Droit international général

Advocate General Szpunar’s opinion on C-651/21 – М. Ya. M. (Renonciation à la succession d’un cohéritier) was  published last Thursday. The request, from the Sofiyski rayonen sad (Bulgaria) relates to Article 13 of Regulation 650/2012 on matters of succession.

In the case at hand, M. T. G., a Bulgarian national who died in Greece, designated as heirs her daughter, her husband – the Greek national H. H. –, and her grandson – the applicant M. Ya. M. The applicant requests that the court register the waiver of the succession by H. H. A record of the civil case of the Magistrate’s Court, Athens, Hellenic Republic, was submitted in the proceedings, stating that H.H. appeared before that court on 28 June 2019 and declared his waiver of the succession. According to the request, H.H. stated that the deceased last resided in the town of H., region of Attica, Greece.

The referring court considers there is a ‘conflict of jurisdictions’ (sic), since, under the general rules of the regulation, jurisdiction is determined by the habitual residence of the deceased and not by that of the heirs. Subject to certain conditions, the latter courts have jurisdiction to receive waivers and acceptances; however, (under the regulation) they are under no procedural obligation to notify the court having jurisdiction in principle of such waivers or acceptances. In light of it, the referring court is uncertain as to the nature of the proceedings before it. In addition, it submits that the applicant in the proceedings at hand does not wish to have his own waiver of the succession of the deceased registered, but that of one of the other heirs, and that Bulgarian law does not provide for such a procedure. The principle of personal protection of rights before a court does not permit the registration of declarations of other persons eihter.

The national court has referred the following questions to the Court of Justice of the European Union:

(1) Is Article 13 of Regulation (EU) 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 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 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 (EU) 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 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 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 to have a waiver of a succession registered on behalf of another person?

The case has been assigned to a chamber of three judges (M. Ilešič, reporting, together with I. Jarukaitis and Z. Csehi).

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2023.

The course will be opened by Maarit Jänterä-Jareborg (Uppsala University) with a lecture on Women’s Rights in a World in Transition: The Challenges of Private International Law.

The general course, titled Responses to a Legally Fragmented World: A Private Law Perspective, will be given by Francisco Garcimartín (Autonomous University of Madrid).

The special courses will be as follows: Olivera Boskovic (Université Paris Cité), Tortious Liability in Contemporary Private International Law; Matthias Lehmann (University of Vienna), Crypto Economy and International Law;  Pedro J. Martinez-Fraga (New York University – School of Law), Evidence-Gathering, Transparency, and Risk Assessment in International Commercial Arbitration; Anselmo Reyes (Singapore International Commercial Court), The Use of Domestic Law to Regulate the Conduct of Individuals, Corporations and Governments Extra-Territorially; Geneviève Saumier (McGill University), Specialised National Courts and International Business Disputes;  Maja Stanivuković (University of Novi Sad), Property Rights of Individuals After Changes of Territorial Sovereignty.

The directors of studies will be Philippa Webb (King’s College London) and Verónica Ruiz Abou-Nigm (University of Edinburgh) for the English-speaking section, Lucie Delabie (Université de Picardie Jules Verne) and Malik Laazouzi (Université Paris 2 – Panthéon-Assas) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee, scholarship, doctoral scholarship and Directed Studies applicants is between 1 November 2022 and 31 January 2023. Attendees will also be able to participate in the doctoral networking sessions coordinated by Vaios Koutroulis (Univesité libre de Bruxelles) and Alexia Pato (University of Girona), additional afternoon lectures, embassy visits and other social activities.

More information on the Academy’s programmes, including the upcoming Winter Course, may be found here.

Advocate General Szpunar delivered today his opinion in Case C‑651/21 (М. Ya. M.), which is about the Succession Regulation and a declaration of waiver of succession made by an heir in the Member State of his habitual residence, with a subsequent registration of that declaration, at the request of another heir, with the court of another Member State.

Suggested decision: “1) Article 13 of Regulation (EU) No 650/2012 […] 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”.

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=268184&part=1&doclang=EN&text=&dir=&occ=first&cid=195575

The Jean Monnet Network – BRIDGE project, cofunded by EU Erasmus+ Programme, and the Latin American Center of European Studies invite the academic community to submit scientific papers to the V Workshop Jean Monnet Network on “Private International Law in relations between the European Union and Latin America”, which will be held in hybrid format on April, 19th 2023, hosted by the Universidad de Sevilla, Spain.

The selected articles will be invited to publish in the Latin American Journal of European Studies or in the Collection of the Workshop.  The top two articles will also receive an award of EUR 250 each.

Those who are interested must submit the article by March, 24th 2023 to the email: network@eurolatinstudies.com.

More information here.

As noted earlier on this blog, on 2 December 2022, from 4 pm to 5.30 pm (MET), EAPIL will hold a joint Seminar with the British Institute of International and Comparative Law (BIICL). The Seminar will focus on the review of the Rome II Regulation and will, in this context, shed light on the Study that was prepared in 2021 by BIICL and Civic Consulting to support the preparation of the Commission report on the Regulation’s application. The seminar will focus on general issues as well as a selection of specific subjects.

