Droit international général

The media have been reporting on a considerable class action lawsuit, underway in the English courts, in the Corporate Social Responsibility /mass torts category.

The class action case was filed against Anglo-Australian company BHP Billiton on behalf of 240,000 individuals, 24 municipal governments, 11,000 businesses, a Catholic archdiocese and about 200 members of the Krenak indigenous community. It concerns victims of the Samarco dam collapse in Mariana three years ago.

I am reporting the case simply to ensure complete overview of the CSR /jurisdiction /applicable law issues reported on the blog. For as I am co-counsel acting for the applicants, I am not in a position to comment on the case until and if legal analysis will be in the public domain.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

Another case in my backlog for some time, and thank you Sarah McKibbing for flagging, some time back, [2017] VSC 810 Liu v Ma,

A recent VSC decision, Liu v Ma, held that nationality is sufficient to found international jurisdiction for the recognition of a Chinese judgment at common law. A highly doubtful conclusion… See Liu v Ma here: https://t.co/7cMMtjnYQY #conflictoflaws #privateinternationallaw

At 6 Mukhtar AJS notes ‘There is sufficient authority for the view that Australian Courts will enforce a foreign judgment where the defendant is a subject of the foreign country in which the judgment was obtained.  That view has its critics (footnote omitted, GAVC) and it may have its difficulties especially if the citizenship is inactive.  Nevertheless, it is founded on a line of English authority exemplified by the statement of Buckley LJ in Emanuel v Symon‘.

Many would argue that at the very jurisdictional level nationality as a ground is parochial /exorbitant. At the same time that at the level of recognition, one should show restraint in refusing to recognise judgments based on such flimsy jurisdictional grounds.

For those wanting to dig deeper, prof Andrew Dickinson has critical review of the relevant case-law in (2018) 134(July) LQR 426-449 (‘Schibsby v Westenholz and the recognition and enforcement of judgments in England’).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.4. for a discussion of ‘parochial’ jurisdiction in the EU context).

Issue 14. 3 of the Journal of Private International Law has just been released. It contains the following articles:

Maria Caterina Baruffi, A child-friendly area of freedom, security and justice: work in progress in international child abduction cases, pp. 385-420

The protection of children’s rights constitutes the subject matter of various private international law instruments within both the international and the EU frameworks. The paper focuses on their relevant provisions regarding child abduction, which pose a number of problematic issues as to their interpretation and practical application. Against the existing background, future legislative developments are assessed with a view to proposing a provisional evaluation as to their effectiveness and actual improvement.

Charlotte Mol & Thalia Kruger, International child abduction and the best interests of the child: an analysis of judicial reasoning in two jurisdictions, pp. 421-454

The Hague Child Abduction Convention aims to secure the speedy return of abducted children. Judges can use a limited number of grounds for refusal. They may not make an in-depth assessment of the merits of any custody issue. The Convention on the Rights of the Child provides that the best interests of the child shall be a primary consideration in all actions concerning children. This article analyses the use that judges make in their decisions on the concept of “the best interests of the child”. For this purpose it scrutinizes the case law on international child abduction of the Netherlands and England and Wales. By using software designed for qualitative research, the authors are able to make an objective and systematic analysis. This article confirms the hypothesis that the concept of the best interests of the child is often used without substance, and sometimes only to endorse conclusions that would have possibly been reached in any event.

Hayk Kupelyants, Recognition and enforcement of foreign judgments in the absence of the debtor and his assets within the jurisdiction: reversing the burden of proof, pp. 455-475

The article examines the recognition and enforcement of foreign judgments in the absence of the defendant and his assets within the jurisdiction. While at first sight a seemingly futile tactic, it opens a whole array of potential benefits to the judgment creditor. Under English law, to enforce a foreign judgment in the absence of the debtor and his assets, the judgment creditor needs to establish a reasonable prospect of legitimate benefit arising from the enforcement. The article challenges this view and argues that the position in English law is needlessly onerous: the burden should be on the judgment debtor to establish that the enforcement of the foreign judgment is an abuse of process. The paper also draws analogies to other legal regimes, both in the UK and outside.

Aleksandrs Fillers, Implications of Article 81(1) TFEU’s recognition clause for EU conflict of laws rules, pp. 476-499

The last decades have been marked by the extensive Europeanisation of conflict of laws rules. Traditionally, national conflict of laws rules in Continental Europe were aimed at determining the closest connection between the legal relation and the putatively applicable law. This universal objective was often combined with more local objectives: the achievement of certain substantive policies of the forum through conflictual mechanisms. The Europeanisation of conflict of laws rules poses a legitimate question: do EU conflict of laws rules pursue identical or similar policies as national conflict of laws rules? The issue may be approached using different methods. One approach is inductive – the analysis of conflict of laws rules found in EU secondary law and their comparison with national conflict of laws rules. Another approach is deductive – the analysis of the Treaty basis for EU conflict of laws rules, in order to identify whether this constitutional framework prescribes certain policies that may be different from those used in national conflict of laws rules. This contribution is devoted to the second method and analyses whether the recognition clause found in Article 81 TFEU has any meaningful influence on the nature and scope of EU conflict of law rules.

Mukarrum Ahmed, The nature and enforcement of choice of law agreements, pp. 500-531

This article seeks to examine the fundamental juridical nature, classification and enforcement of choice of law agreements in international commercial contracts. At the outset, it will be observed that the predominance of jurisdictional disputes in international civil and commercial litigation has pushed choice of law issues to the periphery. The inherent dialectic between the substantive law paradigm and the internationalist paradigm of party autonomy will be harnessed to provide us with the necessary analytical framework to examine the various conceptions of such agreements and aid us in determining the most appropriate classification of a choice of law agreement. A more integrated and sophisticated understanding of the emerging transnationalist paradigm of party autonomy will guide us towards a conception of choice of law agreements as contracts, albeit contracts that do not give rise to promises inter partes. This coherent understanding of both the law of contract and choice of law has significant ramifications for the enforcement of choice of law agreements.

Diletta Danieli, Mixed contracts under the Brussels Ia Regulation: searching for a “jurisdictional identity”, pp. 532-548

This paper addresses the debated application of the jurisdictional regime in contractual matters provided in the Brussels Ia Regulation to cases involving mixed contracts, which comprise elements of a sale of goods, as well as a provision of services, and are not expressly regulated by that legal instrument. The starting point of the assessment is a recent Italian Supreme Court ruling, which is further compared with the relevant CJEU and national case law. Then, some broader considerations are proposed with regard to the actual desirability of specific provisions concerning these types of contracts within the Brussels system.

Torsten Bjørn Larsen, The extent of jurisdiction under the forum delicti rule in European trademark litigation, pp. 549-561

This contribution compares the extent of jurisdiction of two different forum delicti rules namely that under Article 7(2) of the Brussels Ia Regulation, which applies in national trademark litigation, with that under Article 125(5) of the EU Trade Mark Regulation, which applies in EU trade mark litigation. The former has been interpreted to cover both the place of acting and the place of effect and it seems likely that both places have limited jurisdiction. The latter covers only the place of acting which also seems likely to have limited jurisdiction.

