Droit international général

CC Rainer Lück 1RL.de, https://commons.wikimedia.org/wiki/File:Bundesverfassungsgericht_IMGP1634.jpg

 

I.

Yesterday, on March 29, 2023, the German Constitutional Court published its long-awaited (and also long) decision on the German “Act to Combat Child Marriage” (Gesetz zur Bekämpfung von Kinderehen). Under that law, passed in 2017 in the midst of the so-called “refugee crisis”, marriages celebrated under foreign law are voidable if one of the spouses was under 18 at the time of marriage (art. 13 para. 3 no. 2 EGBGB), and null and void if they were under 16 (art. 13 para. 3 no. 1 EGBGB) – regardless of whether the marriage is valid under the normally applicable foreign law. In 2018, the German Federal Court of Justice refused to apply the law in a concrete case and asked the Constitutional Court for a decision on the constitutionality of the provision.

That was a long time ago. The wife in the case had been fourteen when the case started in the first instance courts; she is now 22, and her marriage certainly no longer a child marriage. And as a matter of fact, the Constitutional Court decision itself is  already almost two months old; it was rendered on February 1. This and the fact that the decision cites almost no sources published after 2019 except for new editions of commentaries, suggests that it may have existed as a draft for much longer. One reason for the delay may have been internal: the president of the Court, Stephan Harbarth, was one of the law’s main drafters. The Court decided in 2019 that he did not have to recuse himself, amongst others for the somewhat questionable reason that his support for the bill was based on political, not constitutional, considerations. (Never mind that members of parliament are obligated by the constitution also in the legislative process, and that a judge at the Constitutional Court may reasonably be expected to be hesitant when judging on the unconstitutionality of his own legislation.)

 

II.

In the end, the Court decided that the law is, in fact, unconstitutional: it curtails the special protection of  marriage, which the German Constitution provides, and this curtailment is not justified. The decision is long (more than sixty pages) but characteristically well structured so a summary may be possible.

Account to the Court, the state’s duty to protect marriage (art. 6 para. 1 of the Basic Law, the German Constitution) includes not only marriage as an institution but also discrete, existing marriages, and not only the married status itself but also the whole range of legal rules surrounding it and ensuing from it. Now, the Court has provided a definition of marriage as protected under the Basic Law: it is a union, in principle in perpetuity, freely entered into, equal and autonomously structured, and established by the marriage ceremony as a formalized, outwardly recognizable act. (Early commentators have spotted that “between one man and one woman” is no longer named as a requirement, but it seems far-fetched to view this as a stealthy inclusion of same-sex marriage within the realm of the Constitution.) The stated definition includes marriages celebrated abroad under foreign law. Moreover, it includes marriages celebrated at a very young age as long as the requirement is met that they were entered into freely.

A legislative curtailment of this right could be justified. But the legislator has comparably little discretion where a rule, as is the case here, effectively amounts to an actual impediment to marriage. Whether a curtailment is in fact justified is a matter for the classical test of proportionality: the law must have a proper and legitimate purpose; it must be suitable towards that purpose; it must be necessary towards that purpose; and it must be adequate (“proportional” in the narrow sense) towards the purpose, in that the balance between achieving the purpose and curtailment of the right must not be out of proportion.

Here, the law’s purposes themselves – the protection of minors, the public ostracization of child marriage, and legal certainty – isarelegitimate. The worldwide fight against child marriage is a worthy goal. So is the desire for legal certainty regarding the validity of specific marriages.

The law is also suitable to serve these purpose: the minor is protected from the legal and factual burdens arising from the marriage; the law may deter couples abroad from getting married (or so the legislator may legitimately speculate; empirical data substantiating this is not available.) A clear age rule avoids the uncertainty of a case-by-case ordre public analysis as the law prior to 2017 had required.

According to the Court, the measures are also necessary towards these purposes, because alternative measures would not be similarly successful. Automatic nullity of the affected marriages is more effective, and potentially less intrusive, than determining nullity in individual proceedings. It is also more effective than case-by-case determinations under a public policy analysis. And it offers better protection of minors than forcing them to go through a procedure aimed at annulling the marriage would.

Nonetheless, the Court sees in the law a violation of the Constitution: the measure is disproportionate to the curtailment of rights. That curtailment is severe: the law invalidates a marriage that the spouses may have considered valid, may have consummated, and around which they may have built a life. Potentially, they would be barred from living together although they consider themselves to be married.

The Court grants that the protection of minors is an important counterargument in view of the risks that child marriages pose to them. So is legal certainty regarding the question of whether a marriage is or is not valid.

But the legislation is disproportionate for two reasons. First, the law does not regulate the consequences of its verdict on nullity. So, not only does the minor spouse lose the legal protections of marriage, including the right to cohabitation; they also lose the rights arising from a proper dissolution of the marriage, including financial claims against the older, and frequently wealthier, spouse. These consequences run counter to the purpose of protecting the minor. Second, the law does not enable the spouses to carry on their marriage legally after both have reached maturity unless they remarry, and remarriage may well be complicated. This runs counter to the desire to protect free choice.

The court could have simply invalidated the law and thereby have gone back to the situation prior to 2017. Normally, substantive validity of a marriage is determined by the law of each spouse’s nationality (art. 13 para. 1 EGBGB). Whether that law can be applied in fact, is then a matter of case-by-case determinations based on the public policy exception (art. 6 EGBGB). That is in fact the solution most private international lawyer (myself included) preferred. The Court refused this simple solution with the speculation that this might have resulted in bigamy for (hypothetical) spouses who had married someone else under the assumption that their marriages were void. (Whether such cases do in fact exist is not clear.) Therefore, the Court has kept the law intact and given the legislator until June 30, 2024 to reform it. In the meantime, the putative spouses of void marriages are also entitled to maintenance on an analogy to the rules on divorce.

 

III.

The German Constitutional Court has occasionally ruled on the constitutionality of choice-of-law rules before. Its first important decision – the Spaniard decision of 1971 – dealt with whether the Constitution had anything to say about choice of law at all, given that choice of law was widely considered to be purely technical at the time, with no content of constitutional relevance. That decision, which addressed a Spanish prohibition on remarrying after divorce, already concerned the right to marry. Another, more recent decision held that a limping marriage, invalid under German law though valid under foreign law, must nonetheless be treated as a marriage for purposes of social insurance. Both decisions rear their heads in the current decision, forming a prelude to a constitutional issue that now resurfaces: the court is interested less in the status of marriage itself and more in the actual protections that emerge from a marriage.

The legal consequences of a marriage are, of course, manifold, and the legislator’s explicit determination that the child marriage should yield no consequences whatsoever is therefore far-reaching. (Konrad Duden’s proposal to interpret the act so as to restrict this statement to consequences that are negative for the minor is not discussed, unfortunately). Interestingly, the Court accords no fewer than one fifth of its decision, thirteen pages, to a textbook exposition of the relevance of marriage in private international law. Its consequences were among the main reasons for near-unanimity in the German conflict-of-laws field in opposition to the legal reform. Indeed, another fifth of the decision addresses the positions of a wide variety of stakeholders and experts –the federal government and several state governments, the Max Planck Institute for Comparative and International Private Law, a variety of associations concerned with the rights of women, children, and human rights as well as psychological associations. Almost all of them urged the Court to rule the law unconstitutional.

These critics will regard the decision as an affirmation, though perhaps not as a full one, because the Court, worried only about consequences, essentially upholds the legislator’s decision to void child marriages entered into before the age of sixteen. This is unfortunate not only because the status of marriage itself is often highly valuable to spouses, as we know from the long struggles for the acceptance of same-sex marriage rather than mere life partnership. Moreover, the result is the acceptance of limping marriages that are however treated as though they were valid. This may be what the Constitution requires. From the perspective of private international law, it seems slightly incoherent to uphold the nullity of a marriage on one hand and then afford its essential protections on the other, both times on the same justification of protecting minors. In this logic, the Court does not question whether the voiding of the marriage is generally beneficial to all minors in question. Moreover, in many foreign cultures, these protections are the exclusive domain of marriage. It must be confusing to tell someone from that culture that the marriage they thought was valid is void, but that it is nonetheless treated as though it were valid for matters of protection.

 

IV.

An interesting element in the decision concerns the Court’s use of comparative law. Germany’s law reform was not an outlier: it came among a whole flurry of reforms in Europe that were quite comprehensively compiled and analyzed in a study by the Hamburg Max Planck Institute (it is available, albeit only in German, open access). In recent years, many countries have passed stricter laws vis-à-vis child marriages celebrated under foreign law: France (2006), Switzerland (2012), Spain (2015), the Netherlands (2015), Denmark (2017), Norway (2007/2018), Sweden (2004/2019) and Finland (2019). Such reforms were successful virtue-signaling devices vis-a-vis rising xenophobia (not surprisingly, right-wingers in Germany have already come out again to criticize the Constitutional Court). Substantively, these laws treat foreign child marriages with different degrees of severity – the German law is especially harsh. However, comparative law reveals more than just matters of doctrine. Several empirical reports have demonstrated that foreign laws were not more successful at reducing the number of child marriages than was the German law, which is more a function of economic and social factors elsewhere than of European legislation. Worse, the laws sometimes had harmful consequences, not only for couples separated against their will, but even for politicians: in Denmark, one former immigration minister was impeached after reports by the Danish Red Cross of a suicide attempt, depression, and other negative psychosocial effects of the law on married minors. And surveys have shown that enforcement of the laws has been spotty in Germany and elsewhere.

The Constitutional Court did not need to pay much attention to these empirical reports. In assessing whether annulling foreign marriages was necessary, the Court did however take guidance from the Max Planck comparative law study, pointing out (nos 182, 189) that the great variety of alternative measures in foreign legislation made it implausible that the German solution – no possibility to validate a marriage at age eighteen – is necessary . This makes for a good example of the usefulness of comparative law – comparative private international law, to be more precise –  even for domestic constitutional law. If demonstrating that a measure is necessary requires showing a lack of alternatives, then comparative law can furnish both the alternatives as well as empirical evidence of their effectiveness. That comparative law can be put to such practical use is good news.

 

V.

The German legislator must now reform its law. What should it do? The Court has hinted at a minimal solution: consider these marriages void without exception, but extend post-divorce maintenance to them, and enable the couple to affirm their marriage, either openly or tacitly, once they are of age. In formulating such rules, comparative analysis of various legal reforms in other countries would certainly be of great help.

