Agrégateur de flux

The new issue of International & Comparative Law Quarterly (Volume 70, Issue 1) is out. Some of the articles relate to private international law. Their abstracts are provided below. The whole issue is available here.

Roy Goode, Creativity and Transnational Commercial Law: From Carchemish to Cap Town

This article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible solutions to typical problems regardless whether this disturbs established legal theory, which should always the servant of the law, not its master. Creativity applies not only to the formulation of an instrument but also to its interpretation. Those entrusted with preparing a commentary on the detail of such an instrument are likely to face difficult issues of interpretation which may take years to surface and may only be resolved by a willingness to risk error in order to provide the reader with clear guidance rather than sheltering behind the presentation of alternative interpretations, while at the same time resisting the temptation to ascribe to words in a convention the meaning they would have under one’s own national law.

At least one of the instruments examined was conceptually flawed; it is mentioned to highlight the danger of over-ambition in delineating the sphere of application of the convention concerned. Undisciplined creativity comes at a cost. Another convention, and a highly successful one, is referred to only to demonstrate the value of creative ambiguity.

Enrico Partiti, Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights

Complex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes. The open-ended character of the UNGP generated the emergence of other soft instruments offering guidance to corporations in structuring HRDD. This contribution conceptualises the UNGP from the perspective of regulation as a principles-based exercise in polycentric governance reliant on regulatory intermediaries for interpretation. It then assesses the role of various sui generis normative instruments in providing interpretation to the UNGP and, how the presence of an additional layer of interpretative material contributes to the institutionalisation of responsible corporate conduct. The analysis of instruments drafted by international, non-governmental and business organisations reveals both a decentralising tension between different intermediaries due to disagreements and divergence concerning the precise extent of corporate human rights responsibilities, as well as attempts to centralise the interpretation of the UNGP. The article concludes by recommending some caution towards the employment of polycentric governance regimes and their lack of centralised interpretive authority in this domain of international law and suggests possible ways to formally establish centralised interpretation.

Vid Prislan, Judicial Expropriation in International Investment Law

This article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generisapproach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.

Mmiselo Freedom Qumba, Assessing African Regional Investment Instruments and Investor-State Dispute Settlement

This article examines the rejection of the International Investor–State dispute (ISDS) system across the African continent and its replacement with a range of domestic and regional alternatives. It assesses the advantages of the two principal options for African countries: retaining the current ISDS system, or using local courts and regional tribunals. To this end, the dispute resolution mechanisms proposed in the Pan-African Investment Code, the 2016 Southern African Development Community Finance and Investment Protocol, the SADC model BIT, the Common Market for Eastern and Southern Africa, Economic Community of West African States and East African Community investment agreements and domestic approaches are critically examined. The argument is then advanced that African countries should not abandon ISDS because replacing it with isolated domestic or regional mechanisms does not reduce any of the risks. In particular, for foreign investors, the risk associated with the adjudication of investment disputes in potentially biased, politically influenced domestic courts may prove too high. African host nations, in turn, risk sending out the wrong message concerning their commitment to the protection of foreign investments. Instead of veering off course, perhaps the time has come for African States to display the political will to remain within the ISDS system and contribute to its reform from within.

The issue also contains review, by Nahel Asfour, of Contract Law in Contemporary International Commerce: Considerations on the Complex Relationship between Legal Process and Market Process in the New Era of Globalisation by Gianluigi Passarelli, Nomos: Baden-Baden 2019. Other views on the book have been expressed by Chukwuma Okoli on the Conflictoflaws blog.

By Maria Hook (University of Otago, New Zealand) and Jack Wass (Stout Street Chambers, New Zealand)

When a couple divorce or separate, and the court is tasked with identifying what property is to be allocated between the parties, calculation of the net pool of assets usually takes into account certain debts. This includes matrimonial debts that that are in the sole name of one spouse, and even certain personal debts, ensuring that the debtor spouse receives credit for that liability in the division of matrimonial property.  However, where a spouse owes a liability that may not, in practice, be repaid, deduction of the debt from the pool of the couple’s property may result in the other spouse  receiving a lower share of the property than would be fair in the circumstances. For example, a spouse owes a debt to the Inland Revenue that is, in principle, deductible from the value of that spouse’s assets to be allocated between the parties. But the debtor spouse has no intention of repaying the debt and has rendered themselves judgment-proof. In such a case, deduction of the debt from the debtor spouse’s matrimonial property would leave the other spouse sharing the burden of a debt that will not be repaid.

This result is patently unfair, and courts have found a way to avoid it by concluding that, in order to be deductible, the debt must be one that is likely to be paid or recovered (see, eg, Livingstone v Livingstone (1980) 4 MPC 129 (NZHC)). This enquiry can give rise to conflict of laws issues: for example, there may be questions about the enforceability of a foreign judgment debt or the actionability of a foreign claim. Ultimately, the focus of the inquiry should be on the creditor’s practical chances of recovery.