Looking at my back queue for blog postings, [2018] EWHC 2186 (Ch) Videology is one I do wish to bring to the attention of my readers. Snowden J refused to recognise proceedings under Chapter 11 of the US Bankruptcy Code (“Chapter 11”) in relation to Videology Ltd as a foreign main proceeding under Article 17 of the UNCITRAL Model Law on Cross-Border Insolvency (“the Model Law”) as incorporated into English law in Schedule 1 to the Cross-Border Insolvency Regulations 2006 (the “CBIR”). He did so because he was not satisfied that the centre of main interests (“COMI”) of the Company was in the US where the Chapter 11 proceedings are taking place. He did, however, grant recognition of the Chapter 11 proceedings as a foreign non-main proceeding.

The Judgment is a master class on COMI determination.  Of note are

• at 28 the rejection of, for so long as the UK remains a party to the Recast EIR,  any different approach in relation to the concept of COMI under the CBIR/Model Law and the Recast EIR;
• the emphasis on a basket of criteria required to displace the presumption of COMI in place of the registered office;
• at 42 ff the rejection of a narrow focus on, or attachment of overriding importance to, the location in which the directors and senior management act;
• Snowden J’s rejection at 46 ff of the Head Office approach as being determinant under EU law (see also Handbook heading 5.6.1.2.4); and
• the factors referred to eventually to uphold the presumption: at 72: ‘In addition to being the place of its registered office, the UK is where the Company’s trading premises and staff are located, where its customer and creditor relationships are established, where it administers its relations with its trade creditors on a day-to-day basis using those premises and local staff, and where its main assets (the receivables and cash at bank) are located. All of those factors will be visible and immediately ascertainable by the customers, and in particular by the trade creditors, of the Company. The UK is also, importantly, where representations were made to the Company’s main finance creditor that its COMI was situated.’

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1 (specifically also 5.6.1.2.4 for the Head Office discussion).

The most recent issue of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law; Vol. 117 [2018], No. 3) features the following contributions:

Die Leistungskraft der österreichischen Privatstiftung für Familienunternehmen

Susanne Kalss*

ZVglRWiss 117 (2018) 221–245

The family can be an essential factor for entrepreneurs. However, family can also cause conflicts, as different roles and interests collide. There is no ideal legal form for a family business. Rather, a legal solution based on the specific needs has to be found for each individual entrepreneur. It should be kept in mind that temporary arrangements tailored to specific situations often fail and might not be able to respond to changing market circumstances. Private foundations are suitable to ensure that the assets will not be split up in case of succession and can therefore provide a legal basis to assign the foundation benefits to the family. By establishing a private foundation, a family-owned company can substantially reduce the influence of family members on management decisions in favor of an independent foundation board. This in turn reduces significantly the attractiveness of this chosen structure.

Liechtenstein Trust Enterprises as Instruments for Corporate Structuring

Hanno Merkt*

ZVglRWiss 117 (2018) 246–259

Although trusts are usually associated with intra-family wealth transfers, the importance of trusts in capital markets is rising steadily. Due to their flexibility and the high degree of privacy they provide, the Liechtenstein trust enterprise (trust reg.) can be a suitable instrument for corporate structuring and planning. Nevertheless, there remain some open questions with regard to the liability of the beneficiaries and settlors, especially if they issue continuous instructions to the trustee, or if one of them makes use of their power of dismissal against the trust management for the sole purpose of exercising influence on the trust enterprise management. In order to enhance the attractiveness of trust law for corporate structuring, an amendment of the law, that addresses the mentioned unsettled questions might be desirable.

A German View on Trusts: Selected Aspects of Trusts and their Possible Impact on the Recognition of Trusts by German Courts under Civil Law

Jonas Hermann*

ZVglRWiss 117 (2018) 260–282

When it comes to the recognition of trusts by German courts under civil law, there are several uncertainties and obstacles to overcome. The more the features of a trust are aligned with features that can also be found in German entities and other legal structures, the less risks in regard to aspects of public policy will occur. Unusual clauses (from a German point of view), like spendthrift clauses or anti-duress clauses will increase the likelyhood that a trust and its legal consequences will not be recognised.

New Trust Legislation in Civil Law Jurisdictions

Paolo Panico*

ZVglRWiss 117 (2018) 283–302

Outside the common law world, there are different approaches to replicate the functions of the English Trust or to grant them recognition in the respective jurisdiction. In this context, the ratification of the Hague Trust Convention is of particular interest. Other jurisdictions – such as Liechtenstein – have introduced trusts and trust-like arrangements into their legal system by way of special legislation. One of the main difficulties with trusts in civil law and mixed jurisdictions lies in the peculiar nature of beneficial interests, which cannot easily be categorized in either rights in rem or in personam. Scotland, for example, addresses this problem with the dual patrimony theory.

Compelling Trustees to Exercise Their Discretion: A Principle of Non-Intervention?

Tang Hang Wu*

ZVglRWiss 117 (2018) 303–317

Due to their inherent flexibility, discretionary trusts are a very popular way for wealth structuring. The present paper deals with the judicial control of a trustee’s discretion and addresses the limits of the so-called principle of non-interference. It can be concluded that the courts should intervene whenever a trustee is using his discretion in an abusive way, including situations where the trustee is misinformed, acts in mala fide or with improper motives, as well as when he fails to exercise his discretion at all.

Reforms in Hong Kong Trust Law and their Impact

Lusina Ho*

ZVglRWiss 117 (2018) 318–326

Although Hong Kong has never been an typical offshore jurisdiction, i. e. a financial centre with only a relatively small domestic economy, it has established itself as a centre for succession and asset planning by means of trusts and other legal structures. Recent developments and modernizations of Hong Kong trust law intend to attract offshore trust business to Hong Kong and to bring the Trustee Ordinance in line with modern trust statutes in onshore common law jurisdictions.

Trustee Liability for Breach of Trust in the Common Law World

Oonagh B. Breen*

ZVglRWiss 117 (2018) 327–348

When is a trustee liable? This article reviews trustee liability for breach of trust in the common law system. In Part I the author gives an introduction into the traditional trustee liability, continuing with general measures in Part II, before exploring the 2013 UK Supreme Court judgment in Futter v HMRC and its implications for trustees. Furthermore the paper considers the issue of limited or excluded liability.

