Owusu, in both the ICLQ article and in his lectures for the Hague Academy. Again taking a broader perspective, Professor Harris noted that the answer to the question “forum non conveniens – where are we now?” seems to be, roughly, “where we were 35 years ago”, at the time of Spiliada. Professor Harris concluded by giving his views on why, in the way English law is currently structured, so much still turns on the ability of claimants to serve defendants within the jurisdiction, as compared to having to obtain permission to serve out.

Professor Eva Lein (BIICL and Lausanne) was slated to speak on “torpedo” actions – another topic of concern in the “systematic dismantling” article – but unfortunately had to cancel at short notice.

The last speaker for this panel, therefore, was Professor Adrian Briggs (Oxford), who addressed the topic “What is left of the Brussels I Regulation in English law and in the English courts?”. Professor Briggs identified four different layers to the lingering effects of the Brussels regime. First, the direct legacy of the rules of section 15 of the Civil Jurisdiction and Judgments Act 1982, as amended, on jurisdiction in certain cases involving consumers and employees. Second, and a little more indirect, is the baggage of CJEU interpretations of key terms in the Rome I and Rome II Regulations that built on their approach to the Brussels regime, and that now threaten to affect the English courts’ approach to the retained rules on choice of law. For both these instruments, in Professor Briggs’ view, the conclusion is that there is nothing much wrong with the “European” rules themselves, but rather a lot wrong with the CJEU’s interpretation of them. The third and fourth layers to the legacy of the Brussels regime in English law, in Professor Briggs’ view, sound in cultural terms. First, certain basic ideas and outlooks familiar from practice under the Brussels rules may still influence English law. The main example for this is perhaps the basic proposition, patterned on Article 4 of Brussels I bis, that it is right that claimants should always be able to sue English companies in England. For the fourth and last lingering effect of the Brussels regime, Professor Briggs returned to the main theme of Trevor’s “systematic dismantling” article. This is the lasting memory, stated bluntly, of a Court of Justice preaching mutual respect but acting with disrespect; to Member States courts and legal systems in general, and to the common law in particular.

The last keynote speaker for the day was Professor Damian Chalmers (National University of Singapore). His speech combined an appraisal of Trevor’s early and seminal contributions to the study of the law of the European Communities, with a more personal reflection on Trevor’s role as mentor.

The final panel dealt with the relationship between dispute resolution clauses and EU law, another of Trevor’s significant themes of scholarship. The panel was chaired by Professor Yvonne Baatz (QMUL, retired). She opened the session by highlighting the breadth of Trevor’s work and his characteristic ability to explain complex ideas in accessible and clear ways.

The first talk in the panel was given by Alexander Layton KC (Twenty Essex and KCL), focusing on the reflexive effect of EU private international law. While the topic is now primarily of historical interest in England, Layton explained that it still serves as a good example of the tension between the common law and civil law traditions. He criticised the CJEU for failing to consider the role of comity in the context of the potential reflexive effect of the Brussels regime toward third States in three relevant areas: foreign lis pendens, exclusive jurisdiction, and dispute resolution clauses in favour of the courts of third States. While lis pendens is now resolved by Articles 33 and 34 of Brussels I bis, the other two issues remain contentious. National courts have three options: interpreting the Brussels/Lugano regime as incorporating an implied yet mandatory reflexive effect (“strict reflexivity”); prohibiting such reflexive effect based on the mandatory application of the rules on jurisdiction of the Brussels/Lugano regime in favour of EU courts, regardless of the interests of the third State (“prohibited reflexivity”); permitting EU courts to decide the matter based on national law given the absence of express solution in the Brussels/Lugano regime (“flexible reflexivity”). While all three options present challenges, English courts appear to have adopted the flexible reflexivity approach (Ferrexpo v AG v Gilson Investments Ltd). Layton opined that brief passages in previous European case law suggest that the CJEU could support the “strict reflexivity” model. This uncertainty might be resolved by the forthcoming decision in BSH Hausgeräte v Aktiebolaget Electrolux concerning the validity of a Turkish validation of a European patent.

This talk was followed by Professor Richard Fentiman (Cambridge), who spoke about the relationship between international arbitration and the Brussels/Lugano regime. He identified two reasons why the English legal community was profoundly unpersuaded by the case law of the CJEU that curtailed contractual remedies to enforce arbitration agreements in the form of antisuit injunctions and damages awards. The first was that those EU decisions were not about the hierarchy between arbitration and EU law but about a more profound clash between the integrity of the Brussels rules and the remedies available under national law to enforce arbitration agreements. The second reason concerned the Court’s frustrating technique, which refused to recognise the conceptual distinction between the allocation of jurisdiction, on the one hand, and the enforcement of contractual rights and controlling personal conduct, on the other. The use of open-textured concepts such as mutual trust and effet utile did not inspire confidence and, in fact, was used by the Court to make policy decisions in the guise of legal reasoning. In the second part of his presentation, Professor Fentiman argued that these contractual remedies should become available and effective again after Brexit even vis-à-vis EU Member States (as evidenced by French case law). Also he pointed out that the doctrine laid by the CJEU in Case Charles Taylor Adjusting no longer applies to English decisions and, therefore, their European effectiveness will depend on the national law of each EU Member State and their notions of public policy. The relief brought by Brexit, he concluded, is that the decision whether to request those remedies from English courts in each case will depend on the parties’ litigation strategies, and not on a general prohibition imposed by EU law. Equally, he celebrated the fact that English courts will be free to address outstanding questions such as the compatibility of these contractual remedies with Article 6 of the European Convention of Human Rights squarely and without the restrictions imposed by the often tendentious unpersuasive reasoning of the CJEU.

The third presentation in this panel was delivered by Jan Kleinheisterkamp (LSE), who spoke about arbitration and EU mandatory rules. He explained that at the root of the problem lies the fact that, unlike national courts with article 9 of the Rome I Regulation, arbitrators do not have a clear choice of law regime for mandatory rules. As a result of Eco Swiss and Ingmar, some European courts have refused the enforcement of arbitration agreements when the use of international arbitration, coupled with the choice of law made by the parties, would lead to the disapplication of EU mandatory law. An option to avoid this radical effect would be to allow court proceedings seeking an undertaking by both parties to apply the relevant mandatory rule as a condition to enforce the arbitration agreement, linked to the possibility of court review at the post-arbitration stage (just like in the SCOTUS decision in Mitsubishi v. Soler Chrysler-Plymouth). Dr Kleinheisterkamp argued that the growing tendency of English courts to issue antisuit injunctions should not impede the operation of this proposal post-Brexit, when a party commenced court proceedings before EU courts to obtain such undertaking from its counterparty to the arbitration agreement. To do this, English courts should reconsider the possible application of Ralli Bros v Compania Naviera Sota y Aznar (1921) 8 Ll L Rep 139 to arbitration agreements and avoid turning England into a safe haven for arbitrations of any colour and shape. A more measured approach was preferable to avoid backlashes against arbitration, and recent decisions by English courts preventing illegality in arbitration (The Federal Republic of Nigeria v Process & Industrial Developments Limited) offered hope that some judges were receptive to that restrained approach.

Professor Linda Silberman (NYU, emerita) closed the panel. She discussed the potential adoption of the 2005 Hague Choice-of-Court Convention by the USA and the controversy raised by the reactions of some arbitration practitioners against the Convention compared to the 1958 New York Convention (see here, here, and here). While the prospects for the adoption of the 2005 Convention are positive, Professor Silberman signalled that one of the main areas of concern was that, unlike in Article V(1)(a) of the NYC, Article 9(a) of the 2005 Convention provides that that the determination by the chosen court in favour of the validity of the forum selection agreement is conclusive. A recent discussion on the subject in the NY Bar Committee concluded that Articles 6(c) and 9(e) of the 2005 Convention offered sufficient safeguards to alleviate the concern. Article 6(c) would allow a party to demonstrate that it never consented to a putative choice of court agreement and that holding a party to such a clause would create manifest injustice or would manifestly violate the public policy of the non-selected court. Article 9(e) would also prevent the recognition or enforcement of a judgment when it would be manifestly incompatible with the public policy of the requested State. Despite Article 9(a) of the 2005 Convention, the NY Bar Committee NY Bar was satisfied that Article 9(e) would allow the court to stop the effect of the finding by the allegedly selected court in favour of the validity of a bogus choice of court agreement. To strengthen this position, the NY Bar Committee recommended the introduction of federal legislation to reiterate the principles that voluntary consent to jurisdiction is an aspect of fundamental US public policy and an element of US constitutional due process, and also that US public policy requires a court to refuse to recognise or enforce a judgment obtained in a judicial system that does not afford impartial tribunal and judicial fairness. The Hartley and Dogauchi Explanatory Report was instrumental to reach this positive conclusion.