But the legislator may also take this admonition from the Constitutional Court as an impetus for a bigger step. Not everything that is constitutionally permissible is also politically and legally sound. The German reform was rushed through in 2017 in the anxiousness of the so-called refugee crisis. The same was true, with some modifications, of other countries’ reforms. What the German legislator can learn from them is not only alternative modes of regulation but also that these reforms’ limited success is not confined to Germany. This insight could spark legislation that focuses more on the actual situation and needs of minors than on the desire to ostracize child marriage on their backs. Such legislation may well reintroduce case-by-case analysis, something private international lawyers know not to be afraid of. This holds true especially in view of the fact that the provision does not regulate a mass problem but rather a relatively small number of cases which is unlikely to create excessive burdens on agencies and the judiciary. The legislator could also substitute the place of celebration for the spouses’ nationality as the relevant connecting factor for substantive marriage requirements, as the German Council for Private International Law, an advisor to the legislator, has already proposed (Coester-Waltjen, IPRax 2021, 29). This would make it possible to distinguish more clearly between two very different situations: couples wanting to get married in Germany (where the age restriction makes eminent sense) on the one hand, and couples who already got married, validly, in their home countries and find their actually existing marriage to be put in question. Indeed, this might be a good opportunity to move from a system that designates the applicable law to a system that recognizes foreign acts, as is the case already in some other legal systems.

In any case, the Court decision provides Germany with an opportunity to move the fight against child marriage back to where it belongs and where it has a better chance of succeeding – away from private international law, and towards economic and other forms of aid to countries in which child marriage would be less rampant if they were less afflicted with war and poverty.

 

 

 

 

 

 

 

The European Commission has published, on 29 March 2023, a Study to support the preparation of a report on the application of the Brussels I bis Regulation, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The blurb reads as follows.

Regulation 1215/2012 (Brussels Ia Regulation) was adopted on 12 December 2012, entered into force on 9 January 2013, and started to apply from 10 January 2015 onwards. It aims to establish a uniform and comprehensive set of rules governing jurisdiction and the recognition and enforcement of judgments in cross-border civil and commercial matters. The scope of the Regulation encompasses a wide range of civil and commercial matters, including insurance, consumer, and employment contracts. It applies in all EU Member States. Since the adoption of the Regulation, several developments, such as the case-law of the CJEU, increased worker mobility, digitalisation, the adoption of new international instruments in the field of private international law (PIL) (such as the 2019 Hague Judgments Convention), the adoption of other EU instruments providing for PIL rules applicable in civil and commercial cross-border matters (such as the Maintenance Regulation or the Insolvency Regulation) are likely to have had an impact on its operation. In this context, the objective of the Study is to assist the Commission in preparing the report on the application of the Brussels Ia Regulation (as provided under its Article 79), and to provide a thorough legal analysis of the application of the Brussels Ia Regulation in the Member States. In particular, the Study aims to determine whether the Regulation is correctly applied in the Member States and to identify specific difficulties encountered in practice. The Study also aims to assess whether recent socioeconomic changes pose challenges to the application of Brussels Ia Regulation’s rules, definitions, and connecting factors. The analysis – based on desk research, CJEU and national case-law analysis and interviews at both the EU and national levels – covers 34 questions on the main legal and practical issues and questions arising from the application of the Brussels Ia Regulation.

The study, written by Milieu, is based on advice provided by Pedro de Miguel Asensio and Geert Van Calster, and draws on input from a team of national experts including Florian Heindler and  Markus Schober, Michiel Poesen, Dafina Sarbinova, Christiana Markou, Hana Špániková, Bettina Rentsch and Maren Vogel, Morten M. Fogt, Thomas Hoffmann and Karine Veersalu, Argyro Kepesidi Eduardo Álvarez-Armas, Katja Karjalainen, Virginie Rouas, Ivan Tot, Tamás Fézer, William Binchy, Laura Carpaneto and Stefano Dominelli, Yvonne Goldammer and Arnas Stonys, Vincent Richard, Aleksandrs Fillers, Emma Psaila, Kirsten Henckel, Anna Wysocka-Bar, Maria João E. de Matias Fernandes, Sergiu Popovici, David Jackson, Ela Omersa, and Natalia Mansella.

The report can be found here.

As many readers of the blog surely know already, the Unified Patent Court Agreement (UPC Agreement) will enter into force on 1 June 2023.

With this in mind, a 3-month Sunrise period started on 1 March 2023. From that date, an opt-out from the jurisdiction of the Court, as laid down in Article 83(3) of the UPC Agreement, can be filed. According to the provision, applicants for and proprietors of a “classic” European patent, as well as holders of a supplementary protection certificate (SPC) issued for a product protected by a “classic” European patent, can opt out their application, patent or SPC from the exclusive competence of the Court. As a result, the UPC will have no jurisdiction concerning any litigation related to this application, patent or SPC. The application to opt out can only be made via the Case Management System of the Court (CMS); the conditions are explained here. It should be noted that the opt-out will only become effective on the date of entry into force of the Agreement on a Unified Patent Court.

Filing a request to become a representative before the UPC, as per Article 48 of the Agreement, is also possible since 1 March 2023. Two categories are eligible to become representative before the UPC: lawyers authorised to practice before a court of a Contracting Member State  (Article 48(1) UPCA) and European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office and who have appropriate qualifications as per Article 48(2) UPCA and the European Patent Litigation Certificate Rules.

The first experiences with the live version of the Court’s Case Management System (CMS) have just been reported by the Registrar (a week before, Luxembourg launched a call for applications for administrative support staff at the Registry and Court of Appeal of the Unified Patent Court in Luxembourg, deadline ending soon, in case of interest. Other vacancies are posted here).

Just for the record: 24 EU Member States have signed the Agreement on a Unified Patent Court (Spain, Poland and Croatia have not). Initially, the UPCA will be in force in 17 states which have ratified the Agreement (Cyprus, Czech Republic, Greece, Hungary, Ireland, Romania, Slovakia have not). The unitary patent is the outcome of enhanced cooperation procedure; it was established via Regulation No 1257/2012 of 17 December 2012. In 2014, Regulation No 542/2014 was adopted amending Regulation No 1215/2012 as regards the rules on jurisdiction to be applied with respect to the Unified Patent Court (see consolidated version of the latter Regulation, whose Article 24(4) will still remain in force after 1 June 2023, albeit with a more limited scope of application).

For litigants embroiled in cross-border litigation, the anti-suit injunction has become a staple in the conflict of laws arsenal of common law courts. Its purpose being to restrain a party from instituting or prosecuting proceedings in a foreign country, it is regularly granted to uphold arbitration or choice of court agreements, to stop vexatious or oppressive proceedings, or to protect the jurisdiction of the forum court. However, what is a party to do if the foreign proceeding has already run its course and resulted in an unfavourable judgment? Enter the anti-enforcement injunction, which, as the name suggests, seeks to restrain a party from enforcing a foreign judgment, including, potentially, in the country of judgment.

Decisions granting an anti-enforcement injunction are “few and far between” (Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309, [2016] 1 WLR 2231, [118]). Lawrence Collins LJ (as he then was) described it as “a very serious matter for the English court to grant an injunction to restrain enforcement in a foreign country of a judgment of a court of that country” (Masri v Consolidated Contractors International (UK) Ltd (No. 3) [2008] EWCA Civ 625, [2009] QB 503 at [93]). There must be a good reason why the applicant did not take action earlier, to prevent the plaintiff from obtaining the judgment in the first place. The typical scenario is where an applicant seeks to restrain enforcement of a foreign judgment that has been obtained by fraud.

This was the scenario facing the New Zealand High Court in the recent case of Kea Investments Ltd v Wikeley Family Trustee Limited [2022] NZHC 2881. The Court granted an (interim) anti-enforcement injunction in relation to a default judgment worth USD136,290,994 obtained in Kentucky (note that the order was made last year but the judgment has only now been released). The decision is noteworthy not only because anti-enforcement injunctions are rarely granted, but also because the injunction was granted in circumstances where the foreign proceeding was not also brought in breach of a jurisdiction agreement. Previously, the only example of a court having granted an injunction in the absence of a breach of a jurisdiction agreement was the case of SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 (see Tiong Min Yeo “Foreign Judgments and Contracts: The Anti-Enforcement Injunction” in Andrew Dickinson and Edwin Peel A Conflict of Laws Companion – Essays in Honour of Adrian Briggs (OUP, 2021) 254).

Kea Investments Ltd v Wikeley Family Trustee Limited involves allegations of “a massive global fraud” perpetrated by the defendants – a New Zealand company (Wikeley Family Trustee Ltd), an Australian resident with a long business history in New Zealand (Mr Kenneth Wikeley), and a New Zealand citizen (Mr Eric Watson) – against the plaintiff, Kea Investments Ltd (Kea), a British Virgin Islands company. Kea alleges that the US default judgment is based on fabricated claims intended to defraud Kea. Its substantive proceeding claims tortious conspiracy and a declaration that the Kentucky judgment is not recognised or enforceable in New Zealand. Applying for an interim injunction, the plaintiff argued that “the New Zealand Court should exercise its equitable jurisdiction now to prevent a New Zealand company … from continuing to perpetrate a serious and massive fraud on Kea” (at [27]) by restraining the defendants from enforcing the US judgment.

The judgment is illustrative of the kind of cross-border fraud that private international law struggles to deal with effectively: here, alleged fraudsters using the Kentucky court to obtain an illegitimate judgment and, apparently, frustrate the plaintiff’s own enforcement of an earlier (English) judgment, in circumstances where the Kentucky court is unwilling (or unable?) to intervene because Kea was properly served with the proceeding in BVI.

Gault J considered that the case was “very unusual” (at [68]). Kea had no connection to Kentucky, except for the defendants’ allegedly fabricated claim involving an agreement with a US choice of court agreement and a selection of the law of Kentucky. Kea also did not receive actual notice of the Kentucky proceedings until after the default judgement was obtained (at [73]). In these circumstances, the defendants were arguably “abusing the process of the Kentucky Court to perpetuate a fraud”, with the result that “the New Zealand Court’s intervention to restrain that New Zealand company may even be seen as consistent with the requirement of comity” (at [68]).