Trustee Liability in Selected Civil Law Jurisdictions

Stephan Ochsner*

ZVglRWiss 117 (2018) 349–359

Since entry into force of the Hague Trust Convention on 1 July 2007, the trust has been officially recognised in Switzerland. But there is no Swiss legislation or case law dealing with the the liability of trustees, even when the trustee is based in Switzerland. A trustee runs the risk of aiding and abetting tax evasion if he or she knows or should know that the assets endowed have not been taxed. Beyond the domain of taxation, the liability risk for trustees is continuously increasing. The general increase in litigiousness in the financial services sector can probably be seen as a reason. Trustees are therefore advised to know their risks and to take measures to mitigate these risks.

Liechtenstein Trusts in International Corporate Structuring

Johanna Niegel*

ZVglRWiss 117 (2018) 360–383

Under Liechtenstein law, there are two types of trust, which can be used for corporate structuring: (a) the trust settlement as known in Anglo-Saxon law and (b) the trust enterprise (trust reg.). While a trust settlement does not enjoy legal personality, the trust enterprise can be set up with or without legal personality and fulfil various purposes. Both these types of Liechtenstein trust fall into the general category of fiduciary relationships, as they both contain an element of trust. Trust enterprises can be structured like a corporation or similar to a foundation. On the other hand, a classic example of a trust settlement would be the family trust whose objects and purposes can be compared to those of a family foundation.

The Use of Trusts for Corporate Structuring in Common Law Jurisdictions

Marcus Staff*

ZVglRWiss 117 (2018) 384–393

In this paper a typical instance is identified in which a trust is used to hold shares in an “orphan” company for the benefit of the company’s bondholders; a use to which it has been put precisely because the persons with the right to execute or enforce the trust have no valuable interest in exercising their rights. That instance is then used as an introduction to discuss the differences between execution and enforcement of a trust, including (i) trusts for persons and (ii) trusts for abstract and impersonal objects for public purposes, namely charitable trusts. There is then a description of deliberately designed trust-like arrangements for private purposes (provided for by statute in various jurisdictions) which employ representative enforcers, and problems are mentioned that may arise with the enforcement and execution of such arrangements.

Modernes Stiftungsrecht im Lichte grenzüberschreitender Stiftungstätigkeit

Alexandra Butterstein*

ZVglRWiss 117 (2018) 394–404

Globalisation is allowing „worlds to merge“ and at the same time is harmonizing the legal systems of the European states. Due to these adjustment processes, cross-border structuring options and associated issues of conflicts of law have become increasingly important in the field of asset and estate structuring. The cross-border dimension of a foundation (Stiftung) becomes particularly evident when considering the possible geographical distribution of its assets, its opportunities to participate in companies operating globally and its associated income opportunities. Founders can strategically integrate these strengths into “their“ foundation purpose. A foundation’s potential for cross-border structuring is, however, contingent up on the foundation’s recognition as a legal entity, including its identity preserving characteristics, beyond the jurisdiction in which the foundation was established.

* Univ.-Prof. Dr. Susanne Kalss, LL.M. (Florenz), Institut für Zivil- und Unternehmensrecht, Wirtschaftsuniversität Wien.

* Prof. Dr. Hanno Merkt, LL.M. (Univ. of Chicago) Direktor des Instituts für Ausländisches und Internationales Privatrecht der Universität Freiburg, Richter am OLG Karlsruhe.

* Dr. Jonas Hermann, Rechtsanwalt (D) und Head of Legal and Compliance Central Europe, BASF Österreich GmbH, Wien.

* Dr. Paolo Panico is Chairman and Managing Director of Private Trustees SA, Luxembourg, and Adjunct Professor, University of Luxembourg.

* Prof. Dr. Hang Wu Tang, LL.B. (NUS), LL.M., Ph.D. (Cantab), Professor and Director, Centre for Cross-Border Commercial Law in Asia, School of Law, Singapore Management University, Singapore.

* Prof. Lusina Ho, B.A. (Oxon), B.C.L., Harold Hsiao-Wo Lee Professor in Trust and Equity, Faculty of Law, University of Hong Kong, Hong Kong. Research for this article was funded by the RGC General Research Fund 2017–2018 (project number 17610217).

* Prof. Dr. Oonagh Breen, B.C.L. (NUI), LL.M. (NUI), LL.M. (Yale), J.S.D. (Yale), B.L., Professor, University College Dublin.

* Dr. Stephan Ochsner, LL.M., Rechtsanwalt (CH), europäisch niedergelassener Rechtsanwalt (FL) und Chairman des Ochsner Consulting Establishment, Vaduz.

* Dr. Johanna Niegel, LLM (Columbia University), TEP, Allgemeines Treuunternehmen (ATU), Vaduz, Liechtenstein.

* Marcus Staff, B.A. (York), Barrister, XXIV Old Buildings, Lincoln’s Inn, London.

* Ass.-Prof. Dr. Alexandra Butterstein, LL.M., Rechtsanwältin (D) und Assistenzprofessorin am Lehrstuhl für Gesellschafts-, Stiftungs- und Trustrecht der Universität Liechtenstein.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

D. Martiny: Virtual currencies, particularly Bitcoins, in private international law and in the international law of civil procedure

Virtual currencies like Bitcoins are substitute currencies that are not issued by a state and that are limited in supply. Whereas the discussion in substantive law on the classification of virtual currencies and Distributed Ledger Technology is in full progress, there is no established approach in private international law as to blockchain, smart contracts or tokens. Also, Initial Coin Offerings (ICOs) have to be classified. An examination of these digital techniques leads to a classification as a contractual obligation. Contracts which have as their object virtual currency units are, in general, subject to the Rome I Regulation. Currency is mainly a matter of the law governing the contract. Domestic finance market restrictions under the German Banking Act (Kreditwesengesetz – KWG) can intervene as overriding mandatory rules under Article 9(2) Rome I Regulation. Additionally, foreign rules may be taken into account (Article 9(3) Rome I Regulation). Jurisdiction for contractual matters is determined by the place of performance or the place of the harmful event (Article 7 No. 1, 2 Brussels I Recast).

A.S. Zimmermann: Blockchain-Networks and Private International Law – or: the Savignian seat-doctrine and decentralized legal relations

The ubiquitous availability of the world wide web fundamentally changed international commerce. The legal system has proven to be surprisingly flexible in dealing with the issue of digitalisation and has hence provided reasonable solutions for several problems of the modern era. The field of Private International Law is particularly challenged by the decentralism of the digitalised world. However, as the case of blockchain-networks illuminates, the classic Savignian paradigm of Private International Law is capable of coping with new phenomena and allocating them to an appropriate legal framework.

M. Lieberknecht: The blocking regulation: private international law as an instrument of foreign policy

The EU has updated its blocking statute in order to shield European businesses from the extraterritorial reach of the reactivated U.S. secondary sanctions against Iran. The present article provides an analysis of the blocking regulation’s impact on matters of private law. Concerning the issue of overriding mandatory provisions, the Regulation adds little but emphasis to the pre-existing approach. It prohibits EU-based parties to comply with the U.S. sanctions, thereby forcing them into a “catch-22” situation, which bears a particular risk of managerial liability. Indirectly, this prohibition produces lopsided results under substantive German law, while potentially nullifying prevalent contractual solutions. Finally, the article assesses the legal nature and substantive scope of the clawback provision which allows for the recovery of sanction-related damages. It concludes that, while such a claim may have some potential to trigger litigation between private parties, it fails to fulfil its actual purpose, which is to neutralize the overall effects of U.S. sanctions. The same holds true for the Regulation as a whole: It not only offers weak protection, but exposes private parties various additional legal risks and restraints.