The Interdisciplinary Association of Comparative and Private International Law (IACPIL) is hosting a conference titled “Legal Protection of Vulnerable Adults in Central and Eastern Europe” on the 28 November 2023 at the University of Vienna.

The aging population and the rise of age-related diseases result in the urgent need to address the legal issues surrounding vulnerable adults. Beyond the challenges posed by the aging demographic, other vulnerable groups also warrant legal protection. Conducting a comparative analysis of the prevailing legal frameworks for protecting vulnerable adults becomes imperative to gain insights into effective solutions and identify areas requiring further attention.

This conference will therefore explore the protection of vulnerable adults in Central and Eastern Europe including cross-border issues. Masha Antokolskaia and Bea Verschraegen, renowned experts in the fields of comparative and private international law, will shed light on the complexities surrounding the protection of vulnerable adults.

The full programme of the conference and further information can be found here.

Participation is free of charge. Those wishing to attend the Conference online are invited to register by 27 November 2023 (office@igkk.org).

While EU harmonization in matters of parenthood is approaching, following the Commission’s proposal of last year [COM (2022) 695 final], national courts are still examining applications for recognition of foreign court decisions in accordance with domestic legislation. Earlier this year, the Areios Pagos, i.e., the Hellenic Supreme Court, was asked to decide whether an Austrian judicial declaration of paternity should be denied recognition on grounds of public policy, or not (Areios Pagos, Judgment No. 170/2023, available in Greek here).

In 2012, an Austrian national (A), domiciled in Austria, started non-contentious proceedings before the District Court of Eastern Graz, in Austria, against a Greek national (B), whose residence was in Thessaloniki, Greece. Born in 1968, A sought a declaration that B was her father. The court ruled in 2015 that B, who had died shortly before the publication of the decision, was in fact the father of A.

The Graz Civil Court of First Instance, seised by the heirs of B, dismissed the appeal in 2016. The appellants further filed an (extraordinary) appeal against the latter decision, but this appeal, too, was dismissed.

The judicial declaration of paternity was declared​ final in Austria in June 2016.

On an application filed before the Thessaloniki Court of first Instance, the Austrian judicial declaration was recognized in Greece pursuant to the pertinent provisions of the Greek Code of Civil Procedure (mainly Article 780, on the recognition of foreign judgments issued in non-contentious proceedings). The heirs of B challenged the recognition, to no avail. They seised, then, the Greek Supreme Court, arguing, among other things, that the Austrian decision should not be recognized in Greece on the ground that its recognition would offend Greek public policy. They noted that the Austrian rules governing proceedings aimed at a declaration of paternity differ profoundly from the corresponding Greek rules, notably as regards the time limits on applying for such a declaration. 

In its ruling, the Supreme Court focused on Paragraph 148 of the Austrian Civil Code, on judicial determination of paternity, which reads as follows:

(1) The court must establish the paternity of the man from whom the child is descended. The application may be made by the child against the man or by the man against the child.

(2) On application by the child, the man who was present with the mother for not more than 300 and not less than 180 days before the birth or with whose semen medically assisted procreation was performed on the mother during this period may be established as the father, unless he proves that the child is not his offspring. Such recognition is no longer possible two years after the man’s death, unless the child proves that he or she is unable to provide evidence in accordance with para. 1 for reasons on the man’s side.

The Supreme Court then turned to corresponding Greek rule on the matter, namely Article 1483 of the Civil Code, which states:

A mother’s right to request recognition of her child’s paternity is extinguished when five years have passed since birth. The child’s right shall be extinguished one year after the child has reached the age of majority, and the right of the father or his parents two years after the mother has refused consent.

The Supreme Court dismissed the appeal. It acknowledged that Austrian law sets a two-year limitation period starting from the death of the father, whereas Greek law stipulates that an application for a declaration of paternity may be lodged no later than one year after the child has reached the age of majority, but observed that such a difference in regulation does not amount to a violation of public policy.

The Supreme Court concluded that recognition of the Austrian declaration ought to be granted in Greece, given that nothing in the judgment in question offends the basic principles of the Greek legal order.

Two years ago, the Athens Court of Appeal was called upon to examine the recognition of a German decision. The issues raised by the case are similar to those surrounding the Supreme Court’s ruling examined above. A German citizen, 31 years old at the date of filing, had seised a German court (the Schöneberg Justice of the Peace) seeking a declaration that the respondent, a Spaniard living in Athens, was his father. The German court upheld the application, and issued a declaration of paternity, which eventually became final in Germany.

At first instance, the German decision was granted recognition in Greece. The Athens Court of Appeal, however, later decided otherwise (Judgment No. 2736/2021, published in Private Law Chronicles 2021, p. 438 ff.).

In brief, it ruled as follows: the fact that the appellee applied for recognition of paternity before the German courts for the first time 13 years after he came of full age and subsequently, after 17 years, for the recognition of the German court decision in Greece, constitutes a breach of the time limits laid down by Greek law concerning applications for a declaration of paternity, and accordingly contravenes the public policy of Greece, since it constitutes an expression of abusive conduct

The Athens Court relied for this on the Greek Constitution and on the European Convention on Human Rights, in conjunction with Article 33 of the Greek Civil Code (on the public policy exception) and, more generally, the Greek legal order, which is concerned with the protection of third parties and the protection of public interest, as regards legal relationships that have been established and settled to date, i.e., 17 years after the appellant came of full age.

The Court of Appeal concluded that the Court of First Instance wrongly failed to examine whether the legal effects of the abovementioned German judgment, based on German law, correspond in substance to Greek law. Were Greek law applied, the legal consequences would have been diametrically opposed, and the application would have been dismissed, since the appellee had lost the right to bring the action long ago. Therefore, the court which delivered the judgment under appeal was not entitled to recognize the res judicata effect of that German judgment in Greece.

Article 31 para 1(a) of the Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, states

The recognition of a court decision shall be refused: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, taking into account the child’s interests.

The addition of the last part of the wording (taking into account the child’s interests), which is also featured in the Brussels II ter Regulation (Article 39(1)(a): taking into account the best interests of the child), is a clear message towards a stronger protection of the children. The question here is whether the protective shield refers to children of any age, i.e., even those children who have already passed the age of majority since many years.

The Yukos saga is a gift that keeps on giving.

Following the nationalisation of Yukos in 2007, the former shareholders commenced a number of arbitral proceedings against Rosneft, which acquired Yukos’ assets, and Russia.

Many readers of the blog will know that the English courts have already dealt with an aspect of the Yukos saga. The arbitrations against Rosneft were seated in Russia. The arbitral tribunals decided in favour of the claimants. The awards were set aside in Russia. Nevertheless, the award creditors tried to enforce the awards in the Netherlands and England. The Dutch courts refused to recognise the Russian settings aside. In 2012, the Court of Appeal of England and Wales held that the foreign act of state doctrine did not apply to allegations of impropriety against foreign court decisions and that the Dutch judgments did not create an issue estoppel in England because the issues raised in the Dutch and the English proceedings were not the same (violations of Dutch and English public policy, respectively).

Cockerill J has now dealt with another aspect of the saga. The arbitration against Russia was commenced under the Energy Charter Treaty and was seated in the Netherlands. The arbitral tribunal (Yves Fortier as Chairman, Charles Poncet, and Stephen M Schwebel) ordered Russia to pay USD50bn to the claimants plus compound interest accruing at around USD2.5m a day. Russia tried to set aside the arbitral award, while the award creditors tried to enforce it in England. The Hague Court of Appeal rejected Russia’s challenges that the tribunal did not have jurisdiction and that there was fraud in the arbitration. The Dutch Supreme Court upheld the Court of Appeal’s ruling regarding the jurisdictional issue but held that the Court of Appeal had erred with respect to the fraud issue. The judgment was quashed and returned to the Court of Appeal for further consideration and decision. Did the Dutch judgments create an issue estoppel in England regarding the jurisdictional issue? Cockerill J answered the question positively in his judgment of 1 November 2023 in Hulley Enterprises Ltd v Russia.

There were four issues before the court: 1) can a foreign judgment against a state create an issue estoppel; 2) did the Dutch judgments satisfy the requirements for recognition from section 31 of the Civil Jurisdiction and Judgments Act 1982; 3) were the issues in the Dutch and English proceedings the same; and 4) were the Dutch judgments res judicata regarding the jurisdictional issue?

It may be surprising to hear that there was no clear authority on whether a foreign judgment against a state can create an issue estoppel. The court found that under common law there was ‘no reason why, if the relevant hurdles are cleared, there cannot be an issue estoppel arising out of a foreign judgment against a state, just as there can be against an ordinary company or individual’ ([48]).