The Seminar will take place via Zoom. If you wish to join, please register here by 30 November 2022 at noon. Registered participants will receive the details to join the Seminar on 1 December 2022.

The Seminar’s programme is as follows:

4.00 pm
Introduction: Overview of the Study
Constance Bonzé, BIICL (UK)
Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)

— FOCUS I

4.15 pm
Financial Loss
Xandra Kramer, University of Rotterdam (Netherlands)

— FOCUS II

4.25 pm
Artificial Intelligence
Martin Ebers, University of Tartu (Estonia)

—

4.35 pm
A View from Practice
Marie Louise Kinsler, KC, 2 Temple Gardens, London (UK)

—

4.45 pm
Discussion

For more information, please write an e-mail to secretary.general@eapil.org.

The Court of Justice (Grand Chamber) delivered yesterday its judgment in case C‑873/19 (Deutsche Umwelthilfe eV v Bundesrepublik Deutschland, joined party: Volkswagen AG), which is about the Aarhus Convention and access to justice in environmental matters:

“1. Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a situation where an environmental association, authorised to bring legal proceedings in accordance with national law, is unable to challenge before a national court an administrative decision granting or amending EC type-approval which may be contrary to Article 5(2) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information.

2. Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device can be justified under that provision only where it is established that that device strictly meets the need to avoid immediate risks of damage or accident to the engine, caused by a malfunction of a component of the exhaust gas recirculation system, of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. Furthermore, the ‘need’ for a defeat device, within the meaning of that provision, exists only where, at the time of the EC type-approval of that device or of the vehicle equipped with it, no other technical solution makes it possible to avoid immediate risks of damage or accident to the engine, which give rise to a specific hazard when driving the vehicle”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=268044&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=280104

On 2 December 2022, from 4 pm to 5.30 pm (MET), the European Association of Private International Law (EAPIL) will hold a joint Seminar with the British Institute of International and Comparative Law (BIICL). The Seminar will focus on the review of the Rome II Regulation and will, in this context, shed light on the Study that was prepared in 2021 by BIICL and Civic Consulting to support the preparation of the Commission report on the Regulation’s application. The seminar will focus on general issues as well as a selection of specific subjects.

 

Programme

4.00 pm: Introduction – Overview of the Study

       Constance Bonzé, BIICL (UK) and Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)

4.15 pm: Focus I – Financial Loss

       Xandra Kramer, University of Rotterdam (Netherlands)

4.25 pm: Focus II – Artificial Intelligence

       Martin Ebers, University of Tartu (Estonia)

4.35 pm: A View from Practice

       Marie Louise Kinsler, KC, 2 Temple Gardens, London (UK)

4.45 pm: Discussion

 

Participation and Registration

The Seminar will take place via Zoom. Registration is possible via this link. Registered participants will receive all necessary information one day prior to the event (i.e. on 1 December 2022).

 

Background

The EAPIL (Virtual) Seminar Series wishes to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

 

About the Book

 Streamlining disputes has become imperative to reduce the judicial caseload. One may presume that resorting to arbitration or other forms of ADR when the parties wish to resolve their issues amicably might provide them with a speedier remedy. Considering that commercial disputes now are extensively complex and cumbersome, there arose a need for a more evolved dispute resolution mechanism that could cater to the needs of each contract or dispute in a customised manner. MTDR can aid in doing so. It entails successfully employing different kinds of ADR for the same dispute in case there is no resolution. However, MTDR comes with its fair share of issues, such as reservations amongst the parties, lack of rules governing such procedures, limitation period, lack of party cooperation and the non-binding nature of certain forms of ADR. These pertinent questions are merely the tip of the iceberg when it comes to Multi-Tiered Dispute Resolution. The objectives of Alternative Dispute Resolution are saving time and reducing costs. At the end of the day, it is imperative to answer whether Multi-Tier Dispute Resolution is viable in achieving these objectives or if it will manifold the complexities involved in the process. Yet if there is even a possibility of settling disputes or at least parts of the dispute amicably, this concept is worth a chance. Despite the United Nations’ endeavours to promote uniform interpretations of the arbitration law worldwide, several nations have taken varying stands on the enforceability of certain dispute resolution procedures, calling for a study of the varying standards in different jurisdictions. For any dispute resolution mechanism to be effective, the codified law and the jurisprudence of a particular state need to be conducive to enforcing the process adopted by the parties. Thus, in-depth analysis and critical review of this subject’s laws and judicial pronouncements have been demonstrated. This book aims to assist the reader in overcoming the issues that one might face with MTDR in a wide range of jurisdictions to make this process of dispute resolution useful, effective and fruitful. The book covers MTDR in different jurisdictions like the UK, USA, France, Canada, Australia, Singapore, Germany, Hong Kong, China, Taiwan and India. The functionality of any reform, particularly one that seeks to provide a multi-faceted solution, predominantly lies in the academic enrichment of the same. Policy and academia can only strengthen public awareness of Multi-Tier Dispute Resolution.

 

The Book is available for purchase on the Bloomsbury website using this link.

