Droit international général

The authors of this post are Bernadette Boehl, Sophie Dannecker, Larissa Grundmann, Maira Gabriela Nino Pedraza (all University of Bonn). A series of webinars took place in May 2023 under the title The Future of Cross-Border Parenthood in the EU – Analysing the EU Parenthood Proposal. Experts from various Member States discussed the main elements of the proposal and possibilities for improvement. The key issues addressed  in  each webinar are illustrated  below. Those interested in the PowerPoint presentations prepared by the speakers, are invited to follow this link. 

Session One

The first webinar (3 May 2023) started with a presentation by Jens Scherpe about Surrogacy in comparative perspective. 

Scherpe emphasized the impossibility of avoiding surrogacy as a worldwide phenomenon, hence the global surrogacy market which affects people on an international level.  He classified the jurisdictions into three categories. The jurisdictions that prohibit (e.g., France, Germany), tolerate (e.g. England), and regulate surrogacy.

For Scherpe, surrogacy tourism is a consequence of the prohibitive as well as the tolerant approach to surrogacy. Surrogacy plays an important economic role. It can be a multi-million-dollar business. This is especially true in countries whose jurisdictions follow a free market approach, such as some Canadian provinces, which could be described as “Rolls Royce” jurisdictions. This allows the intended parent to be recognised on the birth certificate from the outset. Countries that allow surrogacy in a way that the intended parents can be documented on the birth certificate beforehand but leave the process more or less unregulated tend to be attractive to a lot of people from prohibitive or tolerant countries. Those “Wild-West” jurisdictions, as Scherpe calls them, are much cheaper for future parents. But as a matter of fact, they are less protective of the surrogate and of children, and exploitation may occur. According to Scherpe, the achievement of the seemingly morally better approaches, the prohibitive and the tolerant, has the effect of exporting exploitation to those countries.

After signaling the experiences of countries like England and Denmark, the speaker concluded that both models, the prohibitive and the tolerant, have failed to prevent surrogacy by not recognising parenthood. In fact, a clear regulation is necessary and unavoidable and could solve some of the legal problems. He ends with the prediction that good regulation will not wipe out all exploitation in surrogacy matters but will, with no doubt, reduce the number of cases drastically.

Afterwards, Cristina González Beilfuss introduced the Parenthood Proposal and explained in her presentation (What’s in it? The subject matter, scope and definitions) four of the most important issues regarding the scope of the proposal.

(1) The substantive scope of the proposal is described in Article 1. “jurisdiction and applicable law for the establishment of parenthood in a Member State in cross-Border situations”. To understand parenthood is also to be seen from a sociological perspective, the definition in Article 4 can be used. Beilfuss expresses her sympathy with the term used in the Spanish draft, which is not “parentalidad” but “filiación” because it puts the child in the center of the law. Filiation should also be the preferred term in the English version, since it is a more child-centered concept than parenthood. For González, the contestation of parenthood, which is included, should have a more significant role in the proposal.

(2) Following the traditional practice of the European Commission, Article 3 defines the scope of application in a negative way. This Article confirms that the Proposal focuses on the bond of filiation but not on its consequences (Articles 3, 2. (b), (f) or (g)). Parental responsibility is not covered and should be consistently distinguished from filiation.

(3) Among the excluded matters is the existence, validity or recognition of a marriage. Marriage, however, regularly arises as a preliminary question in filiation matters. This is due to the significance of the mother´s civil status in establishing  a second child-parent relationship. It would therefore be important that the Regulation included a common rule on the preliminary question in order to ensure that it is solved uniformly across the Member States.

(4) Another exclusion that is problematic is that of adoption. The English text is more correct than the French or the Spanish.  Only intercountry adoptions, e.g. adoptions where the child is taken from their country of habitual residence to the country of habitual residence of those adopting are excluded, The Proposal is however wrong in assuming that all other adoptions are domestic adoptions that do not give rise to Private international questions. Whenever the child or the prospective adopters hold a foreign nationality there is a need to determine jurisdiction and the applicable law. The rules proposed are not well suited for adoption cases.

(5) The proposed rules only apply to the recognition or, as the case may be, acceptance of documents issued in a Member (see Article 3.3). Documents, in particular, birth certificates may however be issued after the recognition or acceptance of a decision or document issued in a Third State. This entails that the dividing line between Third State and European Union cases is far from clear.

In conclusion, the examination conducted by Cristina González Beifuss, as well as the questions left open, highlights the need for further discussion about the Proposal from the European Commission.

Session Two

The second webinar (10 May 2023) opened with a look at EU Primary law and a presentation by Susanne Gössl titled The EU Proposal and primary EU law: a match made in heaven?

The presentation started with an overview of the case law of the CJEU regarding the free movement of citizens (Article 21 TFEU), Article 18 TFEU (discrimination on grounds of nationality) and Article 20 (EU citizenship) in questions of status. According to that case law, a limping status constitutes an obstacle to the free movement of EU citizens and EU primary law requires the Member States to remove the obstacle.

To avoid a limping status, courts need to recognize at least parts of a status validly established in another EU Member State. The EU has two possibilities to legislate: harmonization of substantial law (as happened in Company Law) and the harmonization of private international law which is the approach the EU has taken in family law matters. The Proposal follows the second path and transforms the CJEU case law into EU secondary law.

In that reading, Article 2 of the Proposal (relationship with other provisions of Union law) seems mysterious, as EU primary law is at another level of hierarchy than EU secondary law.

One reading could be that the provision allows Member States to give more room to free movement if the national law is more generous than the proposal. Another interpretation could be that the Proposal does not understand itself as exhaustive in transforming the case law into secondary law. The latter could be the case if the scope of application does not extend to situations where EU citizens are not domiciled and therefore not registered in a Member State. They would fall under EU primary law as EU citizens but not under the proposal.

Furthermore, Gössl criticized Article 17 para. 2 (applicable law) as it contains alternative connecting factors and discretion to the court in case the main rule does not establish two parents. Discretion of the court means that EU primary law could give an obligation to recognize as father an EU citizen no matter whether this is in the best interest of the child. Finally, it remains unclear whether the conflict of laws rules of the proposal can be used in EU Member States to accept a status if they use the method of “recognition via conflict of laws”.

In Sahyouni I & II, the CJEU rejected the use of Rome III for such a national method. It would enhance the free movement of citizens if the Parenthood Proposal allowed Member States to use the Proposal for that way of acceptance. At least a clarification would be helpful.

In this order of ideas, the relationship between the draft and European private law is, for Gössl, not a match made in heaven, but at least a match.

Afterwards, Tobias Helms talked about The law governing parenthood: are you my father?.

Helms emphasized in advance that the initiative of the European Commission is to be welcomed. However, there would still be room for improvement in detail. During his presentation, Tobias Helms mainly analysed Article 17 of the Proposal.

The primary connecting factor for the establishment of parenthood is, according to para. 1, the law of the state in which the person giving birth has their habitual residence at the time of birth. As Tobias Helms pointed out, this connecting factor would be particularly friendly to surrogate motherhood. However, the connecting factor is unchangeable because it is fixed forever at the time of birth, which is problematic. Therefore, Article 17 para. 1 of the draft should be applied only with regard to the time of the child’s birth; thereafter, the child’s habitual residence should be decisive.

Also, Article 17 would have to be supplemented by establishing an Article 17a concerning the termination of parenthood. Additionally, a new Article 18a should be introduced regarding adoptions. An extra Article 22a could deal with overriding mandatory provisions.

Session Three

The third webinar (17 May 2023) started with a presentation by Alina Tryfonidou on The mutual recognition of decisions under the EU Proposal: much ado about nothing?

Tryfonidou provided an overview of the EU provisions regarding the recognition of decisions concerning parenthood. The provisions broadly follow the approach of other EU private international law regulations in the field of family law.

Article 4 of the proposal defines court and court decisions. The definitions are more abstract than those used in other EU private international law provisions in family law. Therefore, further clarification is desirable. The EU proposal is only applicable to cases with cross-border elements between member states. Decisions in third-party states are excluded from the scope of the application (Article 3(3)). Recognition of those decisions remains a question of national law. Children subject to decisions in third states are at least protected by the ECHR.

The central provision regarding the recognition of decisions is Article 24(1). It states that a court decision on parenthood given in a Member State shall be recognized in all other Member States without any special procedure being required. Article 24(3) allows the court to determine the issue where the recognition of a court decision is only raised as an incidental question.

Article 26 specifies the documents to be produced for recognition of a decision. The required attestation is supposed to enable the authority to determine whether there are grounds for refusal. The exhaustive list of such grounds is laid down in Article 31(1). The most famous ground allows the refusal if the recognition is manifestly contrary to the public policy of the Member State in which recognition is sought. The provision must be applied in observance of fundamental rights and principles laid down in the CFR. Articles 32 and 25 regulate applications for the refusal of recognition or the decision that there are no grounds for the refusal of recognition.

The next presentation was given by Maria Caterina Baruffi on Who decides on parenthood? The rules of jurisdiction.

Baruffi started by referring to the heavy criticism aimed at the proposal. Although she admitted that some of these criticisms are partly justified, she emphasized the positive aspects, namely the protection of children and fundamental rights.

The general system of jurisdiction is laid down in Article 6 of the proposal. It lists six grounds for jurisdiction alternatively. That allows for additional flexibility and facilitates access to justice.

On the other hand, a different approach may have reduced the possibility of parallel proceedings and forum shopping. Article 7 combines the presence rule with these grounds. According to recital 42, this is supposed to allow the courts to exercise jurisdiction regarding third-country national children. Article 8 states that where no court of a Member State has jurisdiction pursuant to Articles 6 or 7, jurisdiction is determined by national law. Article 9 adds the forum necessitatis rule. Articles 6 to 9 could be called exorbitant when combined. The reference to the national law of member states in Article 8 creates the additional possibility of taking recourse to exorbitant rules of jurisdiction in national law. However, the broad approach further facilitates access to justice and protects children’s fundamental rights.

Following this, Maria Caterina Baruffi briefly introduced Articles 10 and 14 which mirror the Brussels IIb Regulation, Article 15 which specifies the child’s right to be heard. She then touched on the child’s right to know its origin. This right was excluded from the proposal. Maria Caterina Baruffi argued that the Union does not have the competence to include such a right. It is not possible to predict the outcome of the proposal. It is a good starting point for a reasonable solution.

Session Four

The last webinar started with Patrick Wautelet who talked about Authentic documents and parenthood: between recognition and acceptance.

Wautelet discussed the recognition of court decisions in another Member State (Chapter IV, Section 1-2) together with the acceptance of other authentic instruments with either binding legal effect (Chapter IV, Section 3) or those with no binding legal effect (Chapter V) in the Member State of origin.

The most critical point of the proposal regarding Chapters IV and V is the distinction between the authentic instruments with binding or no binding legal effect since the question of whether an instrument has legally binding effect or not is a matter for the national law of the Member State in which the instrument was issued. It may therefore be answered differently in each Member State.

Wautelet illustrated the difficulties which this diversity may cause with an example from practice: when a child is born in France to married parents, the birth certificate drawn up must, of course, be regarded as an authentic instrument. Whether it also has a “binding legal effect” must be determined according to French family law. This question must be answered differently in France regarding maternity and paternity. However, this does not apply equally to every Member State, which means the question which category is relevant may not be answered in general for all birth certificates.

In the presentation and the following discussion, it was underlined that drawing the line between authentic instruments with binding and no binding legal effect can be complex, not least regarding other existing family arrangements (same-sex parenthood).

Furthermore, it was suggested that the terms used in the Proposal lack precision: even if an authentic act has a binding legal effect, it may be that it is not completely binding, as it may be amenable to challenge. The  term ‘no legal binding effect’ suggests further that the instrument is not legally effective although it actually is. Those labels are therefore confusing and should either be reconsidered or at least explained further. His preferred choice is to not differentiate between the two categories but to merge the two.