Section 31(1)(b) of the Civil Jurisdiction and Judgments Act 1982 provides that a foreign judgment against a state can be recognised and enforced in England only if the court of origin would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with the State Immunity Act 1978. ‘In other words: you can enforce/recognise a judgment here, but only if you could have got it here.’ ([42]) Section 2 of the 1978 Act provides that submission to jurisdiction is an exception to immunity. Russia submitted to the jurisdiction of the Dutch courts by challenging the award there.

The issues in the Dutch and English proceedings were the same, namely the validity of the arbitration agreement.

After hearing from experts on Dutch law, the court found that the Dutch judgments were res judicata regarding the jurisdictional issue, even if the Supreme Court had quashed the part of the Court of Appeal judgment dealing with the fraud issue and returned it to the Court of Appeal.

The outcome is that:

a particular legal battle has already been fought out fully between the parties. The RF chose to dispute jurisdiction, including the construction of Article 45 ECT, in the Netherlands. It has..had a determination, and cannot seek to have another one before a different court. ([55])

Consequently, the court dismissed the jurisdictional challenge to the enforcement of the arbitral award and, furthermore, stated that Russia was not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration pursuant to section 9 of the 1978 Act.

The Dutch and English courts are yet to deal with the fraud issue. The next chapter of the Yukos saga is eagerly awaited.

The fourth issue of the Journal du droit international for 2023 has been released.

It contains three articles and several case notes relating to private international law issues, including the 2022 annual case-law review of EU private international law coordinated by Louis d’Avout (University of Paris II) and Jean-Sébastien Quéguiner (University of Rennes).

In the first article, Hugues Fulchiron (French Cour de Cassation & University of Lyon 3) analyses the recent EU PIL regulation proposal in matters of parenthood, assessing its chances to be actually adopted (La proposition de règlement européen sur la filiation: coup de maître ou coup d’épée dans l’eau?).

The English abstract reads:

The proposal for a European Regulation on filiation published on December 7, 2022, came as a surprise, given that matters of filiation are an area where national specificities and principles of public order prevail. This is evidenced by the strong opposition among EU Member States on issues related to same-sex parenthood or surrogacy. It aligns with EU policies aimed at recognizing children’s rights and promoting equal treatment for LGBTIQ individuals. It also aims to facilitate the movement of people by ensuring the portability of their status.

To achieve its objectives, the proposal broadens the scope of its jurisdiction and adopts a conflict of laws rule that is sufficiently general and neutral to encompass all situations, from traditional families to same-sex parent families or children born through surrogacy. Above all, everything is designed to facilitate the recognition of parent-child relationships established in a Member State. To this end, a European Certificate of Filiation is notably established. The role of public policy is also strictly limited. Nevertheless, this ambitious project may face opposition from Member States. To avoid roadblocks, it might be necessary to resort to enhanced cooperation and refer questions related to surrogacy to the ongoing work within the Hague Conference on Private International Law.

In the second article, Marylou Françoise (University of Lyon 3) examines the role of (French) courts in private international law disputes from the perspective of the French Draft Code of private international law (L’office du juge à la lumière du projet de Code de droit international privé).

The English abstract reads:

The French draft Code of private international law, submitted to the Minister of Justice on March 31, 2022, modifies a significant number of existing standards. The provisions relating to the powers of a court are particularly affected, renewing the debate on the authority of the conflict of laws and international jurisdiction rule over the judge and the parties. The solution adopted is particularly favorable to the effectiveness of the rule. It requires the judge to verify her or his international jurisdiction and to apply, if necessary ex officio, the conflict of laws rule. However, the proposed framework raises several questions about its implementation. For instance, the scope of the proposal, the status of foreign elements and the form of the procedural agreement, deserve to be discussed.

In the third article, Cécile Legros (University of Rouen Normandie) analyses a recent decision of the UK Supreme Court in matters of international carriage of goods by road (JTI POLSKA Sp. Z o.o. and others v Jakubowski and others [2023] UKSC 19) and addresses questions of interpretation of international conventions in this area (La force du précédent en droit britannique ou les limites de l’interprétation uniforme des conventions internationales de droit matériel).

The English abstract reads:

For once, the Supreme Court of the United Kingdom has just ruled on a request to reverse established case law. The application sought to put an end to a divergence in case law between the States parties to the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 (known as the CMR), which is a uniform law convention. Although the Court refuses to reverse this precedent, the judgment is remarkable in several respects, particularly as regards the method of interpreting uniform law conventions. However, it is disappointing in terms of improving uniform interpretation of the CMR, so that other solutions need to be considered. Soft law thus appears to be a possible remedy for the limitations of uniformization by international conventions.

The table of contents of the issue can be accessed here.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. As always, it contains a number of insightful articles, this time also two in English language. Here are the authors, titles and abstracts:

Horatia Muir Watt, An Ontology of the In-Between [18th Ernst Rabel Lecture, 2022] (Open Access)

The conflict of laws can serve heuristically to underscore two established but radically opposing models of modernist legal ordering: multilateralism and statutism. Such a prism is helpful if we want to rethink (as we must!) our late-modern legality’s deep epistemological settings in the shadow of the »catastrophic times« to come, whether in terms of environmental devastation or political dislocation. Both phenomena are profoundly linked and indeed constitute two faces of alterity, natural and cultural, from which modernity has progressively taught us to distance ourselves. Importantly, law encodes the conditions that produce these dual somatic symptoms in our contemporary societies. This chasm between nature and culture has produced humanity’s »ontological privilege« over our natural surroundings and a similar claim of superiority of modern (Western) worldviews over »the rest«. In this respect, the main achievement of the moderns, as Bruno Latour wryly observed, has been to universalise the collective blindness and amnesia that allow our »anthropocentric machine« to hurtle on, devastating life in its path and devouring the very resources it needs to survive.

Anton S. Zimmermann, Kriegskollisionsrecht. Ein Beitrag zum international-privatrechtlichen Umgang mit Gebietseroberungen (War and the Conflict of Laws – Private International Law’s Treatment of Territorial Conquest.)

The Russian war of aggression against Ukraine constitutes a breach of a fundamental consensus in public international law: states have authority over their territory. One element of territorial sovereignty is the right to legislate in the field of private law. If a territory is conquered, this right is – in breach of public international law – usurped by the conquering state. This article examines how private international law deals with such changes in factual power. It demonstrates that private international law is more flexible than is commonly assumed and that it can provide a differentiated and adequate reaction to occupations and annexations.

Wenliang Zhang and Guangjian Tu, Recent Efforts in China’s Ambition to Become a Centre for International Commercial Litigation

The last decade or so has witnessed intensifying efforts by China to reshape its legal framework for international commercial litigation. These efforts echo its advancement of the »One Belt and One Road Initiative« and a policy of strengthening the foreign-related rule of law. But the measures so far have been piecemeal and were adopted mainly by the Supreme People’s Court (SPC). Leading lower Chinese courts, the SPC has zealously advanced the reform of international commercial litigation by devices such as international commercial courts (ICCs), anti-suit injunctions, forum non conveniens and de jure reciprocity favouring recognition and enforcement of foreign judgments. Such efforts may help modernize China’s mechanism for international commercial litigation, and more are expected. Although what the SPC has been doing moves closer to the global mainstream and is on the right track, deep reforms are still needed before the Chinese international commercial litigation regime can »go global«.

Mathias Habersack and Peter Zickgraf, Sorgfaltspflichten und Haftung in der Lieferkette als Regelungsmodell: Rechtsentwicklung – Rechtsvergleichung – Rechtsökonomik – Rechtsdogmatik (Corporate Sustainability Due Diligence and Supply Chain Liability as a Regulatory Model: Legal Developments – Comparative Assessment – Economic Analysis – Legal Theory)

The proposal for a Corporate Sustainability Due Diligence Directive significantly exceeds the German Supply Chain Act (LkSG) not only in terms of its scope of application and the protected interests, but also regarding the enforcement mechanism in the event of a violation of a due diligence duty. While the LkSG has taken a stand against private enforcement in its § 3 para. 3 s. 1, Art. 22 of the proposed Corporate Sustainability Due Diligence Directive makes companies civilly liable for misconduct committed by their subsidiaries and business partners. The present article deals with the conceptual fundamentals of this regulatory model: From a comparative perspective, the proposed duties and accompanying civil liability mark a departure from the independent contractor rule which is deeply rooted in the tort laws of the German and Anglo-American legal families; the proposed regulatory model thus brings about a sector-specific paradigm shift in the law of non-contractual liability. From a law and economics perspective, however, the proposed regulatory model is justifiable given the special factors present in typical cases. The liability risks associated with the regulatory model appear to be manageable for companies if the pre-conditions of their potential civil liability are more clearly specified.

The table of contents in German is available here.

