Agrégateur de flux

A petition for a writ of certiorari has been filed before the US Supreme Court in a case concerning the HCCH Child Abduction Convention and the grave risk exception (art. 13(1)(b)). The issue at stake is: Whether, upon finding that there is a grave risk that a return would expose a child to physical or psychological harm (or intolerable situation), a district court is required to consider ameliorative measures (in other words, undertakings) to facilitate the (safe) return of the child. For the exact wording of the petition, see below. 

Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition).This petition has been docketed as Golan v. Saada, No. 20-1034. This petition and other documents relating to this case have been distributed for the Conference of today – 1 April 2021.

“QUESTION PRESENTED

The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is:

Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.”

With regard to this issue, there is indeed a split in the US circuits (as well as state courts). 

According to the petition “The First, Eighth, and Eleventh Circuits have indicated that, once a district court determines that there is a  grave  risk  that  the  child  will  be  exposed  to  harm,  the  court need not consider any ameliorative measures,” whereas  “the Second, Third, and Ninth Circuits require a district court to consider a full range of ameliorative  measures  that  would  permit  return  of  the  child,  even when the court finds that there is a grave risk that a child’s return would expose that child to physical or psychological harm.” This case originated in the Second Circuit.

The split in the US circuits has been acknowledged by practitioners, see for example, James D. Garbolino, Federal Judicial Center, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, Second Edition (2015), 137-147 (see in particular p. 143. – but a few different circuits are mentioned, which attest to the confusion of practitioners). Accordingly, in my personal opinion, there is definitely merit in raising this issue before the US Supreme Court.

We will keep you informed as to whether this petition is granted or refused.

(published by Oxford University Press, 2020)

The authors kindly provided the following summary: 

The book marries two fields of law: negotiable instruments and choice-of-law. Bills of exchange, cheques and promissory notes are the main classical negotiable instruments. For centuries, these instruments have played a vital role in the smooth operation of domestic and international commerce, including in transactions between distantly located parties. Through their evolution, fusion, and sophistication, they have remained one of the primary tools for everyday commercial activity, serving as one of the primary methods of payment and credit and one of the cornerstones of the contemporary bank-centred system. The rapid technological progress of payment mechanisms has embraced the traditional institution of negotiable instruments leading to their further adaptation and sophistication in order to meet the challenges of the contemporary reality of frequent mobility of people, goods, and high daily volumes of cross-border transactions and international commerce.

The cross-disciplinary partnership between the authors, one specializing in negotiable instruments and the other in choice-of-law, aims to offer a comprehensive and thorough analysis of the choice-of-law rules applicable to negotiable instruments. The internal structure of negotiable instruments’ law is complex, which has given rise to a popular view favouring the mythological ‘law merchant’,[1] the exclusion of negotiable instruments from the scope of general contract and property law doctrines, and their subsequent exclusion from ordinary choice-of-law analysis.

The central thesis of the book is to challenge this common view. Indeed, the complex structure of negotiable instruments creates a significant challenge for traditional contract and property doctrine and the choice-of-law analysis applicable to them. Yet, in contrast to the common view, the authors argue that the complex case of international negotiable instruments should be analyzed through the lens of traditional contract & property choice-of-law doctrines rather than by crafting new specially designed rules for negotiable instruments.

In order to illustrate this point, consider the – well-known in choice-of-law literature – Giuliano & Lagarde Report (‘The Report’),[2] which has served as a basis for contemporary European Rome Regulations[3] on the question of applicable law. The Report excludes negotiable instruments law from the scope of ordinary choice-of-law analysis.[4]However, one can reassess the three rationales mentioned in the Report to justify negotiable instruments’ law exclusion. First, it makes a point that a negotiable instrument is not a contract.[5] In this book, the authors argue the opposite – from their very origin to their present-day doctrinal analysis, negotiable instruments are very much contracts and carefully follow the essentials of contract law doctrine, alongside the basic elements of tangible property law.[6]

 Second, the Report characterizes a negotiable instrument as a ‘complex contract’.[7] Indeed, in their study the authors provide a precise demarcation of the special nature of the negotiable instrument as a ‘special’ contract to delineate its divergence from the ‘ordinary’ contract; its relation to basic elements of tangible property transfer; and how this divergence affects (if at all) the choice- of- law rules of negotiable instruments, comparatively to choice-of-law rules of ‘ordinary’ contracts and tangible property. While throughout their book the authors show that negotiable instruments present ‘complicated special rules’ that should be analyzed, modified and distinguished from ‘ordinary’ contract law/property law rules, they are very much based on them.