S. Bajrami/M. Payandeh: The Recognition of Foreign Judgments under Private International Law in Light of the Duty of Non-Recognition under International Law

For the recognition of foreign judgments under private international law, the question of the legality of the foreign judgment under international law is usually irrelevant. Private international law attributes recognition to foreign judgments based on factual and effective sovereign power regardless of whether the judgment has been issued by a state that is internationally not recognized or whether the judgment constitutes the exercise of jurisdiction over a territory over which the state may not exercise jurisdiction. This approach under private international law is, however, called into question when the foreign judgment constitutes an exercise of jurisdiction which is the consequence of a violation of the prohibition of the use of force under international law, as in the case of the illegal annexation of Crimea and Sevastopol by Russia. In such cases, customary international law constitutes a duty of non-recognition of the illegal situation. The present contribution analyses this conflict from the perspective of international law and comes to the conclusion that the recognition of foreign judgments, in general, is in conformity with the duty of non-recognition under international law.

M. Gebauer: Classification of section 1371 para 1 of the German Civil Code as a rule falling within the scope of succession law in terms of the EU Succession Regulation and the consequential classification of the rule under the German-Turkish bilateral succession treaty

The CJEU recently classified section 1371 para 1 of the German Civil Code as a rule falling within the scope of inheritance law in terms of the European Succession Regulation. The article analyses the consequences of this classification beyond EU law for cases governed by the German-Turkish bilateral succession treaty and its interpretation by German courts. Presumably, German courts will feel obligated to classify the German substantive rule in the same way under the bilateral succession treaty when it has to be applied in combination with EU conflict rules on matrimonial property regimes.

J.A. Bischoff: Much ado about nothing? The future of investment arbitration after Achmea v. Slovakia

In his judgment dated March 6, 2018, the CJEU held investment arbitration proceedings incompatible with Art. 267, 344 TFEU where they arise from a bilateral investment treaty between two member states and where the seat of the arbitration is located in the European Union. The court did not concur with the Opinion of the Advocate General dated September 19, 2017. Although the judgment will promote legal certainty as far as intra-EU bilateral investment treaties are concerned, it creates new questions for the Energy Charta Treaty as well as bilateral investment treaties with third countries. Where an arbitration’s seat is located outside the EU or where the ICSID Arbitration Rules apply, the judgment can create a divergent execution practice.

D. Looschelders: International jurisdiction for the termination of co-ownership in cases regarding matrimonial property regimes

The ECJ has recently decided over the international jurisdiction for the termination of co-ownership in undivided shares in two cases. In the Komu case, which concerned a legal dispute between the co-owners of two immovable properties located in Spain with regard to the termination of the co-ownership, the ECJ affirmed the exclusive jurisdiction of the courts of the Member State in which the immovable properties are situated. In the Iliev case, however, the ECJ concluded that a dispute between former spouses relating to the division of a movable property acquired during the marriage concerns „matrimonial property regimes“ and therefore, according to Art. 1(2)(a) Brussels Ibis Regulation, does not fall within the scope of the Brussels Ibis Regulation. The article analyses the decisions and outlines the tension between the law of immovable property and the law of matrimonial property. The future legal situation according to the European Regulation on Matrimonial Property Regimes and the parallel problem under the European Succession Regulation are discussed, too. Overall, the author notes a tendency of the European conflict of laws Regulations to give precedence to the law applicable to matrimonial property regimes and succession over the application of the law of the Member State in which the property is located.

A. Wolf: Arbitration clauses and actions for cartel damages before German courts

The German District Court Dortmund dismissed an action for damages caused by an infringement of Art. 101 TFEU in the context of the so-called „Schienenkartell“. The Court found that the arbitration agreements which the parties had agreed on during their contractual relationship covered such actions so that German courts had no jurisdiction on this matter. Therefore, the Court interpreted the arbitration agreements under German law in a broad sense. Furthermore, it denied to apply the EU principle of effectiveness relating to the exercise of claims for damages in national procedures. With regard to arbitration clauses it also rejected to follow the Court of Justice in its CDC-judgment on a narrow interpretation of jurisdiction clauses in terms of Art. 25 Brussels I recast.

L. Rademacher: Procedural Consumer Protection Against Attorneys

In a world of open societies, legal advice in cross-border cases is in constantly increasing demand by both businesses and consumers. Skilful counselling on foreign law, however, can prove difficult to obtain from domestic attorneys, especially for consumers. In consequence, consumers may decide to retain a lawyer educated and located in the relevant foreign legal system. When problems arise in the relationship between the domestic consumer client and the attorney situated abroad, the internationally competent court has to be determined. In favour of the consumer client, the consumer protection rules of international procedural law apply under the territorial-situational requirements of Art. 15 sec. 1 lit. c Brussels I Regulation 2001 / Art. 17 sec. 1 lit. c Brussels Ibis Regulation 2015 / Art. 15 sec. 1 lit. c Lugano Convention 2007. This case note reviews two judicial rulings – one by the Higher Regional Court Düsseldorf, the other by the Federal Court of Justice – dealing with these requirements in light of the guidelines provided by the European Court of Justice. The pivotal issues concern an attorney’s activities in the state of the consumer client’s domicile falling within the scope of a contract between the attorney and a client as well as an attorney’s direction of activities to the state of the client’s domicile.

H. Roth: Accumulative basic requirements of the recognition of foreign decisions according to § 109 sec. 1 no. 2 FamFG are an orderly notification and the possibility to arrange an effective defense of the defendant

The Oberlandesgericht (Higher Regional Court) Stuttgart interprets § 109 sec. 1 no. 2 FamFG (= Act on the Procedure in Family Matters and the Matters of Non-contentious Jurisdiction) in accordance with § 328 sec. 1 no. 2 ZPO (= German Civil Procedure Code) and therefore in conscious deviation to the basic assumptions of the European secondary law (e.g. Art. 45 sec. 1 lit. b Brussels Ia Reg.). Accumulative basic requirement of the recognition of foreign decisions according to § 109 sec. 1 no. 2 FamFG are an orderly notification and the possibility to arrange an effective defense of the defendant.