About the Author

Anjali is an Assistant Professor at Jindal Global Law School, O.P. Jindal Global University. Anjali holds an LL.M. in International Commercial Arbitration Law from Stockholm University (SU); and B.A. LL.B. (Hons.) degree from Jindal Global Law School, O.P. Jindal Global University, Sonipat (India). She is also a qualified lawyer at the Bar Council of India. She has also been advising domestic and international clients regarding commercial and civil disputes. Anjali is also acting as a Dispute Resolver (Mediator/Arbitrator/Conciliator) for various ODR platforms. Anjali sits on the Editorial Board of Legal Maxim and the Review Board of Syin & Sern. 

 

The first meeting of the Special Commission to review the practical operation of the HCCH 2000 Protection of Adults Convention will be held today in The Hague and will last until 11 November 2022. This event is remarkable given that this is the first time that the practical operation of this Convention is assessed since its entry into force on 1 January 2009.

A few topics of the agenda are worthy of note. I would like to highlight two:

The first topic deals with the tools to assist with the implementation of the 2000 Convention and is broken down as follows:

• Improving accessibility to the existing model forms
• Direct judicial communications and a possible network of judges under the 2000 Protection of Adults Convention. See here.
• Finalisation and adoption of the Practical Handbook on the Operation of the 2000 Protection of Adults Convention
• Finalisation and adoption of the Implementation Checklist under the 2000 Protection of Adults Convention
• Finalisation and adoption of the 2000 Protection of Adults Convention Country Profile

The second topic and undoubtedly fascinating to any international lawyer – if only with regard to treaty law – is the agenda item: Possible amendments to the 2000 Convention. For more information, click here. This agenda item contains the following sub-items:

• Interest in deleting the terms “guardianship” and “curatorship” (Art. 3(c))
• Interest in adding a new conflict rule for “ex lege representation”
• Interest in adding a provision on “instructions given and wishes made by the adult e.g. advance directives”
• Interest in adding final clauses allowing Regional Economic Integration Organisation to join the 2000 Convention
• Possible mechanisms to amend the 2000 Convention

It is becoming a tradition for the EAPIL blog to announce the publication of the PAX Moot. It is now just around two weeks that the case has been published for the students who are keen to take part in a yearly moot competition on Private International Law.

This time the Pax Moot Round is dedicated to the memory of Peter Nygh, a leading international lawyer, former judge of the Family Court of Australia, co-rapporteur on The Hague ‘judgment project’, and representative for Australia in the negotiations of the Convention on the Protection of Children.

The Peter Nygh Round of the competition will require participants to deal with the complexities of Private International Law in a global setting: European, African and American incorporated companies, Panamanian-flag vessel, and health injuries to employees from Philippines. The factual situation in the case is set around a series of international transactions and situations related to the refueling of a vessel in the port of Antwerp. The this, the insolvency procedure of one of the subsidiary companies involved in the arrangement of the refueling further complicates the situation of the parties.

The students participating in the 2023 PAX Moot are required to address matters of jurisdiction, the relevance of the insolvency proceedings for the pending claims, the possibility of appointing an expert to investigate factual situations in another country, and determining the applicable law.

Student teams from all over the world will be able to register for the competition from 2 November 2022. This can be done via an online form available here.

The moot comprises a written and an oral round. More information about the competition and its timetable are available here.

On 18 October 2022, the European Commission adopted its 2023 Work Programme. As explained in the press release that accompanies the document, the programme aims to set out a bold and transformative agenda in the face of Russia’s aggression against Ukraine, rising energy prices and the knock-on effects on the economy, while defending Europe’s democratic values and pursuing long-term goals and interests.

The initiatives that the Commission plans to take, or pursue with particular interest, in the course of 2023 are listed in three annexes.

Annex I is concerned with the new policy and legislative initiatives that the Commission intends to propose. None of the items in this Annex is based on Article 81 TFUE, on judicial cooperation in civil matters. No reference is made in the document to two topics that formed (and still form) the object of discussion among academics and stakeholder, namely the recognition of parenthood and the protection of vulnerable adults.

Annex II, on REFIT initiatives (i.e., initiatives aimed at making EU law simpler, less costly and future proof), contemplates, among other things, a revision of alternative dispute resolution and online dispute resolution framework to improve enforcement of consumer law is expected. A strong alternative dispute resolution (ADR) framework will enable consumers and businesses to solve their disputes rapidly and at a low cost, out-of-court. The increase in online shopping during the pandemic has shown that there is room for overall simplification notably in cross-border disputes and cost-effective measures, e.g., through digital tools and collective ADR disputes mechanisms. The idea is to modernise the ADR framework in view of the rapid development of online markets and advertising and the need to ensure that consumers have access to fair, neutral and efficient dispute resolution systems.

Various procedures involving aspects of private international law are featured in Annex III, about the pending procedures that the Commission regards as a priority.

