EAPIL blog

The public policy exception is used as a shield to protect fundamental domestic values in case of a contradiction between the applicable foreign law and fundamental principles of justice of the forum. Alongside the public policy exception, the instrument of “overriding mandatory provisions” – or “public policy rules” – was established in the middle of the 20th century and is today codified in many acts of European Private International Law (see e.g. Article 9 of the Rome I Regulation). Overriding mandatory provisions are rules of outstanding importance for public order, which the legislator intends to be respected even where a case is governed by foreign law under ordinary conflict-of-laws rules.

The Book

In his PhD thesis Die Methodik der ‘Eingriffsnorm im modernen Kollisionsrecht, published in German and recently honoured with the prestigious Gerhard Kegel Prize, Adrian Hemler describes the problem of applying of overriding mandatory provisions as a symptom of numerous fundamental uncertainties in the doctrines of PIL. In his view, the theory of overriding mandatory provisions obscures the fact that PIL needs further differentiation through conflicts-of-laws rules yet to be developed. Based on this, he sees the function of the public policy exception as a safeguard of the supremacy of constitutional law. In sum, he traces overriding mandatory provisions back to the well-known principle lex specialis derogat legi generali, while also basing the public policy exception on the principle lex superior derogat legi inferiori.

Flash Back

The thesis opens with an in-depth historical analysis. Hemler points out that the distinction between the “positive” enforcement of individual rules through overriding mandatory rules on the one hand and the “negative” protection of fundamental principles through the public policy exception on the other hand has not been made until the second half of the 20th century. In addition, he shows how overriding mandatory provisions have been gradually isolated as rules that seemingly do not fit into the ordinary system of “neutral” conflicts-of-laws rules.

Overriding Mandatory Rules and Public Law

Hemler demonstrates that the isolation of overriding mandatory provisions arises from the tendency to implicitly identify these rules with national public law. He shows how this equation leads to the application of principles (seemingly) governing conflicts of public law rules. Up to now, it was widely assumed that the application of foreign public law would impossible, as it would amount to allowing a foreign state to exercise power on the national territory of another. Hemler criticises this assumption by explaining the general methodology of conflicts-of-laws rules. Following a theory developed by Boris Schinkels, he divides each legal rule analytically into a “rational” and an “imperative” element. The rational element describes a universal idea needed for the proper resolution of a legal conflict. An example of the rational element is the written form requirement for certain contracts, e.g. those concerning the transfer of land. The imperative element, in contrast, describes the state’s order to apply the rule. In the example of the written form requirement, the imperative element would be the legislator’s intent relating to the enforcement of the requirement to all land situated on its country’s territory.

Within this structure of legal provisions, Hemler views the position of autonomous conflicts-of-laws rules as follows: Since citizens have a right to decide for themselves which rules are to be applied in their country, its courts cannot just bow to the will of another state. On the other hand, it would go too far to exclude the application of foreign law altogether. Rather, the forum issues its own imperative command regarding any rules of foreign law, which leads to the exclusive applicability of the foreign rule’s rational element. The disregard of the foreign imperative is a direct consequence of the modern, autonomous structure of conflicts of laws. Hence, courts only transpose the foreign “idea of what ought to be” without any elements of foreign sovereignty. This isolated application of the foreign rational element and its combination with a domestic imperative element leads to the creation of a domestic legal norm with a foreign ratio (a “synthesised” legal norm, so to speak).

Since the applied foreign rational element is stripped of any element of the exercise of foreign sovereignty, Hemler argues that the application of foreign law does not conflict with the sovereignty of the court’s country or that of a third country whose law is applicable under ordinary rules of private international law. Hence his conclusion that courts may apply foreign public law without any restrictions, especially without the need of the foreign law being “neutral” or “pre-state”.

No Need for Special Conflicts Rules Regarding Overriding Mandatory Provisions

Going further, Hemler shows that there are no convincing reasons to treat overriding mandatory provisions differently from other norms. In particular, he opines that these provisions do not call for a separate system of conflicts-of-laws rules. Hemler shows that the whole category of overriding mandatory provisions can be dispensed with and that one should instead focus on the development of a more differentiated set of conflicts-of-laws rules. He explains in detail how such special conflicts-of laws-rules are to be developed.

A New Understanding of the Public Policy Exception

His findings allow Hemler to shed also some light on the public policy exception. Given that every application of foreign law leads to a synthesised legal norm of the forum, he concludes that the public policy exception can actually be understood as a constitutional control device regarding “synthesised” law. In Hemler’s view, such an understanding facilitates the inclusion of numerous new phenomena into the methodology of private international law.

Conclusion

As this short overview demonstrates, this is a though-provoking book. Overriding mandatory provisions have so far played the role of a black box in private international law. After many failed attempts to “domesticise” these rules, this is the most serious theory to integrate these rules into the edifice of conflict-of-laws theory. Particularly striking is the breadth of the author’s perspective, which is not limited to overriding mandatory rules, but also includes the role of constitutional law, public law in general as well as the public policy exception. For the interested reader, this book is a good reason to brush up their German or start to learn it!

As announced in this blog (here), Jean-Sylvestre Bergé (University of Côte d’Azur and French University Institute) has just published a monograph titled “Situations in Movement and The Law – A Pragmatic Epistemology” (Les situations en mouvement et le droit – Essai d’une épistémologie pragmatique, Dalloz, 2021).

The author has provided the following abstract in English:

The ambition underpinning this text is to establish a pragmatic epistemology for each time the law faces situations in movement. 

The movement of goods and persons across territories and through space, understood in its broadest sense, challenges the law in its primary task of locking situations into predefined legal frameworks, whether at a local, national, European, international or global level (laws on the freedom of movement, transport, trade, mobility, flows, international or European situations, etc.). 

This reflection is all the more important given that phenomena in movement now come in extreme forms with the increasingly observed hypothesis of circulation provoked by humans but completely out of their control (greenhouse gas emissions, spread of products and organisms of all kinds, pandemics, and the circulation of information, persons, data, capital, waste, etc.). 

What we know and don’t know about the law on circulation and its control merit discussion. 

A renewed approach to the assumptions about and mechanics of situations in movement is perhaps needed. All sorts of antecedents – magical, liberal, social, ontological, fundamental and modal – potentially at work allow us to lay down the terms and stakes of how we address the risk, most often denied or minimised, of losing control over flows. 

This essay is intended for both legal scholars and practitioners. It may also appeal to anyone from other disciplines interested in the way in which the law can be understood through its approach to dynamic phenomena, from the smallest to the largest scale. 

More information here.

The author of this post is Nadia Rusinova, Lecturer in International/European Private Law at The Hague University of Applied Sciences.

In October 2020, the Administrative Court of the City of Sofia in Bulgaria requested a preliminary ruling from the Court of Justice of the European Union (CJEU) in a case concerning the refusal by the Sofia municipality to issue a birth certificate for a child, born in Spain, whose birth was attested by a Spanish birth certificate naming V.M.A. and K.D.K., who are both females, as the child’s mothers.

The case, which is registered as C-490/20, V.M.A. v. Stolichna Obsthina, Rayon ‘Pancharevo’ (Sofia municipality, ‘Pancharevo’ district), poses a question of great importance, and one that has been often asked, including in a recent report prepared for NELFA, the Network of European LGBTIQ* Families Associations: may EU law require an EU Member State to recognize the legal ties between the children and both of their same-sex parents as these have already been legally established elsewhere?

This question remains unanswered to date. It is clear that if the host Member State does not legally recognize the familial ties already enjoyed by the members of a same-sex family moving to its territory from another Member State, this can amount not only to a breach of the free movement of persons provisions. Such failure will amount also to violation of Article 8 and possibly of Article 14 ECHR, as it constitutes breach of the right to private life of the parents, and breach of their and the child’s right to family life.