One may wonder whether the Kentucky Court agrees with this assessment – that a foreign court’s injunction restraining enforcement of its judgment effectively amounts to an act of comity. In fact, Kea had originally advanced a cause of action for abuse of process, claiming that the alleged fraud was an abuse of process of the Kentucky Court. It later dropped the claim, presumably due to a recent English High Court decision (W Nagel (a firm) v Chaim Pluczenik [2022] EWHC 1714) concluding that the tort of abuse of process does not extend to foreign proceedings (at [96]). The English Court said that extending the tort to foreign proceedings “would be out of step with [its] ethos”, which is “the Court’s control of its own powers and resources” (at [97]). It was not for the English court “to police or to second guess the use of courts of or law in foreign jurisdictions” (at [97]).

Since Gault J’s decision granting interim relief, the defendants have protested the Court’s jurisdiction, arguing that Kea is bound by a US jurisdiction clause and that New Zealand is not the appropriate forum to determine Kea’s claims. The Court has set aside the protest to jurisdiction (Kea Investments Ltd v Wikeley Family Trustee Limited [2023] NZHC 466). The Court also ordered that the interim orders continue, although the Court was not prepared to make a further order that the defendants consent to the discharge of the default judgment and withdraw their Kentucky proceedings. This, Gault J thought, was “a bridge too far” at this interim stage (at [98]).

UBS’ bailout of Credit Suisse, arguably strong-armed by the Swiss State, will have had countless lawyers phoning investors, and countless investors lawyering up. I am no expert in banking and finance law, I am of course like everyone else aware that the anger is most visible in so-called AT1 bondholders. This blog is interested in the dispute resolution fall-out likely to rain down on various dispute resolution avenues for some time to come.

A quick flag that those considering litigation, will have a range of issues to ponder. Who to sue, for starters. The Swiss authorities might be a target, leading of course to considerations of immunity and, give the close involvement of the Swiss authorities in the rescue, of the qualification of the claims as ‘civil and commercial’ (echoes here of CJEU Kuhn etc, now under the Lugano Convention).

What litigation avenue to pursue, next: the bond holders will be subject to dispute resolution clauses, one imagines either with choice of court for Switzerland or providing for commercial arbitration. Depending on time and avenue of acquisition of the bonds, the holders may well argue they are not bound by such clauses, Further, a potential to use the route typically favoured by Swiss-headquartered multinationals, against other States: ISDS. Investor-State Dispute Settlement (with their ‘fork in the road’ provisions).

(Digital) Rolodexes the world over will be spinning by now. As and when this leads to litigation as suggested above, the blog will be reporting.

Geert.

 

 

On 21 April, Louvain-La-Neuve will be hosting a conference in honour of prof emeritus Marc Fallon. The general concept of the conference is included below (summary provided by prof Stéphanie Francq, one of the main organisers of the event). More info with full program and link for registration is here. This will be a thoughtFest for all interested in EU private international law and with working languages both English and French, it speaks to a broad audience.

Get thee to Louvain. Geert.

 

Why and for what purpose should European private international law be codified? This twofold question will be at the heart of the discussions on April 21, 2023, during a colloquium paying tribute to the remarkable work of Professor Marc Fallon in the fields of private international law and European law, and in particular to his involvement in the Belgian and European codification of private international law. How did we come to envisage a European codification of private international law? What do we expect from it? Does an EU codification have the same ambitions as national codifications? Do these ambitions not vary according to the place, the time and the context of international constraints imposed on the legislator? Does a codification at the European level, and at the present time, imply specific needs, challenges and consequences, even dangers, for both the national and the European legal orders? And above all, does it offer new prospects or hopes for the European project and for the discipline of private international law?

The European Commission has published in December 2022 an ambitious proposal for a new Regulation dealing with the private international law of parenthood (COM (2022) 695 final).

With this proposal, the EU could for the first time adopt a private international law instrument dealing with the creation (and not only the effects) of a family status. While both the CJEU and the ECtHR have somewhat limited the freedom enjoyed by States faced with parenthood established abroad, there is not yet any precedent of an international instrument dealing with all issues arising when parenthood crosses national borders.

The proposal is currently being discussed in the Council, with the assistance of the Commission. There is no guarantee that a Regulation will effectively be adopted. Nor is it possible to tell at this stage how much a future Regulation will deviate from the proposal.

The proposal raises, however, many intriguing questions which are likely to trigger an intense debate. It offers a unique opportunity to discuss the private international law treatment of parenthood with a special focus on the proposal.

During four sessions in May 2023, experts from various Member States will discuss the main elements of the proposal, find weaknesses and possibilities of improvement. Each webinar will start at 6 pm and end at 8 pm, and focus on two topics, each presented by one expert, who will discuss the content of the proposal and examine the questions and possible improvement it raises. There will be ample room for discussion.

The programme of the series is as follows:

• 3 May 2023, webinar chaired by Claire Fenton-Glynn: The EU Proposal on Parenthood: lessons from comparative and substantive law (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.

A post on this blog will announce the opening of registrations in mid-April 2023 and provide further details.

For inquiries, please contact sgoessl@uni-bonn.de.

“A rose is a rose is a rose”, goes the famous quote. It indicates a basic, intuitive truth: the words we use to designate things usually have the ability to evoke a specific imagery and the mainstream understanding of the “essence” of such things. Usually: this specification is essential in current EU private international law (EUPIL), which is based on judicial cooperation – and therefore communication – among 27 different legal systems, with all the difficulties this might entail. In particular, in this Tower of Babbel of legal languages, some of the legal concepts used by uniform EUPIL Regulations may carry an avoidable ambiguity and present problematic gray areas, where “a rose” might intuitively be “a rose” for some Member States, while appearing like a totally different exotic flower to the eyes of others.

This post focuses on the problems raised by the notions of “judgment” or “decision”, which are in turn strictly linked to the notion of “court”. In this respect, the principle of autonomous interpretation of EUPIL concepts, as established by the CJEU since 1976, seems to have undergone a certain evolution, and more recent case law has lent a remarkably multifaceted character to the interpretive approach to shape the meaning of those notions.  The preliminary ruling handed down by the CJEU on 15th November 2022 in C-646/20, Senatsverwaltung für Inneres und Sport, as well as the fact of this case, are particularly relevant for this purpose.

The Root of the Problem

The uncertainties surrounding the meaning of the notion of “judgment” in EUPIL stem from two main factors.

The first trigger lies in the limited competences of the EU, whose legislative action is bound by the principles of conferral, subsidiarity and proportionality. As a result, large areas of the Member States’ private and procedural laws remain, to the present days, untouched by the process of EU harmonization or approximation, with domestic legislators maintaining high degrees of discretion in shaping their internal laws. This is not necessarily a problem for private international law (PIL), whose raison d’être is, precisely, legal diversity. The problem of characterisation – ie the alternative between lege fori and lege causae – is a leitmotif of PIL and has engaged scholars over centuries. The “real problem” arises when EU law forces the private international lawyer to think out of the box of this traditional alternative, with the CJEU having since long established that, in interpreting the legal notions used by EUPIL instruments, “reference must be made not to the law of one of the States concerned but, first, to the objectives and scheme of [each instrument] and, secondly, to the general principles which stem from the corpus of the national legal systems’. This is the famous LTU v Eurocontrol principle, set out by case 29/76, § 3. I will come back to this principle in a moment.

The second trigger of said “communication difficulties” is inherent to, and exacerbated by, the current structure of EU law in general, and of EUPIL in particular. In the latter, the EU legislator has notably adopted a piecemeal approach to harmonization. As a result, EUPIL is composed by a wide array of subject-specific Regulations, each having a limited material scope of application and covering a particular sub-area of civil law. While the legal notions used across different EUPIL instruments could, in principle, profit from the principle of inter-textual interpretation to receive similar meanings (cf Recitals 7 of the Rome I and Rome II Regulations), the CJEU has warned against a too liberal use if this approach. In C-45/13, Kainz, the Court held that the objective of consistency cannot, in any event, lead to interpreting the notions used by a specific Regulation in a manner which is unconnected to the scheme and objectives pursued by the concerned instrument (§ 20). This is to say that the meaning of uniform legal concepts used by several EU law Regulations could undergo important sectoral variations in accordance with the specific material scope, scheme of objectives of each of them.

This problem acquires a particular importance in relation to some notions, such as the concept of “judgment”, that are used cross-cuttingly by almost all EUPIL Regulations. In a previous post, I pointed to the ambiguity of the term ‘court’ and to the different drafting techniques (and wordings) adopted by the EU legislator with respect to statutory definitions thereof. The same reasoning could be extended to the (bordering) notions of ‘judgment’ or ‘decisions’. The CJEU acknowledged the disrupting effect of these two triggers in a judgment rendered in April 2022, where it remarked that, owing to the limited (material) scope of application of EUPIL Regulations, and lacking a complete unification of Member States’ laws, ‘certain types of proceedings and court judgments in one Member State do not necessarily have an equivalent in the other Member States’ (Case C-568/20, H Limited, commented on this blog here and here). This is precisely the problem of  the “exotic rose”.

The LTU Criteria under a Growing Pressure?

Case C-646/20, Senatsverwaltung für Inneres und Sport is a good example thereof. As previously reported on this blog (here, here and here), this case concerned the recognition, in a Member State (Germany) of the dissolution of a marriage established in an agreement between spouses and pronounced by a civil registrar of another Member State (Italy).

Born from the objective of easing the burden on the court system and making divorce procedures swifter in the most “unproblematic” cases of dissolution of marriage by mutual consent, the Italian rules on extra-judicial divorces caused some interpretive doubts in Germany, where the recognition of the resulting divorce deed was sought. Ultimately, the question raised by the referring German court cut down to the definition (and the outer boundaries) of the notions of ‘judgment’ and ‘court’ retained by the Brussels IIa Regulation. Consistently with the general principle set in LTU, the starting point of the reasoning is that no weight should be given, for these purposes, to the explicit characterization established under Italian law, which specifies that the agreement concluded before the civil registrar replaces judicial decisions relating, in particular, to the procedure for dissolution and termination of the civil effects of the marriage (§§ 22-23 of the judgment).

It is worth stressing that the field of family law presents a particular challenge for the “second prong” of the LTU principle, ie for the interpretative value of the “general principles stemming from the corpus of the national legal systems”.