An online conference titled The Institution of the Family – Tradition, Reform, Uniformity and Perspectives will take place on 4 and 5 December 2023. The event, organized by a group of academic institutions, including the “Dunărea de Jos” University in Galați, the University of Caen Normandie, the Carlos III University of Madrid, the University of Murcia and the Universidad Autónoma del Estado de Morelos of Cuernavaca, aims to explore the evolving approach to family relationships as reflected in domestic, European and international rules.

Scholars interested in making a presentation at the conference have until 19 November 2023 to submit a proposal.

More information on the conference and the call can be found here.

This post has been written by Sanja Marjanović (Faculty of Law, University of Niš, Serbia) and Uglješa Grušić (UCL).

The 18th Regional Private International Law Conference will take place on 17 November 2023 at the Faculty of Law, University of Niš, Serbia, with the support of the Deutche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). The theme of the Conference is Private International Law and International Organizations – Achievements and Challenges.

The Conference will provide an opportunity to celebrate the 20th anniversary of the inaugural regional PIL conference, which was also held in Niš in 2003. These regional PIL conferences are a result of the vision of Professor Mirko Živković (Faculty of Law, University of Niš) to re-establish a regional PIL network that had been broken by the tragic dissolution of the former Yugoslavia. Although PIL scholars from countries stemming from the former Yugoslavia continue to be the nucleus of these conferences, they regularly attract PIL scholars from other countries as well.

The opening panel will feature the following topics and speakers:

• Reflections on the Complementarity of Global and Regional Unification of Private International Law, Hans van Loon (Former Secretary General of the Hague Conference on Private International Law), The Hague
• Characterisation in the CJEU Case Law: Unity or Diversity?, Vesna Lazić, Utrecht University and Asser Institute, The Hague
• Centennial of the Hague Academy of International Law, Maja Stanivuković, University of Novi Sad

The full programme of the conference can be found here.

The working language of the Conference will be English, and it will also be streamed online.

Those wishing to attend the Conference online are invited to register by emailing contact details and affiliation to antanasijevic@prafak.ni.ac.rs by 16 November at 12 CET.

Conference proceedings will be published in September 2024.

Indi Gregory is an eight-month-old child. She suffers from profound metabolic, neurological and cardiological disorders. At the time of writing this post she was a patient at an intensive care unit at a hospital in Nottingham.

A few months ago, the doctors who have been treating Indi in England came to the conclusion that her illness is incurable and that, given the pain caused by the life supporting treatment she is receiving, it is in Indi’s best interest that such treatment be withdrawn.

The parents disagreed and have since reiterated their wish to have the treatment continued. They made contact with a paediatric hospital in Italy, which made itself available to explore further options and continue treating the child.

The matter was dealt with by the High Court of England and Wales. This dramatic case, which reminds of similar cases involving children with incurable diseases, widely covered by the press (including the cases of Charlie Gard and Alfie Evans), raises a number of highly sensitive issues, legally and ethically. It also raises some private international law issues, as a result of the fact that Indi was recently granted Italian citizenship and that the Italian authorities, namely the Italian Consul in Manchester, claimed jurisdiction over the matter and issued orders aimed at transferring Indi to Rome.

This post is exclusively concerned with the latter issues.

The hospital Trust seised the High Court of England and Wales, in September 2023, seeking authorisation to remove the life sustaining care Indi was receiving, on the ground that, according to the Trust, there was no prospect of recovery, Indi’s life expectancy was very limited, the treatments she was receiving were causing her a high level of pain and suffering, and there was no discernible quality of life or interaction by Indi with the world around her.

The parents opposed the application, alleging, inter alia, that Indi had prospects of gaining a degree of autonomy, that she was showing small signs of improvement, and that the precise causes of her presentation are unclear and required further time and investigation.

On 13 October 2023, the Family division of the High Court ruled in favour of the Trust. Peel J explained:

With a heavy heart, I have come to the conclusion that the burdens of invasive treatment outweigh the benefits. In short, the significant pain experienced by this lovely little girl is not justified when set against an incurable set of conditions, a very short life span, no prospect of recovery and, at best, minimal engagement with the world around her. In my judgment, having weighed up all the competing considerations, her best interests are served by permitting the Trust to withdraw invasive treatment in accordance with the care plan presented.

Shortly afterwards, the Court of Appeal of England and Wales was seised of an appeal against the decision, by the parents, based on three grounds. By a ruling of 23 October 2023, the Court concluded that there was no prospect of an appeal on either of those grounds succeeding, and accordingly refused permission to appeal.

The parents of Indi Gregory seised the European Court of Human Rights, seeking an urgent order that would prohibit the withdrawal of life supporting treatment. The Strasbourg Court, however, did not uphold their request.

Peel J of the High Court was then again seised by Indi’s parents. They sought permission for the care of their child to be transferred to other medical professionals, at a hospital in Rome. On 2 November 2023, the High Court dismissed the application on the ground that there was no material change of circumstances, or other compelling reason, to justify reconsideration of the original order.

Specifically, concerning the proposal by the Rome hospital for cardiac intervention, Peel J considered that such intervention was inappropriate “because of the severity of the underlying conditions, IG’s instability and the lack of prospect of any meaningful quality of life, and the ongoing burden and pain of invasive treatment”. He added that “invasive life sustaining treatment is no longer appropriate for IG” and that the “substantial burdens of such treatment significantly outweigh any perceived (but in my judgment negligible) benefit, in a context where her life expectancy is very short, and her conditions irreversible”. He explained that,

there is nothing to suggest that IG’s prognosis would be beneficially altered by the Italian hospital’s treatment. On the contrary, it may well prolong pain and suffering if and to the extent that it incorporates invasive procedures which in my judgment are not in IG’s best interests, and should not be sanctioned.

On 6 November 2023, the Italian Government decided to grant Italian citizenship to Indi Gregory. It relied for this on Article 9(2) of the Italian Statute on Citizenship (Law No 91 of 1992), according to which citizenship may be granted, through a Presidential Decree, where to do so is of “exceptional interest for the Italian State”.

According to the press release accompanying the decision, such an interest consisted, in the circumstances, in providing IG with additional therapeutic opportunities (“ulteriori sviluppi terapeutici”), for the purposes of safeguarding the pre-eminent humanitarian values underlying the case (“preminenti valori umanitari”). The decision, the press release explains, was adopted following a request by the parents of the child, in connection with their wish to have Indi transferred to Rome to receive further treatment.

The author of this post was unable to retrieve any official document explaining in which way, i.e., based on which legal grounds and reasoning, the fact of making Indi Grgeory an Italian citizen would alter the picture resulting from the orders of Peel J, and increase the chances of Indi being transferred to Rome.

Be that as it may, on 8 November 2023, according to press reports, the Italian Consul in Manchester asserted that Italian authorities had jurisdiction over the case, precisely on the ground that Indi had become an Italian citizen, and ordereed that IG be transferred to Italy. The decision was taken by the Consul in his capacity of “guardianship judge”, that is, in the exercise of the judicial functions that Italian law confers on the heads of consular posts as regards, specifically, the protection of minors of Italian nationality outside the territory of Italy. The Consul also appointed a special representative of IG to take care of the implementation of the order. Press reports indicate that the appointed representative made contact with the hospital managers seeking their “cooperation”.

The English High Court made a new ruling on 8 November 2023. The parents wished to take the child back home, in Derbyshire, and have the extubation and the resulting compassionate care performed there.

Peel J dismissed the request. He observed that Indi “should continue to have clinical treatment of the highest quality, carried out in a safe and sustainable setting”, which would “not be available at home”, noting that

for the plan to work at home, there needs to be a close, constructive and engaged level of communication between the parents and the Trust/relevant clinicians, but, unfortunately, that does not appear to be the case.

Interestingly, for the purposes of this post, Peel J took note that Indi had very recently been granted Italian citizenship, while adding that the Indi’s father (the mother did not intervene at the hearing)

acknowledged, correctly and properly, that my decisions and orders are unaffected by this development.

Rumours circulated in the press concerning a possible agreement between the Italian and the UK Governments regarding the transfer of Indi to Italy, although no indications were given as to the legal grounds on which the decisions of the High Court could be superseded.

Withdrawal of life support is expected to be carried out today, 9 November 2023, at 15 CET.

The text of the order issued by the Italian Consul in Manchester has not been made publicly available. The author of this post is not aware of the exact provisions of the order. The grounds on which the Consul asserted that the case comes with the jurisdiction of Italian authorities are also not known. It is also not known whether the Consul addressed the issue of the recognition of the English orders in the Italian legal system, and, in the affirmative, what conclusions were reached in that regard. In addition, it is not known whether any exchanges occurred between the Consul and the High Court either prior to the Consul’s order or at a later stage.