In the present case – C-490/20 – one hearing of four hours already took place on 9 February 2021, and opinion of AG is expected on 15 April 2021. Therefore, clarity will be provided soon and this post does not have the purpose to predict what the outcome of this case will be.

The aim is rather to provide some insights in the light of the Bulgarian legislation, case law and administrative authorities approaches, to define where the main problem lies and to explain why it appears impossible for the Bulgarian authorities to register same-sex parents in the birth act of the child.

It will also argue that the problem is not only the registration as such, but also the refusal to recognize parentage, established abroad, which constitutes important private international law issue with severe consequences for the parents and the child.

Facts of the Case and the Request for Preliminary Ruling

V.M.A. is a Bulgarian national married to a UK national, K.D.K. They are both females. The couple resides in Spain and have entered into a civil marriage in Gibraltar, United Kingdom, on 23 February 2018. On 8 December 2019, a child, S.D.K.A., was born to them and a Spanish birth certificate was issued, mentioning both V.M.A. and K.D.K. as ‘mother’. In January 2020 V.M.A. requested Sofia municipality, ‘Pancharevo’ district, to issue a Bulgarian birth certificate for the child S.D.K.A.

The authorities requested evidence of the child’s parentage with respect to the biological mother. V.M.A. responded she was not required to do so in accordance with Bulgarian law. On 5 March 2020, Sofia municipality, ‘Pancharevo’ district in a letter refused to issue a Bulgarian birth certificate on the grounds that there is lack of sufficient information regarding its biological mother, and that the registration of two female parents on a child’s birth certificate is inadmissible, as same-sex parentage (as well as same-sex marriages) is currently not permitted in the Republic of Bulgaria and such a registration was contrary to public policy.

V.M.A. appealed the refusal before the Administrativen sad Sofia grad (Administrative Court of the City of Sofia), stating that the refusal to issue a Bulgarian birth act infringes both substantive and procedural law. This Court referred to the ECJ and requested preliminary ruling, formulating four interrelated questions on how the EU law on the discretion on rules for establishing parentage and registration of birth acts should be interpreted.

The Acquisition of Bulgarian Nationality in Respect to the Child

Several organizations, including ILGA EUROPE assumed that the child had been deprived of Bulgarian, and therefore European citizenship, and was at risk of statelessness. So, the first and most important question is did the child acquire Bulgarian nationality, or she has been deprived of it and there is a risk of statelessness?

To answer, we need to take closer look at the referring court’s arguments. The court says that

The failure to issue a Bulgarian birth certificate does not constitute a refusal of Bulgarian nationality. The minor is a Bulgarian national by operation of law notwithstanding the fact that she is currently not being issued with a Bulgarian birth certificate.

Stating that the refusal itself does not preclude acquisition of Bulgarian nationality for the child, the court implies that the parentage is established as it is in the Spanish birth certificate. This conclusion might well be on first glance questionable. Is the recognition of the parent-child relationship, established abroad, prerequisite for acquiring Bulgarian citizenship? The answer is likely to be negative and the court assessed it correctly.

Obviously, the acquisition of Bulgarian nationality in this case is by descent (jus sanguinis), as the child is born on the territory of Spain and jus soli cannot be applied. According to Article 8 of the Law on Bulgarian Nationality, Bulgarian national of origin is anyone to whom at least one parent is a Bulgarian citizen.‎ This provision is in accordance with the Council of Europe European Convention on Nationality, which ensure that children acquire nationality ex lege if one of its parents possesses, at the time of the birth of these children, the nationality of that State Party, subject to any exceptions which may be provided for by its internal law as regards children born abroad.

This provision should not be interpreted restrictively. States have to decide whether they want to restrict the acquisition of the nationality by parentage in cases of birth abroad, and Bulgaria did not explicitly envisage any restrictions in this regard, neither the domestic law requires formal recognition of familial links. As a result, the child indeed acquired Bulgarian nationality at the time of its birth by operation of law. The recognition of the parentage appears irrelevant and the fact that the applicable Bulgarian law does not allow this same-sex couple and their child to legally establish their familial links does not change the origin as such.

What Exactly the Refusal Concerns – Recognition of Legal Parentage, or Registration of Birth Act in the Civil Registry?

Interestingly enough, it appears that in the present case the parentage is in some way technically recognized for purposes of nationality, to a high extend due to the existence of harmonized domestic and international legislation. This same parentage however is not recognized for the purpose of establishing legal parent-child relationship in the Bulgarian legal order, which poses the question where the main issue lies – is it conflict of laws, or pure administrative formality?

It is appropriate to clarify that recognition of a foreign civil status, its registration, and issuance of civil status certificates are three separate issues. The first one – recognition of a foreign civil status – falls within the scope of the private international law and is therefore a legal problem, and the latter two are merely administrative services. Naturally, a civil status cannot be registered if it is not firstly recognized.

Here it would be useful to provide brief explanation on one purely linguistic issue, which however might majorly impair the translation and contribute to the confusion. In Bulgarian “issuance of birth act” means the act of registration or transcription of the (foreign) birth act in the civil registry, and at the same time this expression is used to describe the administrative service to provide the entitled person with the birth certificate (in Bulgaria the birth certificates are only issued on paper, not digitally). In this sense, “birth act” and “birth certificate” in Bulgarian in many cases even in the legal literature are used interchangeably, which in the present case can impede the correct interpretation of the legal issue.

From this perspective there is one very important question to be answered. What exactly the refusal pertains to – to the recognition of legal parentage, or to the registration of birth act in the Bulgarian civil registry? According to the official translation, the Administrative Court in its first question to the CJEU uses the expression “refusal to issue a Bulgarian birth certificate”, but the issuance of birth certificate, as pointed above, is a simple administrative service, which has its grounds on and respectively follows the registration of the birth act in the civil registry, which on its turn is based and follows the recognition of the parentage. In this sense, if Bulgarian birth certificate is issued or not cannot be the main problem that needs solution.

In para 23 and 26 the Administrative Court states that

only the legislature is in a position to exercise its sovereignty and decide whether a child’s parentage can be determined not only from one mother but from two mothers and/or fathers […] The issue before the Administrative Court of the City of Sofia […] relates to two persons of the same sex being recognized as mothers of a child of Bulgarian nationality born in another Member State by having their names included on the child’s Bulgarian birth certificate. Unlike in Coman, this question is linked to the method of establishing the parentage of a Bulgarian national.

The doubts of the Court here clearly refer to the recognition of parentage, which in this case appears to be problematic under the Bulgarian domestic law.

What then the authorities actually refused – the recognition of familial link, or its registration? The short answer is both, simply because recognition of established parentage under the Bulgarian law is done throughregistration of the birth act. There is no separate procedure to recognize the legal parentage before the registration of the birth act. The competent authorities are the administrative ones – according to the Ordinance on the functioning of the system for civil registration, the civil status officers in the respective municipality department are responsible for this registration, and therefore for the actual recognition of the familial ties, which is a prerequisite for the registration. This way the recognition occurs simultaneously with the registration, and the assessment of these two different in their substance issues – the private international law matter of recognition and the administrative matter of registration – are solely in the hands of the civil registry officers.

The Inconsistent Approach of the Bulgarian Authorities in Recognizing and Registering Same-sex Parentage

It must be noted that entering of two same-sex parents in the birth act, as pointed in the request to the CJEU, is just not possible under the Bulgarian law. Only one approved model of birth act and certificate, which comply with the Bulgarian legislation, exists, and the data on the child’s parents is divided into two columns – “mother” and “father”, respectively. In this sense, the administrative authority cannot technically issue a birth act, to the extent that it does not provide for entry of two mothers.

Due to the legislative imperfections, mentioned above, the discussed three issues – recognition of foreign civil status, its registration, and the issuance of civil status acts and certificates – are not treated as separate matters by the courts in the Bulgarian case law. Examples from the recent years of different instances, including the Supreme Administrative Court of Bulgaria, show that the authorities often mix all three and do not provide arguments in respect to their different natures in their court acts. One thing is consistent – the absolute refusal to recognize same-sex parentage, which is however reached by various ways and accompanied by various reasons.