The LTU judgment was handed down in 1976, within the framework of a much more limited EUPIL (limited to the 1968 Brussels Convention) and a much smaller and less “legally diverse” Community (made of just nine States, with all the parties to this Convention belonging to the civil law tradition, since  the UK, Ireland and Denmark only acceded to it in 1978). The possibility of identifying some “general principles”, common or at least familiar to all of those legal systems, was not, at the time, such a preposterous idea. Indeed, in the second prong of LTU, the Court seemed to draw inspiration from both Savigny’s idea of the community of law and Rabels’ comparative approach to characterization.

Several decades later, and within the framework of a much bigger and more diverse Union, the viability and practical usefulness of said approach could be doubted, especially with respect those branches of private (and civil procedural) law that are characterized by remarkable variations at the domestic level. Over the last decade, several Member States have undertaken wide-ranging (and non-coordinated) reforms in a variety of fields, such as debt recovery or divorce law and divorce proceedings, having adopted in this respect a variety of solutions.

Concerning the latter, a common denominator of divorce reforms consists in the momentum gained by extrajudicial divorces, which have been introduced by 9 Member States (see here for the complete legal references to these reforms). Besides this general common feature (the devolution of divorce proceedings to a non-judicial body), the system set in place by said reforms vary greatly from country to country.

Firstly, there is no common solution as concerns the identification of the (non-judicial) authority empowered to hear divorce proceedings. Portugal, Italy and Estonia have chosen to delegate such proceedings to the Civil Registry Office. In Estonia, this competence is shared with the notary. The notary is also the designated authority for Latvia, Romania, France, Greece, Spain and Slovenia. Secondly, there is no common take on the breath of the devolution of divorce proceedings to non-judicial authorities. It seems (this premise is essential given the language barrier and the scarce information available in English with respect to certain jurisdictions) that in some Member States, these non-judicial authorities exercise a mandatory and exclusive jurisdiction over divorce proceedings. This means, in practice, that there is no alternative (i.e., judicial) procedural avenue open to applicants who wish to get divorced by mutual consent.

Combined together, these factors make it particularly difficult to envision the existence of the “general principles stemming from the corpus of the national legal systems” in the field of (extrajudicial) divorce.

A Practical Guide to Deciphering the “Scheme and Objectives” of EUPIL Instruments

In the light of the above, it is not surprising  that, in Senatsverwaltung für Inneres und Sport, the CJEU relied primarily on the first prong of the LTU principle, that is the “scheme and objectives” of the Brussels IIa Regulation. In particular, this judgment is especially interesting for the way in which the Court approaches the assessment thereof:  this analysis proceeds through several steps, in which the Court mobilizes distinct interpretive elements to shed better light on the scheme and/or objectives of the Brussels Ia Regulation.

My impression is that this approach, and said elements, are deemed to acquire increasing importance in future cases, especially in areas where the second prong of the LTU principle – ie the “general principles stemming from the corpus of the national legal systems” – is not of much help owing to the uncoordinated and diverse evolution of the domestic laws of Member States.

These “general interpretive guidelines” can be summarized as follows:

1. The importance of the letter of the law (and of statutory definitions)

After having recalled the principle of autonomous interpretation of the notions used by the Brussels IIa Regulation, and particularly by its Articles 2 (4) and 21 (§ 41 of Senatsverwaltung für Inneres und Sport), the CJEU summarizes the general objectives pursued by this instrument (§§ 42-45).

The judgment places particular emphasis on the broad wording used by Article 2 (1) and (4) of these Regulation, pursuant to which “the term court shall cover all authorities in the Member States with jurisdiction in the matters falling within the scope of the [Brussels IIa] Regulation pursuant to Article 1”, whereas the notion of “judgment” shall include, inter alia, “a divorce…whatever the judgment may be called…”.

Siding on this point with the Opinion of AG Collins, who also referred to the wide definition of “judge” adopted by Article 2(2) (§ 35), the CJEU concluded that the Brussels IIa Regulation is “is capable of covering divorces which have been granted at the end of both judicial and extrajudicial proceedings, provided that the law of the Member States also confers jurisdiction in relation to divorce on extrajudicial authorities ”.

As I have already remarked elsewhere, however, EUPIL statutory definitions of “court” vary greatly from instrument to instrument, as concerns both their specific contents and the drafting technique (see a recap table here). This circumstance must be born in mind when trying to transplant interpretive solutions from one EUPIL instrument to another.

2. The importance of ‘inter-textual’ interpretation.

It is also significant to note that, in Senatsverwaltung für Inneres und Sport, the CJEU itself resorts to inter-textual interpretation. In that case, however, the Court adopts a “vertical”, rather than a “horizontal” approach: that is to say, reference is made not to EUPIL instruments covering tangential subject-matters, but to the evolution (if any) of a single instrument over time, through subsequent recasts.

In support of the broad reading of the notion of judgement resulting from the wording of Article 2(4), the CJEU referred to the considerably clearer stance taken on this point by the successor of Regulation 2201/2003 (§ 58). In particular, Recital 14 of the Brussels IIb Regulation states that “any agreement approved by the court following an examination of the substance in accordance with national law and procedure should be recognized or enforced as a decision”. On this point, the Court accepts the Commission’s submission whereby the Brussels IIb Regulation is no innovation in the pre-existing legal regime, its Recital 14 being therefore useful to clarify the notions used by the Brussels IIa Regulation (§ 61; see, in this respect, the opposite stance taken by the German Government, summarized in §§ 52 and 53 of the AG Opinion).

3. The importance of preparatory works.

While the “vertical” approach is, in theory, less risky than the “horizontal” one, insofar as it should not expose to the dangers of evoked by Kainz, it may require to invest considerable efforts in researching preparatory woks. Very often, the legislator’s intent is not clearly expressed by the initial Proposal made by the EU Commission, but emerges later on in the debates within the Parliament or in other exchanges held during the legislative process.

This was the case as concerns the definition of court in the Brussels IIb Regulation. Even though the Commission’s Proposal already made clear that the scope of the Recast should have been limited to matters of parental responsibility (and should therefore not have touched too much upon most of the general definitions set by Article 2) a political discussion about the notion of court topic took place and appeared for the first time in this document, well into the negotiation phase. An explicit proposal to include a Recital dedicated to this issue emerged later on (see this document).

In proceedings before the CJEU, important insights on the unfolding of the legislative process may come from the Commission’s observations, which are systematically filed in all EUPIL preliminary references (see here). Outside this specific context, however, researching the original intent of the EU legislator might be quite burdensome for the “average interpreter”, in cases where this intent does not clearly stand out in the Commission’s proposal.

4. The importance of the type of examination (on the merits) involved in extrajudicial proceedings.

As specifically concerns the notions of “judgment” or “decision”, and “court” or “tribunal”, the most important criterion used by the CJEU remains the assessment of the type of functions performed by the seized domestic authority.

This approach is used by the CJEU even outside the field of EUPIL (for example, in order to identify the “courts or tribunals” of a Member State for the purposes of Article 267 TFUE), with important sectoral variations. In fact, the Court has always stressed that the uniform meaning of these notions (and of “court” in particular) in EU Law must be fitted to the specific context in which they are called to operate.

In this respect, Senatsverwaltung für Inneres und Sport is no exception, as the most important in the clarification provided by Recital 14 of the Brussels IIb Regulation consists, precisely, in  the explicit identification of the constitutive element of a “decision” in the field of family law and parental responsibility. This “constitutive element” is of fundamental importance for distinguishing “decisions” from the two other types of legal acts contemplated by that Regulation, ie the “authentic instrument” on the one side, and the “agreements that are neither a decision nor an authentic instrument, but have been registered by a public authority competent to do so”, on the other side.

According to the CJEU, the decisive element in the definition of decision is the existence of a prior examination, made by or under the supervision of the competent (public) authority, of the substance of the matter. While the AG endeavored to demonstrate the substantial identity of the tasks performed by the authority conducting a procedure of divorce by mutual consent, which remain essentially the same in a judicial and in an extrajudicial setting (§ 41 of the Opinion), the CJEU focused on the substantive content of these tasks (§§ 54, 57 and 63-66).

What shall an “examination of the substance of the matter” entail, according to the Court?

First, referring to Solo Kleinmotoren, the CJEU reasserts that the competent authority “must retain control over the grant of the divorce”, which implies the examination of the content of the divorce agreement in the light of the applicable provisions of national law, with a view to verify whether the legal requirements set therein are satisfied, as well as the existence and validity of the spouses’ consent to divorce (§§ 54-55). This aspects marks an important difference between consensual divorces and other types of settlement which are “essentially contractual in nature”, as the tasks of the competent authority are limited to the “passive” recording of an agreement, without any examination of its content in the light of the legal provisions in force (§ 57).

Second, the Court attached specific importance to the binding nature of the agreement drafted by the Italian civil registrar (§ 63), as well as to the means and formalities for the examination of the validity and existence of the spouses’ consent (§ 64).

Combined with the analysis of the tasks relating to the examination of the content of the agreement in the light of the Italian legal provisions on extrajudicial divorces (§ 65), these elements led the CJEU to consider that the Italian Civil Registrar retained sufficient control over the grant of the divorce, the resulting agreement being therefore a “judgment” within the meaning of Article 2 (4) of the Brussels IIa Regulation, interpreted in the light of Recital 14 of the Brussels IIb Regulation.

5. The importance (if any) of practical and/or “political” considerations.

As seen above, the arguments drawn from the inter-textual interpretation of the Brussels Ia and Brussels IIb Regulations played a significant role in supporting the solution finally retained in Senatsverwaltung für Inneres und Sport. Such inter-textual reading  was deployed by the CJEU to reinforce the argument based directly on the “open-ended” statutory definitions set out by Article 2 of the Brussels IIa Regulation.

In this respect, the Court accepted the Commission’s view that, in adopting the newest Regulation, “the EU legislature was not seeking to innovate and introduce new rules, but only to ‘clarify’, on the one hand, the scope of the rule already laid down in Article 46 of the Brussels IIa Regulation and, on the other hand, the criterion for distinguishing the concept of ‘judgment’ from those of ‘authentic instrument’ and ‘agreement between the parties’, namely the criterion relating to the examination of the substance” (§61). As a result, the CJEU could hold that “that interpretation of the concept of ‘judgment’ cannot be invalidated by the fact that no Member State had yet made any provision in its legislation, at the time of the development and adoption of the Brussels IIa Regulation, for the option for spouses to divorce through extrajudicial means” and that this “interpretation follows directly from the broad and open definitions of the concepts of ‘court’ and ‘judgment’ referred to in Article 2(1) and (4) of that regulation” (§ 50).