The following remarks are, accordingly, of a general nature, and do not purport to represent an analysis, let alone an assessment, of the measures taken by the Italian authorities.

Italy and the UK are parties to the Hague Child Protection Convention of 19 October 1996.

As stated in Article 1(1)(a), the Convention aims, inter alia, to “determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child”. Cases like that of Indi Gregory appear to come with the material scope of the Convention.

Pursuant to Article 5(1) of the Hague Child Protection Convention, the authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property. In relation to States, like the UK, in which two or more systems of law regarding the protection of children apply in different territorial units, reference to habitual residence must be construed, as clarified in Article 47(1), as referring to habitual residence in a territorial unit. Thus, as concerns children whose habitual residence is in England, English courts have jurisdiction.

As a rule, the authorities of the State of which the child is a national do not have jurisdiction under the Convention.

Rather, the Convention contemplates the possibility that a case be transferred by the authorities having jurisdiction based on Article 5 to the authorities of a different Contracting State.

Specifically, Article 8 stipulates that the authority of the State of habitual residence of the child, if they consider that the authority of another Contracting State “would be better placed in the particular case to assess the best interests of the child” (including the authorities of the State of nationality of the child), may request that other authority to assume jurisdiction to take such measures of protection as they consider to be necessary, or suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

Article 9 goes on to state that the authorities to which the case may be transferred (including, again, the authorities of the State of nationality), if they consider that they are better placed in a particular case to assess the child’s best interests, they may request the competent authority of the Contracting State of the habitual residence of the child that they be authorised to exercise jurisdiction to take the measures of protection which they consider
to be necessary. The authorities concerned may then proceed to an exchange of views.

In the case of Indi Gregory, the English High Court has, so far, not considered that the Italian authorities would be better placed to deal with the case, including after the Court was informed that an Italian hospital was available to treat the child and that Indi had been made an Italian citizen.

On 9 November 2023 news reports had that the Italian Consul in Manchester had approached the High Court in connection with a request based on Article 9 of the Convention. Very few details were available on this  at the time of publishing this post.

The urgency of the matter does not appear to change things. The Hague Convention includes a special provision that applies in “all cases of urgency”, namely Article 11, but this provision confers jurisdiction on the authorities of the Contracting State “in whose territory the child or property belonging to the child is present”.

It is worth adding that measures relating to the protection of a child emanating from the authorities (including a Consul, as the case may be) of a Contracting State are entitled to recognition in all other Contracting States “by operation of law”, as stated in Article 23(1). However, recognition may be refused, according to Article 23(2)(a) “if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II”, of the Convention, i.e., Article 5 and following.

One may wonder whether the picture resulting from the above provisions of the Hague Child Protection Convention could be affected in some way where a consular post, rather than a judicial authority, claims to take measures directed at the protection of a child.

The Hague Convention applies, as such, to all the authorities of a Contracting States with competence over matters within the scope of the Convention itself. The nature of the authorities involved in a given case are, accordingly, immaterial. Rather, where a consular post is involved, it is appropriate to assess whether the rules governing consular relations may play a role, and possibly affect the operation of the Hague Convention.

Both the UK and Italy are parties to the Vienna Convention on consular relations, of 24 April 1963. In addition, the two countries have concluded between themselves, in 1954, a consular convention.

Article 5 of the Vienna Convention describes consular functions as including, among others, “safeguarding … the interests of minors … who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such person”. As specified in Article 5(h), the latter function is to be exercised by consular posts “within the limits imposed by the laws and regulations of the receiving State”.

For their part, the authorities of the receiving State (the English authorities, in the case of Indi), are required, according to Article 37(b) of the Vienna Convention “to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor … who is a national of the sending State”. It is clarified, however, that the giving of this information is “without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments”.

The bilateral consular convention does not appear to extend the functions of consular authorities regarding the protection of children, nor impose on the authorities of the receiving State duties that go beyond what is provided in the Vienna Convention, in particular as regards the jurisdiction of courts and the recognition of foreign decisions.

As a result, it is difficult to see how the findings above, made in respect of the Hague Child Protection Convention, could be modified in light of the involvement of a consular authority.

Ronald A. Brand, Michael S. Coffee and Paul Herrup are the authors of The 2019 Hague Judgments Convention, published by Oxford University Press, part of its Private International Law Series.

Declared a ‘game-changer’ by the Hague Conference Secretary General, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has introduced international obligations of unprecedented sweep and power. Now, this authoritative treatise provides the diplomatic background and the historical context for the Convention, discussing the law on judgments recognition in the absence of the Convention’s ratification. After recounting the twenty-seven-year history of the negotiations leading to the Convention’s conclusion, it offers an article-by-article discussion of each provision. It also considers paths not taken, advancing possible solutions to address future pressures and developments.

More information, including the table of contents, can be found here.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided to us by the editor of the journal.

J. Oster, Provisional Measures Against Cross-Border Online Platforms

In its ruling of 15.2.2022 (Trustpilot A/S ./. Interreal Group B.V.), the Gerechtshof Amsterdam had to decide on provisional measures within the meaning of Article 35 Brussels Ibis Regulation against an online evaluation platform. The Court held that Article 35 Brussels Ibis Regulation applied independently of a jurisdiction clause concerning the proceedings on the merits of the case. However, according to the Court, Article 35 Brussels Ibis Regulation only covers measures having a provisional or protective character. The Court found that this applies to an obligation of an online platform to temporarily store user data available to the platform, but it excludes both obligations of that online platform to hand over user data to the applicant company and a forward-looking duty to store the data of prospective users.

M. Cremer, Golden Passports in Private International Law

A number of states grant citizenship by investment, which allows wealthy individuals to acquire a new nationality essentially through payment. The article analyzes the impact of so-called golden passports in private international law. It contends that from a theoretical standpoint, choice of law rules are not required to use nationality obtained through investment as a connecting factor. In practice, private international law avoids applying the corresponding law in most, but not all cases. However, in certain situations, European law imposes a different result for golden passports from EU Member States.

R.A. Schütze, Security for Costs of English and Swiss Plaintiffs in German Courts

The decision of the Federal Supreme Court (Bundesgerichtshof – BGH) is a milestone in the German-British relations regarding the procedural position of English plaintiffs in German courts after the Brexit. The BGH – overruling an earlier judgment of the Regional Court of Appeal Frankfurt/Main – decided that plaintiffs residing in the UK are not obliged to provide security for costs under sect. 110 German Code of Civil Procedure (ZPO). The Court applied the European Convention on Establishment (Art. 34, Sect. 4).
The Court further decided that Plaintiffs residing in Switzerland have no such obligation either under the Lugano Convention 2007.
The BGH finally decided that Respondent must request security for costs in the instance the event occurs that gives Respondent the right to claim security for cost.

C. Thole, The Distinction between Civil Matters and Acta Iure Imperii under Art. 1 Brussels Ibis Regulation

On 22 December 2022 the CJEU handed down a further judgment on the definition of civil and commercial matters within the meaning of Art. 1 Brussels Ibis Regulation and the distinction between civil matters and acta iure imperii. The short judgment denied the applicability of the regulation with regard to an action of a public authority of a Member State against companies established in another Member State seeking a declaration of the existence of restrictive practices, an order penalising those practices and an order on the cessation of those practices. Christoph Thole finds the judgment to be feasible, but parts of the Court’s line of reasoning remain doubtful.

T. Bens, The Bogus Entrepreneur, the Intermediating Life Companion and the Bona Fide Contractual Partner: Determination of Consumer Status under Art. 17(1) Brussel Ibis Regulation

The preliminary ruling of the Court of Justice of the European Union in Wurth Automotive concerns the determination of whether a person has the status of consumer as defined by Art. 17 Brussels Ibis Regulation. According to settled case law of the Court of Justice, the national court must determine the aim for which the contract was concluded by the person who claims the consumer status. The referring Austrian court nonetheless seems to have had some issues with applying the case law of the Court on “mixed” contracts given the peculiar facts and circumstances of the case. The highly factual preliminary questions are all reformulated by the Court to rather abstract questions of interpretation, evaluation and evidence. The ruling confirms that a person who misleads their professional contractual partner as to the aims for which they sought to conclude the contract cannot invoke the protective jurisdictional rules for consumers, but also ties this defence to certain questionable evidentiary restrictions.

I. Bach and F. Burghardt, The Role of the Last Joint Habitual Residence on Post-Marital Maintenance Obligations

Art. 5 of the 2007 Hague Protocol on the law applicable to maintenance obligations holds an exemption to Art. 3’s general principle: Regarding post marriage maintenance, the law at the creditor’s habitual residence does not apply if the marriage is more closely connected to another state. The BGH now established a de minimis exception for Art. 5: The law of the other state only prevails if its connection to the marriage is a) closer than the connection of the creditor’s habitual residence and b) sufficiently close in absolute terms. Ivo Bach and Frederik Burghardt argue that such an additional threshold is neither in line with the wording of Art. 5 nor with the Drafters’ intention and the ratio legis. Unfortunately, the BGH has refused to refer the question to the ECJ for a preliminary ruling.