P. Ostendorf: Requirements for a genuine international element in the event of a choice of law in accordance with European Private International Law

In accordance with Art. 3 (3) Rome Convention (respectively its successor instrument, the Rome I Regulation), the parties can, in case of a purely domestic contract, not escape the mandatory provisions of their home jurisdiction by way of either the choice of a foreign law and/or a foreign forum. English courts recently had to determine whether interest rate swaps concluded by an Italian bank and an Italian municipality (providing for the application of English law and an English forum) might fall outside the ambit of Art. 3 (3) Rome Convention due to sufficient international elements of the transaction. Contrary to the High Court, the Court of Appeal (by now confirmed by the UK Supreme Court) has answered this question in the affirmative, given that the bank had utilized a standard form contract drafted by a private international association not linked to any particular country and had also entered into a back to back transaction with a foreign bank. This understanding appears misconceived against the background of a contextual and teleological interpretation of Art. 3 (3) Rome Convention.

Z. Meški?/A. Durakovi?/J. Alihodži?: Bosnia and Herzegovina as a Multi-unit State
Bosnia and Herzegovina comprises two entities, the Federation of Bosnia and Herzegovina and Republika Srpska, and the District Br?ko, which have almost comprehensive competences in private law. Therefore, in addition to rare legislation in private law on the national level, there are three partial legal orders in private law in Bosnia and Herzegovina. The following paper presents some of the differences between the partial legal orders and explains the development of interlocal conflict rules in Bosnia and Herzegovina, which took place independently of private international law. For family, status and succession matters there is a uniform act on interlocal conflicts of laws, whereas in other areas of private law no uniform regulation exists. The solutions on interlocal conflicts of laws in the most relevant areas of private law have been analysed critically.

The new issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabels Journal of Comparative and International Private Law” (RabelsZ) is now available. It contains the following articles (summaries provided for non-English language) :

Mathias Reimann,European Advantages in Global Lawyering, pp. 885-921

Jürgen Basedow, The Hague Conference and the Future of Private International Law – A Jubilee Speech, pp. 922-943

Nadjma Yassari, Staatszerfall und Internationales Privatrecht (Failing States and Private International Law), pp. 944-971

Conflict-of-law rules generally refer to the law of a foreign state. If, however, such state is in a condition of disarray and potential dissolution, tricky questions arise. Which normative orders are meant by the term “law”? Is a failing state still a state? This article shows that for the sake of regulating private relations, the focus must be placed on the factually operative norms, regardless of whether the non-state entity from which those norms have emanated is recognized under public international law. This hypothesis is tested in relation to the example of Syria. Ravaged by a fierce civil war since 2011, Syria has seen the emergence of new power entities competing not only over territory but also over legal authority.

Whereas the standard connecting factors of private international law (i.e. normative factors such as nationality, or geographic locating factors such as habitual residence) operate in their usual manner in a failing state with only minor adaptation, more serious problems arise with regard to the detection and interpretation of the factually operative law and its application in a concrete case. Where the relevant norms cannot be found or where a meaningful interpretation and application of those norms  cannot be supported,  a solution – it is argued – must be sought on the level of private international law rather than on the level of substantive law. In particular, the application of lex fori should be considered only where all other options have been exhausted.

Tamás Szabados, The New Hungarian Private International Law Act: New Rules, New Questions, pp. 972-1003

A call for papers has been issued in view of the third edition of the multidisciplinary, international and comparative doctoral sessions on the study of movement phenomena, scheduled to take place in Nice on 23 and 24 May 2019.

The event, part of the IFITIS Project led by Jean-Sylvestre Bergé, is organised under the auspices of the Academic Institute of France (IUF), the Côte d’Azur University and the Law, Economics and Management Research Group of the French National Centre for Scientific Research, in partnership with the International Economic Law Association (AIDE).

This edition’s topic is The Meaning of Economic Freedoms of Movement. The aim is to discuss the ability of different disciplines (law, economics, management, philosophy, sociology, history and computer science) to question the meaning (reasons for being, justifications, purposes) of economic freedoms of movement (free trade, international trade and European freedoms of movement).

Interested scholars are invited to submit their proposals by 31 January 2019.

For further information, see here.

The University of Milan will recruit a postdoctoral researcher in Private International Law, starting in March 2018, for a duration of 24 months (renewable once).

The researcher will work on the project ‘Cross-border Disputes in Civil and Commercial Matters and New Technologies’.

Eligible candidates must hold a doctorate in law (preferably private international law or international civil procedural law) or have comparable research experience. They must have an excellent command of English. Good command of Italian is an additional asset. Additional accommodation funding for candidates relocating from abroad is available.

Deadline for applications: 19 November 2018.

More information can be found here.

In 2018, not only the British Institute of International and Comparative Law (BIICL) celebrates a round birthday, but also the two most important regimes for cross-border cooperation in civil and commercial litigation and arbitration – the Brussels Regime (1968), to which the United Kingdom acceded 40 years ago, and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). Thus, Professor Eva Lein (Lausanne) has convened an event at the BIICL in order to take stock and assess the effects and benefits of both regimes for citizens, businesses, lawyers and courts. Moreover, the participants will try to look into the post-Brexit future. The conference will take place at the BIICL on 29th November, 2018. For the full programme, a list of speakers and further details on registration, please click here.

The programme of the XLI Seminar of the Mexican Academy of Private International and Comparative Law (AMEDIP) is now available here.

American Association of Private International Law (ASADIP) is holding its Annual Conference on 8 and 9 November 2018 in Santa Cruz, Bolivia. The main focus of the conference will be family law. More information is available here (incl. programme).

My review of Wahl AG’s Opinion gives readers necessary detail on C-595/17 Apple v eBizcuss. In 2012 eBizcuss started suing Apple for alleged anti-competitive behaviour, arguing Apple systematically favours its own, vertically integrated distribution network. Can choice of court in their original contract cover the action (meaning the French courts would not have jurisdiction).

The Court says it can, both for Article 101 TFEU (cartels) and for 102 TFEU actions (abuse of dominant position), but particularly for the latter. In both cases the final say rests with the national courts who are best placed to appreciate the choice of court provisions in their entire context.

For Article 101 TFEU actions, the window is a narrow one (at 28: ‘the anti‑competitive conduct covered by Article 101 TFEU, namely an unlawful cartel, is in principle not directly linked to the contractual relationship between a member of that cartel and a third party which is affected by the cartel’). For Article 102 TFEU, as noted by other, it is wider (‘the anti‑competitive conduct covered by Article 102 TFEU, namely the abuse of a dominant position, can materialise in contractual relations that an undertaking in a dominant position establishes and by means of contractual terms’). The overall context of appreciation is that of predictability: at 29 (referring to CDC): ‘in the context of an action based on Article 102 TFEU, taking account of a jurisdiction clause that refers to a contract and ‘the corresponding relationship’ cannot be regarded as surprising one of the parties.’

Geert.

By Friederike Henke, Advocaat & Rechtsanwältin at Buren in Amsterdam

The international demand for English language dispute resolution is increasing as the English language is commonly used in international trade and contracts as well as correspondence, not only between the trading partners themselves, but also by international parties, their legal departments and their advisors. Use of the English language in legal proceedings is expected to save time and money for translations and language barriers in general.