Another topic was the acceptance of authentic instruments with no binding legal effect, as stated in Article 45 of the Proposal. There are two options for an evidentiary effect of those documents: the text may provide that the effects the original instrument has in the Member State of origin will be extended to other Member States (“same evidentiary effects”). Article 45, however, also includes another possibility, i.e. that an instrument be giventhe “most comparable effect”. Understand the evidentiary effect exiting in the state of origin requires extensive and difficult work. Patrick Wautelet proposes simplifying the Regulation with regard to the comparable effect by striking it out.

To conclude, the speaker presented four points to be considered for further reflection. Firstly, it is important to work on the language, ensuring that all terms are clearly defined. Secondly, the alternative rules for acceptance and the relationship with public policy need to be cleared. Thirdly, it is advisable to merge the two categories of authentic instruments, which should help avoid confusion or ambiguity in their application. Finally, he would like to strive for a less complex regulation – not at least to keep the users in mind.

The very last presentation, given by Ilaria Pretelli, concerned The European certificate of Parenthood: a passport for parents and children?.

The last presentation refers to Chapter VI of the proposal and the creation of a “European Certificate of Parenthood”. The certificate is supposed to make a binding presumption of the status, which results only from the certificate itself. This certificate may not make a decisive difference in numerous cases because birth certificates are widely accepted even today. But especially for cases of co-maternity, it will help with an easier recognition of co-maternity and support same-sex couples by setting a reliable framework. Additionally, this framework will be useful regarding contractual arrangements, such as surrogacy. It eliminates the risk of the child being stateless.

The similarity between the proposed “European Certificate of Parenthood” and the “European Certificate of Succession” regarding the presumption of status should not be seen as extensive as it may seem at first sight. The presumption of the status of parenthood stated by Article 53 para. 2 of the proposal differs not in the wording but in the meaning, from the presumption of status regulated by the Certificate of Succession (Article 69 para. 2). According to Ilaria Pretelli there is a huge difference in the meaning of the “presumption of status” as it is used by the proposal, because of how it can be challenged. The granted status by the proposal states a much stronger binding effect than the certificate of succession. This she concludes from seeing the explanatory memorandum, which stresses the evidentiary effects of established parenthood in another Member State. But she suggests that this matter should be clarified because of the identical and therefore misleading wording. She points to the unanswered question about the possibility of challenging the certificate by another Member State as a main problem in the proposal.

Also, Ilaria Pretelli explained the background of the numerous specifications of the certificate’s content. The purpose of those elaborate regulations is to prevent attempts of manipulation. In this respect, the rights of the child should be more in the focus of the regulations, especially the right of the child to know their origin. To do so, appropriate safeguards could be introduced by means of ad hoc rules specially designed to meet the need of pursuing the best interests of the child.  In this matter, she points out that the language of the whole proposal is not focused enough on the child. She suggests to change the wording of the English version of the proposal, e.g. “filiation” instead of “parenthood”.

“Wishes” of the Organisers of the Series of Webinar

At the end of the seminar, the five organizers of the Webinars concluded the last session by expressing their “wishes” for improvement of the proposal.

These wishes were:
– Further definition of the concept of Court (Cristina Gonzalez Beilfuss);
– If the Regulation keeps the distinction between 2 types of authentic acts, that Member States and the Commission find a better way to distinguish them (Patrick Wautelet);
– Restrict the existing rule on the applicable law to designating the applicable law at the time of birth and find other rules for the time after birth (Tobias Helms);
– Introduce safeguards to prevent child-trafficking or exploitation (e.g. right of the child to know their origins or rules as those preventing illegal adoptions) (Ilaria Pretelli);
– Define the concept of “establishment” of parenthood in cases parenthood is established by the law and not by courts or authentic acts with binding effect (Susanne Gössl).

As it is usual at this time of the year, the EAPIL blog will slightly slow down its activity for a few weeks.

We’ll provide news on scholarship, recent case law and on-going legislative work every week, but we’ll limit ourselves to two or three post a week.

The usual five-post-a-week pace will resume at the beginning of September.

Enjoy your Summer, readers!

 

(authored by Verónica Ruiz Abou-Nigm)

 

Global Law and Sustainable Development. Conference Report.

On 26-27 April 2023 at the University of Medellín, Colombia, private international law scholars organised and hosted a conference that pushed the boundaries of the discipline and engaged with interdisciplinary and comparative perspectives around the theme of Global law and Sustainable Development. The conference, in Spanish, was organised by the University of Medellín and the Antioquian Institute of Private International Law (IADIP), and supported by D.E.C. Consultores, Edinburgh Law School, the Centre for C

ontemporary Latin American Studies of the University of Edinburgh (CCLAS), the Law School of University of Los Andes, and the Max Planck Institute for Comparative and International Private Law.

The conference opened with a warm welcome by José Luis Marín Fuentes and the Dean of the Law School of the University of Medellín, Alvaro García Restrepo, followed by an in memoriam honouring Professor Jürgen Basedow (1949-2023). Professor Basedow was highly admired by the Latin American Private International Law community, many of whom gathered at this conference.

The keynote address by Ralf Michaels and Verónica Ruiz Abou-Nigm on Law and Sustainability beyond the SDGs 2030 set the scene on the role of private law and private international law in the quest for sustainability and provided insightful threads for broader reflection that were revisited by the conference participants throughout the discussions during this two-day conference.

The keynote address was followed by a first panel on Global Supply Chains and Global Law, chaired by Ruiz Abou-Nigm with presentations from María Mercedes Albornoz (Mexico); Jeannette Tramhel (OAS), and Juan Amaya (Colombia). Albornoz explored conceptual issues around global supply and global value chains, exploring the role of private international law in enabling the contractual web that supports these. Tramhel focused on the agricultural sector and international private law issues relevant to SDG 2: Cero Hunger. She noted the governance gap in relation to urgent issues around food security, raising awareness of the critical need for immediate intervention in this sector and highlighting the importance of transnational law developments for social, economic and environmental sustainability in the food industry. In turn, Amaya explained the importance of traceability, and conceptualised social traceability, with illustrations based on interesting judicial cases pending resolution in the Global North in relation to alleged unsustainable practices in the Global South by Global North MNCs.

The first afternoon panel on Comparative Law Perspectives on Sustainable Development was chaired by Nuria González Martín (Mexico) with presentations from Eleonora Lozano (Colombia); Laura Carballo Piñeiro (Spain) and Alberto Alonso (Spain). Lozano shared her research on tax law and sustainable development, with very enlightening results based on her work on fiscal sustainability from a law and economics perspective. Carballo focused on the role of private international law in relation to some of the objectives in SDGs 10 and 8, particularly focusing on labour migration, and sharing the work of a research group that is currently working on sustainable circular labour migration at the crossroads of private international law, labour law and migration law perspectives. The final speaker in this panel, Alonso, explored criminal law issues connected to SDG 16.

The final session on the first day was a round-table discussion on the new challenges for private international law in Latin America coordinated by Albornoz with the participation of Ignacio Goicoechea (HCCH-ROLAC), Maria Julia Ochoa (Colombia/Spain), Claudia Madrid Martínez (Colombia) and Marcos Dotta (Uruguay). Undoubtedly this was a great way to conclude the first day with a lively discussion about the several challenges facing the region, as well as the importance of capacity building in private international law tailored to the needs of the region, reflecting on the role of institutions like the HCCH, national authorities, academia and the private sector in this endeavour.

The second day opened with an interactive presentation of Karen Leiva Chavarría from the Justice Department of Costa Rica, presented by Goicoechea. Costa Rica has been a pioneer in the inclusion of markers of transnational access to justice in its annual reporting on SDG 16, and a leader in the region in relation to the work of judicial authorities in connection with the UN Agenda 2030. The presentation emphasised the role of the profession, and addressed, in particular, the soon-to-be-lawyers in the audience, from the University of Medellín and other local universities.

The next panel on the SDGs and International Dispute Resolution, chaired by Carballo Piñeiro, included the presentations of Lenin Moreno Navarro (Ecuador), Eugenio Hernández Bretón (Venezuela), Lidia Mercado (Panamá) and Nuria González Martín (Mexico). The panellists discussed issues around international commercial litigation, arbitration and mediation, and reflected upon the tensions inherent in pursuing sustainability in relation to the needs for development in the region, particularly in relation to dispute resolution services.

A panel on International Contracts and Sustainable Development followed in the afternoon. This panel was chaired by Madrid Martínez and included the presentations of Rosario Espinosa Calabuig (Spain), Nestor Londoño (Colombia), Maria Blanca Noodt Taquela (Argentina) and Anabela Sousa Gonçalves (Portugal). The panellists tackled a wide range of issues around sustainability in a variety of international contracts, from contractual issues in the cruise industry in shipping, to case studies of sustainability costs in extractive industries in Argentina, to more general private international law methodologies relevant to international contracts including issues of applicable law and jurisdiction clauses.

The final round-table brought to the conference enlightening interdisciplinary perspectives on applied research in sustainable development and urbanism. Medellín is well-known worldwide for the transformative role that social urbanism has had in the past decades. This round-table, chaired by Ruiz Abou-Nigm, included a team of researchers from Medellín, who work in a collaborative project with the CCLAS (University of Edinburgh). Wilmar Castro Mere, Françoise Coupe de Restrepo, Ani Zapata Berrio and Carlos Velásquez shared their experiences of co-production of applied research on risk management in local communities. This was a truly insightful discussion bringing to life many of the issues that had been discussed in theory throughout the conference, particularly in relation to the role of different actors, norms, and communities in governance, as well as key considerations of social inclusion, capacity building, and the key role of cooperation between academia and the public and private sectors as well as civil society in the UN Agenda 2030.

The conference ended with a warm farewell from our fantastic local host, José Luis Marín Fuentes, who spared no efforts to make this conference a truly remarkable international event that provided much food for thought and opened new avenues for international collaboration in pursuance of the SDGs.

 

 

Written by Thalia Kruger (University of Antwerp) and Laura Carpaneto (University of Genoa)

On 1 June 2023 the European Law Institute (ELI) and the Swiss Institute of Comparative Law (SICL) held the third session of a conference on personal identity and status continuity. The focus of this third session was on names and gender in the conflict of laws. The programme included recent amendments to Swiss legislation, the portability and recognition of names, and new gender statuses in private international law.

The conference, including a screening of the film ‘The Danish Girl’ (Tom Hooper, 2015), illustrated the importance of gender and names as part of people’s identity, beyond the law. Names can be essential for people to identify with their religious group. In central and southern Africa, the use of names taken from people’s own language instead of English names has been part of the black consciousness movement. The film showed the struggle of a person to change her sex despite the absence of any legal framework. And yet, Lukas Heckendorn Urscheler (director of the SICL) and Martin Föhse (University of St Gallen) showed that the societal issues turn into legal ones. Sharon Shakargy (University of Jerusalem) explained that the law is important when individuals have to use identity cards, credit cards, licences, certificates and the like. The law struggles to provide the most appropriate solutions, respecting the rights of all involved and ensuring portability of gender and names.

When talking about rights, there is a blurring, or at least a lack of terminological clarity, between human rights and fundamental rights. The free movement of persons in the EU is also classified as a fundamental right. Giulia Rossolillo (University of Pavia) compared the approaches of the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU) with respect to the recognition and continuation of names. She showed that the solutions reached by the two courts can be quite different, as a result of their different approaches. The ECtHR uses the (human) right to the respect of private and family life protected by Article 8 of the European Convention of Human Rights (ECHR) while the CJEU uses the (fundamental) right to free movement of EU citizens. Moreover, the ECtHR is not so much concerned with the cross-border aspect, but focuses on the right to a person’s identity. The CJEU emphasises continuity of name in cross-border contexts. For instance, the facts in the ECtHR case Künsberg Sarre v. Austria and the CJEU case Sayn-Wittgenstein were quite similar, dealing with the Austrian prohibition on the use of noble titles. The ECtHR found that Austria, but allowing for a long time the use of the noble ‘von’ and then disallowing it, violated the applicant’s rights under Article 8 of the ECHR. The CJEU, on the other hand, found the obstacle to the right to free movement in the EU to be justified.