Finally, the Report makes a reference to the existing harmonization processes.[8] In this book, the authors provide a detailed comparative analysis of the various rules in diverse legal systems and they show that they are far from uniform.[9] The authors discuss the various harmonization processes of negotiable instruments,[10] and make some suggestions for possible reforms within the process of international harmonization of the choice-of-law rules,[11] which would capture the challenges of the digital age.[12]  In contrast to the Report, the authors argue that the traditional choice-of-law rules in the areas of contract law and tangible property can serve as a model for such reform of choice-of-law rules of negotiable instruments.

In effect, authors’ call for a redesign of the present choice-of-law rules relating to negotiable instruments finds traces in contemporary literature.  The commentators of one of the leading textbooks in the field have framed the need for a reconsideration of the choice-of-law rules of negotiable instruments in the following terms:

…it must be noted that the Bills of Exchange Act 1882 and much of the case referred to in the following paragraphs is now more than a century old. In that time, the role and significance of bills of exchange in commercial intercourse and the approach of the conflict of laws to freely incurred obligations such as these has changed radically. As the following commentary makes clear, the rules contained in the 1882 Act are neither comprehensive nor easy to understand and apply. A radical overhaul of the law in this area, whether by legislation or international convention, seems long overdue.[13]

In this book, the authors are indeed willing to take up the challenge of a ‘radical overhaul’.  In line with the above-stated quotation, they suggest a radical reorientation of choice-of-law rules. They argue that choice-of-law rules in the area of international negotiable instruments need to be dramatically amended and harmonized.

The contemporary choice-of-law rules within this area of law have originated from flawed premises about the nature of the subject. Further, contemporary rules have left behind the modern development of choice-of-law doctrine. Relying on the foundation of negotiable instruments’ law within the traditional ordinary doctrines of contract and movable property and invoking developments within modern choice-of-law thought, the authors endeavour to challenge the traditional orthodoxy and offer a complete re-examination of the choice-of-law rules of negotiable instruments.

 

[1] See Chapter II.

[2] Report on the Convention on the law applicable to contractual obligations by Mario Giuliano, Professor, University of Milan, and Paul Lagarde, Professor, University of Paris I, Official Journal C 282, 31/10/1980 P. 0001 – 0050.

[3] Commission Regulation (EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I), 2008 O.J. (L 177) 6 (EU);  Commission Regulation 864/2007, on the Law Applicable to Non-Contractual Obligations (Rome II), 2007 O.J. (L 199) 40 (EC)

[4] Giuliano & Lagarde Report, sec. 4.

[5] Ibid.

[6] See Chapter I & Chapter II.

[7] Report, sec. 4.

[8] Ibid.

[9] See Chapter I.

[10] See Chapter I & Chapter III.

[11] See Chapters V-VII.

[12] See Chapter VIII.

[13] Lawrence Collins (ed) Dicey, Morris and Collins on the Conflict of Laws (15th edn Sweet & Maxwell 2012) 2077.

 

 

On 24 March 2021 the Court of Justice issued a judgement in the case of SS v MCP, C-603/20 PPU, which concerns interpretation of the jurisdictional rules of Brussels II bis Regulation. The request for a preliminary ruling originated from the High Court of Justice (England & Wales), Family Division.

The Court decided that a court of a Member State seized of an action relating to parental responsibility cannot base its jurisdiction on Article 10 of the Brussels II bis Regulation in a case of abduction of a child to a third State.

Interestingly, the opinion (commented here by Geert Van Calster from the perspective of the principle of mutual trust) suggested the opposite conclusion, in spite of the fact that both the CJEU and the advocate general relied on the wording of the relevant provisions, their context and objectives, legislative history and relation with international instruments.

Factual Background

SS and MCP are two Indian citizens residing in the UK, where their child P was born in 2017. The couple is not legally married. SS is indicated as the father on the birth certificate, and consequently he has parental responsibility. In October 2018, the mother went to India with the child, where the child stayed with her grandmother. In August 2020 P submitted an application to the referring court, seeking an order for the return of the child to the UK and a ruling on rights of access.