One of the inconsistencies concerns the following question: Is the refusal to register birth of a child to same sex parents in the civil registry an “individual administrative act” within the meaning of the Administrative Procedural Code (APC), which would make its appeal admissible? According to one of the judgments, the refusal, incorporated in a letter, is indeed an administrative act within the meaning of Article 21, para. 3 of the APC, and appeal before the competent court is procedurally admissible. The reasoning is that it contains a statement of sovereign will – a refusal to issue a birth act.

This approach is endorsed by the Supreme Administrative court, confirming that refusal to issue a birth act is a refusal to perform an administrative service and therefore constitutes an individual administrative act within the meaning of the abovementioned provision. This would be the correct interpretation of the law, providing the parties with the possibility for judicial review.

On the contrary, in another judgment (which concerns different-sex parents but the same legal issue, i.e. recognition of parentage and issuance of Bulgarian birth act) the court holds that such decision does not constitute an administrative act, subject to judicial review under APC.

Surprisingly, the appeal is therefore dismissed on the following grounds:

By its legal nature, the recognition of an act of a foreign authority constitutes a declarative statement by the authority concerned to respect the legal effects of that act … In its declaratory content, the contested act includes only‎‎ ‎‎a statement of disregard for the legal consequences – the declaratory effect of the foreign act.‎ The refusal at hand does not constitute an individual administrative act within the meaning of Article 21(1) of the APC and is not subject to judicial review.

For the parties here there is no possibility to appeal and the only way left, as the Court mentions in this act, is to follow the procedure enshrined in Article 118 para 2 of the Private International Law Code – to bring legal action before the Sofia City Court to rule on this dispute over the conditions for recognition of a foreign decision.

Other inconsistency concerns the Courts’ approach in case of judicial review of the refusal to register birth of a child to same-sex parents in the civil registry. Once admitted to appeal, the courts interpret the law differently and offer substantively different solutions, of course all with the same result – endorsing the refusal.

In the majority of the cases the Court would hold as a ground for refusal that the registration of two same-sex parents is contrary to the public policy (which will be discussed below). As an example, the Supreme Administrative Court holds in one of the judgments that:

The opinion is fully shared that according to the Bulgarian legislation it is inadmissible to register two female parents, as same-sex marriages in the Republic of Bulgaria are currently inadmissible.

The same issue is pointed by the administrative authority in Case C-490/20 – according to the defendant, entry of two female parents is inadmissible as same-sex marriages in the Republic of Bulgaria at the moment are inadmissible, and such an entry would be contrary to the public policy.

In case No. 2784/2020 the Administrative Court-Sofia City takes even more surprising recourse, placing the marriage of the parents as pre-condition to the recognition of the legal parentage. It concerns a child born in USA; the parents are two mothers in same-sex relationship and they request respectively the birth (not the marriage) to be registered in Bulgaria. The refusal to register the act followed shortly and the administrative actis reasoned as follows:

it is not clear from the submitted birth certificate who is the mother is and who is the father of the child, as only “parents” are present in the foreign birth act […] From the submitted documents it is not clear as well whether the marriage between the parents is recognized in the manner prescribed by law, respectively whether its execution is allowed.

In subsequent appeal the Court endorses this approach:

A birth certificate, in which two people are entered as parents, without determining which of these persons is the mother, respectively the father of the child, makes it impossible for the administrative body to fulfill its obligations, resp. to issue a birth act. In this case it is also important to recognize in the appropriate order the marriage between L. E. M. and V. M. M. … there must be a valid and recognized by the competent authority marriage between L. E. M. and V. M. M. so that the child is Bulgarian citizen, and then it to be subject to civil registration.

These examples show that for one or another reason, entering same-sex parents in the birth act is inadmissible for the Bulgarian authorities. But what is the correct action? The conflict comes from the fact that there is no provision allowing the administrative authority to simply refuse registration. Such possibility is not mentioned at all in the applicable Ordinance, where the options are exhaustively listed:

Art. 10. (1) The civil status official shall obligatorily verify the data for the parents, entered in the received notice for birth, with the data in the register of the population, including the determined origin from father. In case of ascertained incompleteness or discrepancies, the civil status official has the right to supplement or correct the birth notification with data from the population register, as well as to determine the origin according to the Family Code. When the origin of a parent (mother and / or father) is not established, when compiling the birth certificate, the relevant field intended for the data for this parent shall not be filled in and crossed out.

Analyzing this provision, we should therefore conclude one more time that since there is no option to refuse registration of the birth act, the main issue in case C-490/20 remains to be refusal of recognition of parentage, which is already established by foreign civil act. However, in the cases pointed above, the administrative authorities have chosen exactly to refuse registration, despite it remains unclear where they derive this option from. In the cases when they (correctly) did not refuse registration, they pursued the only option left under the abovementioned provision, which is even more inappropriate – the origin of the child to be established in relation only to his/her mother. In this case the administrative authority accepts that the origin of the father has not been established as it does not comply with the Bulgarian legislation, and applies the provision of Article 12(3) ‎‎of the Ordinance by not filling in the corresponding field on the birth act intended for the data of that parent. Not including the provided particulars would not lead to its illegality. Such solution is offered by the Administrative Court here and endorsed by the Supreme Administrative court.

This is exactly the reason why the administrative authorities in Case C-490/20 initially obliged the applicants to provide information which one of the same-sex parents is the biological mother. In case the mothers would have provided such information, the authorities would have recognized only the parentage established in respect to the biological mother and would have left empty the space intended to enter the father of the child. In this case the child would have been with status “father unknown”.

The problematic nature of such approach is clear and it would for sure violate the right to respect for family life not only of the both mothers, but mostly of the child. The Supreme Administrative Court, foreseeing the problems that can arise from this quite imperfect solution, even goes further and suggests in the future the interested parties to take action and conduct a procedure under Article 118(2) of the Private International Law Code. Following this suggestion, in the course of this judicial procedure the parties are supposed to clarify the issues related to the completion of the information missing in the act issued by the municipal authorities, which would only lead to additional lengthy, and expensive court battles with unclear outcome.

The Application of the Public Policy Exception by the Bulgarian Authorities

The main issue pointed by the administrative authority in Case C-490/20 as ground for refusal is that entry of two female parents appears inadmissible, as same-sex marriages in the Republic of Bulgaria at the moment are inadmissible, and such an entry would be contrary to the public policy.

The legal basis for this assessment is a general provision. Article 117(5) of the International Private Law Code of Bulgaria states that decisions and acts of foreign courts and other bodies are recognized and declared enforceable, if this is not contrary to Bulgarian public policy. However, as pointed here, CJEU leans towards a strict interpretation of the public-policy exception in matters of conflict of laws. Several questions then remain unanswered, when analyzing how the Bulgarian authorities assessed the contradiction between entering same-sex parents in the birth act and Bulgarian public policy. Where is the direct link between joint parentage of same-sex couple and the ban for same-sex marriages in regard to the public policy exception? Why the authorities avoid clear reasoning in this direction and resort to ambiguous arguments? Based on which concrete arguments the public policy does not allow same-sex couple to be legal parents to a child?

The “Bulgarian public policy” in this regard is an issue that remains unspecific. It is discussed in the light of same-sex marriage for example in case No 7538/2017, Administrative Court Sofia City. The Court states that even if the marriage between same-sex Bulgarian citizens does not contradict the law of the country in which it is concluded, this marriage contradicts the Bulgarian “public order”. “Public order” is defined as mandatory norms and principles in the administration of justice, which have universal significance, not taking into account a contradiction of a specific legal norm, but a contradiction that would lead to a violation of the public and personal interest of the citizens, and to violation of basic values ​​in society. However, the Court refrains from pointing any particular arguments and again refers to the legislative restrictions.