Different approaches to rights can also result in conflicting rights, i.e. the society’s right to equality (no noble titles) versus the individuals’ rights to continuity of name. Other rights that come into play, include the LGBTIQ+ rights and rights of women (a gender logic, Ilaria Pretelli SICL), and the rights linked to the free market (economic logic), societal rights, and the right to self-determination and autonomy, such as the right to freely choose and change a name.

Johan Meeusen (University of Antwerp) considered the specific approach of the European Commission to matters of gender, drawing lessons from the Commission’s Parenthood Proposal, Com(2022) 695. The lessons are that the Commission uses PIL to pursue its political ambition to advance non discrimination and LGBTIQ rights in particular; is on a mission to achieve status continuity; invests in legal certainty and predictability; approaches status continuity first and foremost from a fundamental rights perspective; acts within the limits of the Union’s competence but tries to maximize its powers; ambitious with an eye for innovation…but within limits.

Anatol Dutta (Ludwig Maximilians University of Munich) explained the different waves of changes in gender legislation nationally. He indicated that private international law influences people’s status differently depending on whether it considers sex registration and sex change as substantive or procedural. This would determine whether the lex fori or lax causae is used. Even when agreeing on a classification as substantive law, different legal systems use different connecting factors. Nationality is often used, but sometimes the individual is given a choice between the law of the habitual residence and nationality. Yet, public policy can still play a role (bringing back the ideas of human rights, discussed earlier).

All in all, it is becoming increasingly clear that the idea that private international law is a neutral and merely technical field of law is nothing more than a fiction. Besides the different right and approaches at play, as discussed above, feminist approaches (set out by Mirela Zupan, University of Osijek) also influence connecting factors and recognition rules.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

B. Heiderhoff, Care Proceedings under Brussels IIter – Mantras, Compromises and Hopes

Against the background of the considerable extension of the text of the regulation, the author asks whether this has also led to significant improvements. Concerning jurisdiction, the “best interests of the child” formula is used a lot, while the actual changes are rather limited and the necessary compromises have led to some questions of doubt. This also applies to the extended possibility of choice of court agreements, for which it is still unclear whether exclusive prorogation is possible beyond the cases named in Article 10 section 4 of the Brussels II ter Regulation. Concerning recognition and enforcement, the changes are more significant. The author shows that although it is good that more room has been created for the protection of the best interests of the child in the specific case, the changes bear the risk of prolonging the court proceedings. Only if the rules are interpreted with a sense of proportion the desired improvements can be achieved. All in all, there are many issues where one must hope for reasonable clarifications by the ECJ.

G. Ricciardi, The practical operation of the 2007 Hague Protocol on the law applicable to maintenance obligations

Almost two years late due to the COVID-19 pandemic, in May 2022 over 200 delegates representing Members of the Hague Conference on Private International Law, Contracting Parties of the Hague Conventions as well as Observers met for the First Meeting of the Special Commission to review the practical operation of the 2007 Child Support Convention and the 2007 Hague Protocol on Applicable Law. The author focuses on this latter instrument and analyses the difficulties encountered by the Member States in the practical operation of the Hague Protocol, more than ten years after it entered into force at the European Union level. Particular attention is given to the Conclusions and Recommendations of the Applicable Law Working Group, unanimously adopted by the Special Commission which, in light of the challenges encountered in the implementation of the Hague Protocol, provide guidance on the practical operation of this instrument.

R. Freitag, More Freedom of Choice in Private International Law on the Name of a Person!

Remarks on the Draft Bill of the German Ministry of Justice on a Reform of German Legislation on the Name of a Person. The German Ministry of Justice recently published a proposal for a profound reform of German substantive law on the name of a person, which is accompanied by an annex in the form of a separate draft bill aiming at modernizing the relevant conflict of law-rules. An adoption of this bill would bring about a fundamental and overdue liberalization of German law: Current legislation subjects the name to the law of its (most relevant) nationality and only allows for a choice of law by persons with multiple nationalities (they max designate the law of another of their nationalities). In contrast, the proposed rule will order the application of the law of the habitual residence and the law of the nationality will only be relevant if the person so chooses. The following remarks shall give an overview over the proposed rules and will provide an analysis of their positive aspects as well as of some shortcomings.

D. Coester-Waltjen, Non-Recognition of “Child Marriages” Concluded Abroad and Constitutional Standards

The Federal Supreme Court raised the question on the constitutionality of one provision of the new law concerning “child marriages” enacted by the German legislator in 2017. The respective rule invalidated marriages contracted validly according to the national law of the intended spouses if one of them was younger than 16 years of age (Art. 13 ss 3 no 1 EGBGB). The Federal Supreme Court requested a ruling of the Federal Constitutional Court on this issue in November 2018. It took the Federal Constitutional Court nearly five years to answer this question.
The court defines the structural elements principally necessary to attain the constitutional protection of Art. 6 ss 1 Basic Law. The court focuses on the free and independent will of the intended spouses as an indispensable structural element. The court doubts whether, in general, young persons below the age of 16 can form such a free and independent will regarding the formation of marriage. However, as there might be exceptionally mature persons, the protective shield of Art. 6 ss 1 Basic Law is affected (paragraphs 122 ff.) and their “marriage” falls under the protective umbrella of the constitution. At the same time, the requirement of a free and meaningful will to form a marriage complies with the structural elements of the constitutionally protected marriage. This opens the door for the court to examine whether the restriction on formation of marriage is legitimate and proportionate.
After elaborating on the legitimacy of the goal (especially prevention and proscription of child marriages worldwide) the court finds that the restriction on the right to marry is appropriate and necessary, because comparable effective other means are missing. However, as the German law does not provide for any consequence from the relationship formed lawfully under the respective law and being still a subsisting marital community, the rule is not proportionate. In addition, the court demurs that the law does not provide for transformation into a valid marriage after the time the minor attains majority and wants to stay in this relationship. In so far, Art. 13 ss 3 no 1 affects unconstitutionally Art. 6 ss 1 Basic Law. The rule therefore has to be reformed with regard to those appeals but will remain in force until the legislator remedies those defects, but not later than June 30, 2024.
Beside the constitutional issues, the reasoning of the court raises many questions on aspects of private international law. The following article focuses on the impact of this decision.

O.L. Knöfel, Discover Something New: Obtaining Evidence in Germany for Use in US Discovery Proceedings

The article reviews a decision of the Bavarian Higher Regional Court (101 VA 130/20), dealing with the question whether a letter rogatory for the purpose of obtaining evidence for pre-trial discovery proceedings in the United States District Court for the District of Delaware can be executed in Germany. The Court answered this question in the affirmative. The author analyses the background of the decision and discusses its consequences for the long-standing conflict of procedural laws (Justizkonflikt) between the United States and Germany. The article sheds some light on the newly fashioned sec. 14 of the German Law on the Hague Evidence Convention of 2022 (HBÜ Ausführungsgesetz), which requires a person to produce particular documents specified in the letter of request, which are in his or her possession, provided that such a request is compatible with the fundamental principles of German law and that the General Data Protection Regulation of 2018 (GDPR) is observed.

W. Wurmnest/C. Waterkotte, Provisional injunctions under unfair competition law

The Higher Regional Court of Hamburg addressed the delimitation between Art. 7(1) and (2) of the Brussels Ibis Regulation after Wikingerhof v. Book ing.com and held that a dispute based on unfair competition law relating to the termination of an account for an online publishing platform is a contractual dispute under Art. 7(1) of the Brussels Ibis Regulation. More importantly, the court considered the requirement of a “real connecting link” in the context of Art. 35 of the Brussels Ibis Regulation. The court ruled that in unfair competition law disputes of contractual nature the establishment of such a link must be based on the content of the measure sought, not merely its effects. The judgment shows that for decisions on provisional injunctions the contours of the “real connecting link” have still not been conclusively clarified.

I. Bach/M. Nißle, The role of the last joint habitual residence on post-marital maintenance obligations

For child maintenance proceedings where one of the parties is domiciled abroad, Article 5 of the EU Maintenance Regulation regulates the – international and local – jurisdiction based on the appearance of the defendant. According to its wording, the provision does not require the court to have previously informed the defendant of the possibility to contest the jurisdiction and the consequences of proceeding without contest – even if the defendant is the dependent minor child. Article 5 of the EU Maintenance Regulation thus not only dispenses with the protection of the structurally weaker party that is usually granted under procedural law by means of a judicial duty to inform (such as Article 26(2) Brussels Ibis Regulation), but is in contradiction even with the other provisions of the EU Maintenance Regulation, which are designed to achieve the greatest possible protection for the minor dependent child. This contradiction could already be resolved, at least to some extent, by a teleological interpretation of Article 5 of the EU Maintenance Regulation, according to which international jurisdiction cannot in any case be established by the appearance of the defendant without prior judicial reference. However, in view of the unambiguous wording of the provision and the lesser negative consequences for the minor of submitting to a local jurisdiction, Article 5 of the EU Maintenance Regulation should apply without restriction in the context of local jurisdiction. De lege ferenda, a positioning of the European legislator is still desirable at this point.

C. Krapfl, The end of US discovery pursuant to Section 1782 in support of international arbitration

The US Supreme Court held on 13 June 2022 that discovery in the United States pursuant to 28 U.S.C. § 1782 (a) – which authorizes a district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal” – only applies in cases where the tribunal is a governmental or intergovernmental adjudicative body. Therefore, applications under Section 1782 are not possible in support of a private international commercial arbitration, taking place for example under the Rules of the German Arbitration Institute (DIS). Section 1782 also is not applicable in support of an ad hoc arbitration initiated by an investor on the basis of a standing arbitration invitation in a bilateral investment treaty. This restrictive reading of Section 1782 is a welcome end to a long-standing circuit split among courts in the United States.

L. Hübner/M. Lieberknecht, The Okpabi case — Has Human Rights Litigation in England reached its Zenith

In its Okpabi decision, the UK Supreme Court continues the approach it developed in the Vedanta case regarding the liability of parent companies for human rights infringements committed by their subsidiaries. While the decision is formally a procedural one, its most striking passages address substantive tort law. According to Okpabi, parent companies are subject to a duty of care towards third parties if they factually control the subsidiary’s activities or publicly convey the impression that they do. While this decision reinforces the comparatively robust protection English tort law affords to victims of human rights violations perpetrated by corporate actors, the changes to the English law of jurisdiction in the wake of Brexit could make it substantially more challenging to bring human rights suits before English courts in the future.

Comment on CJEU case Rzecznik Praw Dziecka e.a., C-638/22 PPU, 16 February 2023)

Written by Tine Van Hof, post-doc researcher in Private International Law and Children’s Rights Law at the University of Antwerp, previously published on EU live

The Court of Justice of the EU has been criticised after some previous cases concerning international child abduction such as Povse and Aguirre Zarraga for prioritising the effectiveness of the EU private international law framework (i.e. the Brussels IIa Regulation, since replaced by Brussels IIb, and the principle of mutual trust) and using the children’s rights law framework (i.e. Article 24 of the EU Charter of Fundamental Rights and the principle of the child’s best interests) in a functional manner (see e.g. Silvia Bartolini and Ruth Lamont). In Rzecznik Praw Dziecka the Court takes both frameworks into account but does not prioritise one or the other, since the frameworks concur.