In the relatively recent Cook Islands case of Webb v Webb, the Privy Council ([2020] UKPC 22) considered the relevance of a New Zealand tax debt to matrimonial property proceedings in the Cook Islands. The Board adopted a surprisingly narrow approach to this task. It concluded that the term “debts” only included debts that were enforceable against matrimonial property (which in this case was located in the Cook Islands), and that the debts in question were not so enforceable because they would be barred by the “foreign tax principle”.  Lord Wilson dissented on both points.

Background

The parties – Mr and Mrs Webb – lived in the Cook Islands when they separated. Upon separation, Mr Webb returned to New Zealand. Mrs Webb commenced proceedings against Mr Webb in the Cook Islands under the Matrimonial Property Act 1976 (a New Zealand statute incorporated into Cook Islands law), claiming her share of the couple’s matrimonial property that was located in the Cook Islands.

Mr Webb, however, owed a judgment debt of NZ$ 26m to the New Zealand Inland Revenue. He argued that, under s 20(5) of the Act, this debt had to be deducted from any matrimonial property owned by him. Under s 20(5)(b), (unsecured) personal debts had to be deducted from “the value of the matrimonial property owned by” the debtor spouse to the extent that they “exceed the value of any separate property of that spouse”. Given the size of Mr Webb’s debt, the effect of s 20(5)(b) would have been to leave Mrs Webb with nothing.  She argued that the debt fell outside of s 20(5)(b) because it was not enforceable in the Cook Islands and Mr Webb was unlikely to pay it voluntarily.

Whether the debt had to be enforceable against the matrimonial property in the Cook Islands

Lord Kitchin, with whom the majority agreed, concluded that s 20(5)(b) only applied to debts that were either enforceable against the matrimonial assets or likely to be paid out of those assets. Debts that were not so enforceable were not to be taken into account when dividing the matrimonial assets (unless the debtor spouse intended to pay them by using those assets in his name). A different interpretation would lead to “manifest injustice”, because if the Inland Revenue “cannot enforce its judgment against those assets, Mr Webb can keep them all for himself” (at [41]). If the Inland Revenue could not execute its judgment against the assets, and Mr Webb did not pay the debt, the reason for applying s 20(5)(b) – which was to protect a debtor spouse’s unsecured creditors – disappeared.

Lord Kitchin considered that this conclusion found support in Government of India v Taylor, where Viscount Simonds (at 508) had explained that the meaning of “liabilities” in s 302 of the Companies Act 1948 excluded obligations that were not enforceable in the English courts. The result in that case was that a foreign government could not prove in the liquidation of an English company in respect of tax owed by that company (at [42]).

In Webb, the judgment debt in question was a personal debt incurred by Mr Webb. However, Lord Kitchin seemed to suggest that the outcome would have been no different if the debt had been a debt incurred in the course of the relationship under s 20(5)(a) (at [46]). The word “debts” had the same meaning in s 20(5)(a) and (b), as referring to debts which are enforceable against the matrimonial property or which the debtor spouse intends to pay.

Lord Wilson did not agree with the Board’s interpretation. He considered that it put a gloss on the word “debts” (at [118]), and that it had “the curious and inconvenient consequence of requiring a court … to determine … whether the debt is enforceable against specified assets” (at [120]). Rather, a debt was a liability that was “likely to be satisfied by the debtor-spouse” or that was “actionable with a real prospect of recovery on the part of the creditor” (citing Fisher on Matrimonial Property (2nd ed, 1984) at para 15.6) – regardless of whether recovery would be against matrimonial or other assets (at [123]).

Applying this interpretation to the tax liability in question, Lord Wilson concluded that the liability was clearly actionable (because it had already been the subject of proceedings) and that the Inland Revenue did have a real prospect of recovery in New Zealand (at [126]-[127]). Mr Webb was living in New Zealand and was presumably generating income there, and the Commissioner had applied for the appointment of receivers of his property. This was sufficient to conclude that the debt was enforceable in New Zealand, “including on a practical level” (at [131]).  The facts were different from the case of Livingstone v Livingstone (1980) 4 MPC 129, where the New Zealand Court had concluded that a Canadian tax debt could “for practical purposes” be disregarded because the debtor had already left the country at the time the demand was issued, he had no intention of returning and he had removed his assets from the jurisdiction. In such a case, if the debtor spouse were permitted to deduct the foreign tax debt without ever actually repaying it, they could take the benefit of the entire pool of matrimonial assets and thus undermine the policy and operation of the whole regime.

In our view, Lord Wilson’s interpretation is to be preferred. The relevant question should be whether the debt is one that will be practically recoverable (whether in the forum or overseas). A debt may still be practically recoverable even if it is not enforceable against the matrimonial assets and is unlikely to be paid out of those assets. It is true that, in many cases under s 25(1)(b), the chances of recovery would be slim if the matrimonial assets are out of reach and the debtor spouse has no intention of paying the debt voluntarily (which seemed to be the case for Mr Webb: at [62]). By definition, personal debts are only relevant “to the extent that they exceed the value of any separate property of that spouse”, so in practice their recoverability would depend on future or matrimonial assets. Lord Wilson’s assessment of the evidence – as allowing a finding that there was a real likelihood that Mr Webb would have to repay the debt in New Zealand – is open to question on that basis. But that doesn’t mean that the debts must be enforceable against the matrimonial assets. While this interpretation would lead to fairer outcomes under s 25(1)(b) – because it avoids the situation of the debtor spouse not having to share their matrimonial assets even though the debt is recoverable elsewhere – it could lead to strange results under s 25(1)(a), which provides for the deduction of matrimonial debts that are owed by a spouse individually. It would be unfair, under s 25(1)(a), if such debts were not deductible from the value of matrimonial property owned by the spouse by virtue of being unenforceable against that property, in circumstances where the debts are enforceable against the spouse’s personal property.