This “temporal dimension” of the evolution of extrajudicial divorces across EU Member States was approached much more pragmatically by AG Collins. Without referring to the alleged continuity between the two Regulations, and deeming the latest Recast incapable of supporting “any conclusions…for the purposes of interpreting Regulation 2201/2003” (§ 54, last sentence), AG Collins derived a separate duty, for the judiciary, to interpret “clearly open” definitions set out by EU law “in the light of present day circumstances” (§ 54). “The law cannot cut itself from society as it is, and must not fail to adjust to it as quickly as possible, since it would otherwise risk imposing outdated views and adopting a static role”, he contended. Therefore, “in accordance with that view, EU law must be interpreted in a dynamic manner, in order to avoid it becoming ‘fossilised’”.

While the solution adopted the CJEU is to be appreciated for its strong foundations in the letter of the law and the clear legislative intent behind said EUPIL Regulations, the approach proposed by AG Collins is certainly alluring from an academic point of view. It is in fact indisputable that, at the time the Brussels Ia was adopted, no Member State had introduced extrajudicial divorces in its national legal order. Portugal was the first Member State to proceed in this sense, followed in 2010 by three additional Member States (Estonia, Romania and Latvia). Italy followed in 2014 with the procedure analyzed by the CJEU in Senatsverwaltung für Inneres und Sport, tailed by Spain (2015) and France (2016). Finally, in 2017, the new family law code of Slovenia and the Greek law No. 4509/2017 completed the current picture. Seen from this standpoint, it is quite clear that extrajudicial divorces have recently become a veritable legislative trend, which is slowly acquiring a pan-European dimension.

Against this evolving backdrop, AG Collins’ warning against the risks of a “fossilised” EUPIL, no longer suitable for the needs of its final users, reflected a serious concern and evokes the “political dimension” of this field of law remarked by Professor Kinsch in his Hague Academy Course. The latter is linked, among others, to a consistent rhetoric of the EU Commission, which tends to highlight the benefits and advantages that “mobile citizens” can derive from the unified and pan-European EUPIL regimes.

In this vein, the Commission’s initial Proposal for the Brussels IIb Regulation stressed that a Recast was needed in conformity with the objectives set by the Juncker Commission’s Political Guidelines. According to these Guidelines, judicial cooperation among EU Member States had to “be improved step by step keeping up with the reality of increasingly mobile citizens across the Union getting married and having children, by building bridges between the different justice systems and by mutual recognition of judgments, so that citizens can more easily exercise their rights across the Union”. In line with these objectives, the Commission is presenting the new rules as a tangible proof that “the EU works to protect our children and families, ensuring that Member States enforce each other’s judicial decisions” (see the promotional video available here). In particular, “considering the growing number of Member States which allow out-of-court agreements on legal separation and divorce or on matters of parental responsibility, the new rules will facilitate the circulation of [authentic] instruments and [out-of-court] agreements” (here).

In the end, this “pragmatic argument” based on the consideration that EUPIL should keep in touch with an evolving reality in order to serve properly the interests of its final intended users, found no space in the Senatsverwaltung für Inneres und Sport, but could hypothetically become an additional interpretive tool in future cases, in those field of substantive private law presenting a similar evolution.

 

As the American Society of International Law Annual Meeting approaches, the ASIL Private International Law Interest Group (PILIG) warmly invites you to a career talk featuring professional development in Private International Law.

• 2:00 PM-3:00 PM ET, Thursday 30 March
Venue: Embassy, Washington Hilton, 1919 Connecticut Ave NW, Washington, DC 20009

Neale Bergman, Attorney-Adviser, Office of the Legal Adviser (L/EB), U.S. Department of State
Milana Karayanidi, Counsel, Orrick
James Nafziger, Professor of Law, Vice-Chair, International Law Association (ILA)
Rekha Rangachari, Secretary-General, New York International Arbitration Center
David Stewart, Professor from Practice, Georgetown Law

This panel of seasoned experts will share their experiences and offer advice concerning career paths in international and particularly private international law fields, in areas such as research, government related work, dispute resolution, international development, and legal information. A short networking session will be offered to participants to further engage with speakers after the panel discussion.

In addition, we invite PILIG members, PILIG newsletter editors, and PILIG friends to join us for a casual happy hour gathering at the McClellan’s Sports Bar located at the Washington Hilton. Please find event details below:

• Happy Hour

4:00 PM- 5:00 PM ET, Thursday 30 March
Social & Networking Event
McClellan’s Sports Bar

No Host Bar
We hope to celebrate with you the conclusion of “pandemic years” while you enjoy ASIL’s excellent conference programs. We look forward to learning any PIL (and non-PIL) inspirations from you for the more exciting years to come. Everyone is welcome to stop by.

• PILIG newsletter editors recruiting 

We also invite scholars, practitioners, and students to contact us to become a PILIG newsletter editor.

ASIL Private International Law Interest Group Co-Chairs

Shu Shang <sshang@cpp.edu>

Jeanne Huang <jeanne.huang@sydney.edu.au>

The fourth issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features five contributions.

Christian Kohler, Private International Law Aspects of the European Commission’s Proposal for a Directive on Slapps (“Strategic Lawsuits Against Public Participation”)

The Commission’s proposal for a Directive on SLAPPs (“Strategic lawsuits against public participation”) aims at protecting journalists and human rights defenders who engage in public debates from manifestly unfounded or abusive court proceedings with cross-border implications. Inter alia, it protects SLAPP defendants against judgments from third countries that would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought, and allows SLAPP defendants to seek compensation of the damages and the costs of the third country-proceedings before the courts of the Member State of his or her domicile. The article examines the conflicts rules in question and discusses the broader private international law context of the proposed Directive, in particular the rules of jurisdiction and the mosaic approach of the CJEU for the interpretation of Article 7(2) of Regulation Brussels Ia. In order to limit the forum shopping potential of the present rules on jurisdiction and applicable law in defamation cases, an intervention by the EU legislator should be envisaged. 

Pietro Franzina, Il Contenzioso Civile Transnazionale sulla Corporate Accountability (Cross-Border Civil Litigation on Corporate Accountability)

Civil proceedings are brought with increasing frequency against corporations for allegedly failing to prevent or mitigate the adverse impact of their activity on the protection of human rights and the environment. Most of these proceedings are initiated by non-governmental organisations whose activity consists in safeguarding or promoting the collective interests at issue, or otherwise benefit from support provided by such organisations. A cross-border element is almost invariably present in these proceedings, as they often involve persons from different countries and/or relate to facts which occurred in different States. Litigation in matters of corporate accountability is, distinctively, strategic in nature. The aim pursued by those bringing the claim does not consist, or at least does not only or primarily consist, in achieving the practical result that the proceedings in question are meant, as such, to provide, such as compensation for the prejudice suffered. Rather, the goal is to induce a change in the business model or industrial approach of the defendant (and, possibly, of other corporations in the same field or with similar characteristics) and increase the sustainability of their corporate activity at large. The paper gives an account of the factors that determine the impact of the described proceedings, that is, the ability of those proceedings to effectively prompt the pursued change. The analysis focuses, specifically, on the factors associated with the rules of private international law, chiefly the rules that enable the claimant to sue the defendant before the courts of one State instead of another. The purpose of the article is not to examine the latter rules in detail (actually, they vary to a large extent from one State to another), but to assess the strategic opportunities, in the sense explained above, that the rules in question may offer to the claimant, depending on their structure and mode of operation.

Lenka Válková, The Commission Proposal for a Regulation on the Recognition of Parenthood and other Legislative Trends Affecting Legal Parenthood

The developments in science and changing family patterns have given rise to many problems, including those of non-recognition of parenthood, which affects mostly children of same-gender parents and children in cases of surrogacy. The basic drivers of the current difficulties in recognising parenthood lie in the differences of the national rules on the establishment and recognition of parenthood and the lack of the uniform conflict rules and rules on recognition of judgments in the area of parenthood. Despite the numerous case-law of CJEU and ECtHR, which plays a crucial role in allowing flexibility in law with regard to parenthood, there is still no legal instrument which provides for a clear framework seeking to outline a consistent and systematic approach in this area. In 2021 and 2022 three important legislative actions have been taken. The Parenthood Proposal for a Regulation on jurisdiction, applicable law, recognition of decisions has been published on 7 December 2022. At the same time, the Final Report of the Experts Group on the Parentage/Surrogacy Project of the HCCH has been issued on 30 November 2022. Moreover, the Report on Review of the Implementation of the European Convention on the Legal Status of Children Born Out of Wedlock has been prepared in November 2021 as a preliminary step to a possible future update of the substantive law provisions of the Convention. All regulatory initiatives are addressed in this article, with a special focus on the Parenthood Proposal. In particular, this article offers a first appraisal of the Parenthood Proposal in light of other two legislative efforts and examines whether the works on international level may eliminate the need for an action concerning recognition of parenthood at EU level.

Stefano Dominelli, Emoji and Choice of Court Agreements: A Legal Appraisal of Evolutions in Language Methods Through the Prism of Art 25 Brussels Ia Regulation

Starting from the consideration that emoji and the alike are becoming increasingly common in computer-based communication, this article transposes current debates in material law surrounding emoji and their aptitude to express intent into the field of choice of court agreement through the prism of Art 25 Brussels Ia Regulation. The aim of this article is to develop some hypotheses and methods for the assessment of emoji in the conclusion of choice of court agreements.

Michele Grassi, Revocazione della Sentenza Civile per Contrasto con la Convenzione Europea per la Salvaguardia dei Diritti dell’uomo e delle Libertà Fondamentali (Revocation of a Civil Judgment for Conflict with the European Convention for the Protection of Human Rights and Fundamental Freedoms)

This article comments on the recent reform of the Italian Code of Civil Procedure, with a specific focus on the introduction of the possibility to seek revocation of a civil judgment conflicting with a decision of the ECtHR. The possibility to re-open proceedings in breach of the ECHR was not contemplated by the previous rules applicable to the matter, and the Italian Constitutional Court had excluded that the obligation of Contracting States to conform to the judgments of the ECtHR could imply the need to review national res judicata in civil or administrative law matters. Against this background, this article examines the new mechanism of review of national decisions introduced by the recent reform, pointing out that such mechanism has been designed to apply in limited circumstances and that, consistently with the reparatory perspective adopted by the Italian Constitutional Court, it gives little to no consideration to the obligation of cessation of international wrongful acts consisting in violations of human rights protected by ECHR.