Rzecznik Praw Dziecka e.a. concerns Article 3881(1) of the Polish Code of Civil Procedure, which introduced the possibility for three public entities (Public Prosecutor General, Commissioner for Children’s Rights and Ombudsman) to request the suspension of the enforcement of a final return decision in an international child abduction case. Such a request automatically results in the suspension of the enforcement of the return decision for at least two months. If the public entity concerned does not lodge an appeal on a point of law within those two months, the suspension ceases. Otherwise, the suspension is extended until the proceedings before the Supreme Court are concluded. The Court of Justice was asked to rule on the compatibility of this Article of the Polish CCP with Article 11(3) of the Brussels IIa Regulation and with Article 47 of the EU Charter.

Private international law and children’s rights law

As Advocate General Emilou emphasised in the Opinion on Rzecznik Praw Dziecka, (see also the comment by Weller) child abduction cases are very sensitive cases in which several interests are intertwined, but which should eventually revolve around the best interests of the child or children. In that regard, the Hague Child Abduction Convention, as complemented by Brussels IIa for intra-EU child abduction situations, sets up a system in which the prompt return of the child to the State of habitual residence is the principle. It is presumed that such a prompt return is in the children’s best interests in general (in abstracto). This presumption can be rebutted if one of the Child Abduction Convention’s exceptions applies. Next to these instruments, which form the private international law framework, the children’s rights law framework also imposes certain requirements. In particular, Article 24(2) of the EU Charter, which is based on Article 3 of the UN Convention on the Rights of the Child, requires the child’s best interests (in abstracto and in concreto) to be a primary consideration in all actions relating to children. The Court of Justice analyses Article 3881(1) of the Polish CCP in light of both frameworks. The Court’s attentiveness towards private international law and children’s rights law is not new but should definitely be encouraged.

The private international law framework

The Court of Justice recalls that, for interpreting a provision of EU law, one should take into account that provision’s terms, its context and the objectives pursued by the legislation of which it forms part. To decide on the compatibility of the Polish legislation with Article 11(3) Brussels IIa, the Court of Justice thus analyses the terms of this provision, its context (which was said to consist of the Child Abduction Convention) and the objectives of Brussels IIa in general. Based on this analysis, the Court of Justice concludes that the courts of Member States are obliged to decide on the child’s return within a particularly short and strict timeframe (in principle, within six weeks of the date on which the matter was brought before it), using the most expeditious procedures provided for under national law and that the return of the child may only be refused in specific and exceptional cases (i.e. only when an exception provided for in the Child Abduction Convention applies).

The Court of Justice further clarifies that the requirement of speed in Article 11(3) of Brussels IIa does not only relate to the procedure for the issuing of a return order, but also to the enforcement of such an order. Otherwise, this provision would be deprived of its effectiveness.

In light of this analysis, the Court of Justice decides that Article 3881(1) of the Polish CCP is not compatible with Article 11(3) Brussels IIa. First, the minimum suspension period of two months already exceeds the period within which a return decision must be adopted according to Article 11(3) Brussels IIa. Second, under Article 3881(1) of the Polish CCP, the enforcement of a return order is suspended simply at the request of the authorities. These authorities are not required to give reasons for their request and the Court of Appeal is required to grant it without being able to exercise any judicial review. This is not compatible with the interpretation that Article 11(3) Brussels IIa should be given, namely that suspending the return of a child should only be possible in ‘specific and exceptional cases’.

The children’s rights law framework

After analysing the private international law framework, the Court of Justice addresses the children’s rights law framework. It mentions that Brussels IIa, by aiming at the prompt adoption and enforcement of a return decision, ensures respect for the rights of the child as set out in the EU Charter. The Court of Justice refers in particular to Article 24, which includes the obligation to take into account, respectively, the child’s best interests (para 2) and the need of the child to maintain personal relations and direct contact with both parents (para 3). To interpret these rights of the child enshrined in the EU Charter, the Court of Justice refers to the European Court of Human Rights, as required by Article 52(3) of the EU Charter. Particularly, the Court of Justice refers to Ferrari v. Romania (para 49), which reads as follows:

‘In matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation. Such cases require urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them.’

Unfortunately, the Court of Justice does not explicitly draw a conclusion from its analysis of the children’s rights law framework. Nevertheless, it can be concluded that the Polish legislation is also incompatible with the requirements thereof. In particular, it is incompatible with both the collective and the individual interpretation of the child’s best interests.

On a collective level, Article 3881(1) of the Polish CCP is contrary to the children’s best interests since it does not take into account that international child abduction cases require ‘urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them’ (as has also been acknowledged by the ECtHR as being in the best interests of children that have been abducted in general).

On an individual level, it is possible that an enforcement of the return decision is contrary to the child’s best interests and that a suspension thereof is desirable. However, Article 3881(1) of the Polish CPP is invaluable in that regard (see also Advocate General Emilou’s Opinion on Rzecznik Praw Dziecka, points 77-92). First, the Article exceeds what would be necessary to protect a child’s individual best interests. Indeed, under that Article, the authorities can request the suspension without any motivation and without any possibility for the courts to review whether the suspension would effectively be in the child’s best interests. More still, the provision is unnecessary to protect a child’s individual best interests. Indeed, a procedure already existed to suspend a return decision if the enforcement would be liable to cause harm to the child (Article 388 of the Polish CCP).

Conclusion

In this case, the private international law and the children’s rights law framework concurred, and both preclude the procedural rule foreseen in Article 3881(1) of the Polish CCP. The Court of Justice can thus not be criticised for prioritising the EU private international law framework in this case. Nevertheless, the Court of Justice could have been more explicit that the conclusion was reached not only based on the private international law framework but also on the children’s rights law framework.

Finally, the Brussels IIb Regulation, which replaced Brussels IIa as from 1 August 2022, made some amendments that better embed and protect the child’s best interests. It provides inter alia that Member States should consider limiting the number of appeals against a return decision (Recital 42) and that a return decision ‘may be declared provisionally enforceable, notwithstanding any appeal, where the return of the child before the decision on the appeal is required by the best interests of the child’ (Article 27(6)). While the Polish provision was thus already incompatible with the old Regulation, it would certainly not be compatible with the new one. To prevent future infringements, legislative reform of the Polish CCP seems inevitable.

 

Deyan Draguiev is the author of this monograph published in 2023 by Springer. He has kindly provided the following abstract.

The book proposes a holistic overview of interim measures and associated procedures in civil and commercial matters in international litigation and arbitration proceedings. It reexamines key features in this context and outlines novel findings on interim relief in the area of international dispute resolution. The book analyses the rules of EU law (EU law regulations such as the Regulation Brussels I bis and the rest of the Brussels regime) as the single system of cross-border jurisdictional rules, as well as the rules of international arbitration (both commercial and investment). In the process, it conducts a complete mapping of interim measures problems and explores the criteria for granting relief under national laws. For this purpose, it includes an extensive comparative law overview of many jurisdictions in Europe, Asia, Africa, the Americas, etc., to reveal common standards for granting interim relief.

In deeper depth, as follows, chapter after chapter.

Chapter one provides the wider framework for the analysis of interim relief procedures in cross-border civil and commercial disputes.
It sets out the underpinnings of the dispute resolution process from the standpoint of philosophy, sociology, psychology, and general legal theory by drawing references from fundamental social scientists and legal philosophers. It outlines the conceptual grounds for the existence of interim relief within the system of dispute resolution. Furthermore, after portraying the key background features upon which the study builds its foundations, chapter one also clarifies the terminology, which the study employs. This chapter puts forward the key points, which the entire study seeks to argue. More particularly, the position, which is argued, is that interim measures are not merely a procedural power of the dispute resolution authority or means to ensure the proper enforcement of the final ruling of the dispute, rather they have a wide-ranging function as a tool to manage and influence the pending dispute itself.

Chapter two focuses on the procedural rules for establishing jurisdiction to grant interim relief.
The first part deals with the so called “Brussels regime” or “system”, i.e. the variety of regulations which the European Union has established in the area of cross-border civil and commercial disputes. The backbone of the system is Regulation Brussels I bis – “Recast” (1215/2012), previously Regulation Brussels I (44/2001). The main features of interim relief in EU law stem from it and influence a number of other EU regulations. This chapter analyses the prerequisites for EU courts’ jurisdiction to provide interim relief, both as general grounds and as specific interim measures jurisdiction, with details about Art. 35 of Regulation Brussels I bis. This chapter also includes the regulations covering matrimonial matters (Regulation 2201/2003 and Regulation 2019/1111) and also Regulation 4/2009, Regulation 650/2012, Regulation 2016/1103, and Regulation 2016/1104. The European Account Preservation Order is not included.
The second part provides overview of the jurisdictional bases for interim relief in the area of international arbitration. It makes a brief overview of the general grounds for jurisdiction of arbitral tribunals, and of the specific rules establishing jurisdiction to grant interim relief. This includes also a review of the rules of major arbitral institutions and domestic legislations, as well as analysis of the coordination, concurrence, even competition between state courts and arbitral tribunals in granting interim relief, with a proposed possible solution for this situation.

Chapter three analyses the procedural nature and characteristics of interim measures with strong focus on a comparative survey of most systems of law – in Europe, Asia, Africa, both Americas and Australia.
Based on this review of national law criteria for granting interim relief, the purpose is to outline several key benchmarks that are found within a wide-ranging list of legislations – proof of prima facie merit on the substance of the dispute, necessity, proportionality of measures, urgency as time factor, unilateral or bilateral nature of proceedings, etc. Furthermore, this part also provides an overview of various rules of arbitral institutions containing guidance on what measures may be granted under the respective rules. Chapter three looks into the procedural functioning of interim measures before state courts and arbitral tribunals, i.e. standards of proof, conduct of procedure, issuance of final award/decision/order, its form and content, etc. The chapter reviews the scope of interim measures and strives to provide in-depth list of the powers of dispute resolution bodies and the types of measures that are traditionally granted by courts and arbitral tribunals. The liability for damages if the measures are cancelled/revoked is reviewed, as well. Chapter three, finally, features an analysis of the typical measures that are provided in a selection of particularly common types of international disputes, including international sale of goods, international construction projects, intellectual property disputes, maritime and aviation disputes, anti-suit injunctions, etc. The argument in this section is that the characteristics of the underlying dispute are related to the nature of the measures that are typically awarded.

Chapter four seeks to outline the procedural mechanism for putting interim measures into effect.
This chapter provides review of the enforcement conditions, formalities and procedural steps under the regulations within the Brussels regime with focus on Regulation Brussels I bis. This chapter also contains an overview of one of the most challenging aspects of interim relief in international arbitration, i.e. its enforcement.
First, it covers a salient issue, which is widely discussed in legal theory and in arbitral case law, that is to what extent interim measures may be forced by an arbitral tribunal upon the parties to the arbitration case.
Second, this chapter analyses the important matter whether third parties non-signatories can be compelled by arbitral measures.
Third, the chapter reviews the procedural mechanisms contained in various national laws established to facilitate enforcement of interim relief by domestic legal procedures.
The chapter also deals with the liability for non-compliance with interim measures, including those granted in arbitral proceedings, providing overview of national laws and case law examples from different legal systems.

Chapter five compares the features of interim measures in private law disputes having international elements with the relief granted by international bodies established by public international law such as the International Court of Justice, the International Tribunal for the Law of the Sea, the European Court of Human Rights, the Court of Justice of the European Union and also the European Commission as an organ of an international organization (the EU).
The grounds for such comparison stem from the transnational characteristics of the disputes that arise both in private and in public international law. Focusing on these common international elements, Chapter five outlines the similarities to obtain interim relief under the auspices of the listed international judicial or quasi-judicial bodies in comparison to the conditions analysed under chapters two-four regarding civil and commercial cases. This chapter analyses this by providing review of the legal status and powers of these international adjudication bodies through the prism of the key benchmarks: jurisdiction, standards for assessment, procedure to obtain relief, and enforcement of measures. The comparison demonstrates significant similarities especially as to the criteria for granting relief and the potential issues with enforcement.