The mother has challenged the jurisdiction of the court, since the child is not habitually resident in the UK. In the opinion of the referring court, the conduct of the mother probably amounts to the child’s wrongful removal (retention) in India. India is not a contracting party to the 1980 Hague Child Abduction Convention.

Preliminary Question

The referring court considers that it is necessary to determine whether it has jurisdiction on the basis of Brussels II bis (for its application in the UK for proceedings initiated before the end of transition period see: Note to Stakeholers on Brexit and PIL). Because the child does not have habitual residence in the UK and there is no consent of both parents as to jurisdiction of UK courts, the court has doubts whether it might base its jurisdiction on Article 10 Brussels II bis.

In accordance with this provision in case of a wrongful removal (retention), the courts of the Member State where the child was habitually resident immediately before the wrongful removal (retention) retain their jurisdiction until the child has acquired habitual residence in another Member State and one of alternative additional requirements is met. As the child was wrongfully retained in a third State, the referring court wonders whether Article 10 provides that UK courts retain their jurisdiction … indefinitely.

The Judgement

The CJEU answered strongly in the negative and underlined that:

(…) there is no justification for an interpretation of Article 10 [Brussels II bis] that would result in indefinite retention of jurisdiction in the Member State of origin in a case of child abduction to a third State, neither in the wording of that article, nor in its context, nor in the travaux préparatoires, nor in the objectives of that regulation. Such an interpretation would also deprive of effect the provisions of the 1996 Hague Convention in a case of child abduction to a third State which is a contracting party to that convention and would be contrary to the logic of the 1980 Hague Convention (paragraph 62).

As a result, the jurisdiction of the referring court might be determined in accordance with the applicable international conventions or, in the absence of any such international convention, in accordance with Article 14 Brussels II bis (which requires the presence of the child within the forum).

The Reasoning of the Court

First, the wording of Article 10 Brussels II bis clearly indicates that it applies to intra-EU abductions only (points 38-41), as it talks about “a Member State” and “another Member State”.

Second, as regards the context of Article 10 Brussels II bis, CJEU pointed that it constitutes a special ground of jurisdiction with respect to the general one in matters of parental responsibility laid down in Article 8(1), which provides for the jurisdiction of the Member State, where the child is habitually resident (paragraph 43). This ground of jurisdiction “defeats what would otherwise be the effect of the application of the general ground of jurisdiction (…), in a case of child abduction, namely the transfer of jurisdiction to the Member State where the child may have acquired a new habitual residence, following his or her abduction. Since that transfer of jurisdiction might secure a procedural advantage for the perpetrator of the wrongful act, Article 10 of that regulation provides (…) that the courts of the Member State where the child was habitually resident before the wrongful removal or retention are, nonetheless, to retain their jurisdiction unless certain conditions are met” (paragraph 45).

As a result, if the child has acquired new habitual residence outside the EU, after being wrongfully removed (retained) in a third State, there is no room for the application of the general rule. Hence,  in such case also the rule laid down in Article 10 “loses its raison d’être, and there is not, therefore, any reason to apply it” (paragraph 46). Additionally, as it is a special ground of jurisdiction, it must be interpreted restrictively (paragraph 47).

By the way, it is striking to see absolutely different conclusions drawn from this juxtaposition of Articles 8 and 10 Brussels II bis in the opinion:

Where a child was habitually resident in a Member State, as is the case with the child here, the courts of that Member State are to retain their jurisdiction until that child acquires his or her habitual residence in ‘another Member State’. Since reference is made only to another Member State, it can be inferred from this, in my view, that, where a child is wrongfully removed to, or retained in, a non-Member State, the courts of the Member State in which that child was habitually resident continue to have jurisdiction (paragraph 53 of the opinion)

Third, the CJEU refers to the legislative history of Brussels II bis and reminds that the EU legislature wanted to establish strict rules with respect to child abductions within the EU, whereas abductions to third states are supposed to be covered by international conventions, such as the 1980 Hague Child Abduction Convention and 1996 Hague Parental Responsibility Convention. It might be noted that 1980 Hague Convention is not referred to in the opinion.