The Board’s reliance on Government of India v Taylor [1955] AC 491 (HL) in this context is unhelpful. The question before the House of Lords was whether a creditor could claim in a liquidation for a debt that would not be enforceable in the English courts (regardless of whether the debt would be enforceable over certain – or any – assets). Under the Matrimonial Property Act, on the other hand, the court is not directly engaged in satisfying the claims of creditors, so the debt need not be an obligation enforceable in the forum court.  Neither need it be an obligation enforceable against matrimonial property, wherever located. It simply needs to be practically recoverable.

Whether the debt was enforceable against the matrimonial property in the Cook Islands

As we have noted, Lord Wilson argued that there was a real prospect of the debt being paid – the implication being that this was not a case about a foreign tax debt at all. Mr and Mrs Webb were New Zealanders, and Mr Webb had relocated to New Zealand before the proceedings were commenced in 2016 and had stayed there. The practical reality was that unless he found a way to meet his revenue obligations he would be bankrupted again. Lord Kitchin noted Mr Webb’s apparent determination to avoid satisfying his liabilities to the IRD. Nevertheless, there was no suggestion that Mr Webb would leave New Zealand permanently to live in the Cook Islands and there enjoy the benefits of the matrimonial property.

Nevertheless, the majority’s analytical framework required it to consider whether the tax debt was enforceable against the matrimonial property in the Cook Islands. The majority found that for the purpose of the foreign tax principle, the Cook Islands should be treated relative to New Zealand as a foreign sovereign state, despite their close historical and constitutional ties (and found that the statutory mechanism for the enforcement of judgments by lodging a memorial, cognate to the historical mechanism for the enforcement of Commonwealth judgments, did not exclude the foreign tax principle).

It was obvious that bankruptcy was a serious prospect, the IRD having appointed a receiver over Mr Webb’s assets shortly before the hearing before the Board. That begged the question whether the IRD could have recourse to the Cook Islands assets, but on this point the case proceeded in a peculiar way. The Board observed that it had been given no details of the steps that a receiver or the Official Assignee might be able to take to collect Cook Islands assets, going so far as to doubt whether the Official Assignee would even be recognized in the Cook Islands “for the Board was informed that there was no personal bankruptcy in the Cook Islands and the position of Official Assignee does not exist in that jurisdiction.” Section 655(1) of the Cook Islands Act 1915 states that “Bankruptcy in New Zealand shall have the same effect in respect to property situated in the Cook Islands as if that property was situated in New Zealand”, but the Board was not prepared to take any account of it, the provision having been introduced for the first time at the final appeal and there being some doubt about whether it was even in force.

The unfortunate consequence was that the Board gave no detailed consideration to the question of how the foreign tax principle operates in the context of cross-border insolvency, a point of considerable interest and practical significance.

The common law courts have been prepared to recognise (and in appropriate cases, defer to) foreign insolvency procedures for over 250 years, since at least the time of Solomons v Ross (1764) 1 H Bl 131, 126 ER 79 where the Court of Chancery allowed funds to be paid over to the curators of a debtor who had been adjudicated bankrupt in the Netherlands. But the relationship between this principle and the foreign tax principle has never been clear.

The UNCITRAL Model Law on Cross-Border Insolvency 1997 preserves states’ ability to exclude foreign tax claims from an insolvency proceeding. As to the common law, the New Zealand Law Commission (expressing what may be the best guide to the content of Cook Islands law) observed in 1999 that the policy justification for refusing enforcement of foreign tax judgments may not apply in the same way in the context of cross-border insolvency where the collective interests of debtors are concerned. It noted that a number of countries (including Australia, the Isle of Man and South Africa) had moved past an absolute forbidding of foreign tax claims where such claims form part of the debts of an insolvent debtor subject to an insolvency regime. It thus concluded that “foreign taxation claims may sometimes be admitted to proof in a New Zealand bankruptcy or liquidation.” While the Privy Council had a number of difficult issues to confront, it is perhaps unfortunate that they did not take the opportunity to bring clarity to this important issue.

 

 

 

Détention provisoire

Représentation des salariés

Statut collectif du travail

The first issue of Lloyd’s Maritime and Commercial Law Quarterly for 2021 features the following private international law articles:

Adrian Briggs, “A Conflict of Comity in the Enforcement of Judgments”

Patrick Dunn-Walsh “Insurance Litigation under the Recast Brussels Regulation”

Anthony Kennedy “A Place to Start”

Myron Phua and Serena Seo Yeon Lee “Taxonomising “Quasi-Contractual” Anti-suit Injunctions” 

Steve Peers (University of Essex) has just published a series of Brexit-related documents on Twitter, two of which appear to confirm that by leaving the European Union, the UK also (believes to have) ceased to be a party to the 1968 Brussels Convention and the 1980 Rome Convention – which many have argued might revive between the UK and those EU Member States who are parties to them.