The constitutional ban on same sex marriages naturally would lead to refusal to recognize and register this particular marriage, but might have as direct consequence only the impossibility to apply the pater estpresumption to the children born to this marriage as contrary to the public policy. If the public policy exception is to be applied by the administrative or judicial authority in cases like C-490/20, then specific argumentation must be provided. Such argumentation to the best of my knowledge is not yet provided in any Bulgarian case law, neither it exists in whatever practical directions or ordinances that civil registration officers can use for reference.

In regard to the constitutional identity and national identity as separate grounds to justify the refusal of recognition of the same-sex parentage, indeed as pointed in the request for preliminary ruling the Bulgarian constitutional tradition and Bulgarian family and inheritance law should be considered. This is of course true, but here balance must be sought as the negative views on LGBTQ rights in Bulgaria are incredibly persistent and, in some way, seen as traditional.

Conclusion

In several EU Member States same-sex couples are neither allowed de facto to become joint parents of a child nor can they be legally recognized as joint legal parents. In these legal systems same-sex couples and their children are not allowed to legally establish their familial links, and Bulgaria is to this date one of them. Case with the same subject – A.D.-K. and others v. Poland, Application no. 30806/15, is currently pending before the ECtHR and communicated on 26 February 2019. There is not much to add, but only to hope that the laws of all Member States will in the near future be applied in a non-discriminatory manner and with respect for fundamental rights, especially when they have a direct impact on the enjoyment of EU citizenship.

The following text has been kindly provided by professors Toshiyuki Kono, Pedro de Miguel Asensio and Axel Metzger.

The International Law Association’s Committee on Intellectual Property and Private International Law has finished its work with the adoption and publication of the Kyoto Guidelines on Intellectual Property and Private International Law.

The Guidelines are the outcome of an international cooperation of a group of 36 scholars from 19 jurisdictions lasting for ten years under the auspices of ILA. The Kyoto Guidelines have been approved by the plenary of the ILA 79th Biennial Conference, held (online) in Kyoto on 13 December 2020.

The Guidelines provide soft-law principles on the private international law aspects of intellectual property, which may guide the interpretation and reform of national legislation and international instruments, and may be useful as source of inspiration for courts, arbitrators and further research in the field. Different from older regional projects, the Kyoto Guidelines have been prepared by experts from different world regions.

The Guidelines have now been published with extended comments as a special issue of the Open Access journal JIPITEC.

The ILA Committee on Intellectual Property and Private International Law was created in November 2010. Its aim was to examine the legal framework concerning civil and commercial matters involving intellectual property rights that are connected to more than one State and to address the issues that had emerged after the adoption of several legislative proposals in this field in different regions of the world. The work of the Committee was built upon the earlier projects conducted by the Hague Conference of Private International Law as well as several academic initiatives intended to develop common standards on jurisdiction, choice of law and recognition and enforcement of judgments in intellectual property matters.

In the initial stages of the activities of the Committee it was agreed that its overall objective should be to draft a set of model provisions to promote a more efficient resolution of cross-border intellectual property disputes and provide a blueprint for national and international legislative initiatives in the field. Therefore, the focus of its activities has been the drafting of a set of guidelines with a view to provide a valuable instrument of progress concerning private international law aspects raised by intellectual property.

Furthermore, the Committee conducted a number of comparative studies and monitored the developments in different jurisdictions around the world.

The Committee also worked in collaboration with several international organizations, particularly the World Intellectual Property Organization and the Hague Conference on Private International Law.

The final text of the Guidelines consists of 35 provisions, which are divided in four sections: General Provisions (Guidelines1-2), Jurisdiction (3-18), Applicable Law (19-31) and Recognition and Enforcement of Judgments (Guidelines 32-35).

As suggested by the term “Guidelines”, this instrument contains a set of provisions intended to guide the application or reform of private international laws in this field. The Guidelines restate certain well-established foundational principles such as the lex loci protectionis rule and aspire to provide concrete solutions for pressing contemporary problems, in areas such as multi-state infringements and cross-border collective copyright management.

In order to make explicit the influence of the previous projects in the field and to facilitate the comparison with them, the short comments are preceded by the reference to the similar provisions adopted previously in the ALI Principles (American Law Institute, Intellectual Property: Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes, ALI Publishers, 2008), CLIP Principles (European Max Planck Group on Conflict of Laws in Intellectual Property, Conflict of Laws in Intellectual Property (Text and Commentary), OUP, 2013), Transparency Proposal (Japanese Transparency Proposal on Jurisdiction, Choice of Law, Recognition and Enforcement of Foreign Judgments in Intellectual Property, see the English text in J. Basedow, T. Kono and A. Metzger (eds.), Intellectual Property in the Global Arena – Jurisdiction, Applicable  Law, and the Recognition of Judgments in Europe, Japan and the US, Mohr Siebeck, 2010, pp. 394-402) and Joint Korean-Japanese Principles (Joint Proposal by Members of the Private International Law Association of Korea and Japan, see The Quarterly Review of Corporation Law and Society, 2011, pp. 112-163).

As an additional instrument to facilitate the uniform interpretation of the Guidelines, the Committee has prepared a set of extended comments to all the provisions.

The Guidelines have now been published together with extended comments written by members of the ILA Committee which explain the background and application of the Guidelines.

Oft expectation fails, and most oft there
Where most it promises…

William Shakespeare

Yesterday has been an emotional rollercoaster for those interested in European judicial cooperation. After initial reports in the Financial Times about an impending recommendation in favour of the UK’s accession to the Lugano Convention, the journal later reported that the Commission has (again) changed its mind. It now opposes the UK’s application to join the Convention.

Apparently, the decision was made behind closed doors. The only formal ground reported is the missing membership of the post-Brexit UK in either the European Economic Area (EEA) or the European Free Trade Association (EFTA), to which all other members of the Lugano Convention are parties. This is however a specious argument because judicial cooperation has a much further reach than economic cooperation and builds on other criteria, such as trust in the quality of the other state’s judiciary (see Matthias Lehmann and Eva Lein, ‘L’espace de justice à la carte? La coopèration judiciaire en Europe à géométrie variable et à plusieurs vitesses’, in: Marie-Elodie Ancel et al. (eds.), Le Droit à L’Èpreuve des Siècles et des Frontières – Mélanges en l’honneur du Professeur Bertrand Ancel, Paris 2018, p. 1093 – 1120).

It is to be hoped that this is not the end of the story. The Commission has merely issued a recommendation; the final decision lies with the European Parliament and the Council. Even though especially France seems to be very reserved about the British accession, it remains to be seen how these bodies will act. Moreover, the Lugano Convention’s Art 72(3) only says that the signatories “shall endeavour” to give their consent within one year after an application to join, without setting any hard deadline. The EU thus has ample time to make up its mind. Should it reject the UK’s application, the latter is free to file it again under more favourable political conditions.

The above quote, by the way, is from Shakespeare’s play “All’s Well That Ends Well”. Let us hope that this will also be true for the UK and the Lugano Convention.

In a recent ruling (No 120 of 23 February 2021, unreported) the Court of Appeal of Piraeus was asked to determine whether, for the purposes of exequatur under Regulation No 44/2001 (Brussels I), a Maltese ship mortgage is considered an authentic instrument.

The issue had the following practical ramifications. A classification of the mortgage as an authentic instrument for the purposes of the Regulation would entail that immediate enforcement ought to be stayed by virtue of Article 37 as a result of the lodging of an appeal. Instead, if the ship mortgage were seen as falling outside the scope of the Regulation, domestic law would apply, which does not provide for an automatic stay of execution if the debtor challenges the enforceability of the foreign title.