The CJEU points out also that the interpretation of Article 10 Brussels II bis as proposed by the referring court “would have the consequence that, where the child has acquired a habitual residence in a third State which is a contracting party to the 1996 Hague Convention, following an abduction, Article 7(1) and Article 52(3) of that convention would be deprived of any effect” (paragraph 53). It should be noted that Article 7(1) 1996 Hague Convention makes provision (like Article 10 Brussel II bis) “for a transfer of jurisdiction to the courts of the State where the child has acquired a new habitual residence, if certain conditions are satisfied. Those conditions are connected, in particular, to the passage of time together with acquiescence or inaction on the part of the person concerned who holds a right of custody, the child having become settled in his or her new environment” (paragraph 54). This possibility would be precluded if Brussels II bis would allow the courts of a Member State to retain indefinitely their jurisdiction (paragraph 55).

Such retention of jurisdiction, in view of the CJEU, would also be “contrary to Article 52(3) of the 1996 Hague Convention, which prohibits rules agreed between one or more contracting States (…) from affecting, in the relationships of those States with the other contracting States, the application of the provisions of that convention. To the extent that jurisdiction in matters of parental responsibility could not be transferred to those courts of contracting States, those relations would necessarily be affected” (paragraph 55).

Additionally, indefinite retention of jurisdiction would be incompatible with one of the fundamental objectives pursued by the regulation, namely the best interests of the child, which gives priority to the criterion of proximity (paragraph 58). This objective requires setting balance between “the need to prevent the perpetrator of the abduction from reaping the benefit of his or her wrongful act” and “the value of allowing the court that is closest to the child to hear actions relating to parental responsibility” (paragraph 59). Interestingly, in the opinion, while referring to the best interest of the child, the objective of “deterring child abductions” seems to be given priority (paragraph 70 of the opinion).

Finally, indefinite retention of jurisdiction, according to the CJEU, would also disregard the logic of the mechanisms established by the 1980 Hague Convention.

If, in accordance with Article 16 of that convention, it is established that the conditions laid down by that convention for return of the child are not satisfied, or if an application under that convention has not been made within a reasonable time, the authorities of the State to which the child has been removed (…) become the authorities of the State of habitual residence of the child, and should, as the courts that are geographically closest to that place of habitual residence, have the power to exercise their jurisdiction in matters of parental responsibility. That convention remains applicable, in particular, in relations between the Member States and the other contracting parties (paragraph 61).

Le 10 mars 2021, le Parlement européen adopte une résolution « contenant des recommandations […] sur le devoir de vigilance et la responsabilité des entreprises » (Résolution du Parlement européen du 10 mars 2021 contenant des recommandations à la Commission sur le devoir de vigilance et la responsabilité des entreprises [2020/2129(INL)]). Plaidoyer en faveur d’un dispositif européen contraignant, celle-ci est accompagnée d’un projet de directive ambitieux.

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Meeting of the Council on General Affairs and Policy

The Council on General Affairs and Policy (CGAP) of the HCCH met online from 1 to 5 March 2021, with over 350 participants. Over the course of five days, HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead. More information is available here.

Several important developments relating to Membership and HCCH Conventions occurred during the meeting:

• Thailand deposited its instrument of acceptance of the Statute, becoming the 88thMember of the HCCH.
• El Salvador applied to become a Member of the HCCH. Following a six-month voting period and provided a majority of votes have been cast in its favour, El Salvador will be invited to become a Member by accepting the Statute of the HCCH.
• Israel signed the HCCH 2005 Choice of Court Convention and the HCCH 2019 Judgments Convention. The 2005 Choice of Court Convention, which currently binds 31 States and the EU, will enter into force for Israel only after it deposits an instrument of accession or ratification. Although the 2019 Judgments Convention is not yet in force, Israel is the third signatory to the Convention.

More information on these developments is available here.

Finally, as customary the meeting coincided with the publication of the Annual Report of the HCCH. The 2020 Annual Report can be downloaded or ordered here.

Other Meetings & Events

On 15 and 18 March, the HCCH and the International Union of Judicial Officers co-hosted a webinar on the application of the 1965 Service Convention and the 2019 Judgments Convention aimed at judicial officers and other legal professionals. Recordings of the webinar are available here in English and here in French.