We would like to note that Dutch courts tend to allow parties to provide exhibits in the English language and often allow parties to conduct hearings in English, at least in part. Moreover, the district courts in Rotterdam and The Hague offer the possibility for proceedings in certain types of cases to be held in English: maritime, transportation and international trade cases in Rotterdam and intellectual property rights cases in The Hague. The courts render their judgments in the Dutch language with an English summary.

In order for the Dutch courts to be able to render valid and binding judgments in the English language, the Dutch code of civil procedure needs to be amended.

Netherlands Commercial Court: draft legislation
As mentioned in earlier posts on this blog (see here) in the Netherlands, legislation is on its way for the introduction of English language courts for the settlement of commercial disputes:  the Netherlands Commercial Court (“NCC”) and the Netherlands Commercial Court of Appeal (“NCCA”).

On 8 March 2018, the Dutch parliament adopted the draft legislation, following which it was expected to be approved by the Dutch senate soon. However, to date, despite earlier optimism, the legislation has not yet been passed. The (draft) rules of procedures are ready though (see here)  and the judges have been selected as well. The courts are now expected to open their doors in 2019.

In anticipation to the adoption and effectiveness of the draft legislation, this post offers an overview of the key characteristics of the proceedings with the NCC and NCCA.

The NCC and NCCA: structure and location
The NCC and NCCA will be imbedded in the ordinary judiciary. The NCC will thus be a chamber of the Amsterdam district court and the NCCA will be a chamber at the Amsterdam court of appeals. Any appeal from a judgment by the NCC will go to the NCCA. An appeal (cassation) from the NCCA to the highest court of the Netherlands (Hoge Raad) will take place in the Dutch language.

The judges of the NCC and NCCA who have already been selected, will be from the ordinary judiciary. No lay judges will be appointed. The selected judges (six for each instance) are judges who have vast experience in commercial disputes and excellent language skills.

Situating the chambers with the courts of Amsterdam has mostly practical reasons: Amsterdam is the financial capital of the Netherlands and a lot of international companies have their corporate seats there. Also, practical reasons have been mentioned: Amsterdam is easy to reach and internationally active law firms have their offices in Amsterdam.

The NCC procedure
Proceedings with the NCC and NCCA will in principle be held in the English language. All legal documents will be in English. Evidence may be handed in in the French, German or Dutch language, without a translation being required. The court hearing will be held in English and the judgment will be rendered in English.

In addition to the NCC’s rules of procedure, the NCC will apply Dutch procedural law and the substantive rules of Dutch private international law. The proceedings will be paperless and legal documents will be submitted electronically.

According to article 1.2.1 of the NCC’s draft rules of procedure, an action may be initiated in the NCC in case the following three requirements have been met:

1. the action is a civil or commercial matter within the autonomy of the parties and is not subject to the jurisdiction of the cantonal court (kantongerecht, the court for small claims) or the exclusive jurisdiction of any other chamber or court;
2. the matter has an international aspect;
3. the parties to the proceedings have designated the Amsterdam District Court as the forum to hear their case or the Amsterdam District Court has jurisdiction to hear the action on other grounds; and
4. the parties to the proceedings have expressly agreed that the proceedings will be in English and will be governed by the NCC’s rules.

The NCC has jurisdiction in any commercial case, regardless the legal ground. So it may hear both contractual disputes – claims for performance or breach of contract, rescission of a contract, termination or damages – as well as claims for unlawful acts.

In line with the case law of the Court of Justice of the EU, the internationality requirement is to be interpreted broadly. Only if all relevant aspects of a case refer to one case, it will thus be considered an internal dispute. An international aspect can e.g. be that one of the parties has its seat outside of the Netherlands or was incorporated under foreign law, that the contract language is not Dutch or a foreign law applies to the contract, that more than 50% of the employees works outside of the Netherlands, etcetera.

The NCC is only competent if the Parties have agreed to submit their dispute to the competence of the NCC. Such agreement may be done in a contractual choice of forum, but parties may also agree on such forum choice after a dispute has arisen. The NCC’s rules of procedure contain a template clause for a forum choice in Annex I:

“All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English under that Court’s Rules of Procedure of the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC”). Application for provisional measures, including protective measures, available under Dutch law may be made to the NCC’s Preliminary Relief Judge in proceedings in English in accordance with the Rules of Procedure of the NCC.”

Court fees
The court fees for proceedings with the NCC will amount to EUR 15,000.- for substantive proceedings and EUR 7,500.- for summary proceedings. The court fees for proceedings with the NCCA will amount to EUR 20,000.- for substantive proceedings and EUR 10,000.- for summary proceedings.

When compared to other courts in the Netherlands, the court fees for the NCC and NCCA are relatively high. In comparison: the highest court fee for cases in first instance currently amount to EUR 3,946.- and for appeal cases to EUR 5,270.-. Within the international playing field, the NCC and NCCA courts fees are however relatively low, especially when compared to arbitration.

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Legal Affairs, authored by Marta Requejo Isidro, Tim Amos, Pedro de Miguel Asensio, Anatol Dutta and Mark Harper, explores the possible legal scenarios of judicial cooperation between the EU and the UK at both the stage of the withdrawal and of the future relationship in the area of family law, covering the developments up until 5 October 2018. More specifically, it assesses the advantages and disadvantages of the various options for what should happen to family law cooperation after Brexit in terms of legal certainty, effectiveness and coherence. It also reflects on the possible impact of the departure of the UK from the EU on the further development of EU family law. Finally, it offers some policy recommendations on the topics under examination.

The Slovenian Branch of the International Law Association invites abstract submissions for consideration for the ILA Regional Conference Slovenia 2019. The conference will be held in Portorož (Slovenia) on 27-30 June 2019.

The the conference is themed “Migration/international legal regulation” and abstracts from both public and private international law perspectives are welcome. Deadline for submitting abstracts is 11 January 2019 and completed papers are due by 30 August 2019. Contact is available at papers@ilaslovenia2019.com.

More details is available here.

By Diana Kostina

The recent Court of Appeal judgment in Alexander Vik and Deutsche Bank AG [2018] EWCA Civ 2011confirmedthat contempt of court applications for alleged non-compliance with a court order can be served on a party outside the jurisdiction of England and Wales. The Court of Appeal’s judgment also contains a useful reminder of the key principles governing the powers of English courts to serve defendants outside of the jurisdiction.

Background

This Court of Appeal’s judgment is the latest development in the litigation saga which has been ongoing between Deutsche Bank (‘the Bank’) and Alexander Vik, the Norwegian billionaire residing in Monaco (‘Mr Vik’) and his company, Sebastian Holdings Inc (‘the Company’). The Bank has been trying to enforce a 2013 judgment debt, which is now estimated to be around US $ 320 million.