A. Botthof, Convention on the Civil Aspects of International Child Abduction: State of Return and Best Interests of the Child After the Making of an Order for the Return of the Child

Two recent decisions shed new light on the Convention on the Civil Aspects of International Child Abduction. The Court of Appeal of Berlin comments on the controversial question of whether a wrongfully removed child can be returned to a Contracting State other than that in which the child was habitually resident immediately before the removal. According to the Court of Appeal, this is possible if children return to their usual family ties and relationships. The Supreme Court of Justice of Austria was concerned with the best interests of the child in the return process. The current decision reaffirms the established jurisdiction, according to which the claim that the child’s best interests are endangered by the return can only be based on facts that occurred after the making of an order for the return of the child.

D. Wiedemann, European Account Preservation Order (EAPO) for Penalty Payments

Within the scope of application of the Brussels Ibis Regulation, creditors have two options when enforcing a judgment obliging a debtor to perform an action or to refrain from an action: On the one hand, creditors can enforce this judgment across borders by means of the enforcement methods available in another Member State. On the other hand, creditors may obtain an order levying a penalty payment and enforce that order in accordance with the enforcement measures for monetary claims in another Member State (Art. 55 Brussels Ibis Regulation). Thus, creditors are free to choose whether to enforce the judgment or to enforce an order levying a penalty payment across the border. The securing of penalty payments by means of a European Account Preservation Order (Regulation 655/2012) could be a third procedural option. In the first case, the Higher Regional Court of Cologne refused to allow this option. The court decided that creditors may not pursue a European Account Preservation because the penalty payment essentially concerns a claim to perform an action and not a pecuniary claim. In the second case, the CJEU implied that penalty payments should indeed be regarded as pecuniary claims. However, a penalty payment order that does not determine the final amount cannot justify the issuance of a European Account Preservation Order. In this case, the creditor has to satisfy the court that the claim is likely to succeed (Art. 7(2) Regulation 655/2012).

P. Hay, The Rise of General Jurisdiction Over Out-of-State Enterprises in the United States

In June 2023, the U.S. Supreme Court continued its revision of personal jurisdiction law, in this case by refining, thereby perhaps expanding, the law of when a court may exercise general personal jurisdiction – that is, jurisdiction over all claims – over a non-resident person or an out-of-state enterprise. In Mallory v. Norfolk Southern Railway Co., it held in a 4+1:4 decision that, when a state requires a non-resident company to register to do business in the state and such registration constitutes consent to jurisdiction over all claims against it, such exercise is permitted. In reaching its conclusion, the Court applied a more than a century old (1917) precedent. The plurality of four Justices also compared the exercise of such jurisdiction to “tag jurisdiction” (general jurisdiction over persons present in the state at the time of service) and did not consider the Court’s much more recent cases on specific (claim-related) jurisdiction to be in contrast with (i.e., to overrule) the 1917 decision. The dissent disagreed and, in light of the majority’s new revision, considered specific jurisdiction now significantly deleted. Indeed, it does seem that the distinction between general and specific jurisdiction continues to become considerably blurred.

M. Reimann, The Renewed Threat of “Grasping” Jurisdiction over Corporations – and Its Limits

In its latest decision on personal jurisdiction, Mallory v. Norfolk Southern Railway Co. (600 U.S. __, 2023), the US Supreme Court handed the states a new weapon against corporations that are not “at home” in the forum state. In a 5:4 decision, the Court found the requirement that a corporation consent to general in personam jurisdiction as a condition for obtaining a business license compatible with the due process clause of the fourteenth amendment. In this manner, a state can circumvent the rule established in Daimler AG v. Bauman (2014) that corporations are subject to general in personam jurisdiction only where they are “at home” (i.e., typically in the state(s) of their incorporation or headquarters). Yet, the jeopardy for corporations is not quite as serious as it seems at first glance for three reasons. First, at least so far, very few states have used this form of “consent”, and there is reason to believe that it will not become the overwhelming practice. Second, at least if such consent is the only connection between the defendant and the forum state, the respective suits will often be dismissed under the forum non conveniens doctrine because the forum will not have any plausible interest or reason to entertain them. Third, requiring consent to general in personam jurisdiction as a condition for obtaining a business licence will almost surely be challenged under the so-called “dormant commerce clause”. That provision was not before the Court in Mallory; it imposes serious limits on what states can do to out-of-state corporations. The consent requirement likely violates these limits in cases in which the forum state has no legitimate interest in adjudicating the dispute. Thus, in the long run, the consent requirement will likely be effective only if the forum state has a reasonable connection with the litigation before its courts. Such a narrowed version would be a welcome correction of the overbroad protection that (especially foreign) corporations have enjoyed under Daimler. Foreign corporations should also consider that the consent requirement can kick in only if they need a business license from the forum state – which is not the case if they act there through subsidiaries or just occasionally. Still, foreign corporations have reason to worry about the future of personal jurisdiction because Mallory is another indication that the Court’s majority is not willing to protect them as broadly as in the past. It is, for example, quite possible that the Court will eventually allow personal jurisdiction over an out-of-state corporation on the basis of service of process on one of its officers in the forum state.

T. Kono, Punitive Damages and Proactive Application of Public Policy in the Context of Recognition of Foreign Judgments in Japan

The Californian judgment including punitive damages was partially enforced in California. The question of whether the enforced portion could be interpreted to include the portion that awarded punitive damages was raised as a precondition for the enforceability of the unpaid portion in Japan. The Supreme Court of Japan stated that the punitive damages portion in the Californian judgment does not meet the requirements of Article 118(3) of the Japanese Code of Civil Procedure and that the exequatur on the foreign judgment cannot be issued as if the payment was allocated to the claim for the punitive damages. The Supreme Court seems to have taken the position that Japan’s system of recognition of foreign judgments is a system that can proactively deny the effect of foreign judgments not only where the effect of the foreign judgment extends into Japanese territory, but also where the effect of the foreign judgment does not extend into Japan. The author of this article is of the view that the social function of punitive damages would not constitute public policy at state levels insofar as punitive damages are insurable. Hence, the proactive use of public policy by the Japanese Supreme Court would not cause direct tension with those states. In other states, where they are not insurable, however, under certain circumstances, public policy in Japanese law versus public policy in US law may arise as a debatable issue.

S. Noyer, Annual Conference of the Society for Arab and Islamic Law in honor of Omaia Elwan, October 7 and 8, Heidelberg, Germany

The PAX Moot case for the 2024 moot competition on private international law is now out. The 2024 Round is dedicated to Petar Šarčević.

The Petar Šarčević Round explores social media platforms’ activities such as content creation and monetization from a private international law perspective.

The case requires participants to deal with matters of international jurisdiction of the District Court of Ljubljana and applicable law in a complex factual situation involving parental responsibility, contractual relationships, validity of a contractual relationship entered into by a minor, termination of contractual relations, tort claims, and removal of online published content.

The moot competition has two phases: a written and an oral round. The oral round will take place in Ljubljana from 24-26 April 2024.

More information about the competition, the schedule building up to the oral round in Ljubljana, the applicable rules for the Petar Šarčević Round, and the registration procedure for the teams taking this challenge will follow soon.

To all teams deciding to join the competition: good luck in preparing the case!

The author of this post is Costanza Honorati, professor of EU law and private international law at the University of Milan Bicocca. She chaired the working group that prepared a position paper on behalf of the  European Association of Private International Law in view of the eight meeting of the Special Commission on the practical operation on the 1980 Child Abduction and the 1996 Child Protection Conventions, and attended the meeting on behalf of EAPIL.

The Special Commission (SC) charged by the Hague Conference on Private International to discuss  the practical operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention met for the eighth time from 10 to 17 October 2023. The meeting was attended by 471 delegates, in person and online, representing 66 HCCH Members, 13 non-Member Contracting Parties, 27 observers from inter-governmental and non-governmental organisations, including the European Association of Private International Law (see its position paper as Info. Doc. No 18 of October 2023)

As usual, at the end of the meeting the SC adopted a set of Conclusions & Recommendations (C&R), whose content is briefly summarized below, with a focus on a selection of issues. To the reader’s benefit the two Conventions are addressed here separately.

The SC took note that, since the Seventh Meeting of the SC in 2017, five States have become Contracting Parties to the 1980 Child Abduction Convention (Barbados, Botswana, Cabo Verde, Cuba, and Guyana), bringing the total number of Contracting Parties to the Convention to 103.