The proposed Directive on adapting non-contractual civil liability rules to artificial intelligence (the AI Liability Directive) appears in this list. Liability ranked amongst the top barriers to the use of AI by European companies. This is so because current national liability rules, in particular based on fault, are not suited to handling liability claims for damage caused by AI-enabled products and services. Under such rules, victims need to prove a wrongful action or omission by a person who caused the damage. The specific characteristics of AI, including complexity, autonomy and opacity (the so-called “black box” effect), may make it difficult or prohibitively expensive for victims to identify the liable person and prove the requirements for a successful liability claim. In particular, when claiming compensation, victims could incur very high up-front costs and face significantly longer legal proceedings, compared to cases not involving AI. Victims may therefore be deterred from claiming compensation altogether. Therefore, the objective of this proposal is to promote the rollout of trustworthy AI to harvest its full benefits for the internal market. It does so by ensuring victims of damage caused by AI obtain equivalent protection to victims of damage caused by products in general. It also reduces legal uncertainty of businesses developing or using AI regarding their possible exposure to liability and prevents the emergence of fragmented AI-specific adaptations of national civil liability rules. From a private international law perspective, the impact of the Directive and the (possible) future implementation in national rules and the relationship with the Rome II Regulation shall be investigated.

The list of priority pending procedures also include the proposed Directive on liability for defective products. Directive 85/374/EEC, which the proposal aims to repeal, has the objective to provide an EU-level system for compensating people who suffer physical injury or damage to property due to defective products. Since its adoption in 1985, there have been significant changes in the way products are produced, distributed and operated, including the modernisation of product safety and market surveillance rules. The green and digital transitions are underway and bring with them enormous benefits for Europe’s society and economy, be it by extending the life of materials and products, e.g. through remanufacturing, or by increasing productivity and convenience thanks to smart products and artificial intelligence. Therefore, the revision of the Directive seeks to ensure the functioning of the internal market, free movement of goods, undistorted competition between market operators, and a high level of protection of consumers’ health and property. In particular, it aims to: ensure liability rules reflecting the nature and risks of products in the digital age and circular economy; ensure there is always a business based in the EU that can be held liable for defective products bought directly from manufacturers outside the EU; ease the burden of proof in complex cases and ease restrictions on making claims, while ensuring a fair balance between the legitimate interests of manufacturers, injured persons and consumers in general; ensure legal certainty.

Also in the list of the Commission’s priorities is the proposed Directive on Corporate Sustainability Due Diligence. An overview of the Commission proposal has already appeared on this blog. As suggested in a recommendation of GEDIP that has recently been brought to the attention of the readers of this blog (see here), the Proposal may need to be reconsidered and improved in various respects.

Another priority pending procedure is the proposed Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”, or SLAPPs). The initiative has been the object of a dedicated post on this blog.

Finally, the Commission intends to include among its priorities the initiatives it has taken regarding the digitalisation of judicial cooperation in cross-border civil and commercial matters, i.e., the proposed Directive on digitalisation of judicial cooperation and the proposed Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters. An illustration is found in this post.

The proposed Directive on consumer credits and the proposed Regulation on the law applicable to the third-party effects of assignments of claims equally feature in the list of the priority pending legislative proposals.

Event date: 17 November 2022 Event time: 12:00 – 13:30 Oxford week: MT 6 Audience: Members of the University Venue: St Catherine’s College (Room: TBA) Speaker(s): Dr Jeanne Huang (Associate Professor, The University of Sydney)

On January 24, 2022, the Supreme People’s Court of China issued the Minutes of the National Court’s Symposium on Foreign-Related Commercial and Maritime Trials (“Minutes”), which provide rules for judgment recognition and enforcement (“JRE”) in China when no treaty exists between China and the state of origin or the treaty does not address a particular JRE issue. Later in the year, on August 29, 2022, the European Union and its member states acceded to the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The Convention will enter into force in September 2023. Given that China has not signed the Convention, this talk aims to help international business actors to plan for the ways in which JRE in China will differ and understand the prospects for China to ratify the Convention.

Dr Huang’s talk and discussion will be followed by a light sandwich lunch. Please email conflictoflaws@law.ox.ac.uk to register your attendance and any dietary requirements.

For more information see here

This event is generously supported by Twenty Essex

This post, written by Pascal de Vareilles Sommières, who is a Professor at the University of Paris 1 Panthéon-Sorbonne, is the seventh in a series concerning the proposed codification of French Private International Law. Previous posts relating to the French Draft Code addressed the issues of renvoi, foreign law, the recognition of marriages, companies and parentage. A German perspective on the draft was also offered here.

Article 15 is the first provision in the title II of the French Project of Code of Private International Law (the Code project), on “Jurisdiction of courts”. It reads as follows:

Unless provided otherwise in this code, jurisdiction of French courts results from the rules on venue in domestic procedural law, which are extended to international matter – subject to their adjustment as it may be required for that matter –, especially the rule on venue based on the domicile or on the habitual residence of the defendant.