Erik Sinander (Stockholm University) has published an article titled The Role of Foreseeability in Private International Employment Law in the first issue of the brand new Nordic Labour Law Journal.

The abstract reads as follows:

The EU’s private international employment law rules contain several measures intended to protect employees. Hence, unlike in the case of general contracts, one party (the employee) is given more forum shopping alternatives than the other (the employer), party autonomy is limited for employment contracts, and the objectively applicable law is based on the idea that the law of the place where labour is performed shall govern the contract. In this article, I argue that these protective measures are illusory and undermined in practice by the lack of foreseeability that is built into the choice of law rules. The conclusion of the article is that although it might be important to include protective measures in choice of law rules, the overarching principle for private international law rules should be to guarantee foreseeability. Paradoxically, EU private international employment law is highly unforeseeable, which, I argue, undermines the employee protection measures that are inserted into the EU private international employment law rules.

By Dr Benjamin Hayward

Those who enjoy playing video games as a pastime (though certainly not in the competitive esports environment) might take advantage of different forms of assistance when they find themselves stuck.  Once upon a time, they might have read up on tips and tricks printed in a physical video game magazine.  These days, they are more likely to head online for help.  They might seek out hints – tidbits of information that help point the gamer in the right direction, but that still allow them to otherwise work out a solution on their own.  They might use cheats – which allow the gamer ‘to create an advantage beyond normal gameplay’.  Otherwise, they might use a walkthrough – which, as the name suggests, might walk a player through the requirements of perhaps even ‘an entire video game’.

Despite initial appearances, these definitions do more than just tell us about recreation in general, and gaming culture in particular.  They also help us understand the state of play in relation to the Australian Consumer Law’s application to the digital economy, and, in turn, the ACL’s implications for international digital economy trade.

This video game analogy is actually very apt: gaming set the scene for recent litigation confirming the ACL’s application to off-shore video game vendors.  In the Valve case concerning the Steam computer gaming platform, decisions of the Federal Court of Australia and (on appeal) its Full Court confirmed that reach, via interpretation of the ACL’s s 67 conflict of laws provision.  The High Court of Australia denied special leave for any further appeal.  In the subsequent Sony Europe case, concerning the PlayStation Network, liability was not contested.  On the other hand, there was a live issue in Valve – at least at first instance – as to whether or not video games constitute ‘goods’ for the purposes of the ACL’s consumer guarantees.  The ACL’s statutory definition of goods includes ‘computer software’.  Expert evidence, not contested and accepted by the Federal Court, treated computer software as equivalent to executable files; which may work with reference to non-executable data, which is not computer software in and of itself.

Understanding the ACL’s definition of ‘goods’ has significant implications.  The ‘goods’ concept is a gateway criterion: it determines whether or not the ACL’s consumer guarantees apply, and in turn, whether it is possible to mislead consumers about the existence of associated rights.  So far as digital economy trade is concerned, case law addressing Australia’s regular Sale of Goods Acts confirms that purely-digital equivalents to traditional physical goods are not ‘goods’ at common law.  Any change to this position, according to the New South Wales Supreme Court, requires statutory intervention.  Such intervention did occur when the Trade Practices Act 1974 (Cth) transitioned into the Competition and Consumer Act 2010 (Cth).  Now, ‘computer software’ constitutes a statutory extension to the common law definition of ‘goods’ that would otherwise apply.

It is against all this context that a very recent decision of the Federal Court of Australia – ACCC v Booktopia Pty Ltd [2023] FCA 194 – is of quite some interest.  Whilst most of the decision is uncontroversial, one aspect stands out: the Court held, consistently with Booktopia’s admission, that eBooks fall within the scope of the ACL’s consumer guarantee protections.  This finding contributed to an AUD $6 million civil pecuniary penalty being imposed upon Booktopia for a range of breaches of the ACL.  But is it actually correct?  Whether or not that is so depends upon whether the statutory phrase ‘computer software’ extends to digital artefacts other than traditional desktop computer programs.  There is actually good reason, based upon the expert evidence tendered and accepted in the Valve litigation, to think not.

So what does the Booktopia case represent?  It could be a hint – an indication that will eventually lead us to a fully-explained understanding of the ACL’s wide reach across the digital economy.  In this sense, it might be a pointer that helps us to eventually solve this interpretative problem on our own.  Or it could be a cheat – a conclusion possibly justified in the context of this individual case given Booktopia’s admissions, but not generalisable to the ACL’s normal operation.  Either way, given the ACCC’s expressed view (not necessarily supported by the ACL’s actual text) that ‘[c]onsumers who buy digital products … have the same rights as those who shop in physical stores’, what we really need now is a walkthrough: a clear and reasoned explanation of exactly what ‘computer software’ actually means for the purposes of the ACL.  This will ensure that traders have the capacity to know their legal obligations, and will also allow Parliament to extend the ACL’s digital economy protections if its reach is actually limited in the way that my own scholarship suggests.

All of this has significant implications for international trade, as ‘many transfers’ of digital assets ‘are made between participants internationally’.  The increasing internationalisation and digitalisation of trade makes it imperative that this ambiguity be resolved at the earliest possible opportunity.  Since, in the words of the Booktopia judgment, ACL penalties ‘must be of an appropriate amount to ensure that [their] payment is not simply seen as a cost of doing business’, traders – including international traders – do need to know with certainty whether or not they are subject to its consumer protection regime.

 

Dr Benjamin Hayward
Senior Lecturer, Department of Business Law and Taxation, Monash Business School
Twitter: @LawGuyPI
International Trade and International Commercial Law research group: @MonashITICL

The latest edition of Dicey, Morris & Collins on the Conflict of Laws, jointly edited by The Rt Hon. the Lord Collins of Mapesbury and Professor Jonathan Harris KC (Hon.), was published by Sweet & Maxwell in September 2022. First published in 1896, Dicey, Morris & Collins on the Conflict of Laws is in its 16th edition. The publisher provides the following description for this pre-eminent treatise on private international law.

Dicey, Morris & Collins on the Conflict of Laws is renowned worldwide as the foremost authority on private international law. It explains the rules, principles and practice that determine how the law of England & Wales relates to other legal systems. Its commentary, Rules and illustrations, with detailed reference to international conventions, legislation and case law, ensures it remains an indispensable tool for practitioners engaged in cross-border matters. Across two volumes and a Companion Volume, it contains high-quality and detailed analysis. Volume 1 deals with general principles, the effects of withdrawal by the United Kingdom from the European Union, foreign affairs and the conflict of laws, procedural issues relating to international litigation, jurisdiction, recognition and enforcement of foreign judgments and arbitration. Volume 2 deals with a number of specific areas of law. It addresses family law, property law, succession and trusts, corporations and insolvency and the law of obligations. A Companion Volume considers in greater detail the transitional issues arising from the United Kingdom’s withdrawal from the European Union and the relevant EU legislation in a number of key areas.  Key Features 

• • Explains the rules, principles and practice that determine how the law of England and Wales relates to other legal systems. 
  • Volume 1 deals with general principles the effects of the withdrawal by the United Kingdom from the European Union, foreign affairs law, protective measures and international judicial cooperation, jurisdiction of English courts, recognition and enforcement of foreign judgments and international arbitration. 
  • Volume 2 covers family law, property law, succession and trusts, corporations and bankruptcy, contracts, torts, unjust enrichment and equitable claims, and foreign currency obligations.
  • Includes a new Part containing detailed analysis of Foreign Affairs and the Conflict of Laws, including expanded coverage of important developments in this area.
  • Includes detailed treatment of the Hague Convention on Choice of Court Agreements 2005.
  • Family law coverage includes important developments in respect of same-sex marriages, civil partnerships and surrogacy.
  • A Companion Volume explains in detail the transitional provisions relating to the withdrawal by the United Kingdom from the European Union and the relevant EU legislation in areas where those transitional issues will remain relevant for the foreseeable future, including on lis pendens, recognition and enforcement of foreign judgments, family law and insolvency.

New material in the Sixteenth edition: The new edition addresses all key developments, international conventions, legislation and case law since publication of the 15th edition in 2012. It includes the following significant developments 

• • Full analysis of the effects of the withdrawal by the United Kingdom from the European Union.
  • Detailed coverage of the Hague Convention on Choice of Court Agreements 2005.
  • Analysis of domestic legislation, including the Private International Law (Implementation of Agreements) Act 2020, important amendments to the Civil Jurisdiction and Judgments Act 1982 and a number of key statutory instruments.
  • A new Part containing detailed analysis of Foreign Affairs and the Conflict of Laws, including expanded coverage of important developments in this area.
  • Covers important developments in family law, including in respect of same-sex marriages, civil partnerships and surrogacy.
  • Detailed analysis of the many decisions of the Supreme Court, Privy Council, Court of Appeal and High Court and in other parts of the United Kingdom, Commonwealth and other jurisdictions.

Companion to the Sixteenth Edition The Companion Volume explains in detail the effects of the withdrawal by the United Kingdom from the European Union. It analyses the relevant transitional provision in the Withdrawal Agreement concluded between the United Kingdom and the European Union, as well as domestic legislation on transitional issues. It analyses the relevant EU law in areas likely to remain relevant for the foreseeable future, including in relation to lis pendens and the recognition and enforcement of judgments from EU Member States. It considers the relevant family legislation in the Brussels IIa and Maintenance Regulations. The Companion Volume also includes detailed coverage of relevant provisions of the recast Insolvency Regulation.

Further information is available here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 30 March 2023 at 14:30 (Mexico City time – CST), 22:30 (CEST time). The topic of the webinar is Family law in England and Wales and cross-border problems and will be presented by Carolina Marín Pedreño, specialist in Family law and former president of the Westminster & Holborn Law Society (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/82391552268?pwd=dSt5K2V1elNvSURyVE1nOTB6M2p3dz09

Meeting ID: 823 9155 2268

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

On 30 March 2023, just before the Easter holidays, the Court of Justice will deliver two judgments on the interpretation of private international law instruments.