Interesting information were drawn from the fifth Statistical Study drawn by prof. Nigel Lowe and Victoria Stephens for the year 2021 (Prel. Doc. No 19A ). While the data in that year are likely to have been affected by the COVID-19 pandemic, a few relevant findings are worth mentioning. Among these, the increase in the average number of days it took to reach a final decision; the increase of refusals to return; the almost double increase of proportion of refusals to return on the basis of the Article 13(1)(b) exception, compared with the results of the 2015 statistical study; the small decrease in cases going to court; the increase of cases being settled outside court .

While the SC has reaffirmed and reiterated some of the conclusions adopted in previous meetings, a few specific topics have been discussed in greater detail.

Under the heading Addressing delays under the 1980 Child Abduction Convention, the SC found that delays continue to be a significant obstacle in the operation of the 1980 Child Abduction Convention and the SC strongly recommended Contracting Parties experiencing delays to review their existing processes in order to identify potential causes of delays.

With this in mind the SC reiterated

the effectiveness and value of the use of information technology for efficient communication between authorities, sharing of data, and to assist in reducing delays and expedite return proceedings.

The SC thus encouraged States to continue implementing and enhancing the use of information technology and to make use of the Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention as a helpful resource (para 5-9).

The SC then addressed the Relationship of the 1980 Child Abduction Convention with other international instruments – 1989 UN Convention on the Rights of the Child (UNCRC). Having recalled the rationale for the return of the child and the scope of the return proceedings, the SC emphasized how return proceedings should not include a comprehensive ‘best interests assessment’. In particular the SC stated, at para 14 e 15 that

[w]hile the exceptions derive from a consideration of the interests of the child, they do not turn the return proceedings into custody proceedings. Exceptions are focussed on the (possible non-) return of the child. They should neither deal with issues of custody nor mandate a full “best interests assessment” for a child within return proceedings.

Similar findings are featured in the communication No 121/2020 of the UN Committee on the Rights of the Child under the Optional Protocol on a Communications Procedure.

The SC had a lively discussion on the Application of Article 13(1)(b) of the 1980 Child Abduction Convention in a contest of Domestic violence. The C&R reflect the discussion summarizing some of the results as following. It firstly makes reference to the Guide to Good Practices on Article 13, noting that, according to paragraph 33,

harm to a parent, whether physical or psychological, could, in some exceptional circumstances, create a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Article 13(1)(b) exception does not require, for example, that the child be the direct or primary victim of physical harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child.

In light of the ongoing discussions and initiatives promoted by advocates for victims of domestic violence, the SC supported the proposal to hold a international open forum allowing for discussions amongst organisations representing parents and children and those applying the Convention. The Philippines offered to assess hosting the forum in Manila in 2024 and States have been invited to contribute in the organisation and funding of such a forum (para 26)

Closely connected to domestic violence is the related issue of Safe return and measures of protection. Interestingly, the SC made it clear that a court may also order protective measures to protect the accompanying parent in order to address the grave risk to the child (para 28). As regards undertakings, the SC reiterated that the efficacy of the measures of protection will depend on whether they are enforceable in the State of habitual residence of the child. Insofar, voluntary undertakings are not easily or always enforceable and, because they may not be effective in many cases, they should be used with greatest caution. It was also suggested that, when undertakings are made to the court of the requested State, they should be included in the return order in order to help facilitate enforcement in the State of habitual residence of the child. This is a new practice that could come result interesting.

The issue of hearing of the child again attracted much interest. Based on the fact that States follow very different approaches when hearing the child, C&R aim to circulate some good practices, such as (para 37)

a) the person who hears the child, be it the judge, an independent expert or any other person, should have appropriate training to carry out this task in a child-friendly manner and training on international child abduction; b) if the person hearing the child speaks to one parent, they should speak to the other; c) the person hearing the child should not express any view on questions of custody and access as the child abduction application deals only with return.

It was also emphasised that when hearing the child for the purposes of Article 13(2), this should be done only for such purpose and not in respect of broader questions concerning the welfare of the child, which are for the court of the child’s habitual residence. In other terms, the hearing of the child should be kept in the framework of an exception to return and not embrace a wider scope.

The very topical issue of asylum claim lodged in abduction cases was also shortly discussed, on the basis of Prel. Doc. No 16 . The C&R only indicate that such proceedings should be examined expeditiously (para 40).

Eight new States have become Contracting Parties to the 1996 Child Protection Convention since the 2017 SC, namely Barbados, Cabo Verde, Costa Rica, Fiji, Guyana, Honduras, Nicaragua and Paraguay, thus bringing the total number of Contracting Parties to the Convention to 54 (27 of which are EU Member States).

Some interesting clarifications were given in relation to recognition and enforcement of protection measures. First, in relation to the scope of application of Article 26(1) – a rule which provides that, where measures taken in one Contracting Party require enforcement in another Contracting Party, such measures shall be declared enforceable or registered for the purpose of enforcement in that other Contracting Party – the SC made it clear that not all measures of protection require enforcement under Article 26. Enforcement shall be required, for example, for the forced sale of property; or in relation to a parent refusing to abide by the orders made by the competent authority in another State. Because not all cases fall under Article 26, the SC invited Contracting Parties (in relation to their laws) and competent authorities (in relation to their procedures) to differentiate between those measures that require enforcement and those that do not (para 74-75).

Second, it was noted that, in order to facilitate the recognition and enforcement of measures of protection, the competent authority should carefully describe those measures in the decision and the grounds upon which it based its jurisdiction, including when jurisdiction is based on Article 11(1) (para 77-78).

Another interesting topic on which the SC focused is the placement of children. In this regard the SC endeavored to clarify what should be regarded as placement under Article 3(e) and Article 33 (i.e. any placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution) ) and also what should not be regarded as a placement (i.e. purely private arrangements, including the ones in the form of an agreement or unilateral act, including a notarial kafala; a child travelling abroad for tourism purposes with their foster parent) (para. 83 et seq).

It then offered a useful guidance on minimum steps for the procedure under Article 33. These include the following:

1. The competent authority of the State which is contemplating the measure of alternative care must consult the Central Authority or competent authority in the State where it is proposed that the measure will be exercised by: (1) discussing the possibility of such a placement in the receiving State; (2) transmitting a report on the child; (3) explaining the reasons for the proposed placement or provision of care outside the requesting State and in the requested State.

2. The Central Authority or competent authority of the State where it is proposed that the measure will be exercised gives its consent to the proposed placement or provision of care.

3. If the requested State has consented to the placement or provision of care, taking into account the child’s best interests, the competent authority of the requesting State then issues its decision.

Finally, as a result of the lively debate in the course of the SC, the need for further future action of both the Permanent Bureau (PB) and Contracting States was recommended. This was further reflected in the C&R with respect to the following topics.

In relation to direct judicial communications and the International Hague Network of Judges (IHNJ), the proposal was advanced to develop a short model guide to court practice and further initiatives to hold a regional in-person meeting of the IHNJ in Brazil (May 2024) and a global in-person meeting of the IHNJ in Singapore (May 2025) (para 19).

Regarding the determination of wrongful removal pursuant Articles 8, 14 and 15, the SC invited the PB to draw up a note containing information on the use of such rules, drawing from the contents of Prel. Doc. No 14. (para 46).

As to the revised Request for Return Recommended Model Form and the new Request for Access Recommended Model Form, the SC concluded that further work needed. A Group of interested delegates will assist the PB in finalising both revised Forms (para 50).

Concerning relocation, after noting the strong impact on international abduction and the diversity of approaches of States in this matter, the SC proposed the development of a questionnaire by the PB directed to States to gather information about procedures that States have in place to facilitate lawful relocation (para 54);

With regard to transfer of proceedings under Article 8 and 9 of the 1996 Child Protection Convention, besides recalling the general duty to cooperate among Central Authorities and direct judicial communications between judges involved in a transfer of jurisdiction, the PB was asked to circulate the questionnaire annexed to to all Contracting Parties to the 1996 Child Protection Convention, with a view to collecting information from judges and Central Authorities regarding requests under Article 8 or 9 and to then review such document in light of the responses from Contracting Parties (para 69).

Finally, on the placement of children, the PB was asked to start collecting information on the operation of Article 33 from Contracting Parties in addition to that set out in Doc. No 20 and that a Working Group be established to develop: (a) a model form for cooperation under Article 33; and (b) a guide on the operation of Article 33.

It does not happen often that an arbitral award is successfully challenged in England for serious irregularity under section 68 of the Arbitration Act 1996.

This happens even less often when an award is rendered by a tribunal as prominent as the one in Process and Industrial Developments Ltd v Nigeria, which included Lord Hoffmann (former UKSC judge) as Chairman, Sir Anthony Evans (former EWCA judge), and Chief Bayo Ojo SAN (former Attorney General of Nigeria).