On 18 March, the HCCH and the Ministry of Foreign Affairs of Japan co-hosted a webinar on the HCCH 1980 Child Abduction Convention in the Asia Pacific, attended by judges and officials of Central Authorities from 12 countries and regions in the Asia Pacific. More information is available here.

On 30 March, the HCCH participated in the virtual High Level Conference “Protecting Vulnerable Adults across Europe – the Way Forward”, organised by the Ministry of Justice of Portugal, the European Commission and the European Union Agency for Fundamental Rights under the auspices of the Portuguese Presidency of the Council of the European Union. The recording of the conference is available here.

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

Affaire Vueling

I am not especially keen on celebrating anniversaries. However, as things stand now in the European Union I thought it worth a short post on the seminal decision of the Court of Justice in case 22/70, AETR (EU:C:1971:32), of 31 March 1971. My attention has been drawn to its fiftieth anniversary.

Let’s celebrate what it meant legally (no political stance here), in terms of strengthening the competences of the (nowadays) Union and, as a consequence, for the uniformity of the legal systems of the Member States.

Background

The case is named after the European Agreement concerning the work of crews of vehicles engaged in international road transport (AETR), done at Geneva on 19 January 1962. The agreement had been signed by five of the six Member States of the EEC and other European States, but could not enter into force, absent the necessary ratifications. Negotiations for the revision of the agreement were resumed in 1967. Similar work undertaken at Community level with regard to standardizing driving and rest periods of drivers of road transport vehicles resulted in Regulation No 543/69 of the Council of 25 March 1969 on the harmonization of certain social legislation relating to road transport. In the course of its meeting on 20 March 1970 the Council, in view of the meeting of the sub-committee on Road Transport of the Economic Commission for Europe of  April 1970 at Geneva, discussed the attitude to be taken by the six Member States of the EEC in the negotiations for the conclusion of a new AETR.

The Member States conducted and concluded the negotiations in accordance with the proceedings of 20 March 1970. The AETR was made available by the secretariat of the Economic Commission for Europe from 1 July 1970 for signature by the Member States. On 19 May 1970 the Commission of the European Communities lodged an application for the annulment of the proceedings of the Council of 20 March 1970 regarding the negotiation and conclusion of the AETR by the Member States of the EEC.

In essence, the Commission disputed the validity of said proceedings on the ground that they involved infringements of the Treaty, more particularly of Articles 75, 228 and 235 concerning the distribution of powers between the Council and the Commission, and consequently the rights which it was the Commission’s duty to exercise in the negotiations on the AETR.

Ruling

The Court ruled actually against the application. This notwithstanding, it also made substantial assertions on the extent of the external competence of the Community:

The Community enjoys the capacity to establish contractual links with third countries over the whole field of objectives defined by the Treaty. This authority arises not only from an express conferment by the Treaty, but may equally flow from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the Community institutions. In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form they may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules or alter their scope. With regard to the implementation of the provisions of the Treaty, the system of internal Community measures may not be separated from that of external relations.

Consequences in the Domain of PIL

The consequences of the AERT decision on PIL conventions have been profusely analyzed by scholars (see, for instance, The External Dimension of EU Private International Law after Opinion 1/13, edited by P. Franzina). Two Opinions have been rendered directly focusing on the field. In the first one, Opinion 1/03 (EU:C:2006:81), delivered on February 7, 2006, the Court was requested by the Council to answer whether the conclusion of the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters falls entirely within the sphere of exclusive competence of the Community, or within the sphere of shared competence of the Community and the Member States. The second Opinion is Opinion 1/13 (EU:C:2014:2303), of 14 October 2014; the European Commission asked the Court whether the exclusive competence of the European Union encompasses the acceptance of the accession of a non-Union country to the Convention on the civil aspects of international child abduction concluded in the Hague on 25 October 1980.

In both cases the Court’s ruling supports the exclusive competence of the Union. This should be enough to proceed without a further Opinion in regard to the HCCH 2019 Judgments Convention, or, for that matter, to the accession of the UK to the 2007 Lugano Convention. A trickier question may be, though, whether the Member States are free to update bilateral conventions preexisting the Brussels regime, just as Norway has done (see, implicitly in favor of negative answer, Alex Layton here. I concur).