Chapter six provides assessment of the matter concerning interim relief and procedures in private law international disputes by drawing conclusions from the review and analysis under the previous chapters.
This chapter outlines the grounds to argue the two focal points of the entire study.
The first argument is that the proper understanding of interim relief is that it does not merely safeguard enforcement/compliance with the final decision on a dispute but that, if measures are placed in wider context, they should be seen as an instrument to manage not only the pending legal proceedings but also the entire ongoing conflict until its resolution.
The second argument is that the result of interim relief should be that no further aggravation of the dispute is allowed.
This chapter further employs the tools of the law & economics theory as to portray interim relief also as a wealth maximization lever. This chapter puts in comparison the effectiveness of the mechanism of granting and enforcement of relief before courts and before arbitral tribunals in order to propose what strategy parties are recommended to employ for better results. Finally, this chapter summarizes the types of interim measures and puts them in different categories.

Chapter seven is an attempt to look at the discussion in chapters one-six in a rearview mirror and provide a final overview placed in a wider context.
This study has purported from its outset to put the issue of interim relief against a broader, cross-jurisdictional and cross-sectoral background. It reflects the current global trends in business, private relations and disputes. This chapter reiterates the position of the author that the proper way to perceive interim measures is to view them not only as a creature of legal dispute resolution procedure but to understand interim relief as a means to ensure greater values such as reaching a meaningful end of the legal procedure, organizing the management of the underlying relationship between the parties, and providing an opportunity for restoration of the accord between them. If interim measures are seen through such a prism, their role and effectiveness appear to be ever important.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLVI Seminar entitled “Private International Law and the National Code of Civil Procedure. A critical analysis” (el Derecho Internacional Privado y el Código Nacional de Procedimientos Civiles. Un análisis crítico) from 8 to 10 November 2023. The venue of the seminar will be the Hotel Posada Señorial in Puebla, Mexico (and also online).

The main objective of this seminar will be to analyse the recently adopted Mexican National Code of Civil and Family Procedure (we previously posted about this development here), as well as the interrelationship between the new technologies and Private International Law.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 31 August 2023. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request for presentations in English and Portuguese.

There is a fee for participation both in person and online. For more information (incl. prices, hotel, venue etc.), click here.

McCarthy v Jones & Anor [2023] EWCA Civ 589 is an appeal from Jones & Anor v McCarthy [2022] EWHC 2186 (Ch) which I had not reported on the blog probably because I had not seen it (it happens to the best of us).

Jarman J in the first instance judgment summarised the facts [1 ff] as follows:

first claimant Mr Jones and the defendant Mr McCarthy orally agreed (the 2008 agreement) to exchange assets, whereby Mr McCarthy would obtain beneficial ownership of a yacht known as Biggest Buzz (the yacht) and registered in the British Virgin Islands (BVI), in exchange for Mr Jones acquiring a villa near Palma, Mallorca (the villa) and a mooring (the mooring) situated on mainland Spain. The yacht was registered in the name of the second claimant, a company owned and controlled by Mr Jones. The legal title to the villa was in the name of Mr McCarthy. The mooring was in the name of Mr McCarthy’s father. There was at the time, a substantial mortgage on the yacht and another on the villa. It was envisaged by Mr Jones and McCarthy at the time that after the swap the yacht and the villa would be sold to third parties. It is also not in dispute that part of the reason for the swap was to enable Mr Jones to buy a bigger boat.

In the autumn of 2008, Mr McCarthy sold the yacht to a third party for around £1 million, having had the use of it since the 2008 agreement was made. The second claimant had cleared the outstanding mortgage on the yacht. Mr McCarthy retained the proceeds of this sale, as was envisaged by the parties. The villa was not sold until 2016, at a price of €1.1 million. The proceeds of that sale were also retained by Mr McCarthy, which was something not envisaged at the time.

The primary remedy sought by the claimants is damages for breach of the 2008 agreement on the part of Mr McCarthy, to put them in the position they would have been in if Mr McCarthy had complied with his obligations thereunder by selling the villa at the direction of Mr Jones at its market value of €1.58 million or at least the value for which it was sold at €1.1million.

Alternatively, the claimants say that they are entitled to an account of profits and a constructive trust over the proceeds of sale of the villa, if this provides a more advantageous remedy to the claimants than that available in contract. Mr McCarthy was paid €150,000 by a Brian Proctor in December 2014 under an agreement between them which related to the villa and the mooring, and then bought it back for €950,000. Mr McCarthy then sold the villa to a third party in November 2016 for €1.1 million, so the wrongful proceeds of sale amount to €1.25 million.

The interest to the blog lies in the applicable law issues for the equitable relief. The first instance judge reported the procedural interest as follows [101]

It is not in dispute that matters of contract concerning the villa are governed by the law of England and Wales. Several weeks before the hearing was due to start, the claimants applied to amend their claims to include equitable remedies in respect of the villa. This gave Mr McCarthy little time to seek a report from an expert in Spanish law as to such remedies, as it was contended on his behalf, somewhat unusually, that despite the position regarding contractual remedies as set out above, any equitable remedies would be governed by Spanish law. This was not accepted by Mr Campbell, but he indicated that if the amendments were allowed, and if it was eventually determined that equitable remedies were governed by Spanish law, the claimants would rely solely on their claims in contract. This concession was referred to in the order made allowing the amendments, and repeated in Mr Campbell’s skeleton argument for the substantive hearing.

In other words claimant wanted to amend their claim so as to include equitable relief, a move which defendant opposed but was happy to forgive only if the judge held that that relief was subject to Spanish law, in contrast with the remainder of the claim which parties agreed was subject to English law as the lex contractus. Claimant OK-ed this route, committing to dropping the claim for equitable relief should the judge indeed find this was subject to Spanish law.

The judge duly [102] ff determined lex causae for equitable relief in the case and despite parties’ agreement that English law is the lex contractus, held it to indeed be Spanish law under the ‘most closely connected’ formula of the Rome Convention (the contract not being subject to the Rome I Regulation).

In so doing, he clearly (but without being specific about it) echoed the antediluvian (or is it?; authority and scholarship seem confused about the issue) distinction between rights, subject to the lex contractus, and remedies, subject to the lex fori – although it is odd to then subject those remedies to Spanish law. Unlike Rome I and Rome II, the Rome Convention does not have an Article specifying the ‘scope of the law applicable’, which includes in Rome I (A12(2) “within the limits of the powers conferred on the court by its procedural law, the consequences of a total or partial breach of obligations, including the assessment of damages in so far as it is governed by rules of law;”: itself of course courting controversy by referring to the limits of the lex fori’s procedural rules (see ia here for some of the discussions) and in Rome II Article 15(c) “the existence, the nature and the assessment of damage or the remedy claimed”, each with the complication of the ‘evidence and procedure’ carve-out from the scope of application of the Regulation.

On appeal, the applicable law issue was not revisited, albeit Lewison LJ [3] notes viz an issue different than the remedies issue

It is common ground that the result of the 2008 agreement was that (looking at the matter through the eyes of the law of England and Wales) Mr Jones became entitled to the beneficial interest in the villa despite Mr McCarthy’s retention of the legal title. Whether the existence of such an interest would be recognised as a matter of Spanish law was not explored either at trial or on this appeal. We were asked (rather unsatisfactorily) to assume that the law of England and Wales applied. What was in issue at the trial was whether Mr Jones had ceased to be entitled to that beneficial interest; or was estopped from denying that he had. The judge found against Mr McCarthy on both issues; and, with the permission of Asplin LJ, Mr McCarthy appeals.

E&W authority does not usually make a fuss when parties are in agreement that a specific law applies to the claim, so why such concession here would be ‘unsatisfactory’ is not entirely clear to me.

I am not finding it easy to get my head round the issues here. Perhaps the hot European summer is getting to me.

Geert.

1/2 Appeal dismissed re beneficial interest in Spanish villa despite retention of legal title
Of interest: Lewison LJ:
Whether…would be recognised as matter of SP law was not explored..We were asked (rather unsatisfactorily) to assume that the law of England and Wales applied

— Geert Van Calster (@GAVClaw) May 25, 2023

Edward Elgar has just published a Research Handbook on International Child Abduction, edited by Marilyn Freeman and Nicola Taylor.

With a focus on the 1980 Hague Convention, this cutting-edge Research Handbook provides a holistic overview of the law on international child abduction from prevention, through voluntary agreements and Convention proceedings, to post-return and aftercare issues.

Discussing the repercussions of abduction from the perspectives of both abducted children and the therapeutic and family justice professionals engaged in their cases, chapters consider the contributions of the many professionals and key agencies involved in the field. Identifying the 1980 Hague Convention as the principal global instrument for dealing with child abduction, the Research Handbook traces its role, history, development and impact, alongside the mechanisms required for its effective use. Evaluating current trends, areas of concern in legal/judicial practice and various regional initiatives, it also considers alternatives to high-conflict court proceedings in international child abduction cases. The Convention’s strengths, successes, weaknesses and gaps are discussed, and the Research Handbook concludes by addressing how best to tackle the challenges in its future operation.

Interdisciplinary and accessible in approach, the contributions from renowned subject specialists will prove useful to students and scholars of human rights and family law, international law and the intersections between law and gender studies, politics and sociology. Its combination of research, policy and practice will be of value to legal practitioners working in family law alongside NGOs and central authorities active in the field.

Contributors include: Anna Claudia Alfieri, Sarah Calvert, Stephen Cullen, Jeffrey Edleson, Linda Elrod, Mary Fata, Sarah Cecilie Finkelstein Waters, Marilyn Freeman, Gérardine Goh Escolar, Diahann Gordon Harrison, Michael Gration, Mark Henaghan, Costanza Honorati, Ischtar Khalaf-Newsome, Clement Kong, Thalia Kruger, Suzanne Labadie, Sara Lembrechts, Nigel Lowe, Alistair MacDonald, Anil Malhotra, Ranjit Malhotra, Jeremy Morley, Yuko Nishitani, Christian Poland, Kelly Powers, Joëlle Schickel-Küng, Rhona Schuz, Henry Setright, Sudha Shetty, Ann Skelton, Julia Sloth-Nielsen, Victoria Stephens, Nicola Taylor, Mathew Thorpe.

More information here.

On 13 July 2023, the Court of Justice of the European Union ruled in case C-87/22 that the court of a Member State where children were wrongfully removed by one of their parent can be requested to assume jurisdiction as a better place court than the court of their formal habitual residence, but that an application for return of the child suspends such decision.

Background

The case was concerned with the custody of two children born in 2012 from a couple of Slovak nationals in Slovakia. In 2014, the family moved to Austria, where the children went to daycare and then school for a few years. In 2017, however, the children started going to school in Slovakia, commuting daily from Austria. As the result, they spoke only limited German.

In 2020, the couple separated, and the mother took the children to Slovakia with her without the father’s consent.

The father sought an order for the return of the children under the 1980 Convention in Slovakia, and brought proceedings for custody of the children in Austria under the Brussels II bis Regulation.

The mother challenged the jurisdiction of the Austrian court on the ground that their habitual residence had been in Slovakia, where they went to school and were socially integrated. She won in first instance, but lost in appeal.

Transfer of the Case to the Place of Wrongful removal?

After loosing on jurisdiction, the mother then applied to the Austrian court for a transfer of the case to Slovakia as a better placed court under Article 15 of the Regulation.

She argued that Slovakian courts were better placed because multiple proceedings were pending in Slovakia (initiated by both parents), and extensive evidence was already available in these proceedings. The Austrian court granted the application in first instance, adding that because the children did not speak German, hearing them in Austrian proceedings would result in additional costs as interpreters would have to be involved.

The appeal court, however, saw a problem with the fact that the children had been wrongfully removed to Slovakia, and wondered whether this was a bar to resorting to Article 15. It referred the matter to the CJEU.