The first ruling refers to case C-343/22 PT (Injonction de payer de droit suisse), where the German Bundesgerichtshof required the interpretation of the Lugano Convention of 2007:

Must Article 34(2) of the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 30 October 2007 (‘the Lugano Convention’) be interpreted as meaning that the statement of claim in an action seeking repayment of a debt, which was brought after a Swiss order for payment (Zahlungsbefehl) had been issued previously and which did not include an application for the annulment of the objection (Rechtsvorschlag) lodged against the order for payment, constitutes the document which instituted the proceedings?

The facts of the case can be summarized as follows. Upon application by the claimant, the Debt Enforcement Office of Geneva issued an order for payment in respect of claims for rent against the defendant, resident in Germany. The order was served on the defendant on 19 January 2013. On 28 January 2013, he lodged an objection (Rechtsvorschlag) against it in accordance with Swiss Law.

The claimant subsequently brought an action against the defendant before the Court for Lease and Tenancy Matters of the Canton of Geneva; he did not include an application for the annulment of the objection. The court attempted to serve the statement of claim, written in French, on the defendant at the address where he resides in Germany. The defendant refused to accept service because a German translation was not attached. In the further course of the procedure, the defendant did not receive any further information about the proceedings.

By a judgment of 30 January 2014, the court ordered the defendant to pay CHF 4 120.70 plus interest. The objection to the order for payment was not annulled. The judgment was served by public notice.

The claimant applied for a declaration of enforceability of the judgment in Germany in accordance with Articles 38 and 53 of the Lugano Convention. The Regional Court granted the application; the appeal brought by the defendant before the Higher Regional Court was dismissed. According to the Higher Regional Court, Article 34(2) of the Lugano Convention does not preclude recognition of the judgment: the defendant had been served in a manner that precluded the ground for refusal under Article 34(2) of the Lugano Convention. In this regard, the order for payment served on the defendant on 19 January 2013 is to be considered as the document instituting the proceedings. By virtue of that order, the defendant was informed about the claims for rent against him, and, as demonstrated by the objection of 28 January 2013, he was also able to participate in the proceedings in a manner that safeguarded his rights.

Moreover (always according to the Higher Regional Court) the recognition of the Swiss judgment does not infringe Article 34(1) of the Lugano Convention. A breach of public policy was ruled out in any event because the defendant did not assert the defences by means of which he would have defended himself against the claims asserted.

The Court of Justice will decide represented by a chamber of three judges, with M. Safjan reporting.

On the same day, the Court will publish its decision on case C-651/21 М. Ya. M. (Renonciation à la succession d’un cohéritier). I reported on the facts here. The Sofiyski rayonen sad (District Court, Sofia, Bulgaria) had referred these questions for a preliminary ruling on Regulation 650/2012:

(1) Is Article 13 of [Regulation No 650/2012], read in conjunction with the principle of the protection of legal certainty, to be interpreted as precluding, after an heir has already had registered with a court of the [Member] State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another [Member] State of the European Union at the time of his or her death, a request to have that waiver or acceptance subsequently registered in the latter State?

(2) If the answer to the first question is that such registration is permissible, is Article 13 of [Regulation No 650/2012], read in conjunction with the principles of the protection of legal certainty and the effective implementation of EU law, and the obligation of cooperation between [Member] States under Article 4(3) TEU, to be interpreted as permitting a request for the registration of a waiver of the succession of a deceased person effected by an heir in the [Member] State in which he or she is habitually resident by another heir residing in the State in which the deceased was habitually resident at the time of his or her death, irrespective of the fact that the procedural law of the latter State does not provide for the possibility of having a waiver of a succession registered on behalf of another person?

In his opinion, delivered on 10 November 2022, Advocate General M. Szpunar had proposed that the Court answers:

(1) Article 13 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession does not preclude, after an heir has had registered with a court of the Member State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another Member State at the time of death, another heir from subsequently requesting registration of that declaration in the latter Member State.

(2)     Article 13 of Regulation No 650/2012 must be interpreted as not precluding a co-heir other than the person who made the declaration of waiver in the Member State of his or her habitual residence from informing the court dealing with the succession of the existence of that declaration.

Here, a chamber of three judges will decide with M. Ilešič acting as reporting judge.

This summary was provided by the author, Naivi Chikoc Barreda, Assistant Professor at the Faculty of Law of the University of Ottawa.

The book Succession internationale et dispositions spéciales de la lex rei sitae. Contribution à l’étude de l’impérativité internationale en matière successorale  by Naivi Chikoc Barreda (L’Harmattan, Paris, December 2022) offers an in-depth reflection on the subject of overriding mandatory provisions in matters of succession, through an analysis of the clause allowing the application of the special provisions of the lex rei sitae which derogate from the unitary law of succession.

In Part I, the author traces the historical origins of the “territorial exception” to the unitary system in German legal literature and studies its subsequent development in the Introductory Act to the German Civil Code and in the convention drafts drawn up by the Hague Convention between 1900 and 1928. Theorized by Savigny under the concept of “Gesetze von zwingender, strengthe positiver Natur“, these special rules were associated with the public policy clause by the Hague drafts, under the influence of the Mancinian doctrine. To explain this convergence, the author analyzes the relationship between public policy and territoriality in the period in which these projects were conceived. The clause concerning the special regimes of the situs was finally detached from the public policy exception in the 1989 Convention. However, the methodological transformations in the field of Private international law during the second half of the XXth century left the phenomenon in a shadowy area. Unable to fit into the “new” approaches to public policy and overriding mandatory provisions, the derogatory application of the lex rei sitae took the form of a substantially oriented conflict rule. When the European legislator decided to insert the clause in Article 30 of Regulation 650/2012, it discarded the conflictual model and adopted the method of “lois de police”, thus restoring the Savignian understanding of this exception. The author discusses the reasons for this methodological choice, by exploring the family, economic and social purposes of these rules in accordance with the principles underlying the autonomous interpretation of the regulation.

Part II addresses the complex issues arising out of the interaction between succession and other choice-of-law categories involved in the transfer of certain assets upon death. Most of the special provisions examined are at the intersection of several categories, their goal being precisely to ensure the stability of the function that the assets have been serving before the opening of the succession. Thus, it appeared important to distinguish between the ways in which property can be transferred otherwise than by succession, the rules for the distribution of particular assets of the estate, and the rules “affecting” the succession on such property. In the light of the CJEU case law, the author examined the treatment of the constitution of rights in rem by way of succession, the restriction on the acquisition of property by foreigners or non-residents, the transmission of the tenant’s rights after his death, the transfer of company shares, and the succession of the author’s droit de suite. An analytical framework is then proposed to delineate the respective scopes of the lex successionis, the lex rei sitae, the law governing matrimonial property regimes, the law applicable to maintenance obligations, the lex contractus, the lex societatis and the lex loci protectionis.

An extensive analysis is devoted to the compatibility between the clause on the special rules of the lex rei sitae and the concept of overriding mandatory provisions, as formulated in various regulations and interpreted by the CJEU. Two fundamental obstacles seem to prevent such integration: the absence of any reference to the protection of public interests and to the mandatory nature of the rules. Indeed, many of the special rules dealing with the transfer of particular assets for socio-economic purposes are either limited to enabling the owner to allocate the property according to some criteria or are default rules that apply absent a contrary disposition by the deceased. Despite the wording of the clause, the author argues for a shared intertextual interpretation of lois de police that brings the succession regulation in line with the position of other regulations on this issue. The traditional distinction between lois de police and the rules which are only mandatory at a domestic level is subject to a critical analysis from a new angle. The comparative study of the special rules of the lex rei sitae that intervene in succession matters leads the author to deconstruct the concentric circles theory that explain the convergence of both concepts on a core of super-imperative rules. Based on the interaction between the nature of the rule and its purpose in the law of succession, she explains the differences in the relationship of these special rules with party autonomy on a substantive and a PIL level. From this perspective, some permissive and default rules of the situs are consistent with a functional conception of lois de police, freed from a concrete regulatory technique that is supposedly the only one suited to the pursuit of a public interest policy, and therefore deserve to be recognized as potentially having an overriding effect on the lex causae.

The journal, Current Legal Problems yesterday, inter alia, published an open access article on private international law:

Alex Mills, “The Privatisation of Private (and) International Law”

Privatisation is much studied and debated as a general phenomenon, including in relation to its legal effects and the challenges it presents to the boundaries of public and private law. Outside the criminal context there has however been relatively limited focus on privatisation of the governmental functions which are perhaps of most interest to lawyers—law making, law enforcement and dispute resolution—or on the international legal implications of privatisation. This article argues that modern legal developments in the context of private law and cross-border private legal relations—generally known as party autonomy in private international law—can be usefully analysed as two distinct forms of privatisation. First, privatisation of certain allocative functions of public and private international law, in respect of both institutional and substantive aspects of private law regulation, through the legal effect given to choice of court and choice of law agreements. Second, privatisation of the institutional and substantive regulation of private legal relationships themselves, through arbitration and the recognition of non-state law. Together, these developments have established a global marketplace of state and non-state dispute resolution institutions and private laws, which detaches private law authority from its traditional jurisdictional anchors. Analysing these developments through the lens of privatisation highlights a number of important critical questions which deserve greater consideration—this article further examines in particular whether this form of privatisation in fact increases efficiency in either private international law decision-making or private law dispute resolution, as well as its distributive and regulatory effects.

Lotario Benedetto Dittrich (University of Trieste) has written a Study at the request of the JURI committee of the European Parliament on Ensuring Efficient Cooperation with the UK in civil law matters.

The abstract reads:

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee, analyses the implications of Brexit in relation to the profile of judicial cooperation in civil matters. It examines the existing legal framework in order to identify the areas of law in respect of which there is a gap in the relationship between the EU and the UK. It assesses the consequences of the UK’s failure to accede to the 2007 Lugano Convention. Concludes that the conclusion of new treaties between the EU and the UK should be pursued in relation to those areas where there is a regulatory gap, with particular reference to the area of human rights.

And from the executive summary:

The paper is divided into seven chapters.