Written by Marcus Teo (Sheridan Fellow (Incoming), National University of Singapore)

Since Foster v Driscoll [1929] 1 KB 470, common law courts have recognised that contracts made with the intention to commit a criminal offence in a foreign state are unenforceable, even if the contract contemplated an alternative mode or place of performance. However, recent developments in domestic law illegality have sparked debate on whether foreign law illegality too should be reformed in a similar light (see Ryder Industries Ltd v Chan Shui Woo [2016] 1 HKC 323, [36], [52]-[55]; cf Magdeev v Tsvetkov [2020] EWHC 887 (Comm), [331]-[332]). The debate, however, has thus far not considered whether foreign law illegality should expand to bar certain non-contractual claims – a question which the Singapore Court of Appeal’s recent decision in Jonathan Ang v Lyu Yan [2021] SGCA 12 raises.

Lyu Yan wanted to transfer money from China to Singapore. Her bank in Singapore introduced her to Joseph Lim for assistance. Joseph proposed that Lyu transfer Renminbi from Lyu’s Chinese bank account to the Chinese bank accounts of two other individuals, Jonathan Ang and Derek Lim. Jonathan and Derek would then transfer an equivalent sum in Singapore Dollars from their Singapore bank accounts to Lyu’s Singapore bank account. Lyu performed the transfer in China, but received no money in Singapore. She then sued Joseph for breach of contract; and sued Joseph, Jonathan and Derek in tort and unjust enrichment. At first instance, the Singapore High Court ruled against all three defendants. Joseph did not appeal, but Jonathan and Derek did, arguing, inter alia, that Foster barred Lyu’s non-contractual claims against them because Chinese law prohibited their transaction.

Andrew Phang JCA, who delivered the Court’s judgment, dismissed Jonathan and Derek’s appeal. It was undisputed that the transaction, if performed, would have violated Chinese law (See Lyu Yan v Lim Tien Chiang [2020] SGHC 145, [15]-[16]). However, Lyu did not intend to break Chinese law – the facts at their “highest” showed that she thought the transaction contravened Singapore law rather than Chinese law (Jonathan Ang, [18], [20]). Thus, since Foster does not apply if the claimant does not intend to contravene a specific foreign law, it was inapplicable.

Of interest, though, were Phang JCA’s obiter comments: if Lyu had known the transaction contravened Chinese law, would her non-contractual claims be barred? Foster, he noted, was “not applicable in relation to non-contractual claims” ([26]). This was contrasted with the position in domestic law illegality, where an illegality affecting a contract could sometimes also bar other non-contractual claims arising from the contractual relationship ([27]-[28]). Here, Phang JCA referenced Ochroid Trading Ltd v Chua Siok Lui [2018] 1 SLR 363, where the Court of Appeal had held that claims in unjust enrichment (and, potentially, tort) arising from a contractual relationship would be barred if it stultified the policy underlying the law which rendered the contract unenforceable (Ochroid Trading [145]-[159], [168])

Phang JCA then considered whether Foster and Ochroid Trading could be “read together” (Jonathan Ang, [30]) – i.e., whether foreign and domestic law illegality, as separate doctrines, could apply on the same facts. This could only happen when Singapore law was the lex contractus, because, while Foster barred contract claims “regardless of their governing laws”, Ochroid Trading barred only claims governed by Singapore law. If indeed Foster and Ochroid Trading were “read together”, however, “possible difficulties” arose, because it would put a plaintiff with a Singapore law contract in a worse position than a plaintiff with a foreign law contract: the former would potentially have both his contractual and non-contractual claims barred, while the latter would have only his contractual claim barred ([33]). To Phang JCA, this was undesirable, because there was “no principled reason” for this distinction ([34]). While Phang JCA did not attempt to resolve these “difficulties”, he concluded by noting that for both foreign law and domestic law illegality “the concept of policy serves as a limiting factor to ensure that the illegality involved does not inflexibly defeat recovery where such recovery is justified” ([34]) – presumably, then, Phang JCA was noting tentatively that recourse to public policy arguments might help ameliorate the differences between the two classes of plaintiffs he identified.