The two letters, sent by the UK Government to the Council of the EU, both contain the following paragraph:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the [Brussels Convention] / [Rome Convention] ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom to be a Member State of the European Union and of the end of the Transition Period.

 

Gustavo Cerqueira, Nicolas Nord (dir.), La connaissance du droit étranger: À la recherche d’instruments de coopération adaptés. Études de droit international privé comparé, Préface : Hélène Gaudemet-Tallon, Paris : Société de législation comparée, coll. “Colloques”, vol. 46, 2020, 268 p. Click here.

The authors’ foreword reads as follows (English translation):

“On November 28, 2019, jurists from various backgrounds met at the french Cour de cassation in Paris to reflect on suitable instruments for international cooperation in establishing the content of foreign law.

This conference is in line with the work previously carried out within the Société de législation comparée on the subject of foreign law. In particular, it continues the reflections started at the conference concerning the controls on constitutionality and conventionality of foreign law, which was held on September 23, 2016 at the Cour de cassation. This event brought together academics and practitioners from several European, North and South American countries and resulted in the publication of a book in 2017 by the Society.

This approach is also part of the continuity of research carried out in other learned societies at the global or regional level.

The conference of November 28, 2019 confirmed the need for such reflection. On the one hand, all of the contributors affirmed the important place now given to foreign law in the settlement of disputes. This is due, among other things, to the growth of international family and business relationships, the growing demand for recognition of situations established abroad and the possibilities for those concerned to choose the applicable law. On the other hand, the participants attested to the increased role of different legal professions in the application of foreign law. While judges and civil registrars were more traditionally exposed to such a burden, notaries and lawyers in their dual mission of advice and drafting of acts are currently called upon to take into account or implement foreign law.

In this context, while it appears that European Union law is often at the origin of the involvement of these different actors in the application of foreign law, another, more recent phenomenon seems to increase occurrences of dealing with such a law: the extensive jurisdictional competition to which the European States are engaged because of Brexit. Indeed, Paris, Amsterdam, Brussels and other capitals are establishing courts and chambers specialized in international litigation and in the application of foreign law. This phenomenon is also spreading to major cities, either international, such as Frankfurt am Main or Hamburg, or regional, such as Saarbrücken, in Germany.

The stakes are crucial. The search for suitable instruments for a good knowledge of foreign law is essential for national laws in full legislative and jurisprudential evolution. Indeed, these changes specific to each system reinforce the need for access to reliable content of foreign law in order to guarantee the legal certainty of litigants, as well as to avoid civil liability of legal service providers or even fraud in manipulation of foreign solutions.

The research envisaged in this colloquium is unfolding, of course, in an environment in which there are formal and informal cooperation mechanisms, the effectiveness of which is only partial in the face of the complexity of the phenomena that cover the application of foreign law. Indeed, they were conceived to deal with a foreign law that supposed to be stable and simple and not shifting and plural in its sources. These mechanisms, not very visible, are also unknown to the practitioners themselves. Current discussions at European (EU) and international (Hague Conference) level attest to the urgency of thinking about responses in this area, using one or more relevant and effective instruments.

This is what the conference on knowledge of foreign law: in search of suitable cooperation instruments meant to answer. To this end, based on an indicative and non-exhaustive questionnaire, the issue of establishing an inventory was first raised, and then discussions ensued on the solutions adapted to the various requirements revealed both by the type of situation to be treated and by the category of professional involved. In this last respect, the needs of the judge and the notary were different, as were those of the registrar and the lawyer.

The adaptation was also considered in the light of the various questions specific to the original system. While the objective may a priori be to achieve the adoption of a general instrument with the widest possible geographical scope, it quickly appeared vain to try to favor such an approach at present. On the one hand, each profession has different needs, on the other hand, the level of development of the different systems compared is not the same. While some countries lag behind and struggle to adopt satisfactory rules in this area, others are at the forefront and therefore are not really in demand for a cooperation instrument whose usefulness does not seem obvious to them.

In this perspective, different paths for reflection have been explored. They range from the revitalization of old instruments to the creation of specialized institutions at internal, international or European level, including the establishment of specific mechanisms or the use of artificial intelligence. Such abundance shows the crucial nature of the issue and the vitality of the reflections carried out, but also the relevance of having debated it and the need to continue doing so.

In this sense, the next stage of this debate could be that of the opportunity of adopting a European regulation on the matter. In addition to the interest of such an instrument at the European level, it could serve as an impetus for other regional groups, such as Mercosur.” (our emphasis)

 

Prefaced by Professor emeritus Hélène Gaudemet-Tallon (Paris II Panthéon Assas), the book contains the following contributions (most of them in French).

