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Thank you Pailler Ludovic for signalling the French Supreme Court’s judgment in 18-24.261  A and X v et al B and Y et al. The Court annulled the Court of Appeal’s (Versailles) decision which had accepted for recognition and enforcement a Cameroonian judgment in a Cameroonian-French adoption case.

Legal basis for the refusal is Article 34 of the relevant 1974 FR- Cam Treaty. Specically, the classic ordre public international hurdle to recognition and enforcement: ‘Elle ne contient rien de contraire à l’ordre public de l’Etat où elle est invoquée ou aux principes de droit public applicables dans cet Etat.’

The Supreme Court held that absence of Agrément does not infringe French ordre public international (Agrément is required by French adoption law and needs to be sought by the prospective adoptant). Yet fraus (fraude à la loi) might and needs to be properly examined, which the Court of Appeal had failed to do. Suggestion is made in the case that the adoption was engineered with the sole purpose of facilitating the French rights of residence of the adopting father’s partner, who is the mother of the children.

The case emphasises the relevance of fraus omnia corrumpit. Whether of course fraus will be proven in the new proceedings before the Paris Court of Appeal remains to be seen.

Geert.

In Hong Ziyun v Chan Kwan Ming [2019] HKCFI 2125, Chan J at the end of August summed up the Hong Kong approach (as it is that of the common law) to consolidation of jurisdiction at 31: ‘the approach of the courts should be to favor resolution of all disputes associated with a transaction in one jurisdiction.’ That is the so-called one stop shop or one stop principle (whether or not hyphenated).

As Herbert Smith Freehills note, in a host of related loan documents only one of the documents contained an express jurisdiction clause (in favour of the court of Xiamen in Mainland China). The defendants applied for and obtained a stay of proceedings in Hong Kong in favour of Mainland China. HSF summarise the reasoning (the judgment itself is not too long and logically structured) helpfully as follows:

1. When there is no express jurisdiction clause, the applicable law is that which has the “closest and most real connection” with the transaction.
2. Most of the defendants’ business was in Mainland China. They also spent most of their time in Mainland China. On the evidence presented, the court was unable to place significant reliance on the permanent “residence” of any of the defendants in Hong Kong as showing any real or closest connection with Hong Kong.
3. The location of the debt, currency, and place of performance of the loans as well as the execution of and governing law clause in the SA all had a strong connection with Mainland China.

Geert.