Judgment

The CJEU answers that the court of a Member State where a child was wrongfully removed could be transferred a case under Article 15 as a better placed court, but that an application for return of the child lodged with the competent authorities of the Member State of removal suspends any decision of transfer under Article 15.

This is a remarkable solution. As the judgement recalls, a major objective of the Regulation is to deter parents from removing wrongfully children to other Member States. This is why the return procedure exists, which should lead to a return of the child to the State where s/he was habitually resident. This is also why Article 10 of the Brussels II bis Regulation maintains the jurisdiction of the court of the old habitual residence of the child even if the removal results in a new habitual residence in another State (unless the parents have somehow consented to the removal).

Yet, the CJEU notes that, in practical terms, the court which might be considered as a better placed court under Article 15 will precisely be the court of the State where the child will have been wrongfully removed. Recall that, unlike doctrines such as forum non conveniens, the better placed court doctrine under the Brussels II Regulation is only available to transfer a case to a court which does not have jurisdiction under the Regulation.

The CJEU concludes, therefore, that Article 15 must be considered, in principle, to be available even for transfer to a court of the place of wrongful removal. The Court insists that given that one of the three prongs of the test to decide on a transfer is the best interests of the child, the decision should ultimately be “a balanced and reasonable assessment, in the best interests of the child, of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment”.

The CJEU then moves to the test for deciding a transfer under Article 15. It rules that the test remains the same in the context of a potential transfer to the court of the place of wrongful removal but that the existence of an application for return of the child suspends the decision for the six weeks time period for ruling on the application.

Assessment

The case was quite remarkable, in so far as the children were not well integrated, if at all, in the place of their habitual residence.

The judgement, however, addresses the issue from a general standpoint, and it is hard to avoid concluding that it might give additional hopes to parents that their strategy to abduct children might succeed, including in more common cases of child abduction from a country where they are socially integrated to another where they are not. The filing of an application for return of the child will, however, be an even more important move for the parent fighting against the removal and likely the transfer.

The important point that should be underlined, and which is an important safeguard, is that the decision will ultimately be made by the court of the original habitual residence. It is this court which will have to make the assessment of whether a transfer might be beneficial. The court of the place of wrongful removal may also request a transfer, but it will still have to be allowed by the court of the original habitual residence (see Article 13 of the Brussels II ter Regulation).

A collection of essays on the Hague Judgments Convention of 2 July 2019 has recently been published by Hart, in its Studies in Private International Law Series, under the title The HCCH 2019 Judgments Convention – Cornerstones, Prospects, Outlook.

Edited by Matthias Weller, João Ribeiro-Bidaoui, Moritz Brinkmann and Nina Dethloff, the book has been presented and discussed at conference that wtook place at the University of Bonn on 9 and 10 June 2023.

This book analyses, comments and further develops on the most important instrument of the Hague Conference on Private International Law (HCCH): the HCCH 2019 Judgments Convention. The HCCH Convention, the product of decades of work, will have a transformative effect on global judicial cooperation in civil matters. This book explores its ‘mechanics’, i.e. the legal cornerstones of the new Convention (Part I), its prospects in leading regions of the world (Part II), and offers an overview and comment on its outlook (Part III). Drawing on contributions from world-leading experts, this magisterial and ambitious work will become the reference work for law-makers, judges, lawyers and scholars in the field of private international law.

The contributors include Paul Beaumont, João Bidaoui-Ribeiro, Adeline Chong, Marcos Dotta Salgueiro, Beligh Elbalti, José Angelo Estrella-Faria, Pietro Franzina, Wolfgang Hau, Xandra Kramer, Cristina Mariottini, Chukwuma Okoli, Verónica Ruiz Abou-Nigm, Ilja Rumenov, Geneviève Saumier, Linda Silberman, Andreas Stein, Zheng Tang, Hans van Loon, Abubakri Yekini, Lenka Visoka, and Ning Zhao.

For more information, including the table of contents, see here.

On 26–28 October 2023, the University of Kiel will be hosting a conference on ‘EU Insolvency Law and Third Countries: Which Way(s) Forward?’. It is part of a research project coordinated by Professors Alexander Trunk (University of Kiel) and Jasnica Garasic (University of Zagreb), which is endorsed by UNCITRAL and supported by the Fritz Thyssen Foundation. It is conducted in cooperation with representatives of the European Commission and the Hague Conference on Private International Law.

At the conference, the first results from the project will be presented and discussed with a larger professional and academic public. The conference will also include a Young Researchers Forum on the morning of 26 October.

The organizers have kindly shared the following documents with us:

• Conference Announcement (and Application Form)
• YRF Announcement (and Application Form)

Further information can also be found at the project website.

 

The third edition of Fabrizio Marrella’s textbook on international business law has recently published by Wolters Kluwers/Cedam.

The author (Vice-Rector and Chair of International Law at “Cà Foscari” University of Venice, Italy) has kindly provided the following summary for our readers:

After an historical introduction and a clear systematic analysis of key actors and sources of International Business Law, the book focuses on transnational contracts and commercial relationships of companies by deepening international sales (including the first applications of Incoterms ® 2020), contracts of international transport, insurance, commercial distribution, payments and bank guarantees. The leading methodology used by the Author is that of private international law and best operational practices.

The book also sets out the regulation of foreign direct investment in the light of the latest new regulatory and case-law developments. In the final part, the work examines, in one section, ADR mechanisms together with international arbitration and, in the final section, the most relevant international civil procedure rules for businesses.

The book can be found at the publisher’s website here.

X v Coinbase Ireland Ltd ECLI:NL:RBNHO:2023:5305 is of interest to the blog for its imho shaky finding on the law applicable to the claim. The case is a so-called pig butchering scam, a term I had never before heard of. Sites like these will tell you what it means. Essentially, in the case at issue the claimant had acquired cryptocoins on a Coinbase account and was subsequently tricked into transferring those into a ‘wallet’ over which she lost control.

Coinbase is defendant, for the fraudsters clearly are nowhere to be found. The claim in a variety of ways attempts to have Coinbase cover the €170,000 or so damage. Jurisdiction is established per A17 ff Brussels Ia (the consumer title). [4.2.4] its activities are found to have been directed at The Netherlands even without it having a Dutch banking licence: it facilitated use of the Dutch iDEAL payment option; it listed The Netherlands as one of the countries in which crypto coin exchange services were available; it offered a Dutch app and a Dutch website; it had paid for Coinbase to appear in Dutch-instructed search engine queries for coinbase and for a link to its website following up on such queries.

Applicable law is held to be Dutch law, applying Rome I. The court first asks itself whether the claim is covered by Rome I or Rome II. With reference to the need for consistency between Brussels Ia and the Rome Regulations (regular readers of the blog know that I am not convinced; see eg tag ‘consistency’ or ‘reading across’ in the search box of the blog) and to CJEU Reliantco, the court holds it is Rome I that is engaged. This is despite the claim largely being based on unfair trading, a statutorily circumscribed tort in The Netherlands. In that respect the claim echoes CJEU Winkingerhof, yet the Dutch court here opts for contract in Sharpston AG Ergo style: [4.3.4] without the contract between the parties there would not currently have been a claim.

The court’s application of Article 6 Rome I then cuts many corners: it notes Coinbase’s argument that its GTCs identify Irish law as the lex contractus, acknowledges that per Rome I (only) mandatory Dutch law trumps Irish law, yet then [4.3.7] rules out the entire application of the lex voluntatis in the GTCs merely on the basis that applying Irish law would be ‘too onerous’ for the consumer, ‘if only’ because it is much more difficult to find legal advisers in The Netherlands with knowledge of Irish law. All of that is sloppy at best.

The remainder of the judgment then dismisses the claim on the basis of Dutch law.

Geert.

Platform liability, 'Pig Butchering Scam'
Consumer's claim against Irish 'Coinbase' fails (essentially on lack of causal link)
Of interest: shaky Rome I, II finding of Dutch law as lex causaehttps://t.co/MejK4lSVTw

— Geert Van Calster (@GAVClaw) June 13, 2023

Leuven term is finally wrapping up and I am hoping to post more of the promised updates over the course of the next few weeks.

In Stichting Massaschade & Consument [SMC] v Airbnb Ireland UC ECLI:NL:RBDHA:2023:8562, the Hague court of first instance held the Dutch courts do not have jurisdiction in a collective claim under the  Dutch WAMCA (mass torts managed by a collective claim).

SMC on behalf of the class members, claims a refund of the service costs which Airbnb charged to the short-term tenants (the claim is not related to the landlords using the platform).

Airbnb’s GTCs include inter alia

“As a consumer, you may bring any judicial proceedings relating to these Terms before the competent court of your place of residence or the competent court of Airbnb’s place of business in Ireland.”

The court first of all reviews the application of the consumer title in particular Article 18(1):

“A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.”

The court [4.7] is wrong in my opinion to hold that Article 18 only applies when the consumer him /herself brings the claim. Dutch courts most certainly in my view have jurisdiction.

The Court finds support for its argument that A18 only applies when the consumers bring the claim themselves in CJEU Schrems,

Rather, in Schrems the CJEU [48] with reference indeed to Bobek AG’s Opinion in the case, holds “an assignment of claims such as that at issue in the main proceedings cannot provide the basis for a new specific forum for a consumer to whom those claims have been assigned.” Meaning, in my view, the assignee must bring the claim (presuming it does not bring it in the defendant’s domicile, here Ireland) as A18 instructs “in the courts for the place where the consumer is domiciled”. A18(1) as far as the consumer is concerned, assigns not just national but also territorial jurisdiction (see also Mankowski, BIbis, 2nd revised ed., p.516), vide “the courts for the place where the consumer is domiciled” as opposed to, for the business, “the courts of the Member State in which that party is domiciled” (emphasis added)

This of course is inconvenient for SMC which for that reason [4.4] had suggested that all Dutch courts have jurisdiction and that seeing as a considerable part of the claimants are domiciled in The Hague, that is where the claims ought to be consolidated. That does not follow in my view from Article 18 and /or Schrems.

The court then rejects A19’s possibility for a more generous choice of court purely because SMC is not a consumer, misapplying Schrems again. Some kind of SMC-favourable choice of court clause under A25 linked to Airbnb’s GTCs is rejected (the judgment seems to suggest it was not even prompted by SMC). SMC had it seemed subsidiarily argued A7(1) jurisdiction, I think (but the judgment is brief on this issue) arguing that the service charge element of the agreement somehow is different from the consumer contract. Here, with reference to CJEU C-19/09 Wood Floor Solutions, the competing arguments of ‘place of performance’ viz A7(1) BIa are Ireland as the place from which the platform is run (Airbnb) and The Netherlands as the place to which that platform is directed, in Dutch (SMC, [4.17]). Here, [4.19], the court goes with Airbnb’s suggestion as the one element that is predictable, while looking at it form the user’s points of view leads to unpredictability seeing as the platform can be used by anyone anywhere in the world. On this I think more can be said.

Overall however as noted, the court in my view misapplied Article 18. Whether that may lead on appeal to consolidation at The Hague, is a different matter.

Geert.

EU private international law, 3rd ed. 2021, 2.222 ff.

Dutch court finds it does not have jurisdiction in 'WAMCA' class action v @Airbnb
Rejects A19, 25, 7(1) BIa jurisdictionhttps://t.co/ZcGaEcjUIj#Airbnb

— Geert Van Calster (@GAVClaw) June 26, 2023

Thursday’s Court of Session’s rejection of the defendant’s forum non conveniens objection to jurisdiction in Hugh Campbell KC v James Finlay (Kenya) Ltd [2023] CSOH 45 means the class action lest appeal can now go ahead . More than 700 workers are suing James Finlay Kenya Ltd (despite its name, a Scotland-incorporated company) under a class action suit. As BHRRC summarise, the former tea pickers claim they suffered serious neck and back injuries due to the poor working conditions on the company’s tea farms in Kericho.