Préface

Hélène GAUDEMET-TALLON

Avant-propos

Gustavo CERQUEIRA and Nicolas NORD

Introduction

Cyril NOURISSAT, Connaissance du droit étranger et coopération internationale : entre nécessité impérieuse et difficultés à surmonter

 

 I. État des lieux

En France

La magistrature

François ANCEL, La connaissance du droit étranger. État des lieux – La magistrature

Cyril ROTH, Le droit étranger, irréductiblement inconnaissable : leçons tirées de la création d’une collection de lois exotiques

L’avocature

Dominique FOUSSARD, Le point de vue d’un avocat au Conseil d’État et à la Cour de cassation

Olivier BERG, L’avocat et le droit étranger : entre connaissance et représentation

L’état civil

Nicolas NORD, Le droit étranger devant l’officier de l’état civil. État des lieux

Dans le voisinage

Jochen BAUERREIS, La connaissance du droit étranger en Allemagne

Guillermo PALAO MORENO, La connaissance du droit étranger en Espagne

Pietro FRANZINA, La connaissance du droit étranger : cadre juridique et moyens disponibles en Italie

Lukas HECKENDORN URSCHELER, La connaissance du droit étranger en Suisse. Une multitude de moyens

En Amérique Latine

Gustavo Ferraz DE CAMPOS MONACO, La connaissance du droit étranger en Amérique

 

 II. Solutions envisageables

Du point de vue des universitaires

Patrick KINSCH, La preuve de la loi étrangère par renvoi préjudiciel

Gustavo CERQUEIRA, Fondamentalisation du droit et justice prédictive. Deux phénomènes à prendre en compte pour la connaissance du droit étranger

Guillermo PALAO MORENO, La connaissance du droit étranger : évaluation de la situation en Espagne et propositions dans une perspective européenne

Maria Rosa LOULA, The challenges in accessing applicable foreign law and international cooperation in Brazil

 

Du point de vue des praticiens

Le magistrat

Jean-Noël ACQUAVIVA, Connaissance du droit étranger et coopération internationale. Solutions prospectives : l’opinion d’un juge

Le notaire

Jean-Louis VAN BOXSTAEL, La connaissance du droit étranger. Le point de vue d’un notaire

 

Du point de vue des institutions

Marie VAUTRAVERS, Le point de vue du Bureau du droit de l’Union, du droit international privé et de l’entraide civile, direction des affaires civiles et du Sceau, France

Rodrigo RODRIGUEZ, Knowledge of Foreign Law and the London Convention of 1968 – Council of Europe’s CDCJ

Wolfgang ROSCH, La connaissance du droit étranger et la Cour de justice de l’Union européenne

Nicolas NORD, La Commission Internationale de l’État Civil

 

Propos conclusifs

Françoise Monéger

 

Annexes

Questionnaire envoyé aux contributeurs

Programme du Colloque

Liste des contributeurs (auteurs, orateurs, et présidents des séances)

 

The full table of contents, the preface and the forewords are available here (in French).

More information: https://legiscompare.fr/ecommerce/fr/197-la-connaissance-du-droit-etranger-a-la-recherche-d-instruments-de-cooperation-adaptes

 

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

On 30 September 2020, the French Supreme Court for civil and criminal matters ruled on the respective scopes of the Brussels II bis Regulation and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in a parental conflict between France and Switzerland (Cass. 1st Civil Chamber, 30 Sept. 2020, no. 19-14.761). The difficulty arose following a change in the habitual residence of the child while proceedings concerning his custody were pending before French courts.

Facts and Legal Issues 

The dispute concerned the divorce proceedings of a multinational couple: the husband was of French-Swiss national while the wife was of Swiss, Irish and Danish national. They lived in Switzerland before separating and setting up a cross-border alternating residence between Switzerland and France for their children. It was at that time that a petition for divorce was filed in France. However, after the father’s imprisonment, and with his agreement, the children’s residence was transferred exclusively to the mother’s home in Switzerland. This created an issue with respect to the international jurisdiction of French court.

Judgment of the French Supreme Court

French lower courts had concluded that they had jurisdiction on the basis of the Brussels II bis Regulation. But, before the Supreme Court, the mother invoked the jurisdiction of the Swiss authorities on the basis of the 1996 Hague Convention applicable in both Switzerland and France. In accordance with Article 5 of the 1996 Hague Convention and Article 61 of the Brussels II bis Regulation, the Supreme Court set aside the decision of the Court of Appeal which had retained jurisdiction on the basis of the Brussels II bis Regulation. According to the Supreme Court, since habitual residence had been lawfully transferred to a third State of the European Union but a Contracting State to the 1996 Convention, only that Convention was applicable and French courts therefore had no jurisdiction.

Assessment

How can this conflict between the Brussels II bis Regulation and the 1996 Hague Convention be resolved?

The 1996 Hague Convention has been in force in France since 1 February 2011. The Brussels II bis Regulation has been applicable since 1 March 2005. The two competing instruments have a common material scope of application since they both deal with conflicts of jurisdiction in matters of parental responsibility and child protection. Since both are applicable in France, it is necessary to find out which one should be preferred over the other: a rule of compatibility is therefore necessary.

Article 61 of the Brussels II bis Regulation provides a specific rule on the respective scopes of the Regulation and the 1996 Hague Convention. The Regulation provides that it prevails over the Convention “where the child concerned has his or her habitual residence on the territory of a Member State”.