Phang JCA’s comments in Jonathan Ang raise more questions than answers; this was of course by design, given their tentative and exploratory nature. However, with respect, the correctness of some of the assumptions Phang JCA relied on may be doubted. First, one may only conclude that there is no “principled reason” for treating plaintiffs with Singapore law contracts differently from plaintiffs with foreign law contracts if one accepts that domestic and foreign law illegality share the same “principled” basis. However, Foster’s principled basis remains shrouded in uncertainty: courts and commentators have variously called it a doctrine of public policy, comity and international jurisdiction, but only the first conception of Foster aligns it with domestic law illegality. Second, while it is true that the public policies of the forum limit both domestic and foreign law illegality, those public policies perform that function in different ways in those two contexts. In domestic law illegality, courts ask whether barring the plaintiff’s claim would give effect to the forum’s public policies; but in foreign law illegality, courts ask whether denying recognition of the relevant foreign law, and thus allowing the plaintiff’s claim, would give effect to the forum’s public policies. It follows that public policy arguments may not consistently resolve differences between the two classes of plaintiffs identified by Phang JCA.

At base, the questions posed in Jonathan Ang (and the assumptions they relied on) were only relevant because of Phang JCA’s continued acceptance of one central proposition: that foreign law illegality bars only contractual claims. Yet, this proposition is doubtful; in Brooks Exim Pte Ltd v Bhagwandas Naraindas [1995] 1 SLR(R) 543, Singapore’s Court of Appeal considered Foster in relation to a claim for “money had and received”, and found it inapplicable only because parties there did not intend to breach foreign law (Brooks Exim, [1], [14]). Moreover, the justification for limiting Foster’s rule to contractual claims remains unclear: in Jonathan Ang Phang JCA cited the English High Court’s decision in Lilly Icos LLC v 8PM Chemists Ltd [2010] FSR 4 for it, but there that proposition was simply accepted without argument (Lilly Icos, [266]). A possible justification might be that only in contract claims may parties, by virtue of their ability to choose the governing law, avoid the applicability of the (criminal) law of a foreign state objectively connected to their relationship. This, however, would be a poor justification, since parties have the autonomy to choose the governing law for various non-contractual claims as well. An expressly chosen law, for example, may govern not just parties’ contract, but also claims in unjust enrichment arising from that contractual relationship by virtue of a characterization sub-rule, and potentially also tort claims under an exception to the lex loci delicti rule (or, in Singapore’s context, the double actionability rule). If foreign law illegality exists to prevent parties from avoiding the law of a state objectively connected to their contractual relationship, it should bar all claims arising from that contractual relationship governed by parties’ chosen law, regardless of whether those claims are “contractual” or “non-contractual”.

 

Par deux ordonnances du 27 mars, le juge des référés du Conseil d’État a précisé les règles régissant la perte du statut de réfugié, fondée sur l’article L. 711-6 du code de l’entrée et du séjour des étrangers et du droit d’asile. 

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The European Commission (EC) is preparing a legislative initiative on the recognition of parenthood between the EU Member States. The EC is now in the process of setting up an Experts’ Group on the topic and has issued a call for Experts which, together with more information, can be found here.

On Tuesday, April 6, 2021, the Hamburg Max Planck Institute will host its ninth monthly virtual workshop in private international law at 11:00-12:30. Since January of this year, we are alternating between English and German language. Burkhard Hess (Max Planck Institute Luxemburg for Procedural Law)  will speak, in German, about the topic

„Comparative Procedural Law and Justice – neue Wege in der Prozessrechtsvergleichung
(“Comparative Procedural Law and Justice – New Avenues for Comparative Civil Procedure”

The presentation will be followed by open discussion. All are welcome. More information and sign-up here. This is the ninth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, Macjiej Szpunar in January,  Dagmar Coester-Waltjen in February, and Horatia Muir Watt in March. In May we will again have an English language event – stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

Droits de la défense

Information and text provided by Niklaus Meier, co-head of the Private International Law Unit at the Swiss Federal Office of Justice

The Swiss Federal Act on Private International Law (FAPIL), adopted in 1987, has had – and still has – a huge influence throughout the world. It is “possibly the most complete codification of private international law worldwide” (Kadner Graziano, Journal of Private International Law. 2015, vol. 11, no. 3, p. 585: “Codifying European Private International Law: The Swiss Private International Law Act – A Model for a Comprehensive European Private International Law Regulation?”) and has influenced PIL codifications in many countries (Kadner Graziano, p. 589-90).