The Facts

A Greek bank granted in 2011 a loan of nearly 12 million Euros to a company seated in La Valetta (Malta). In oder to secure the bank’s claim, a mortgage was registered on a ship belonging to the debtor, registered in Malta. Due to delays in payment, the bank seised the Court of First Instance of Piraeus seeking a declaration of enforceability of the ship mortgage. It relied for this on Article 905 Greek Code of Civil Procedure.

The court granted the application. The company filed a third-party opposition, i.e. the remedy available under Greek law, arguing that the court had failed to apply the Brussels I Regulation. The move was successful. The bank appealed.

Legal Framework

Article 57(1) of the Brussels I Regulation reads as follows:

A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Member State shall, in another Member State, be declared enforceable there, on application made in accordance with the procedures provided for in Articles 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the Member State addressed.

The Report by Jenard and Möller on the 1988 Lugano Convention  1988 (para. 72) posed the following conditions for the application of Article 50 of the Lugano Convention, which addresses the same issue as Article 57 of the Brussels I Regulation (formerly, Article 50 of the 1968 Brussels Convention):

The authenticity of the instrument should  have  been  established  by a public  authority; this  authenticity  should  relate to  the  content  of  the  instrument  and  not  only,  for  example,  the  signature; the  instrument  has to be enforceable  in  itself  in  the  State in  which  it originates.

In Unibank, the CJEU ruled as follows:

An acknowledgment of indebtedness enforceable under the law of the State of origin whose authenticity has not been established by a public authority or other authority empowered for that purpose by that State does not constitute an authentic instrument within the meaning of Article 50 of the [1968 Brussels Convention].

Maltese law regulates the matter under Chapter 234 of the Merchant Shipping Act. Article 38(1) provides that:

A registered ship or a share therein may be made a security for any debt or other obligation by means of an instrument creating the security (in this Act called a “mortgage”) executed by the mortgagor in favour of the mortgagee in the presence of, and attested by, a witness or witnesses.

Article 41(2) states that

A registered mortgage shall be deemed to be an executive title for the purposes of Article 253 of the Code of Organization and Civil procedure.

The latter provision, in turn, regards the following as enforceable titles:

… (b) contracts received before a notary public in Malta, or before any other public officer authorised to receive the same where the contract is in respect of a debt certain, liquidated and due, and not consisting in the performance of an act.

The Ruling

The company submitted a legal opinion signed by a foreign lawyer, according to which a ship mortgage is considered as a ‘public deed’, given that it was received in accordance with the law by a public functionary, entrusted to give full faith and credit to the document in question. In addition, the authenticity of the signature of the ship registrar had been certified by an apostille pursuant to the Hague Apostille Convention, which referred to the ship mortgage as a public deed.

The company referred also to the Scottish public register of deeds as an example of authentic instrument, in order to convince the court to consider the ship mortgage as an authentic instrument for the purposes of the Brussels I Regulation.

The Court of Appeal of Piraeus granted the bank’s appeal. Relying on Article 57 of the Brussels I Regulation, the Jenard-Möller Report and the judgment of the Court of Justice in Unibank, it noted that an authentic instrument is a document which has been formally drawn up or registered as such.

In addition, Che court emphasized on the lack of any involvement of the Register of Ships in regards to the content of the mortgage. Contrary to the first instance judgement, the court considered that the mere registration in the Valetta ship registry does not suffice. The act of the Register of Ships does not attribute the nature of an authentic instrument to a document drawn and signed by two private parties.

The Court made extensive reference to the opinion of the Advocate General La Pergola in the Unibank case, stating that the authenticity of the document’s content had not been examined by the registrar. In other words, the sole registration without any examination of the content, does not attribute to the ship mortgage the nature of an authentic instrument. It is just a formal procedure for the purposes of solemnity and publicity.

In addition, the Court of Appeal clarified that the reference of the registrar to the document as a public deed does not hinder the court to examine the ship mortgage from the Regulation’s point of view.

Comments

The core issue is whether the procedure followed for the registration of a Maltese ship mortgage entails any participation of a public authority, i.e. the decisive factor according to the Court of Justice in Unibank.

The Court of First Instance answered in the affirmative, whereas the Court of Appeal took the opposite view.

The judgment demonstrates the variety of legal documents balancing between the private and public divide. It serves as an additional example for the interpretation of Article 57 Brussels I Regulation and Article 58 Brussels I bis Regulation.

On 8 April 2020, the UK formally applied to accede to the Lugano Convention. The one year period recommended for deciding on this application in Article 72(3) of the Convention has thus expired on 8 April 2021, causing harm for judicial cooperation.

However, things seem to start moving. According to a report in the Financial Times, the European Commission wants to give today (12 April 2021) a positive assessment of the British application, despite its earlier reluctance to grant the UK’s application. This change of mood seems to be the result of technical analysis carried out on the consequences of the British accession or non-accession. The article cites an unnamed EU diplomat who emphasises the Union’s awareness of the “practical benefits of having Britain in a co-operation pact that prevented legal disputes from being unnecessarily messy”.

This is a hopeful sign that judicial cooperation in civil and commercial matters may continue after Brexit. But let us not rush to quick conclusions. The final decision on the EU’s position lies with the European Parliament and Council under Articles 81(1), (2) and 218(5), (6)(a)(v) TFEU. It will be particularly interesting how Member States will vote in the Council.

This post was contributed by Bukhard Hess, who is a director of the Max Planck Institute Luxembourg.

Gilles Cuniberti has kindly invited me to comment on the decision of the Paris Tribunal Judiciaire from a German perspective – here are my reflections on this interesting case:

1. Under German law, a contract retaining an arbitrator is a private law contract for services related to arbitration. German law clearly separates the underlying contract with the arbitrator from the procedural functions (including obligations) of the arbitrator within the arbitration proceedings (most recently: Ruckdeschler & Stooß, Die vorzeitige Beendigung der Schiedsrichtertätigkeit, Festschrift Kronke (2020), p. 1517 – 1519). Therefore, the contract retaining an arbitrator falls in the scope of the arbitration exception set out at Article 1(2) of the Brussels Ibis Regulation only provided there is an express arbitration clause in the service contract with the arbitrator. Actions for damages against the arbitrator for the breach of the service contract (based on § 280 and 281 of the German Civil Code) are not ancillary proceedings within the meaning of Recital 12 para 4 of the Brussels Ibis Regulation. The arbitral tribunal does not have jurisdictional powers to decide contractual damage claims brought against an arbitrator. Such claims are, in fact, not related to the arbitration proceedings, the breach of the arbitrator’s duties merely amounting to an incidental issue. In this regard, I agree with the decision of the Tribunal Judiciaire de Paris.

2. Under German law, the service contract with the arbitrator usually establishes contractual relationships with both parties, cf. Schack, Internationales Zivilprozessrecht (8th ed. 2021), para 1461; Schlosser, Recht der Internationalen, privaten Schiedsgerichtsbarkeit (2nd ed. 1989), para 491. Specifically, § 675, 611 and 427 of the BGB apply to this contract (there is a debate whether the contract qualifies as a contract sui generis). The situation is not different when an arbitration organization is involved as the organization concludes the contract with the arbitrators on behalf of the parties (Stein/Jonas/Schlosser, Vor § 1025 ZPO (Commentary, 23rd ed. (2014), para. 17). As I have previously stated, German doctrine clearly distinguishes the contractual relationship between the parties and the arbitrator from the procedural functions (“Amt”) of the arbitrator. The latter is regulated by the lex arbitri and concerns the procedural role of the arbitrator. If the parties do not agree on specific (institutional) rules, § 1034 -1039 of the Code of Civil Procedure apply.

3. If one agrees that the Brussels I bis Regulation applies, the place of performance is to be determined according to its Article 7 no 1b, 2nd indent. When it comes to a contract for the services of an arbitrator, one might consider an agreed place of performance at the seat of the arbitral tribunal (when the parties agreed on the place where the arbitration proceedings take place). Otherwise, the seat of arbitration might be the place where the arbitrators render their services. As Article 7 no 1 places much emphasis on the factual place of performance, much depends on the factual situation – especially in an instance where the arbitral tribunal holds virtual hearings and deliberates online. In this case, one might consider localizing the place of performance at the law office of each individual arbitrator.