In this case, the whole question was therefore where the children resided and then to determine the applicable instrument. If the habitual residence was in Switzerland – a third State to the European Union but a party to the Hague Convention –, the 1996 Hague Convention applied; if it were in France, however, the Brussels II bis Regulation applied.

However, the determination of the children’s habitual residence in this case was complicated by the change of habitual residence during the proceedings. At the time of the divorce petition filed in France in January 2016, the habitual residence was a cross-border alternating residence between Switzerland and France. But, when the French Court of Appeal ruled, the habitual residence had been exclusively and lawfully transferred to Switzerland. This new residence was not under discussion. The discussion in this case is therefore not about the location of the children’s habitual residence (initially alternating between France and Switzerland and then transferred exclusively to Switzerland), but about the time at which it should be assessed.

Thus, while the distributive criterion used in Article 61 of the Regulation is perfectly clear – habitual residence in or outside a Member State of the European Union – it does not offer any temporal rule, which would have been eminently useful in this case.

The only area where temporal details can be found is that of the rules of jurisdiction. The latter, based in both texts on the criterion of the child’s habitual residence, resolve the change in the connecting factor.  In this respect, two situations must be distinguished, depending on whether the change of habitual residence occurs outside any pending proceedings or, conversely during the proceedings.

In the event of a “classic” change of habitual residence, outside of any pending proceedings, the two texts resolve the difficulty in favour of the child’s new habitual residence (explicit solution in the Hague Convention ; resulting from a combined reading of Articles 8, 9 and 10 of the Regulation).

If, on the other hand, there is a change of habitual residence in the course of proceedings, the solution is not identical. While the Regulation states that the habitual residence must be assessed “at the time the court is seised” (Article 8(1)), the 1996 Hague Convention provides for the jurisdiction of the authorities of the “new habitual residence”. The difference in wording means that under the Brussels II bis Regulation, once seised, the court retains jurisdiction, even if the child is subsequently lawfully moved to another Member State, whereas under the 1996 Hague Convention, a change of habitual residence during the course of proceedings entails an immediate transfer of jurisdiction to the authorities of the new habitual residence.

The temptation might have been great, in order to resolve the question of the location of the habitual residence in the context of Article 61, i.e. for the purposes of determining the applicable instrument, to use the temporal criterion contained in the rules of jurisdiction. This seems to have been the reasoning of the Court of Appeal, which ruled that although the children’s habitual residence has since been transferred to Switzerland, the habitual residence was in France at the time the first court was seised, thus maintaining the jurisdiction of French courts on the basis of the Brussels II bis Regulation. However, while the reasoning is strictly correct from the point of view of jurisdiction based on the Brussels II bis Regulation, it is not correct from the point of view of the implementation of Article 61.

The Supreme Court does not go down this road. The solution it favours can be summarised as follows: admittedly, under the Brussels II bis Regulation, the French court had jurisdiction, since the children’s habitual residence was in France at the time the French court was seised. However, at the time when the court ruled, the Brussels II bis Regulation was no longer applicable under Article 61 of the Regulation, since the children’s habitual residence was in Switzerland, a third State of the European Union but a Contracting State of the Hague Convention. Under that Convention, and on the basis of Article 5 thereof, French courts therefore no longer had jurisdiction; Swiss courts did.

At last, in order for the change of habitual residence to be effective, both in terms of the relationship between the Regulation and the Convention and in terms of jurisdiction, the judgment suggests that there are two conditions.

Firstly, the new habitual residence must of course be in a Contracting State to the Hague Convention, which is the case of Switzerland. If not, it is not certain that the Brussels II bis Regulation would have ‘lost’ its applicability, but the situation would certainly have led to a conflict of proceedings. The solution provided by the French Supreme Court thus illustrates one of the benefits of judicial cooperation between states.

Secondly, the change of habitual residence must be lawful. In the event of a wrongful change of habitual residence to Switzerland, the Brussels II bis Regulation would have remained applicable and thus led to the French authorities retaining jurisdiction (Article 10). If the abductor brought the case before a Swiss court, the Swiss court could have adopted the same solution and declined jurisdiction on the basis of Article 7 of the 1996 Hague Convention.

Finally, it may be objected that, by reasoning in this way, the Court added criteria to Article 61, which does not contain any: a temporal criterion and a criterion of lawfulness of the change of habitual residence. The solution must, however, be approved, as it is both the most pragmatic and the most consistent with the spirit of the compatibility clause contained in Article 61 of the Regulation. It avoids the – undesirable – diversion through the rules of jurisdiction and allows account to be taken of the reality of the children’s actual situation, to which the criterion of habitual residence adopted by all the texts, undoubtedly aspires.

Par un arrêt du 27 janvier 2021, la première chambre civile précise les conditions de mise en œuvre de l’article 145 du code de procédure civile au regard du régime des mesures provisoires ou conservatoires instauré par le règlement Bruxelles I bis.

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As has now become tradition, the Annual Conference of the Society of Legal Scholars (SLS) will feature a section dedicated to Conflict of Laws. In 2021, the conference will take place between 31 August and 3 September at the University of Durham and virtually (further information on the conference can be found here). The new conveners of the Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, have kindly provided the following Call for Papers.