It is outright extraordinary for a judgment to conclude by urging reform of international commercial arbitration and noting that a copy of the judgment will be referred to the Bar Standards Board and the Solicitors Regulation Authority to consider the professional consequences of the conduct of two lawyers involved in an arbitration.

And yet Knowles J did all of this in his judgment of 23 October 2023 in Nigeria v P&ID.

In 2010, the parties entered into a gas supply and processing contract that provided for arbitration in London. Under the contract, Nigeria was to supply gas to processing facilities constructed and operated by P&ID, a BVI company. The stated duration of the contract was 20 years. Neither party performed its obligations, and a dispute arose. A tribunal was constituted. It ruled in favour of P&ID, and ordered Nigeria to pay USD6.6b. Interest was awarded at a rate of 7%, eventually ballooning to USD11b. Nigeria argued that the contract and the arbitration were compromised due to corruption, bribery, and fraud. Knowles J describes the surrounding circumstances in great detail in his judgment that spans 595 paragraphs or 140 pages with annexed materials. Jonathan Bonnitcha provides a useful summary of the facts in his post of 23 March 2021, reporting on a 2020 High Court judgment in this case (footnotes omitted):

“the contract was based on an unsolicited proposal presented to the Nigerian government by P&ID. No tender was conducted. Moreover, P&ID did not appear to have the experience in the gas sector that would be expected of a company responsible for a multibillion-dollar project—it was an offshore entity with ‘no assets, only a handful of employees, and was without a website or other presence.’

… the arbitration was conducted in private. Indeed, even the fact that the arbitration was taking place did not become public knowledge until 2015, following a change of government in Nigeria, at which point in time the jurisdictional and merits phases of the arbitration had already concluded. Despite a number of ‘red flags’ of corruption relating to the contract, Nigeria did not directly raise the issue of corruption in its defence of the arbitration. (Nigeria’s lawyers in the arbitration did obliquely describe the Minister of Petroleum Resources at the time the contract was signed ‘as having been a “friendly” Minister who purported to commit the Government to obligations and concessions which exceeded his powers.’) Based on documents that are publicly available, it seems that the tribunal also did not take any steps to determine whether the contract might have been procured through corruption.

Given the many billions of dollars at stake, the way the arbitration unfolded was also unusual. Nigeria’s lawyers failed to file expert evidence on jurisdictional issues of Nigerian law, or insist on an oral hearing on jurisdiction where P&ID’s evidence might have been tested through cross-examination. At the merits phase, Nigeria failed to challenge the key claims contained in the statement of P&ID’s central witness, its chairman, Michael Quinn. It put forward only one ineffectual witness of its own who did ‘not claim to have first-hand knowledge of any of the relevant events.’ The tribunal did hold a hearing on the merits, but it lasted only a few hours. The tribunal concluded that Nigeria had repudiated the contract.

The tribunal’s decision on quantum was based on a single witness statement from the investor. It did not order the production of documents that might have proved (or disproved) these self-serving claims… the investor had not commenced construction of the gas facility and estimated its own expenditure in relation to the project at around USD 40 million. (In the subsequent British court proceedings, the investor conceded that this expenditure had not been incurred by P&ID at all but, rather, by another company owned by a former Nigerian general.)”

Knowles J made three key findings. First, P&ID provided to the tribunal and relied on Mr Quinn’s false evidence. Mr Quinn omitted to mention that the legal director at the Ministry of Petroleum Resources had been paid a USD5,000 bribe before the conclusion of the contract and a USD5,000 bribe after ([494]). Second, P&ID continued to pay bribes, in the total amount of USD4,900, to this official “to keep her ‘on-side’, and to buy her silence about the earlier bribery” ([495]). Third, P&ID improperly retained Nigeria’s privileged internal legal documents that it had received during the arbitration ([496]). The two lawyers, whose conduct in relation to these documents Knowles J referred to the Bar Standards Board and the Solicitors Regulation Authority, were set to receive payments of USD850m and USD3b, respectively, if P&ID had been successful. Relying on these facts, Knowles J found that there were serious irregularities of the kind set out in section 68(2)(g) of the 1996 Act (“the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy”), which caused Nigeria substantial injustice.

This case concerned a dispute arising out of a gas development project, typically a matter within the purview of international investment arbitration tribunals. However, it was argued based on a breach of contract, falling under the jurisdiction of an international commercial arbitration tribunal. These two forms of arbitration differ significantly in several aspects, most notably for the purposes of the present discussion in terms of transparency, non-party participation, and the ability and willingness of tribunals to consider wider social, economic, and political circumstances (I am not implying here that international investment tribunals take public interest consideration sufficiently seriously, only that they tend to be more open to such considerations). The inadequacy of international commercial arbitration for cases of public interest was laid bare in P&ID v Nigeria. The public only became aware of the arbitration after a change of government. The tribunal did not examine, of its own motion, whether corruption, bribery, and fraud tainted the contract and the arbitration. There was no assessment of whether wider social, economic, and political circumstances justified the finding of liability and exceptionally high damages. And two lawyers involved in the case were to make fabulous fortunes if the claimant won against a country where corruption is endemic and public officials can apparently be bribed for a few thousand dollars.

This is why Knowles J made important comments urging reform of international commercial arbitration in cases of public interest. His words are worth reproducing in full:

“582. … I hope the facts and circumstances of this case may provoke debate and reflection among the arbitration community, and also among state users of arbitration, and among other courts with responsibility to supervise or oversee arbitration. The facts and circumstances of this case, which are remarkable but very real, provide an opportunity to consider whether the arbitration process, which is of outstanding importance and value in the world, needs further attention where the value involved is so large and where a state is involved.

583. The risk is that arbitration as a process becomes less reliable, less able to find difficult but important new legal ground, and more vulnerable to fraud. The present case shows that having (as here) a tribunal of the greatest experience and expertise is not enough. Without reflection, then a case such as the present could happen again, and not reach the court.

584. With diffidence and respect, I draw attention to 4 points, which are to some degree interconnected.

(1) Drafting major commercial contracts involving a state

585. It was a complete imbalance in the contributions of the parties that enabled the GSPA [the contract] to be in the form it was. Many reading this judgment will recognise that, although in the present case bribery and corruption were behind that imbalance, it happens in other cases without bribery and corruption but simply where experience, expertise or resources are grossly unequal. This underlines the importance of professional standards and ethics in the work of contract drafting, including in the approach to other parties to the proposed contract. It is why some contributions of pro bono work by leading law firms to support some states challenged for resources…is so valuable, in the interests of their, often vulnerable, people…

(2) Disclosure or discovery of documents

586. It has been disclosure or discovery of documents that has enabled the truth to be reached in this case… In all the recent debates about where disclosure or discovery matters, this case stands a strong example for the answer that it does.

(3) Participation and representation in arbitrations over major disputes involving a state

587. Notwithstanding Nigeria’s allegations, I have not found Nigeria’s lawyers in the Arbitration to be corrupt. But the case has shown examples where legal representatives did not do their work to the standard needed, where experts failed to do their work, and where politicians and civil servants failed to ensure that Nigeria as a state participated properly in the Arbitration. The result was that the Tribunal did not have the assistance that it was entitled to expect, and which makes the arbitration process work. And Nigeria did not in the event properly consider, select and attempt admittedly difficult legal and factual arguments that the circumstances likely required. Even without the dishonest behaviour of P&ID, Nigeria was compromised.

588. But what is an arbitral tribunal to do? The Tribunal in the present case allowed time where it felt it could and applied pressure where it felt it should. Perhaps some encouragement to better engagement can be seen as well. Yet there was not a fair fight. And the Tribunal took a very traditional approach. But was the Tribunal stuck with what parties did or did not appear to bring forward? Could and should the Tribunal have been more direct and interventionist…? Should the Tribunal have taken the initiative to encourage exploration of new bounds of contract law and the law of damages that may today be required where major long term contracts are involved?

(4) Confidentiality in significant arbitrations involving a state

589. The privacy of arbitration meant that there was no public or press scrutiny of what was going on and what was not being done. When courts are concerned it is often said that the ‘open court principle’ helps keep judges up to the mark. But it also allows scrutiny of the process as a whole, and what the lawyers and other professionals are doing, and (where a state is involved) what the state is doing to address a dispute on behalf of its people. An open process allows the chance for the public and press to call out what is not right.

…

591. … unless accompanied by public visibility or greater scrutiny by arbitrators, how suitable is the process in a case such as this where what is at stake is public money amounting to a material percentage of a state’s GDP or budget? Is greater visibility in arbitrations involving a state or state owned entities part of the answer?”

These are important questions. It is a shame that the Law Commission of England and Wales does not deal with them in its recent final report on the review of the Arbitration Act 1996.