Overview of Article 15

Under Article 15, legal bases for jurisdiction of French courts over cross-border disputes are basically to be found in the French rules on venue (place of the lawsuit) as they apply in domestic proceedings, except if a specific rule on jurisdiction has been codified and applies to the case. A striking feature of this rule is that it does not address the jurisdictional issue by itself, but by reference to other rules that were made for domestic litigation. It has been coined as a default rule – or a “principle” in the words of the Report to the Minister of Justice on the project of Code of Private International Law (the Report), recalling (p. 15) that it comes from a former ruling by the Cour de cassation (see the Report, p. 15 at footnote 5, referring to Cass. Civ. 19 October 1959 Pelassa, and Cass. Civ. 30 October 1962 Scheffel). As a default rule, the rule applies in any particular case with the proviso that the case is not covered by a specific rule on jurisdiction within the Code project. As such, it has the importance of a general principle: exceptions may exist, but they keep the status of exceptions, inspired by data specific to the category for which they are provided, and applying only to cases falling in that category.

One particular jurisdiction basis for French courts that draws on this rule is where the domicile or the habitual residence of the defendant is in France: Article 15 expressly mentions the extension of the corresponding venue rule (French Code of civil procedure, Article 42) to disputes arising in an international setting. Such a jurisdiction rule (well known in Latin: Actor sequitur forum rei), is classical in comparative private international law and consequently gained its status as a principle in EU jurisdiction rules in civil and commercial matters (Article 4 of the Brussels I bis Regulation). Needless to say, Actor sequitur… is not the only rule on venue in the French Code of civil procedure, and, under Article 15 of the Code project, others shall extend to international litigation before French courts – at least, each time they are not ruled out by a specific provision on jurisdiction that the Code project enacts.

In some cases, the Code project sets up straightforward specific rules on jurisdiction for international litigation before French courts, as in the field of personal status, where Article 34 provides for jurisdiction of French courts if the domicile or habitual residence of the person whose status is at stake is located in France at the time when the dispute is introduced before the court.

Rules on jurisdiction in the field of contractual and non-contractual obligations (Articles 88 and 91) are good examples of less straightforward jurisdiction rules laid down by the Code project. On the one hand, they draw on rules of venue applying to domestic litigation (French Code of civil procedure, Article 46) and, to that extent, they belong to these venue rules adjusted to international litigation mentioned by Article 15 (see the Report, p. 16). On the other hand, they appear within the Code project as specific legal rules (Article 88 §2; Article 91 §2), proper to international disputes. Under these provisions, in contractual matters, legal bases for jurisdiction of French courts are the place of delivery of the goods and the place of provision of the service; in extra-contractual matters, legal bases for jurisdiction of French courts are the place of the harmful event and the place where the damage is suffered. Of course, in both fields, French rules on jurisdiction apply subject to international convention or EU law (Article 88 §1; Article 91 §1); and we all know that EU law in civil and commercial matters does not rule out the rules on jurisdiction of Member State courts, if the defendant is domiciled in a country which is not a EU Member State (Article 6 of the Brussels I bis Regulation).

General Assessment of Article 15

Is the rule laid down by the Code project in Article 15 a satisfactory one? We must confess our frowning on reading it. The reason is that, in our opinion, the reference to rules on venue in domestic disputes, as default rules on jurisdiction issues in international litigation, made by Article 15 of the Code project, falls beside the point.

The mere fact for the Report to emphasize that the general rule provided by Article 15 belongs to those provisions, in the Code project, intending to consolidate advances previously gained (“acquis”), or to maintain traditional solutions in spite of scholarly criticism (p. 15), remains unsatisfactory to us.

A first reason for scepticism is that the extension of domestic rules on venue to international litigation, when it comes to determining legal bases of jurisdiction of a country’s courts, is enshrined in the Code project, even though this extension principle is said to fall under criticism of commentators: one expects a response to that criticism by the drafters of the Code project prior to have it set aside. A second reason is that it is awkward for the Code project drafters to set up, as a default rule or principle on jurisdiction of courts in international disputes, a mere reference to rules on venue  made for domestic disputes, especially when it is simultaneously admitted that “no one today denies the specificity” of the nature of international jurisdiction of a country’s courts and of the rules laid down to fix it, compared to domestic venue (see the Report, p. 15).

Everyone interested in EU law on jurisdiction in civil and commercial matters knows the huge amount of dissatisfaction left in practice by criteria like the place of performance of obligation, the place of delivery of goods, and the place of provision of service, as grounds for jurisdiction in the field of contracts. The same dissatisfaction stems from criteria like the place of the harmful event and the place of damages, used for the same purpose in the field of torts. Having them endorsed by French rules on international litigation just because they are used as venue grounds in domestic proceedings is at least questionable, as is questionable the assertion by the Report that “the extension principle [of domestic venue provisions] has the advantage that it provides for a connecting factor easy to implement each time one cannot find in the Code project a specific rule for the relevant matter” (p. 15). The sentence would be more correct saying “easy to find” rather than “easy to implement”. But the mere fact, for a criterium used by a provision addressing a given issue, to be easy to find does not make this criterium reasonable and reliable when drafting another provision on a different issue.