SLS Conflict of Laws Section: Call for Papers/Panels for 2021 SLS Annual Conference at Durham University and virtually

This is a call for papers and panels for the Conflict of Laws section of the 2021 Society of Legal Scholars Annual Conference to be held at the University of Durham, from Tuesday 31st August – Friday 3rd September.  The Conflict of Laws section will meet in the first half of the conference on 31st August – 1st September and will have four sessions, each lasting 90 minutes.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 26th March 2021.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/2483/submitter – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact http://slsconference@mosaicevents.co.uk.

We intend to host the 2021 conference in person, with an online option for those who would prefer to participate virtually. The precise format of the conference will be confirmed by the end of April. When submitting an abstract you will be asked to indicate whether you would wish to present in person or virtually. Please note that this indication is not binding and it is merely to assist with conference planning.

Decisions will be communicated by the end of April.

We welcome proposals for papers and panels on any issue relating to the conflict of laws/private international law. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 23rd August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

Last year the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 23rd August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 18th June 2021 in order to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Dr Lauren Clayton-Helm (l.clayton-helm@northumbria.ac.uk)

Dr Bobby Lindsay (bobby.lindsay@glasgow.ac.uk)

Co-convenors, Conflict of Laws Section

I am busy on many fronts and not complaining, yet I am sorry if some posts are therefore a little later than planned. A quick flag of Duffy v Centraal Beheer Achmea [2020] EWHC 3341 (QB) in which Coe J noted parties agreed that interim payments are included in the Rome II exemption of evidence and procedure: at 8:

The claim is brought in the English Court against a Dutch motor insurer and it is agreed that the law of the Netherlands applies to this claim in tort. The claimant, as a result of Dutch law has a direct right of action against the insurer and, following the decision in FBTO v Odenbreit [2007] C 463-06, the jurisdiction of the English Court is not an issue. The law of the Netherlands applies (pursuant to Article 41(1) of the Rome II Regulation on applicable law in tort (Regulation 864/2007)). Dutch law will govern limitation, breach of duty and causation as well as the existence of, the nature of and the assessment of damages to which the claimant might be entitled. Matters of procedure and evidence are nonetheless reserved to the forum court (see Article 15 (c) of the Rome II Regulation and Article 1(3)). This is an application for an interim payment which is a procedural application and thus governed by English law. However, when it comes to any assessment of the damages to which the claimant might be entitled on which to base the interim payment decision, Dutch law has to be applied.

Coe J has little reason to disagree however I imagine she would have entertained the issues more had the distinction between Dutch and English law on the interim payment issue been materially different, hence had counsel made diverging noise. For as I have signalled before, the extent of the evidence and procedure exemption is not clear at all.

Geert.

EU Private International Law. 3rd ed. 2021, Chapter 4, Heading 4.8.

 

Application for interim payment.
Parties agree it is a procedural application under Rome II, governed by English law, lex fori.
To the assessment of damages to which claimant might be entitled on which to base the interim payment decision, Dutch law applies as lex causae. https://t.co/QztZJzSKyy

— Geert Van Calster (@GAVClaw) December 4, 2020

In 2020, the Court of Justice of the European Union (CJEU) ruled twice on whether sovereign immunities are relevant to define the material scope of the European law of jurisdiction. The first case was concerned with the immunity from jurisdiction of the state of Panama (Rina, case C-641/18: see reports here, here and here). The second was concerned with the immunity from enforcement of an international organisation, the headquarters of NATO (SHAPE, case C-186/19: see reports here and here).

Since the 1968 Brussels Convention, the European law of jurisdiction and judgments has been limited to civil and commercial matters. Most other instruments of European civil procedure have incorporated the same limitation. Since the Eurocontrol case in 1976, the European Court of Justice has consistently defined civil and commercial matters as excluding actions by public authorities acting in the exercise of their powers, i.e. powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. This definition has now been codified in Article 1(1) of the Brussels I bis Regulation, which refers to “the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)”.

The test of acta iure imperii is also widely used to define the scope of sovereign immunities and, in particular, the scope of jurisdictional immunities. It was only logical, therefore, to ask whether the concept of civil and commercial matters should be defined by reference to the definition of sovereign immunities. As explained (but not endorsed) by AG Szpunar in the Rina case, one could argue “that the concept of ‘civil and commercial matters’ should coincide with the negative scope of jurisdictional immunity” (para. 43). The consequence of such an analysis would be that the scope of the Brussels Ibis Regulation would not be defined autonomously, but by reference to other norms which are external to the EU. Sovereign immunities are governed by customary international law but also, to a large extent, by national laws.

The Relevance of International Law: Rina

In Rina, the CJEU seemingly endorsed the idea that international law is relevant to define the scope of the Brussels Ibis Regulation.

The Court started by recognising that “the immunity of States from jurisdiction is enshrined in international law”, which nobody doubts.

The Court, then, reached the troubling conclusion that the test for defining civil and commercial matters should depend on international law. The Court held:

57 In the present case, as the Advocate General stated in points 108 to 128 of his Opinion, the immunity from jurisdiction of bodies governed by private law, such as the Rina companies, is not generally recognised as regards classification and certification operations for ships, where they have not been carried out iure imperii within the meaning of international law.