Within the enforcement proceedings, the English court made an order under CPR 71.2 requiring Mr Vik to appear before the court to provide relevant information and documents regarding the assets of the Company. This information would have assisted the Bank in its efforts to enforce the judgment against him. Although Mr Vik did appear in court, the Bank argued that he had deliberately failed to disclose important documents and lied under oath. Accordingly, the Bank argued that Mr Vik should be held in contempt of court by way of a committal order.

To obtain a committal order, the Bank could have applied under either CPR 71.8 or CPR 81.4. The difference is that the former rule provides for a simple and streamlined committal procedure, while the latter is more rigorous, slow, and — as accepted by courts — possibly extra-territorial. The Bank filed an application under CPR 81.4, and the court granted a suspended committal order. The Bank then sought to serve the order on Mr Vik in Monaco.

High Court decision

The Judge at first instance, Teare J, carefully considered the multi-faceted arguments. Teare J concluded that permission should not be required to serve the committal order on Mr Vik, because the debtor was already subject to the incidental jurisdiction of the English courts to enforce CPR 71 order. A similar conclusion could be reached by relying on Article 24(5) of the Brussels Recast Regulation (which provides that in proceedings concerned with the enforcement of judgments, the courts of the member state shall have exclusive jurisdiction regardless of the domicile of the parties). However, if the Bank had needed permission to serve the committal order outside the jurisdiction, then his Lordship concluded that the Bank could not rely on the gateway set out in PD 6B 3.1(10) (which provides that a claim may be served out of the jurisdiction with the permission of the court where such claim is made to enforce a judgment or an arbitral award). Both parties appealed against this judgment.

Court of Appeal decision

The Court of Appeal, largely agreeing with Teare J, made five principal findings.

(1) The court found it ironic that Mr Vik argued that CPR 71.8 (specific ground), rather CPR 81.4 (generic ground) applied to the alleged breach of CPR 71.2, since CPR 81.4 offered greater protections to the alleged contemnor. The likely reason for this “counter-intuitive” step was that the latter provision was extra-territorial. The Court of Appeal confirmed that CPR 71.8 is not a mandatory lex specialis for committal applications relating to a breach of CPR 71.2, and that the Bank was perfectly entitled to rely on CPR 81.4.

(2) The Court of Appeal agreed with the findings of Teare J that the court’s power to commit contemnors to prison is derived from its inherent jurisdiction. The CPR rules only provide the technical steps to be followed when this common law power is to be exercised. It followed that it did not make much difference which rule to apply –  either the broader CPR 81.4 or the narrower CPR 71.8. Thus, if the Bank had made the committal application under CPR 71.8, the application would have had an extra-territorial effect.  

(3) Mr Vik sought to challenge Teare J’s finding that he should be deemed to be within the jurisdiction in the contempt of court proceedings, because they are incidental to the CPR 71.2 order in which he participated. Instead, he argued, such proceedings were distinguishably “new”, and would require permission to serve outside the jurisdiction.  The Court of Appeal disagreed and confirmed that the committal order was incidental as the means to enforce the CPR 71.2 order. Therefore, in the light of the strong public interest in the enforcement of English court orders, it was not necessary for the Bank to obtain permission to serve the committal order outside the jurisdiction.

(4) Teare J observed that Article 24(5) of the Brussels Recast Regulation meant that that permission to serve Mr Vik outside of the jurisdiction was not required. Article 24(5) confers exclusive jurisdiction on the courts of the Member State in which the judgment was made and to be enforced by, regardless of the domicile of the parties. The Court of Appeal (in obiter) was generally supportive of this approach, opining that the committal application in the case at hand was likely to fall within Article 24(5) of the Brussels Recast Regulation. However, the careful and subtle wording of Article 24(5) implied that this conclusion might be subject to further consideration on a future occasion.

(5) Under CPR 6.36, a claimant may serve a claim form out of the jurisdiction with the permission of the court where the claim comes within one of the “gateways” contained in PD 6B. The relevant gateway in the Mr Vik’s case was to be found at PD 6B, para 3.1(1), as a claim made to enforce a judgment. Teare J was of the view that the Bank could not rely on this gateway to enforce the committal order. The Court of Appeal was reluctant to give a definitive answer on this point, even though “there may well be considerable force” in the Teare J’s approach. Thus, it remains unclear whether the CPR rules regulating service outside the jurisdiction would apply to the CPR 71 order and the committal order.

The importance of the judgment

This Court of Appeal’s judgment serves as an important reminder for parties who are involved in the enforcement of English judgment debts. Rather than giving a short answer to a narrow point of civil procedure, the judgment contains an extensive analysis of English and EU law. The judgment highlights the tension between important Rule of Law issues such as “enforcing court orders on the one hand” and “keeping within the jurisdictional limits of the Court, especially as individual liberty is at risk, on the other” (Court of Appeal judgment, at para. 1).

The judgment demonstrates the broad extra-territorial reach of the English courts. It also confirms the English court’s creditor-friendly reputation. The findings on the issues of principle may be relevant to applications to serve orders on defendants out of the jurisdiction in other proceedings, for instance worldwide freezing orders or cross-border anti-suit injunctions.

Nevertheless, the judgment demonstrates the need for clear guidance on the jurisdictional getaways to serve out of the jurisdiction for contempt of court. In giving judgment, Lord Justice Gross carefully suggested that the Rules Committee should consider implementing a specific rule permitting such service on an officer of a company, where the fact that he is out of the jurisdiction is no bar to the making of a committal application.

Another issue that seems subject to further clarification is whether a committal order or a provisional CPR 71 order are covered by the Brussels Recast Regulation. A definitive answer to this question becomes particularly intriguing in the light of Brexit.

A conference, organised by IACPIL – Interdisciplinary Association of Comparative and Private International Law, will take place in Vienna on 29 November 2018 under the title Receivables and Securities in Private International Law.

The aim of this half-day conference is to discuss the proposal of the European Commission on the law applicable to third-party effects of transactions in securities and assignment and the relevant issues arising in cross-border securities and receivables finance transactions.

Speakers from the Commission, academia and law practice will address issues arising in the context of cross-border security trading, assignment and subrogation, factoring, securitisation, and similar transactions both in the light of the relevant EU proposal, national law and uniform law instruments, such as the UN Assignment of Receivables Convention and the UNCITRAL Model Law on Secured Transactions. The advantages and disadvantages of the different approaches will be discussed from a comparative law perspective, with a focus on current challenges and opportunities arising from the digitalisation of trade and Brexit.

Registration is required by 25 November 2018.

The full programme is available here, together with further practical information.