So, if the point is to avail of default rules proper to answer the question whether or not a particular case falls within the jurisdiction of French courts (so that they may handle the jurisdiction issue even though there is no jurisdiction rule specific to the matter to which that case belongs), it is suggested here that a good approach would have been to listen to scholarly criticism and to assess counterproposals. Unfortunately, space lacks – due to the format of this blog – to develop here on this issue. This quick overview will only express our disappointment that the only other idea mentioned in the Report (and actually used in the Code project), for assertion of jurisdiction by French court where no ground specific to the matter can be found, is about resorting to the “natural judge theory” (doctrine du juge naturel) and consequently sticking to the French citizenship as a default basis for jurisdiction of French courts (see Code project, art. 17, and the Report, p. 16 to 18).

A Few Suggestions

Beside the well-known usual criticism under which citizenship/nationality of one of the litigants falls as a ground of jurisdiction in civil and commercial matters, another remark finds its way here: why did the Report and the Code project give short shrift to other possible solutions?

Extension of Brussels I reg. recast (2012) rules on jurisdiction, especially where the defendant is not domiciled in a EU Member State, could have been explored: there are pros and cons.

How about the forum legis jurisdiction? Comparative private international law shows a tendency for this ground of jurisdiction, formerly unfashionable, to come back to the forefront. EU jurisdiction law shows that providing for jurisdiction of the courts of a given country over a case, where the law of that country is applicable to that case, may well prove satisfactory (Articles 5 to 7 of Regulation No 650/2012 in matters of succession). An article recently published depicted quite clearly the influence, before common law courts, of the idea that, for a court, applicability of the law in force in its forum is a relevant basis for the jurisdiction of that court (R. Garnett, “Determining the Appropriate Forum by the Applicable Law”, [ICLQ vol 71, July 2022 pp 589–626]). Even in France, voices make the case for a better relation between forum and jus in private international law (see, among others, S. Corneloup, « Les liens entre forum et ius : réflexions sur quelques tendances en droit international privé contemporain », in Mélanges B. Ancel, LGDJ/IPROLEX, 2018, p. 461-475). This tendency probably finds its rationale in this idea that where a country claims applicability of its law through its choice-of-law rule, the best way to increase efficiency of this claim is to support it by an additional claim, made by that country through its choice-of-court rules, that its courts have jurisdiction. This jurisdiction should certainly not be exclusive of jurisdiction of the courts of any other country (at least in principle), but making it available to the parties is good for them, in terms of predictability, and good for the country whose law claims to be applicable, in terms of authoritativeness of its law.

Whether this point is decisive is open to debate, but one may expect from a lawmaker that it addresses such an issue when codifying its private international law.

by Ilaria Pretelli 

On Friday October 21 the Comité français de droit international privé held a special session devoted to the last and possibly final version of the project of code of private international law. As such, the project consists of 207 articles divided into 6 books: general rules, special rules, procedure, recognition and enforcement of foreign acts and judgments, provisional and protective measures, transitional provisions.

The session was held “à huis clos” with the discussion among members stimulated by foreign guests specially invited to have a perspective from abroad. Not surprisingly, due weight was given to Switzerland and Belgium, as the former is considered to have a model legislation on the discipline and the latter has the “youngest” statute of continental Europe. Marc Fallon underlined the very different circumstances in which the Belgian legislation was constructed, since it came from a private initiative of Belgian academics, only at a later stage submitted to the Belgian legislator. The opposite path has led to the drafting of the French project, which stems directly from an initiative of the Ministry of Justice. In France, this project is the fourth in time after those by Niboyet (1950), Batiffol (1959) and Foyer (1967). If successful, it will bring to an end the essentially doctrinal and jurisprudential character of French private international law. These traditional characteristics of French private international law were recalled by Pierre Mayer in an already nostalgic note. Andrea Bonomi offered both a Swiss and European perspective, with laudatory remarks on the main innovations of the project: the codification of rules on procedure and on procedural measures, and the codification of the “méthode de la reconnaissance”. Reference is thereby made to the renowned French theory which has developed Picone’s observations on the opportunity of recognising the competence of a legal order (l’ordinamento competente) as a whole to decide a cross-border issue, instead of applying such a foreign order’s rules to decide the same cross-border issue within the forum. This method (or methods, according to subsequent works of the author of the theory, Pierre Mayer), is gaining importance in contemporary practice. On the one hand, the increasing mobility of citizens raises the number of conflicts of laws and creates an appetite for hard and fast solutions. A method allowing to displace the discussion from substance to competence of the authority serves this need. In addition, it is particularly welcome in the EU, where it is coherent with the prevalence of the evaluations of the “country of origin”.

Other rules applauded by the audience were those on public policy and fraude à la loi, although regret was expressed over the fact that these well-known denominations are not mentioned in the corresponding rules (Articles 11 and 12). The rule on public policy is among the many of the project that reveals a constant attention by the drafters to coordinate national rules with the European ones: it explicitly grants a role to the “European notion of public policy”.

Possibly the most controversial rules are those on filiation resulting from IVF with a donor and on surrogacy (Articles 62 and 63). In this respect, the project breaks with French precedent and adopts a solution based on the respect of the legitimate expectations of donors, intended parents and the gestational mother: the lex loci actus.