In the case at hand, the claim was based on an alleged violation of the duty to disclose a conflict of interests. The assessment of such a violation entailed investigations also regarding the activities of the arbitrator’s law firm, localized at the place of the law firm’s office. However, according to the case law of the ECJ, under Article 7 no 1 the place of the main provision of service – and not the place where the concrete contractual obligation was breached – is decisive for the purposes of establishing jurisdiction (C-19/09 Wood Floor Solutions, cf. Hess, Europäisches Zivilprozessrecht, 2nd ed. 2021, § 6, para 6.56). Consequently, I would agree with the Paris court that the place of performance was Germany.

4. Finally, I would like to address one additional aspect: Does the decision of the French court that located the place of performance in Germany bind the German courts? The ECJ addressed this issue in case C-456/11 (Gothaer Versicherungen, paras 36 et seq.). It held that a German court was bound by a decision of a Belgian court on the validity and the derogative effects of a jurisdiction clause designating the Dutch courts as the competent courts (see Hess, Europäisches Zivilprozessrecht, 2nd ed. 2021, § 6, paras 6.206 – 6.207). In the case at hand, the situation is different as the French court stated that the place of performance of the contract was located in Germany, not in France. However, one might consider that this statement of the Paris court is binding on the parties and might be recognized as binding under Article 36 of the Brussels I bis Regulation in the German proceedings. I am well aware that this effect transcends the current case law under the Brussels I bis Regulation. However, it would be a consequence of Gothaer Versicherungen to assume a binding force of the French judgment rejecting the lawsuit as inadmissible. This binding force would prevent a déni de justice by a German court. Yet, it remains to be seen whether such binding force is compatible with the case law of the ECJ according to which each court of the EU Member States has to assess ex officio whether it has jurisdiction under the Brussels I bis Regulation (C-185/07, Allianz).

Among the goals pursued by the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law is to promote research and academic exchange with foreign scholars.

In this framework, to assist particularly young scholars further advance their research activity, the Max Planck Institute Luxembourg offers a limited number of scholarships for foreign doctoral candidates to support their research stay at the Institute for up to six months in the calendar year 2022.

Eligibility

To be eligible for the scholarship, applicants must be doctoral candidates carrying out research activity within the Institute’s various areas of research, and intend to be affiliated either to the Department of European and Comparative Procedural Law or the Department of International Law and Dispute Resolution. While proficiency in English is compulsory, the call is also open to doctoral candidates writing their thesis in a language other than English.

Application

To apply, the interested candidates meeting the requirements of the call must submit the following documents, in English: a cover letter (max. 1 page), stating the motivation for their application, the correlation between the topic of their research and the Institute’s areas of research, and the desired time frame for the scholarship stay; an up-to-date curriculum vitae, with an indication of the class of degree awarded (undergraduate and postgraduate, if relevant); a summary of the PhD project (max. 2 pages), including subject, description and work plan; two letters of recommendation (including one from the PhD supervisor, with his/her contact details).

Grant and Benefits

The scholarship is paid in monthly instalments of 1.500 €. The selected applicants will be offered a workstation in the reading room. They will also have the opportunity to participate in the regular scientific events hosted at the Institute, other activities and access to the Institute’s library. During the funding period, the presence of the Scholarship Holder at the Institute is required.

Deadline for Applications

15 May 2021

Application Details

Please follow this link, apply online and upload all required documents.

Contact

Christiane Göbel and Eva Dobay at scholarship@mpi.lu.

On 31 March 2021, the Paris main first instance court (tribunal judiciaire, formerly tribunal de grande instance) ruled on the international jurisdiction of French courts to determine arbitrators’s liability. It held that it was a contractual claim in the meaning of Article 7(1)(b) of the Brussels I bis Regulation and declined jurisdiction on the ground that the arbitrator had provided his service in Germany. This post is based on a press release of the court.

Background

The case was concerned with distribution contracts in the automobile industry.  The contracts contained clauses providing for ICC arbitration in Paris under German law. The origin of the parties is unknown, but none of them was French.

After two contracts were terminated, an arbitration was initiated. The parties agreed that the hearings would be held in Germany.

The resulting award, however, was challenged before French courts, and ultimately set aside on the ground that one arbitrator had failed to disclose certain relationships between his law firm and one of the parties to the arbitration.

The arbitrator was sued in Paris for damages.

Arbitration Exception?

The first issue was whether the European law of jurisdiction applied. The Brussels Ibis Regulation includes an “arbitration exception”. Did a claim seeking to establish the liability of the arbitrator fall within it?

The Paris court held that it did not. It ruled that the claim was based on the “arbitration contract” existing between the parties and the arbitrators, and that this contract was distinct from the arbitration. Thus, the Brussels Ibis Regulation applied.

This is the most unconvincing part of the judgment. The proposition that the arbitration contract is unrelated to arbitration is really surprising. Aren’t the obligation of impartiality and independance, and the related disclosure obligation, found in arbitration legislations?

More generally, the distinction established by the European Court of Justice has been between the substantive rights that the arbitration proceedings are meant to settle, and proceedings ancillary to arbitration. So, in Van Uden for instance, the Luxembourg Court explained that proceedings relating to “the appointment or dismissal of arbitrators” fell within the exclusion. Could it really be that proceedings seeking damages for wrongful appointment of arbitrators do not?

Contractual Claim?

Let’s admit, for the sake of the argument, that the Brussels I bis Regulation applied. Was it, then, a contractual claim? The Paris court held so on the basis of the existence of an “arbitration contract” between the arbitrator and the plaintiff.

The existence of such a contract, however, is disputed. It is more or less convincing depending on the particulars of the case, that I do not know. If the parties and the arbitrators had entered into Terms of reference, which should be the case in ICC arbitration, the characterisation made sense.

In other cases, however, the existence of a contractual relationship is less clear, in particular as between a party appointed arbitrator and the party who did not appoint him.

Place of Provision of the Service

If the claim was contractual, the relevant contract was quite clearly a provision of service in the meaning of Article 7(1)(b) of the Brussels I bis Regulation. It was therefore necessary to determine the place of the provision of the service.

The court first considered the provisions of the “contract” (it is unclear which contract: the arbitration agreement? the terms of reference?), which stated that “the place of the arbitration is Paris” and “The arbitral award and procedural orders are deemed to be rendered at the place of arbitration, that is Paris”. The court held, however, that these provisions did not reveal the choice of the parties to locate the provision of the services in Paris.

The court then assessed where the arbitrator had actually provided his intellectual service. The court found that it had been provided in Germany. The hearings had been held there, and the deliberations are taken place there. The court declined jurisdiction.

What is Next?

So it seems that the aggrieved party should now sue the arbitrator in Germany.

But will German courts also consider that the claims fall within the scope of the Brussels I bis Regulation and, if not, would they retain jurisdiction?

As announced earlier on this blog, the EAPIL Founding Conference will eventually take place on 2, 3 and 4 June 2022 in Aarhus, hosted by the Aarhus University.

Registration for the conference is now open. See here for further details.

A general presentation of the conference can be found here. See here for the full program as well as for details on venue, travel and accommodation.

For more information, please write an e-mail to Morten Midtgaard Fogt at mmf@law.au.dk.

On 15 and 16 April 2021, the GLaw Research Network (Maastricht University) will host an online workshop on Article 47 of the EU Charter and effective judicial protection: The Court of Justice’s perspective.

Senior and junior academics specialising in EU law will discuss various aspects of the impact of Article 47 Charter on the EU constitutional order. On the first day of the workshop, the presentations will cover constitutional aspects of Article 47 of the EU Charter. On the second day, the speakers will discuss the application of this provision in selected EU policy areas.