Dear Colleagues,
We are pleased to invite you to attend the International Investment and Trade Agreements: Recent Developments and Problems Conference to be hosted by the University of Marmara, School of Law, Department of Private International Law, and Economic Development Foundation (IKV).
The main goal of the conference is to discuss recent developments in the field of international investment and trade law.
We are looking forward to welcoming our colleagues from all around the world to participate in this international meeting.
Venue: TOBB PLAZA, Levent, the European Side of Istanbul, Turkey.
Date: 25th October 2018.
Further information: http://etkinlik.marmara.edu.tr/uluslararasiyatirim
Yours Sincerely,
Assoc. Prof. Dr. Mustafa Erkan
Conference Co-Chair

On October 5th, The Cour de Cassation, the highest court in France for private law matters, requested an advisory opinion of the ECtHR (Ass. plén. 5 octobre 2018, n°10-19053). It is the first time a Contracting State applies to the ECtHR for an advisory opinion on the basis of Protocol n° 16 which entered into force on August 1st, 2018. The request relates to the legal parentage of children born to a surrogate mother. More specifically, it concerns the intended mother’s legal relationship with the child.

The Mennesson case is again under the spotlight, after 18 years of judicial proceedings. Previous developments will be briefly recalled, before the Advisory opinion request is summarized.

Previous developments in the Mennesson case:

A French couple, Mr and Mrs Mennesson, went to California to conclude a surrogacy agreement. Thanks to the surrogate mother, twins were born en 2000. They were conceived with genetic material from the intended father and eggs from a friend of the couple. The Californian Supreme Court issued a judgment referring to the couple as genetic father and legal mother of the children. Birth certificates were issued and the couple asked for their transcription into the French civil status register.

French authorities refused the transcription, arguing that it would be contrary to public policy. Surrogate motherhood, in particular, is forbidden under article 16-7 of the Civil Code. Such agreements are then considered void and resulting foreign birth certificates establishing parentage are considered contrary to public policy (Cass. Civ. 1ère, 6 avril 2011, n°10-19053).

As a last resort, The Mennesson family brought a claim before the ECtHR. They claimed that the refusal to transcribe the birth certificate violated their right to respect for private and family life. While the Court considered that the parent’s right to family life was not infringed, it ruled that the refusal to transcribe the birth certificates violated the children’s right to identity and was not in their best interest. As a consequence, it ruled that the refusal to establish the legal parentage of the indented parents was a violation of the children’s right to private life, particularly so if the indented father was also the biological father.

After the ECtHR ruling: the French landscape

After the ECtHR ruling, the Cour de Cassation softened its position. In 2015, sitting in Assemblée plénière, it ruled that the mere fact that a child was born of a surrogate mother did not in itself justify the refusal to transcribe the birth certificate, as long as that certificate was neither unlawful nor forged, nor did it contain facts that did not correspond to reality (Ass. plén., 3 juillet 2015, n° 14-21323 et n°15-50002).

As a consequence, the Court only accepted the transcription of foreign birth certificate when the intended father is also the biological father. When it came to the other intended parent, the Cour de Cassation refused the transcription. By so doing, the Cour de Cassation reiterates its commitment to the Mater semper certa principle as the sole basis of its conception of motherhood. Meanwhile, in 2017, the Cour de Cassation signalled that the genetic father’s spouse could adopt the child if all the requirements for adoption were met and if it was in the best interest of the child (Cass. Civ. 1ère, 5 juillet, 2017, n°15-28597, n°16-16455, and n°16-16901 ; 16-50025 and the press release)

However, the Mennessons’ fight was not over yet. Although according to the latest decisions, it looked like both Mr and Mrs Mennesson could finally establish their kinship with the twins, they still had to overcome procedural obstacles. As the Cour de Cassation had refused the transcription in its 2011 judgment which had become final, the parents were barred from applying for it again. As pointed out by the ECtHR in the Foulon and Bouvet v. France case (21/07/2016, Application n°9063/14 and 10410/14), French authorities failed to provide an avenue for the parties involved in cases adjudicated before 2014 to have them re-examined in the light of the subsequent changes in the law. Thus, France was again held to be in violation of its obligations under the Convention. (See also Laborie v. France, 19/01/2017, Application n°44024/13).

In 2016, the legislator adopted a new procedure to allow for the review of final decisions in matter of personal status in cases where the ECtHR had ruled that a violation of the ECHR had occurred. The review is possible when it appears that the consequences of the violation of the Convention are serious and that the just satisfaction awarded on the basis of article 41 ECHR cannot put an end to the violation (see articles L.452-1 to L.452-6 of the Code de l’organisation judiciaire). 

Current situation:

Taking advantage of this new procedure, the Mennesson family asked for a review of their situation. They claimed that the refusal to transcribe the birth certificates was contrary to the best interest of the children. They also argued that, as it obstructed the establishment of parentage, it amounted to a violation of article 8 ECHR. Moreover, they argued that the refusal to transcribe the birth certificates on the ground that the children were born of a surrogate mother was discriminatory and infringed article 14 ECHR.

Sitting again in Assemblée plénière, the Cour de Cassation summarized its previous case law. It concluded that while the issue of the transcription of the father biological parentage is settled, the answer is less certain regarding the intended mother. The Court wondered if its refusal to transcribe the birth certificate as far as the intended mother is concerned is consistent with the State margin of appreciation under article 8. It also wondered whether it should distinguish between cases where the child is conceived with the genetic material of the intended mother and cases where it is not. Finally, it raised the issue of whether its approach of allowing the intended mother to adopt her husband’s biological child was compatible with article 8 ECHR.

After pointing out the uncertain compatibility of its reasoning with ECtHR case law, the Court chose to request an advisory opinion from the ECtHR. Protocol 16 allows Contracting States to apply to the ECtHR for its advisory opinion “on questions of principles relating to the interpretation or application of the rights and freedom defined in the Convention or the protocols thereto” (Protocol 16 art.1).

Thus, the Cour de Cassation asked the ECtHR the two following questions:

• By refusing to transcribe into civil status registers the birth certificate of a child born abroad from a surrogate mother inasmuch as it refers to the intended mother as the “legal mother”, while the transcription has been accepted when the intended father is the biological father of the child, does a State Party exceed its margin of appreciation under article 8 ECHR? In this respect, is it necessary to distinguish between whether or not the child is conceived with the gametes of the intended mother?
• If the answer to one of the two preceding questions is in the affirmative, does the possibility for the intended mother to adopt her husband’s biological child, which constitutes a mean of establishing parentage open to her, comply with the requirements of article 8 of the Convention?

As the Cour de Cassation indicates on the press release accompanying the request of an advisory opinion, it seized the opportunity of initiating a judicial dialogue between national jurisdictions and the ECtHR. However, it looks more like a sign of caution on the part of the French court, in a particularly sensitive case. Depending on the answer it receives, the Cour de Cassation will adapt its case law.

Although Protocol n°16 does not refer to a specific deadline, the Explanatory report indicates that it would be appropriate for the ECtHR to give high priority to advisory opinion proceedings.

Thus, it looks like the Mennesson saga will be continued soon…