According to the drafters, legal certainty for all parties involved points to the application of the law of the country in which assisted reproductive technology (ART) was performed or surrogacy was agreed by contract and implemented. These rules represent an exception to the general ones (Article 59), which point to the law of the child’s citizenship at the moment of birth. Article 62 seems to be of limited utility, since it merely confirms that French clinics need to follow French law and vice versa. However, as regards the filiation of children born with the employment of a donor by means of an IVF performed in a foreign fertility clinics, the applicable law will dependt on the place of birth. The presumptions of paternity of French domestic law will apply in the first place. The scope of application of the foreign law of the country in which the clinic is based will thus be limited to the aspects related to the right of the child to have access to information regarding the donor. In addition, the lex loci actus would open the French border to reproductive tourism and, in so doing, would create the conditions to prevent the need of further strategic litigation before the ECHR in order to decriminalise surrogacy. Some critical voices have observed that the present domestic and international context are too fragile for such a solution to be welcome. The inherent risk is that the advancement in a wider recognition of “a right to parenthood”, including “parenthood for all” may increase existing divisions and undermine the credibility of the universal character of the principle of non-discrimination.

Divisions also exist as regards the timeliness of the code. Paul Lagarde raised his authoritative voice, in the columns of the last issue of the Revue critique, against the very idea of devoting energies to a national code of private international law. The engagement for the French code reveals, he argued, the availability of resources that could have been better employed to contribute to the drafting of a comprehensive code of European private international law based on the numerous existing regulations.

The four panels of the debate allowed a comprehensive analysis:

1. structure of the code, articulation of sources, general rules of choice of law (chaired by Marie-Laure Niboyet)
2. Procedure, Effect of foreign judgments and public acts (chaired by Jean-Pierre Rémery)
3. Roundtable on family law
4. Ccompany law – collective labor law ( chaired by Etienne Pataut).

All distinguished participants engaged in the rich and deep discussion triggered by the analysis of the project are looking forward to future arenas where the debate can continue.

In the context of the Vici project ‘Affordable Access to Justice’ conducted by the Erasmus School of Law (Rotterdam) and financed by the Dutch Research Council – NWO, the project team is organizing a seminar titled ‘Third-Party Funding: Trends, Developments, and the Future’ (online).

The seminar is scheduled for Wednesday, 7 December 2022 (10:00-12:15 CET) and it will feature presentations by: Xandra Kramer (Erasmus University Rotterdam/Utrecht University, Netherlands), Stefaan Voet (KU Leuven, Belgium), Masood Ahmed (University of Leicester, UK), Adrian Cordina (Erasmus University Rotterdam, Netherlands), Michael Legg (UNSW Sydney, Australia), David Capper (Queen’s University Belfast, UK).

The complete program and information for the online registration are available here.

For updated information on the project, you may follow the Project’s LinkedIn page.

This post was written by Verena Wodniansky-Wildenfeld, Vienna.

The Austrian Constitutional Court proceeds further on the way to equal treatment of heterosexual and homosexual couples. In its decision of 30 June 2022, it ruled that the requirements for establishing parenthood of same-sex partners must not be stricter than the ones for opposite-sex partners.

Facts of the Case

Two women lived together as registered partners with a child. After the child’s birth, the partner of the mother sought to be legally registered as the child’s parent. This request was refused by the authorities, as she could not be considered the “father” in the sense of the law and the child had been conceived naturally and not through artificial insemination, as required for the registration as a co-mother. Thereupon, she filed a complaint with the Austrian Constitutional Court on the grounds of the discriminatory nature of the legal provisions applied in the case at hand.

Legal Problem

Under the current Austrian statutory law, the registered female partner of the biological mother can be considered as the “other parent” only in the case of medically assisted reproduction (Section 144(2) ABGB).

In cases where the biological mother and her female partner are married to each other, as well as in cases where the birth was not preceded by medically assisted procreation, Austrian law does not provide any possibility for the acknowledgement of parenthood.

In order to legally become the “other parent”, the only way left is via “stepchild adoption” (section 197(4) ABGB), which is neither a duty nor a right. This situation differs from the case of heterosexual spouses: the man who is married to the mother at the time of the child’s birth is ex lege considered to be its father, never mind how the child is conceived. Moreover, a man may acknowledge fatherhood even if the child was conceived by someone else (whether through natural or medically assisted reproduction). Neither of these options are available to the wife or female partner of the biological mother.

Decision

The Austrian Constitutional Court considers this statutory situation as an unjustified unequal treatment of the mother’s female partner with regard to her legal status as “other parent” in comparison to a man in the same constellation. The court invoked in particular the right to private life and the principle of equality (Articles 14 and 8 ECHR, which form an integral part of Austrian constitutional law). Furthermore, it referred to the legal interest of the child (particularly Article 8 ECHR and the implementation of the UN Charter on the Rights of the Child) and that of a legal parent who wants to take responsibility for the child.

The Constitutional Court rejects the objections by the Federal Government, who argued that the unequal treatment under the law would be justified. According to the Court, a man’s fundamental aptitude for natural procreation is not sufficient to tie paternity to less stringent conditions than the parenthood of a woman who cannot have “fathered” the child. The Court was moreover not persuaded by the approval of the German legal situation by the ECtHR, which puts same-sex couples in a significantly worse position than the Austrian one due to the mere possibility of adopting the child.