The global relevance of the Swiss Federal Act on PIL led to numerous translations, testament of its international character. Complete translations have been published by Prof. Andreas Bucher (last updated 2021): www.andreasbucher-law.ch; Umbricht attorneys (2017): www.umbricht.ch/de/schweizerisches-internationales-privatrecht-iprg; Gehri/Walther (2010): www.schulthess.com/verlag/detail/ISBN-9783280072509/Gehri-Myriam-A.-Walther-Fridolin/Swiss-Laws-on-Civil-Procedure; the Swiss-American Chamber of Commerce (2nd edition 2004, 1st edition 1989); and Karrer/Arnold/Patocchi (1994): Switzerland’s Private International Law (Schulthess/Kluwer). In addition, chapter 12 on arbitration has been translated by actors active in the field, such as the Swiss Arbitration Association (www.arbitration-ch.org/en/arbitration-in-switzerland/index.html).

Translation is a difficult task: “Mastery of the languages involved is necessary, but not sufficient, particularly where the user of a translation expects a literal translation, the legal systems of the starting languages and target language differ fundamentally and the subject matter is highly abstract.” (Walter König, 11 Mich. J. Int’. L. 1294 (1990), 1295, “Translation of Legal Texts: Three English Versions of the Swiss Federal Statute on Private International Law”). Indeed, a civil law codification usually “contains many legal terms which either do not exist in common law jurisdictions or have different connotations in the case of literal translations”.

In recent years, the importance of English versions of the Swiss legal texts has grown. To give just one example: Article 4.4 of the Swiss-Chinese Free Trade Agreement (page 23) explicitly states (under the heading “transparency”) that “Each Party shall promptly publish on the Internet, and as far as practicable in English, all laws, regulations and rules of general application relevant to trade in goods between China and Switzerland.” It goes without saying that the FAPIL is relevant for international trade.

Against this background, and in view of the growing demand for the availability of Swiss legal texts in English, the official publication platform for Swiss law (Fedlex) has now released the “official non-official” translation of the FAPIL: www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en. It is up to date as per February 2021 and includes the most recent DLT-related PIL amendments.

The character of the translation is “official” because it’s published on the official publication platform for Swiss law, which speaks for itself; but it nevertheless is of “non-official” nature only because “English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.” In can perhaps best be described as “officially non-official, but unofficially official”.

The translation is in large parts based on the translation published by Prof. Andreas Bucher, with the kind permission of the author. The translation does not aim to be (and is not) better than the various existing private translations of the FAPIL, which have provided useful guidance during the past decades. The translation simply wants to render the FAPIL more accessible to the international public, and in order to do so and in order to get approval for publication on the official publication platform for Swiss law, certain adaptations were necessary:

Where several choices of wording were possible, preference was given to expressions that are already in use in other translations of Swiss legislation (e.g. translations of the Swiss Civil Procedure Code, the Swiss Civil Code, or the Swiss Code of Obligations), in order to ensure coherence and consistency.

Due account was also given to the wording used in international conventions ratified by Switzerland (such as the numerous Hague Conventions).

In addition, the translation takes into account language requirements applicable to texts published by the Swiss federal administration, such as the use of gender-neutral language where appropriate and where possible; this led to the use of the “singular-they”, applicable to both female and male persons.

People who work in different languages and who have compared the different language versions of the FAPIL will have noted some differences between the French, German and Italian versions of the texts. For example, art. 151 para. 3 in the German version, translated with deepl, states that “This jurisdiction cannot be excluded by a choice of court agreement.”, whereas the French version starts the paragraph (again according to deepl) with “Notwithstanding a choice of court, …” In such circumstances, preference was given to the wording that seemed clearer and more in line with the interpretation given to the text by the Federal Supreme Court.

Traduire c’est trahir – translation is treason. Those who coordinated the translation (the Private International Law Unit at the Swiss Federal Office of Justice) are fully aware that critics will find areas for improvement. Feedback can be sent to ipr [at] bj.admin.ch. The translation will continue to be improved and updated in the years to come, in order to respond to new developments such as the upcoming revision of the chapter on succession law.