58  Accordingly, it must be held that the principle of customary international law concerning immunity from jurisdiction does not preclude the application of Regulation No 44/2001 in a dispute relating to an action for damages against bodies governed by private law, such as the Rina companies, on account of the classification and certification activities carried out by them, upon delegation from and on behalf of a third State, where the court seised finds that such bodies have not had recourse to public powers, within the meaning of international law.

The idea that international law should influence the definition of civil and commercial matters raises a number of issues, many of which were pointed out by the AGs in both the Rina and SHAPE cases. In this post, I would like to insist on two of them.

The first is that the content of international law is unclear. As pointed out by AG Szpunar, the international conventions which were adopted in this field were either ratified by few Member States, or never entered into force. A number of courts have stated that the 2004 UN Convention on on Jurisdictional Immunities of States and Their Property is representative of customary public international law, but as the International Court of Justice itself has pointed out, a number of its provisions were hotly debated during the negotiations, and thus cannot be considered as representing any form of international consensus. The truth of the matter is that the international law of sovereign immunities is, on many issues, vague and not clearly defined. In addition, states have long regulated sovereign immunities at national level, whether by statutes or by the courts. If the CJEU were to interpret international law to define civil and commercial matters, it might contribute to the development of international law, but it would also displace the law of sovereign immunities of the Member States and, in effect, engage into a process of harmonisation for which its competence is doubtful.

Conceptually Different Questions Need Not Receive the Same Answer

The second reason why the international law of sovereign immunities should not influence the interpretation of the European law of jurisdiction is that sovereign immunities and international jurisdiction are conceptually different questions. One is concerned with the power of the national courts to entertain actions against foreign states. The other is concerned with the allocation of international cases as between the courts of different states based on the subject matter of the dispute and the connections of the parties with the relevant states. A contractual case like the SHAPE case raises two separate questions. One is whether an international organisation can be sued in the courts of the forum. Another is whether the relevant obligation of the contract was performed on the territory of the forum, or the organisation can be considered to be domiciled there.

This conceptual difference is better perceived in those states where immunities and jurisdiction are sanctioned by different rules.  This is the case, for instance, under French law. A court does not lack jurisdiction to entertain a claim against a foreign state enjoying an immunity, it lacks power. Lack of power may be raised at any point in the proceedings, while objections to jurisdiction must be raised in limine litis.

The Relevance of International law: SHAPE

The SHAPE Court might have wished to deviate from Rina and endorse a different analysis. The Court continued to apply the same test to define civil and commercial matters. However, it refrained from stating “within the meaning of international law“.

Indeed, it referred to, and partly repeated paragraph 58 of the Rina judgment (see above), but omitted those words.

60 So far as concerns, secondly, the immunity from jurisdiction of bodies governed by private law, the Court has held that it does not preclude the application of Regulation No 1215/2012, where the court seised finds that such bodies have not had recourse to public powers (see, to that effect, judgment of 7 May 2020, Rina, C‑641/18, EU:C:2020:349, paragraph 58).

The Court also underlined that immunities and international jurisdiction are two separate questions:

64 In this connection, as the Advocate General observed in point 67 of his Opinion, the mere fact that the national court has assumed international jurisdiction, in the light of the provisions of Regulation No 1215/2012, does not adversely affect the protection of immunity under international law invoked by the international organisation that is party to that dispute.

Let’s forget about international law when interpreting the concept of civil and commercial matters for the purposes of European procedural law.

Immunity from Enforcement

The issue raised in SHAPE was that of the immunity from enforcement of an international organisation. The creditors of the headquarters in Europe of NATO had attached monies on a bank account. The international organisation argued that the funds were covered by its immunity from enforcement, and that the action fell outside of the Brussels I bis Regulation.

The SHAPE Court replied without distinguishing between immunity from enforcement and immunity from jurisdiction. It seemingly considered that both raise the same issue with respect to the influence of sovereign immunities on the definition of civil and commercial matters.

Yet, there are important differences between the two types of immunities. For present purposes, the most important is that the purpose of each immunity is different. Immunity from enforcement does not prevent courts from deciding disputes, it prevents enforcement over assets. In SHAPE, the issue was whether the creditors of NATO could freeze its assets.  The question, therefore, was not whether the action on the merits could be entertained by the forum, but whether it could issue a provisional attachment. The CJEU has consistently held, however, that the question of whether provisional measures in general and provisional attachments in particular fall within the scope of the Brussels I bis Regulation is defined by the substantive rights that the the measures aim to protect (see, in particular, the De Cavel and Van Uden cases). In other words, provisional measures are transparent for defining the concept of civil and commercial matters. If this is the case, specific obstacles to carry out such measures must be irrelevant as well.

The only immunity which could be logically relevant for defining civil and commercial matters is immunity from jurisdiction. And even immunity from jurisdiction should not be.

La Cour de cassation définit les obligations de la partie soulevant l’incompétence du juge français au regard des dispositions de l’article 75 du code de procédure civile.

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