The principle of effective judicial protection is one of the cornerstones of the EU legal order. Mentioned by the Court of Justice for the first time in the 1980s, and originally emanating from Articles 6 and 13 ECHR, this principle had a pivotal role in ensuring access to adequate remedies to protect the rights deriving from Union law. Since its inception, this principle was linked also to the protection of the rule of law, one of the founding values of the EU. Effective judicial protection is therefore one of the facets of the EU constitutional identity.

Following the entry into force of Lisbon Treaty, this principle has been constitutionalised in Article 19 TEU and Article 47 of the EU Charter of Fundamental Rights, the latter laying down the right to an effective remedy and to a fair trial. Currently, Article 47 of the EU Charter is the most invoked EU Charter provision before national and EU courts. Article 47 Charter has also been at the centre of recent EU jurisprudence on the protection of the rule of law in the EU. This case law has confirmed the pivotal role of effective judicial protection in the EU architecture. It is not an overstatement that Article 47 is almost ‘omnipresent’ in the EU judgments as a result of a growing number of preliminary rulings and direct actions regarding the application of that provision. Novel questions thus arise regarding the impact of Article 47 Charter on the EU constitutional order, which require scientific observation and reflection. 

The full program and details on registration are available here.

The new issue of the Revue Critique de Droit International Privé (1/2021) is out.

It contains four articles and numerous case notes. The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Dans le désordre planétaire…).

In the first article, Didier Boden (University of Paris 1 Panthéon-Sorbonne) proposes to rethink the private international law lexicon in order to achieve a uniform analysis of the coordination between legal orders (« Erga- » : Contribution sémantique et lexicale à une étude unifiée des relations entre ordres juridiques).

Private international law and the other sets of rules of a legal order which touch upon its relations with other legal orders are poorly named and poorly defined. This article proposes to remedy that lexical impropriety and that semantic deficiency by presenting a new collection of names and a new collection of definitions.

In the second article, Frederick T. Davis (Columbia Law School) and Charlotte Gunka (Lawyer at the New York bar) discusse the possibilities offered by the American CLOUD Act in terms of criminal and digital sovereignty, under a European and global perspective (Perquisitionner les nuages – CLOUD Act, souveraineté européenne et accès à la preuve dans l’espace pénal numérique).

At a time when the Covid-19 crisis has raised awareness over the urgent need for European Member States to enhance their national sovereignty through the European Union, it is essential to go back to the possibilities offered by the U.S. CLOUD Act with regard to criminal and digital sovereignty. The CLOUD Act proposes a reform of current mutual legal assistance mechanisms by establishing access to digital evidence as the benchmark authorizing computer searches outside state borders, regardless of the location of the relevant data. Although this benchmark allows for more extensive extraterritorial application of U.S. criminal proceedings, an analysis of European regulations and legislation currently in force in France and the United Kingdom confirms that the European approach is not so different from the one introduced by the U.S. government. The emergence of the computer world and the acceleration of new technologies have created a “criminal digital space”, ephemeral and borderless, which requires a fundamental transformation of criminal procedures allowing for faster and more efficient international cooperation against transnational crime. This should give an opportunity to Europe, in particular through its new European Public Prosecutor’s Office, to assert its digital sovereignty through the individual fundamental rights that it continues to promote without undermining the security and strategic interests of its Member States.

In the third article, Vincent Richard (MPI Luxembourg) also deals with (digital) evidence in international dispute resolution, but within the European cooperation in civil matters. The author analyses the recast of the “Taking of Evidence” Regulation (La refonte du règlement sur l’obtention des preuves en matière civile).

Regulation (EU) n°2020/1783 adopted on 25 november 2020 recasts Regulation (EC) n° 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. Requests for the taking of evidence between Member States shall be transmitted through a decentralised IT system such as e-CODEX. The recast also aims at enhancing the attractiveness of the Regulation by broadening the concept of court and by encouraging direct taking of evidence by the requesting court.

In the fourth article, Thibaut Fleury Graff (University of Rennes) addresses the topical issue of international migration under a legal perspective (Droit des étrangers et des migrations : entre protection de l’ordre public et définitions de la liberté).

 The full table of contents is available here.

Laura Carpaneto, Stefano Dominelli and Chiara Enrica Tuo (all University of Genova) have edited Brussels I bis Regulation and Special Rules – Opportunities to Enhance Judicial Cooperation. The book, which has just been published by Aracne, may be accessed for free here in its entirety.

Contributors include, in addition to the editors themselves, Jean-Sylvestre Bergé, Pierangelo Celle, Silvana Çinari, Chirouette Elmasry, Rosario Espinosa Calabuig, Paula-Carmel Ettori, Giulio Cesare Giorgini, Aida Gugi Bushati, Flutura Kola Tafaj, Rosa Lapiedra Alcami, Guillermo Palao Moreno, Francesco Pesce, Ilaria Queirolo, Isabel Reig Fabado and Jessica Sanchez.

The blurb reads as follows.

The volume collects the results of the EU co-funded Project Enhancing Enforcement under Brussels Ia – EN2BRIa, European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018 JUST 831598. It critically and thoroughly addresses art. 67 Brussels I bis Regulation, which determines the relationships between the Regulation and other EU law instruments governing jurisdiction or the free movement of decisions. Also tackling “indirect” relevant relationships between international civil procedure and material law, the Volume rationalizes the main criticalities examined, and offers Principles, Recommendations and Guidelines to increase capacity of practitioners to address such issues, to improve awareness of stakeholders, and to support uniform application of EU law.

For further information see here.

Andrea Bonomi and Patrick Wautelet have authored an article-by-article commentary, in French, of Regulations 2016/1103 and 2016/1104 on the property regimes of international couples, with the assistance of Ilaria Pretelli, Eva Lein, Guillaume Kessler, Sara Migliorini and Konstantinos Rokas.

The book has just been published by Larcier under the title Le droit européen des relations patrimoniales de couple – Commentaire des Règlements (UE) 2016/1103 et 2016/1104.

The authors have kindly provided the following presentation in English.

Professionals in the area of family law and estate planning are increasingly confronted with cross-border couples and families whose assets may be scattered in different countries. The determination of the law governing the family assets has often become an indispensable step in order to advise spouses or partners about the financial implications of their union, the consequences of a change of residence, or to share out their property in the case of divorce or death. In all these scenarios, it is often necessary to assess the validity and effects of a property agreement entered into in a foreign jurisdiction. And in the case of disputes, the determination of the competent court and of the cross-border effects of a court decision will be crucial. All these questions are made more complex by the fact that most relationships extend over several years, if not decades, by the possible involvement of third parties, and by the connection with other areas of the law.

The European regulations on matrimonial property and on the property consequences of registered partnerships intend to provide answers to some of these problems and to ensure more legal certainty. However, the interpretation of these complex instruments also raises a great number of new and intriguing questions.

This new commentary provides for a very detailed and fine-tuned analysis of the two regulations. The textual and systematic interpretation rests on a solid comparative law background and is enriched by numerous practical examples. Drafted by an international team of experts, it offers a genuinely European reading of the new instruments, taking into account their multiple connections with the other EU regulations in the area of civil justice, notably the Succession Regulation and the Brussels II-terRegulation, as well as the guidance provided by the Court of Justice of the European Union.

This book intends to serve as reference for researchers dealing with two major regulations adopted by the EU. It also aims to stir up the conversation among researchers and policy makers interested in private international law and the economic aspects of family law by pointing to the advantages of the European instruments, while not ignoring the shortcomings and imperfections of two regulations which will guide cross-border activity in family law in the years to come.

For more information, see here.

Which conflict-of-laws rule is the most appropriate for the blockchain? This fundamental question is part of two parallel targeted consultation papers issued as recently by the European Commission.