In the first chapter, the effects of the Withdrawal Agreement in the field of civil judicial cooperation are outlined, with particular reference to the residual applicability of the individual European Regulations in relations with the UK in the so-called transitional period, that is, from the entry into force of the Withdrawal Agreement until December 31, 2020. The reasons why the revival of the 1968 Brussels Convention is not conceivable are also explained.

It then goes on to examine the “body of law” consisting of the Hague Conventions (1961 Apostille Convention; 1965 Service Convention; 1970 Evidence Convention; 1970 Divorce Convention; 1980 Child Abduction Convention; 1996 Child Protection Convention; 2005 Choice of Court Convention; 2007 Child Support Convention) to see which of them and to what extent still apply to the relationship between the EU and the UK.

The third chapter discusses the content of the so-called EU Reitaned Laws, i.e., the set of UK rules transposing sectors of EU legislation into that country’s legal system. The continued applicability of the Rome I and Rome II Regulations and their effects in relations with the EU will be the subject of analysis, as well as, conversely, the superseded inapplicability of European simplified procedures and exclusion from the European Judicial Network.

The fourth chapter is specifically devoted to an analysis of the most relevant gaps left by Brexit in the area of, in particular, the following matters: legal separation and divorce, maintenance obligations, successions, notifications, taking of evidence, public documents, access to justice, mediation, and insolvency.

Particular attention is paid in Chapter Five to the effects resulting from the United Kingdom’s non accession to the 2007 Lugano Convention.

Indeed, as is well known, on June 28, 2021, the European Commission submitted a Note Verbale to the Swiss Federal Council as the Depositary of the Lugano Convention, in which it denied its consent to the UK’s application for accession.

The effect of the UK’s accession to the aforementioned Lugano Convention would have been that
Regulation No. 44/2001, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (so-called Brussels I), would also apply to it. This accession would have entailed renewed UK participation in the European judicial area, albeit without the automatic recognition of court decisions introduced only by the subsequent Regulation No. 1215/2012 (so-called Brussels I bis).

The effects on the legal services market of the UK’s exclusion from the European legal system are also analysed. Indeed, there is the emergence of specialized commercial courts, located in several EU countries, which are bidding to be alternative judicial hubs to the London courts. Such competition would be fostered by the easier circulation of judicial orders rendered by EU courts in the European legal space than judicial orders rendered by UK courts.

The study dwells on the actual likelihood of success of such initiatives, raising the possibility in the
future of the establishment at the EU level of a single court specializing in commercial matters, which could more effectively undermine the continued attractiveness of London courts.

The study then turns to viable remedies to prospectively reduce the impact of Brexit in the area of rights protection, with particular reference to individuals, families and Small Medium Enterprises (SMEs).

In particular, a possible path is outlined, as a result of which covenanted regulations can be introduced in the following matters: divorce and legal separation, alimentary obligations, Small Claims, and cross border insolvencies.

Finally, special attention is given to the phenomenon of Strategic Lawsuits Against Public Participation (SLAPPs), the subject of a European Commission proposal for a directive, concluding as to the desirability of agreements involving the UK as well, in order to ensure broader protection for freedom of the press and opinion, limiting phenomena of forum shopping and possible circumvention of decisions on the subject.

In summary, the study pragmatically suggests that the parties establish negotiations on specific and limited matters of particular social relevance as a first step in rebuilding a system of international cooperation between the EU and the UK.

At the same time, the study points to the existence of areas in which economic competition is currently taking place in the area of legal services.

Thanks to Jorg Sladic for the pointer.

The Chinese lawmakers published the draft Foreign Relations Law and the draft Foreign States Immunities Law in December 2022. The English version of the two drafts published in this post is translated by Jingru Wang at the Wuhan Unviersity Institute of International Law.

Foreign Relations Law of China

Law on Foreign State Immunity of China

 

 

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.

H.-P. Mansel, K. Thorn and R. Wagner, European conflict of laws 2022: Movement in international family law

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2022 until December 2022. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

N. Elsner and H. Deters, Of party requested service by post and courts as transmitting agencies under the EU Service Regulation

On 1 July 2022, the EU Regulation on the Service of Documents No. 1784/20 (Recast) (EU Service Regulation) took effect and changed the law on service by postal services in cross-border proceedings. This calls for a revisiting of the divergent opinions and ways of interpretation of service by postal services according to Art. 14 EU Service Regulation 2007 and its relation to Art. 15 EU Service Regulation 2007. Against this background, this article discusses a decision of the Higher Regional Court Frankfurt (OLG Frankfurt) holding that service by postal services pursuant to Art. 14 EU Service Regulation 2007 is in principle only open to a court when effecting service in cross-border proceedings. A party shall affect service according to Art. 15 EU Service Regulation 2007 by contacting directly the foreign authorities designated to effect service in the other member state.
Firstly, the reasoning of the court and the opinions in legal scholarship on the admissibility of service by postal services effected by parties are assessed critically. Subsequently, the authors propose a different application of Art. 14 and 15 EU Service Regulation 2007 in Germany. It will be argued that the OLG Frankfurt was indeed correct in stating that service by postal services must be effected through a transmitting agency according to Art. 2 EU Service Regulation 2007. Under German law, only courts are considered transmitting agencies. However, this does not preclude parties from effecting this type of service. When parties are required to effect service themselves under German law, they may send the documents to the court, inform the court of the address of the other party and apply for service in accordance with Art. 14 EU Service Regulation 2007. The court then acts as a mere transmitting agency on behalf of the party, and thus, in its administrative capacity.

S. Schwemmer, Direct tort claims of the creditors of an insolvent company against the foreign grandparent company

In its ruling of 10 March 2022 (Case C-498/20 – ZK ./. BMA Nederland), the ECJ had to deal with a so-called Peeters/Gatzen-claim under Dutch law brought by the insolvency administrator. The court had already ruled in an earlier judgement that these claims fall under the Brussels I Regulation (recast). So the main question was now where the harmful event occurred within the meaning of Art. 7 para. 2 of the Regulation. The ECJ opts for the seat of the insolvent company, basing its analysis on the differentiation between primary damage and consequential damage. The same analysis is also used to determine the applicable law under the Rome II Regulation. In this context, however, the ECJ examines more closely the specific breach of duty of care to determine whether the claim falls under the scope of the Rome II Regulation or under the rules of international company law.

A. Kronenberg, Disapproved overriding mandatory provisions and factual impossibility

Two years after the Higher Regional Court (Oberlandesgericht, OLG) of Frankfurt am Main, the OLG Munich also had to rule on a lawsuit filed by an Israeli against Kuwait Airways. The plaintiff had demanded to be flown from Munich to Sri Lanka with a stopover in Kuwait City in accordance with the contract the parties had concluded. The OLG Munich dismissed the claim with regard to a Kuwaiti Israel boycott law, which, although inapplicable, according to the court had the effect that it was factually impossible for the defendant airline to transport Israeli nationals with a stopover in Kuwait. The ruling shows that in cases of substantive law level consideration of disapproved foreign overriding mandatory provisions the legally required result can be undesirable. However, this result depends on the circumstances of the individual case as well as on certain prerequisites that must be observed when taking into consideration overriding mandatory provisions. The article sets out these prerequisites and shows why the OLG Munich probably should have ordered the defendant to perform its obligation. It also explains why, in cases in which factual impossibility indeed exists, the result of the dismissal of the action most likely cannot be changed even by enacting a blocking statute.

C. Thomale and C. Lukas, The pseudo-foreign British one man-LLC

The Higher Regional Court of Munich has decided that a Bristish one man-LLC, which has its real seat in Germany, under German conflict of laws and substantive rules lacks legal personality altogether. This case note analyzes this decision’s implications for the conflict of company laws, notably for the interpretation of the TCA and application of the so-called “modified real seat theory”.

M. Brinkmann, Discharge in England and subsequent declaratory judgement against debtor in Germany – Binding effects of judgement trump recognition of prior bankruptcy proceedings

The Higher Regional Court Düsseldorf (OLG Düsseldorf) had to decide upon an action for the payment of damages based on a declaratory judgement. The declaratory judgement had established the defendant’s liability and was, at the time, not challenged by the defendant. In his defense against the action for payment the defendant now tries to invoke a discharge, which he had already obtained in insolvency proceedings in the UK in March 2012, i.e. prior to the declaratory judgement.
The OLG argued that under the applicable EIR, the English insolvency proceedings were, in principle, subject to automatic recognition. Under Art. 17 EIR 2002, these proceedings produce the same effects in all Member States. The OLG Düsseldorf nevertheless precluded the defendant from invoking the discharge. As the English bankruptcy proceedings were concluded before the action for the declaratory judgement was initiated, the defendant should have invoked the discharge already in the proceedings that led to the declaratory judgement in March 2013.
The OLG correctly found that the declaratory judgement was procedurally binding between the parties and hence barred the defendant from invoking the discharge in subsequent proceedings.

M. Andrae, Modification or suspension of enforcement of a decision under Article 12 of the Hague Child Abduction Convention?

The article discusses which procedural options exist if, after a final decision pursuant to 12 Hague Convention on the Civil Aspects of International Child Abduction, circumstances arise which would justify the refusal of an application for the return of the child. A procedure to change the decision is only permissible if the international jurisdiction of the German courts exists. For child abduction from EU Member States, this is determined in principle according to Art. 9 of the Regulation (EU) n 1111/2019 and for child abduction from other Contracting States of The Hague Protection of Children Convention according to Art. 7 of the Convention. As long as jurisdiction thereafter lies with the courts of the state in which the child was habitually resident immediately before the removal or retention keep, the German courts are limited to ordering the temporary stay of enforcement.

J. Oster, Facebook dislikes: The taming of a data giant through private international data protection law

Just as the Data Protection Directive 95/46/EC, the General Data Protection Regulation (GDPR) suffers from a deficit concerning both its public and its private enforcement. Among other things, this deficit is owed to the fact that European data protection law still raises many questions regarding jurisdiction and the applicable law. In its interlocutory judgment that will be discussed in this article, the Rechtbank Amsterdam established its jurisdiction and declared the GDPR as well as Dutch data protection and tort law applicable to a lawsuit by the Dutch Data Protection Foundation for alleged violations of rules of data protection and unfair competition. This article agrees with the Rechtbank’s findings, but it also draws attention to weaknesses in its reasoning and to unresolved questions of European private international data protection law.