Scotland is the home of forum non conveniens and the case is important with a view to the future direction of the doctrine.

Lord Weir first of all dealt at length and with the help of expert evidence on Kenyan law, with a number of issues under Kenyan law, essentially suggesting exclusive jurisdiction for the Kenyan courts as a result of choice of court in the employment agreements and /or by implication of mandatory Kenyan collective labour law. Eventually he rejects that suggestion and then deals more succinctly [146 ff] with the forum non challenge, which requires defendants show it is clearly and distinctly more appropriate that the group members’ claims be heard in Kenya.

[150] He is unpersuaded on the pleadings and the evidence led that there are significantly complex and disputed issues of Kenyan law (which he holds at the level of general duties is similar to Scots common law) that would require to be resolved in dealing with the group members’ substantive claims.

Other arguments cited pro forum non, are [151]

that the proceedings were likely to raise issues which required an  understanding of Kenyan culture, behaviour and custom.

At an important, though practical level, investigations would require to be undertaken locally.

There was uncertainty over the enforceability of any order made by the Scots court concerning the inspection of property, including judicial accessibility for site inspections.

It was unsatisfactory, from the point of view of assessing credibility and reliability of evidence, that interpreters would be required to translate
evidence, the nuances of which could be lost.

The requirement for translation would inevitably prolong proceedings.

Moreover, there was also no certainty that the evidence of numerous witnesses to fact could be heard remotely.

The attitude of the Kenyan state had to be considered and the correct processes followed. (The evidence of witnesses heard remotely from Kenya could only be granted without objection by the Kenyan state).

[152] Kenya is held clearly to be an appropriate forum. Again, Gleichlauf (Kenyan courts applying their own law, the lex causae) was not considered to be very relevant. Other issues though, were: The group members all live in Kenya. They all sue on the basis of having sustained injury on tea estates in Kenya as a result of the defenders’ breach of duty there. The defenders, although retaining a registered office in Scotland, have no other operations, factories or other discernible business in Scotland. They operate as a branch in Kenya. Senior officers are all based, and live, in Kenya. The circumstances giving rise to the claims, including the processes said to have given rise
to injury, will inevitably require to be investigated in Kenya. Moreover, the defenders have raised practical but nonetheless important issues about the extent to which orders normally pronounced as a matter of routine (eg specifications of documents and property, and the taking of evidence remotely) could be enforced in Kenya.

[153] Yet eventually the balance tilts in favour of Scotland: the judge holds there is cogent evidence of a material risk that the group members may not obtain justice if they are obliged to litigate their claims in Kenya. Lord Weir conducts that exercise at a very practical level, not as a systemic critique of the Kenyan legal system:

“(i) The group members’ duties involve tea harvesting on the defenders’ tea estates. The evidence, derived from the specimen contract, was that tea harvesters earned about Kshs 11,616/=. Although I was not furnished with a direct sterling equivalent Mr Nderitu’s evidence, which I accept, was that Kshs 15,000 was worth about £100 at current rates (March 2023). …a medical report might cost around Kshs 10,000. That…would suggest that a tea harvester who was looking to source their own medical report for litigation purposes would have to spend an entire month’s salary to meet the cost of doing so.
(ii) Tea harvesters working on the defenders’ tea estates were afforded
accommodation but required to purchase their own food. Their
remuneration can properly be described…. as subsistence pay.
(iii) It is probable that many of the group members cannot read or write. …
(iv) It is unlikely that any non-governmental organisation in Kenya would be in a position to fund litigation of the nature and character of these proceedings in Kenya.

(v) Although a Legal Aid Act came into force in Kenya in 2016 it is not yet fully implemented and the group members are unlikely to be able to secure legal aid and assistance in representation to advance their claims in Kenya.
(vi) Contingency fees are prohibited under Kenyan law and group  members would be potentially liable for adverse awards of costs.
(vii) Although there are provisions within the Kenyan Civil Procedure Rules 2010 which permit a group’s interests to be canvassed through a single pursuer or defender …, there are no provisions equivalent or
comparable to the rules governing group proceedings in Scotland. The group members’ claims do not fall into any of the limited categories of claim which would allow for the pursuit of such proceedings, there being no formal procedural basis to enable that to be done.
(viii) There are few lawyers in Kenya who would have the skills and resources to handle mass litigation of this kind. For those larger farms (sic) which could theoretically do so, there are likely to be a commercial disincentives because of (i) the likelihood that such firms would be looking for payment of fees and disbursements as and when they occurred, and (ii) the commercial undesirability of litigating against substantial commercial entities in Kenya.
(ix) In the foregoing circumstances, it is unlikely that the group members would be able to prosecute their claims, individually or collectively and whether or not represented, to a conclusion and to secure justice.”

This is an important finding and it emphasises the importance of practical achievability of properly bringing a claim (that is an echo of Lord Briggs’ ‘substantial justice’ considerations in the forum non conveniens part of UKSC Vedanta, which is not referred to in current judgment).

Geert.

 

Court of Session rejects exclusive jurisdiction for KEN courts and forum non conveniens defence. judge finds against forum non essentially on grounds of substantive justice

More soon

For background to the jurisdictional tussle see https://t.co/64kZyfDuOK

via @StevePeers https://t.co/ufOy1sUG3v pic.twitter.com/RHVWih2MtH

— Geert Van Calster (@GAVClaw) July 13, 2023

 

The first issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features three contributions.

Francesco Salerno, L’impatto della procedura di interpretazione pregiudiziale sul diritto internazionale privato nazionale (The Impact of the Preliminary Rulings of the Court of Justice on National Private International Law)

The European Court of Justice’s uniform interpretation of private international law concerns mainly – even though not only – the EU Regulations adopted pursuant to Art 81 TFEU: in the context of this activity, the Court also takes into account the distinctive features of EU Member States. The increasing number of autonomous notions developed by the Court greatly enhanced the consistency and the effectiveness of the European rules. Against this background, the Italian judicial authorities implemented such a case-law even when it ran counter well-established domestic legal principles. Moreover, the European institutions rarely questioned the case-law of the Court, but when they did so, they adopted new rules of private international law in order to “correct” a well-settled jurisprudential trend of the Court.

Cristina Campiglio, La condizione femminile tra presente e futuro: prospettive internazionalprivatistiche (The Status of Women between Present and Future: Private International Law Perspectives)

One of the Goals of the U.N. 2030 Agenda for Sustainable Development is gender equality (Goal 5), which can also be achieved through the elimination of “all harmful practices, such as child, early and forced marriage” (Target No 3) and the protection of women reproductive rights (Target No 6). This article addresses these two issues in a conflict-of-laws perspective, identifying the legal mechanisms through which legal systems counter the phenomenon of early marriages celebrated abroad and tackle the latest challenges related to the so-called reproductive tourism. After analyzing the role played by public policy exceptions and by the principle of the best interest of the child, it summarizes the Court of Justice’s case-law on the recognition of family situations across borders. In fact, the recognition of the possession of an EU status – meeting the social need to have a personal status which accompanies individuals anywhere within the EU area – is gaining ground. Such status is a personal identity merely functional to the exercise of EU citizens’ freedom of movement (Art 3(2) TEU, Art 21 TFEU and Art 45 EU Charter of Fundamental Rights). The result is the possession, by EU citizens, of a split personal identity – one functional to circulation, while the other one to its full extent – whose compatibility with the EU Charter of Fundamental Rights principles and with the ECHR may be called into question.

Marco Farina, I procedimenti per il riconoscimento e l’esecuzione delle decisioni straniere nella recente riforma del processo civile in Italia (Proceedings for the Recognition and Enforcement of Foreign Judgments in the Recent Italian Reform of Civil Procedure)

In this article, the author comments on the new Art. 30-bis of Legislative Decree No 150/2011, introduced by Legislative Decree No 149/2022 reforming Italian civil procedure and aimed at regulating “proceedings for the recognition and enforcement of foreign judgments provided for by European Union law and international conventions”. The author analyses the new provision, focusing on the different procedural rules applicable, depending on the relevant EU Regulation or international convention concerned, to the proceedings that the EU Regulations listed in Art. 30-bis of Legislative Decree No 150/2011 provide for obtaining the recognition and enforcement of the judgments rendered in a Member State other than the one in which they were rendered. In commenting on this new provision, the author offers a reasoned overview of the problems generated by it with the relative possible solutions.

Written by: Aditya Singh, BA.LL.B. (Hons) student at the National Law School of India University(NLSIU), Bengaluru and line editor at the National Law School Business Law Review (NLSBLR)

 

I. INTRODUCTION

The debate surrounding the composite approach i.e., the approach of accommodating the application of both the law applicable to the substantive contract and the Lex Fori to the arbitration clause has recently resurfaced with Anupam Mittal v Westbridge Ventures II (“Westbridge”). In this case, the Singapore Court of Appeal paved way for application of both the law governing substantive contract and the Lex Fori to determine the arbitrability of the concerned oppression and mismanagement dispute. The same was based on principle of comity, past precedents and s 11 of the International Arbitration Act. The text of s 11 (governing arbitrability) does not specify and hence limit the law determining public policy to Lex Fori. In any event, the composite approach regardless of any provision, majorly stems from basic contractual interpretation that extends the law governing substantive contract to the arbitration clause unless the presumption is rebuttable. For instance, in the instant case, the dispute would have been rendered in-arbitrable with the application of Indian law (law governing substantive contract) and hence the Singapore law was inferred to be the implied choice.[1]

The test as initially propounded in Sulamérica CIA Nacional de Seguros v Enesa Engenharia (“Sulamerica”) by the EWCA and later also adopted in Singapore[2] states that the law governing the substantive contract will also govern the arbitration clause unless there is an explicit/implicit choice inferable to the contrary. The sequence being 1) express choice, 2) determination of implied choice in the absence of an express one and 3) closest and the most real connection. The applicability of Lex Fori can only be inferred if the law governing the substantive contract would completely negate the arbitration agreement. There have been multiple criticisms of the approach accumulated over a decade with the very recent ones being listed in (footnote 1). The aim of this article is to highlight the legal soundness and practical boons of the approach which the author believes has been missed out amidst the rampant criticisms.

To that end, the author will first discuss how the composite approach is the only legally sound approach in deriving the applicable law from the contract, which is also the source of everything to begin with. As long as the arbitration clause is a part of the main contract, it is subject to the same. To construe it as a separate contract under all circumstances would be an incorrect application of the separability doctrine. Continuing from the first point, the article will show how the various nuances within the composite approach provide primacy to the will and autonomy of the parties.

II. TURE APPLICATION OF THE ‘SEPARABILITY’ PRINCIPLE

The theory of separability envisages the arbitration clause to be separate from the main contract. The purpose of this principle is to immunize the arbitration clause from the invalidity of the main contract. There are various instances where the validity of a contract is contested on grounds of coercion, fraud, assent obtained through corruption, etc. This, however, does not render the arbitration clause inoperable but rather saves it to uphold the secondary obligation of resolving the dispute and measuring the claims arising out of the breach.[3]

It is imperative to note from the context set above that the doctrine has a specific set purpose. What was set as its purpose in seminal cases such as Heyman v Darwins Ltd has now been cemented into substantive law with Article 16 of the UNCITRAL Model law which has further been adapted by multiple jurisdictions such as India, Singapore and the UK also having a version in s 7. The implication of this development is that separability cannot operate in a vague and undefined space creating legal fiction in areas beyond its stipulated domain. Taking into consideration this backdrop, it would be legally fallacious to strictly follow the Lex Fori i.e., applying the substantive law of the seat to the arbitration clause as a default or the other extreme of the old common law approach of extending the law applicable to the substantive contract as a default. The author submits that the composite approach which was first taken in Sulamerica and recently seen in Westbridge to determine the law applicable to arbitrability at a pre-award stage, enables the true application and effectuation of the separability doctrine.