One of the consultations covers the Settlement Finality Directive (SFD), while the other concerns the Financial Collateral Directive (FCD). Both regulate the “plumbing” of financial markets (the so-called market infrastructures) and contain conflict-of-laws provisions (see Article 9(2) SFD and Article 9 FCD). Yet, the infrastructures and transactions they target are conventional ones. The Settlement Finality Directive deals with payment and securities settlement systems, in which traditional cash (e.g. euros) and conventional financial instruments (e.g. shares and bonds) are traded. The Financial Collateral Directive concerns collateral provided in either cash or financial instruments.

The question posed by the European Commission is whether these texts also can (and must) be applied to modern digital assets, like cryptocurrencies (e.g. Bitcoin) and tokens, and whether they need to be adapted to them through reform.  Since both directives also contain conflict-of-laws provisions, the relationship of crypto-assets to these regulations raises typical conflict-of-laws questions as well.

Take for example Article 9(2) SFD. Its text speaks about securities “legally recorded on a register, account or centralised deposit system” and submits them to the law of the Member State where this register, account or system is “located”. This raises the following issues: 1. whether a blockchain network is a “register” in this sense; 2. whether crypto assets can be said to be “legally” recorded, despite the lacking legal protections of such assets under most private laws; and 3. where blockchains, which may be distributed potentially on a planetary scale, are located.

Even more doubts are caused by Article 9 FCD. It submits financial collateral arrangements to the law of the country “in which the relevant account is maintained”. Blockchain networks basically operate without any intermediaries and do not feature “accounts” in the proper sense of the word. Even if they would, it would be hard to say where the account is “maintained” given the distributed nature of a blockchain network.

These issues have a certain sense of urgency due to the fact that some EU and EEA Member States have already pressed ahead and created specific rules for crypto assets.

France for instance allows for securities (such as bonds and shares) traded over the counter (OTC) to be issued on blockchain networks (described as “distributed electronic registers” (dispositif d’enregistrement électronique partagé – DEEP)). The condition is that the securities are issued in the French territory and governed by French law, see Art. L211-3 French Code monétaire et financier. The transfer and pledge of such crypto financial instruments is equally governed by French law.

Germany has drafted a bill to allow the issuance of bonds (including covered bonds) and investment participations on the blockchain. Section 32 of the bill provides for the applicability of the law of the country in which the administrator of the register is supervised.

Liechtenstein, an EEA member and as such also bound by the SFD and the FCD, has adopted an Act on Token and TT (Trustworthy Technology) Services Providers, which, by any standard, is one of the most comprehensive and innovative blockchain regulations in the world. The Act is appliable where: 1. the TT provider is headquartered or residing in the Principality; or 2. where the parties expressly chose its provisions, see its Art. 3(2).

These are three different approaches to the conflict-of-laws issues raised with regard to different types of crypto assets. But are those national laws compatible with the SFD and the FCD? Do the SFD and FCD apply at all to crypto assets? If so, are their provisions, including those on the conflict of laws, compatible with the nature of the blockchain? And if they do not apply, should they be extended to them? Some legal consistency and harmony would surely be welcome. The question is if and when the EU legislator will provide it.

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).

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).

In September 2020, the First President of the French supreme court for private and criminal matters (Cour de Cassation), Ms Chantal Arens, presented the main aspects of the Court’s international strategy for 2020-2022.

The report of this presentation (available here, in French) may be of interest to practitioners and academics dealing with private international law (PIL) issues connected to France.

Here are the key elements of the report and some personal comments.

This “international action plan” of the Cour de Cassation is the result of discussion within the Court and exchanges with institutional partners worldwide. It is based on three main objectives: international reputation, promotion of fundamental values and judicial cooperation.

International Reputation

The first objective is for the Cour de Cassation to gain an international recognition of its qualities as a judicial institution, in particular regarding its working methods (see here) and caselaw. This ambition is also part of a broader goal of promoting the civil law tradition and the French-speaking community worldwide.

Against this backdrop, the website of the Court will be accessible in foreign languages and its landmark judgements will be translated into various languages and accessible online (see, for now, the very few documents available in English). It will be a great advantage for non-French-speaking PIL experts to be able to access the French “living law” in civil and commercial matters. In this respect, the international commercial chamber at the Paris Court of Appeal (ICCP-CA) established in 2018 may surely be seen as a pioneer within the French legal landscape, since its judgements are translated into English (see here).

Fundamental Values

The second objective is the promotion of the fundamental values and principles of the French judicial system (i.e. independence of justice, legal certainty, “dialogue” between judges, fundamental freedoms). However, these are not specific to France since they are inherent to the European legal order, within the Council of Europe and the European Union.

Regarding transnational judicial dialogue, it can be noticed that the Cour de Cassation is more and more likely to refer to European case law in its own decisions (for a recent example reported on this blog, see here). It may also be noted that the Court submitted to the ECtHR, in October 2018, the first request under Protocol No. 16 in the field of international family law. A PIL issue was at stake, namely the compliance with article 8 of the ECHR of the non-recognition of a foreign birth certificate of a child born abroad as the result of a surrogacy – prohibited in France – (for the request see here and for the advisory opinion see here).

Within the EU legal order, however, one could expect the Cour de Cassation to reinforce its involvement by referring to the CJEU requests of interpretation of EU law (and EU PIL in particular). With respect to judicial Cooperation in civil matters, only two cases submitted by the French Court are currently pending before the Court of justice (and three altogether for France in this field; two were reported here and here), whereas, at the same time, around fifteen preliminary questions from German Courts are pending (following a quick research via the curia case-law search form). A recent judgment of the Cour de Cassation on the scopes of Brussels II bis Regulation and 1996 Hague Convention (reported here) may be seen as an illustration of the reluctance of the French Supreme Court to submit preliminary questions to the CJEU, despite the existence of serious doubts on the interpretation of EU (PIL) law (and its duty to do so pursuant to article 267, §3, TFEU).

International Judicial Cooperation

The third objective is to learn from other legal systems in order to enrich French law. It implies, in particular, the development of transnational exchanges on common legal issues. In this context, international judicial cooperation is crucial.

The Cour de Cassation is a member of various European and international networks such as the Association of the French-speaking Supreme Courts (AHJUCAF) and the network of The Presidents of the Supreme Judicial Courts of the Member States of the European Union.

The latter network serves as a forum for exchanges between the European institutions and the national Supreme Courts.

A common portal of case law is also accessible to facilitate the search (and the translation) of national case law within the legal orders of the EU Member States. It should not be confused with the Judicial Network of the European Union (Réseau judiciaire de l’Union européenne, “RJUE”) created more recently on the initiative of the President of the CJUE and the Presidents of the Constitutional and Supreme Courts of the Member States in 2017.

It also provides for a collection of decisions delivered by national courts and tribunals, which are of particular interest for EU law. The creation of such online compendiums of transnational case law is surely of great interest for PIL experts and more efforts (and funds) should be put in their developments (see, by comparison, the unalex and the Lynxlex databases).

 

*Thanks to my colleague Lukas Rass-Masson (University of Toulouse), a recorded conference on the international strategy of the French Court of Cassation, with Ms First President Chantal Arens, is available here.

Ilaria Pretelli (Swiss Institute of Comparative Law, University of Urbino) has posted Protecting Digital Platform Users by Means of Private International Law on SSRN.

The present article offers perspectives on the possible adaptation of traditional connecting factors to the digital space. It analyses cases that pit platform users against each other and cases that pit platform users against the digital platform itself. For the first set of cases, reliable guidance is offered by the principle of effectiveness. The enforcement of court decisions in cyberspace is often necessary and also plainly sufficient to render justice. Enhanced protection of weaker parties is advocated, both in tortious (favor laesi) and contractual liability (protection of the weaker party), in line with the most recent achievements in human rights due diligence. Protection clauses leading to destination-based labour standards would be a welcome step forward. Protection of users also offers guidance for the shaping of private international law rules governing disputes between users and the platform.

The paper is forthcoming in Cuadernos de Derecho Transnacional.