A. Lex Fori

To substantiate the above made assertion, the author will first look at the Lex Fori paradigm. Any legal justification for the same will first have to prove that an arbitration clause is not subject to the main contract. This is generally carried out using the principle of separability. However, when we examine the text of article 16, Model law or even the provisions of the impugned jurisdictions of India and Singapore (in reference to the Westbridge case), separability can only be operationalised when there is an objection to the validity or existence of the arbitration clause. It would be useful to borrow from Steven Chong, J’s reading of the doctrine in BCY v BCZ, which is also a case of the Singapore High Court that applied the composite approach of Sulamerica. Separability according to them serves a vital and narrow purpose of shielding the arbitration clause from the invalidity of the main contract. The insulation however does not render the clause independent of the main contract for all purposes. Even if we were to examine the severability provision of the UK Arbitration Act (Sulamerica’s jurisdiction), the conclusion remains that separability’s effect is to make the arbitration clause a distinct agreement only when the main contract becomes ineffective or does not come into existence.

To further buttress this point, it would be useful to look at the other contours of separability. For instance, in the landmark ruling of Fiona Trust and Holding Corp v Privalov (2007), both Lord Hoffman and Lord Hope illustrated that an arbitration clause will not be severable where it is a part of the main contract and the existence of consent to the main contract in itself is under question. This may be owing to the fact that there is no signature or that it is forged, etc. To take an example from another jurisdiction, arbitration clauses in India seize to exist with the novation of a contract and the position remains even if the new contract does not have an arbitration clause. In these cases, the arbitration clause seized to be operational when the main contract turned out to be non-est. However, the major takeaway is that as a general norm and even in specific cases where the arbitration clause is endangered, it is subject to the main contract and that there are limitations to the separability doctrine. Hence, it would be legally fallacious to always detach arbitration clauses from the main contract and apply the law of the seat as this generalizes the application of separability, which in turn is contrary to its scheme. It is also imperative to note that the Sulamerica test does not impute the law governing the substantive contract when the arbitration clause is a standalone one hence treating it as a separate contract where ever necessary.

B. Compulsory Imposition of Law of Substantive Contract

Having addressed the Lex Fori approach, the author will now address the common law approach of imputing the law governing the main contract to the arbitration clause. The application and reiteration of which was recently seen in Enka v Chubb and Kabab-ji v Kout Food Group. If we were to just examine the legal tenability of a blanket imposition of the governing law on the main contract, the author’s stand even at this end of the spectrum would be one that the approach is impeding the true effectuation of separability. While it is legally fallacious to generalize the application of separability, the remark extends when it is not operationalized to save an arbitration clause. There may be circumstances as seen in Sulamerica and Westbridge wherein the arbitration clause will be defunct if the law of the main contract is applied. In such circumstances the arbitration clause should be considered a distinct contract and the law of the seat should be applied using a joint or even a disjunctive reading of prongs 2 and 3 of the Sulamerica test i.e., ‘implied choice’ and ‘closest and most real connection’. Although, in the words of Lord Moore-Bick, J, the two prongs often merge in inquiry as “identification of the system of law with which the agreement has its closest and most real connection is likely to be an important factor in deciding whether the parties have made an implied choice of proper law” [para 25]. In any event, when the law governing substantive contract is adverse, the default implication rendered by this inquiry is that the parties have impliedly chosen the law of the seat and the arbitration clause in these circumstances has a more real connection to the law of the seat. This is because the reasonable expectation of the parties to have their dispute resolved by the stipulated mechanism and the secondary obligation of resolving the dispute as per the contract (apart from the primary obligation of the contract) can only be upheld by applying the law of the seat.

When we specifically look at Enka v Chubb and Kabab-ji, it is imperative that these cases have still left room for the ‘validation principle’ which precisely is saving the arbitration clause in the manner described above. While the manner in which the principle was applied in Kabab-ji may be up for criticism, the same is beyond the scope of this article. A narrow interpretation of the validation principle is nonetheless avoidable using the second and third prongs of the Sulamerica test as the inquiry there gauges the reasonable expectation of the parties. Irrespective, Kabab-ji is still of the essence for its reading of Articles V(I)(a) of the New York Convention(“NYC”) r/w Article II of the NYC. Arguments have been made that the composite approach (or the very idea of applying the law governing substantive contract) being antithetical to the NYC. However, the law of the seat is only to be applied to arbitral agreements referred to in Article II, ‘failing any indication’. This phrase is broad enough to include not just explicit choices but also implicit choices of law. The applicability of Lex Fori is only mentioned as the last resort and what the courts after all undertake is finding necessary indications to decide the applicable law. Secondly, statutory interpretation should be carried out to give effect to international conventions only to the extent possible (para 31, Kabab-ji). An interpretation cannot make redundant the scheme of separability codified in the statute. Lastly, even if the approach were to be slightly antithetical to NYC, its domain of operation is at the enforcement stage and not the pre-arbitration stage. Hence, it can never be the sole determining factor of the applicable law at the pre-arbitral stage. While segueing into the next point of discussion, it would be imperative to mention amidst all alternatives and criticisms that the very creation of the arbitral tribunal, initiation of the various processes, etc is a product of the contract and hence its stipulation can never be discarded as a default.

III. PLACING PARTY AUTONOMY & WILL ON A PARAMOUNT PEDESTAL

The importance of party autonomy in international arbitration cannot be reiterated enough. It along with the will of the parties constitute the very fundamental tenets of arbitration. As per Redfern and Hunter, it is an aspiration to make international arbitration free from the constraints of national laws.[4] There will always be limitations to the above stated objective, yet the aim should be to deliver on it to the most possible extent and it is safe to conclude that the composite approach does exactly that. Darren Low at the Asian International Arbitration Journal argues that this approach virtually allows party autonomy to override public policy. Although they state this in a form of criticism as the chronology in their opinion is one where the latter overrides the former. However, even they note that the arbitration in Westbridge was obviously not illegal. It is imperative to note that the domain of various limitations to arbitration such as public policy or comity needs to be restricted to a minimum. When the parties are operating in a framework which provides self-determining authority to the extent that parties the freedom to decide the applicable substantive law, procedure, seat, etc, party autonomy is of paramount importance. The Supreme Court of India in Centrotrade Minerals v Hindustan Copper concluded party autonomy to be the guiding principle in adjudication, in consideration of the abovementioned rationale.

As stated in Fiona Trusts, the insertion of an arbitration clause gives rise to a presumption that the parties intend to resolve all disputes arising out of that relation through the stipulated mechanism. This presumption can only be discarded via explicit exclusion. An arbitration clause according to Redfern and Hunter gives rise to a secondary obligation of resolving disputes. Hence, as long as the parties intend to and have an obligation to resolve a dispute, an approach that facilitates the same to the most practicable extent is certainly commendable.

This can be further elucidated by taking a closer look at the line of cases on the topic. The common aspect in all these cases is that they have paved way for the application of laws of multiple jurisdictions which in turn has opened the gates to a very pro-validation approach. For There are multiple reasons for parties to choose a particular place for arbitration, including but not limited to neutrality, quality of adjudication, cost, procedure applicable to arbitration, etc. And while it may be true that an award passed by a following arbitration may not be enforceable in the venue jurisdiction, it can still be enforced in other jurisdictions. There are 2 layers to be unravelled here – the first one being that it is a well settled principle in international arbitration that awards set aside in one jurisdiction can be enforced in the others as long as they do not violate the public policy of the latter jurisdiction. This was seen in Chromalloy Aeroservices v Arab Republic of Egypt, wherein the award was set aside by the Egyptian Court of Appeal yet it was enforced in the U.S.A. The same principle although well embedded in other cases was recently reiterated in Compania De Inversiones v. Grupo Cementos de Chihuahua wherein the award for an arbitration seated in Bolivia was annulled there but enforced by the Tenth Circuit in the U.S.A. The second ancillary point to this is the practicality aspect. The parties generally select the law governing the substantive contract to be one where the major operations of the company, its assets related to the contract are based and hence that is also likely to be the preferred place of enforcement. This is a good point to read in Gary Born’s proposal of imputing the law of a jurisdiction that has “materially closer connections to the issue at hand”.[5]

Apart from the pro-validation approach which upholds the rational expectation of the parties, there are other elements of the composite approach that ensure the preservation of party autonomy and will. For instance, the courts will firstly, not interfere if it can be construed that the parties have expressly stipulated a law for the arbitration clause. Secondly, as has been mentioned above, the courts will impute the law governing the substantive contract as the applicable law when the arbitration clause is a standalone one. What can be observed from here is that the approach maintains a proper degree of caution even while inferring the applicable law. And lastly, the very idea of maintaining a presumption of the same law being applicable to both the main contract and the arbitration clause also aligns with upholding the will and autonomy of the parties. Various commentators have observed that parties in practice rarely stipulate a separate clause on the substantive law applicable to the arbitration clause. As observable, model clauses of the various major arbitral institutions do not contain such a stipulation and certain commentators have even gone as far as to conclude that the inclusion of such a clause would only add to the confusion. In light of this background, it was certainly plausible for Steven Chong, J in BYC v BCZ to conclude that “where the arbitration agreement is a clause forming part of a main contract, it is reasonable to assume that the contracting parties intend their entire relationship to be governed by the same system of law. If the intention is otherwise, I do not think it is unreasonable to expect the parties to specifically provide for a different system of law to govern the arbitration agreement” [para 59]. However, it has been shown above that the composite approach has not left any presumption irrebuttable in the presence of appropriate reasoning, facts and will trigger separability if necessary to avoid the negation of the arbitration agreement.

IV. CONCLUDING REMARKS

In a nutshell, what can be inferred from this article is that the composite approach keeps at its forefront principles and characteristics of party autonomy and pro-arbitration. The approach is extremely layered and well thought out to preserve the intention of the parties to the most practicable extent. It delivers on all of this while truly effectuating the principle of separability and ensuring its correct application. Hence, despite all the criticisms it is still described as a forward-looking approach owing to its various characteristics.

 

FOOTNOTES:

[1] For recent literature and more detailed facts, See Darren Jun Jie Low, ‘The Composite Approach to Issues of Non-Arbitrability at the Pre-Award and Post-Award Stage: Anupam Mittal v. Westbridge Ventures II Investment Holdings [2023] SGCA 1’, in Lawrence Boo and Lucy F. Reed (eds), Asian International Arbitration Journal (Kluwer Law International 2023, Volume 19, Issue 1), 83 – 94; Khushboo Shahdapuri and Chelsea Pollard, ‘Dispute over Matrimonial Service Website: Singapore Adopts Composite Approach in Declaring Dispute to be Arbitrable’, (Kluwer Arbitration, 2023) < Dispute over Matrimonial Service Website: Singapore Adopts Composite Approach in Declaring Dispute to be Arbitrable – Kluwer Arbitration Blog>; Nisanth Kadur, ‘Determining Arbitrability at the Pre-Award Stage: An Analysis of the Singapore Court of Appeal’s “Composite Approach”’, (American Review of International Arbitration, 2023) <Determining Arbitrability at the Pre-Award Stage: An Analysis of the Singapore Court of Appeal’s “Composite Approach” – American Review of International Arbitration (columbia.edu)>

[2] See BCY v BCZ [2016] SGHC 249; BNA v BNB [2019] SGHC 142; Anupam Mittal v Westbridge II [2023] SGCA 1.

[3] Martin Hunter and others, Redfern and Hunter on International Arbitration, (6th edn, 2015 OUP) [2.101 – 2.104].

[4] Redfern and Hunter (n 1) [1.53].

[5] Gary Born, International Commercial Arbitration, (3rd Ed, Kluwer Law International 2021) §4.05 [C] [2].

 

 

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