Assessment

Following the decision concerning the implementation of marriage for homosexual couples, the direction the Constitutional Court has taken this time is hardly surprising. In stating that the unequal treatment of homosexual and heterosexual couples cannot be justified, the Court finds itself in agreement with large parts of the Austrian literature. Certainly, the Court does not deny the existence of factual differences between men and women with respect to natural procreative capacity. The prohibition of discrimination, however, prevents the legislature from attaching different legal consequences to this gender-specific distinction and the sexual orientation. The provision of the ABGB was therefore repealed as unconstitutional and as further consequence, will be ceased to be in force by the end of 2023.

The question arises which implications the decision will have for national conflict-of-law rules. De lege lata, the latter only explicitly governs descent from the father. A possible solution would be to apply the general clause in Section 1(1) IPRG and thus extend the rule on paternity to co-motherhood. Accordingly, the common nationality of both married parents or that of the child in the case of unmarried parents would determine the applicable law. Nevertheless, a clear solution would be preferable also in this matter.

It remains to be seen whether the Austrian legislator will find a solution that does justice to the desire for permanence of parenthood, the protection of the social family, and the best interests of the child.

Written by Mark Weidemaier, the Ralph M. Stockton, Jr. Distinguished Professor at the University of North Carolina School of Law, and Mitu Gulati, the Perre Bowen Professor of Law at the University of Virginia School of Law.

Governments with no realistic prospect of paying their debts often gamble for redemption, trying desperately to avoid default. Political leaders, with good reason, fear that a debt default will get them thrown out of office. But in trying to hold power, sometimes by borrowing even more, they often make matters worse for the country and its people. A prime example involves the collateralized bonds issued by Venezuelan state oil company, PDVSA.

Venezuela’s Gamble

In 2016, PDVSA was about to default on its debt, as was the Venezuelan state itself. At that stage, it was already well beyond the point where the debt should have been restructured, given worsening domestic conditions. Instead, the Maduro government gambled. It conducted a debt swap in which investors exchanged unsecured PDVSA bonds for new ones due in 2020. To sweeten the deal, the PDVSA 2020s were backed by collateral in the form of a 50.1% interest in CITGO Holding, the parent company of U.S. oil refiner CITGO Petroleum. The deal bought a few extra years but put at risk the country’s primary asset in the United States.

Even at the time, it was uncertain whether Venezuelan law authorized the transaction. The Venezuelan Constitution requires legislative approval for contracts in the national public interest. Maduro did not seek approval because opposition lawmakers controlled the National Assembly and had made clear they would not grant it. The deal went ahead anyway.

Times have changed. The United States recognizes Juan Guaidó as Venezuela’s interim president (for now). The PDVSA 2020 bonds are in default. The bondholders want their collateral. PDVSA has challenged the validity of the bonds. But the bonds include a choice-of-law clause designating the law of New York. Does this mean that validity is to be determined under New York law? John Coyle recently wrote a terrific post about the case and its significance on this blog. We write to provide some broader context, drawing from our article, Unlawfully Issued Sovereign Debt.

Sovereign Debt and Choice-of-Law Clauses

The story of the PDVSA 2020 bonds is a common one in government debt markets. A government borrows money in dodgy ways or at a time of financial distress. Arguably, the debt contravenes domestic law, although the government may obtain legal opinions affirming its validity. The debt also includes a choice of law clause providing for the application of foreign law, typically that of New York or England. Later, a new government comes to power and disputes the validity of the debt. We have seen this pattern in Venezuela, Mozambique, Ukraine, Zambia, Liberia, Puerto Rico, and in other sovereign and sub-sovereign borrowers. (The pattern goes back even further – for a delightful treatment of the hundreds of such cases from the 1800s involving municipal debt, see here).

These cases raise what seems like a simple question: Does an international bond—i.e., one expressly made subject to foreign law—protect investors against the risk that the bond will later be deemed in violation of the issuer’s domestic law? Despite seeming simple, and how frequently the question arises, there is little clarity about the answer. New York law governs a big part of the sovereign debt markets, and the choice-of-law question in the PDVSA 2020 case has been certified to the New York Court of Appeals. Will that court’s decision offer clarity?

Variations in Clause Language

Count us skeptical. The problem is not just the unpredictability of choice of law rules. It is that many choice-of-law clauses are drafted in perplexing ways, which leave unclear the extent of protection they offer to investors. Consider three examples. The first is from the PDVSA 2020 bond itself where the relevant language is capitalized (as if capitalization has some magic effect):

THIS INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THIS INDENTURE AND THE NOTES AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY WHATSOEVER TO THIS INDENTURE AND THE NOTES (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)

This clause apparently seeks to extend New York law to the widest possible range of questions. Whether that includes the question of whether the bonds were validly issued is, as John’s post puts it, the “billion-dollar question.” And the answer is not clear. The decision by the New York Court of Appeals might provide some clarity on it . . . maybe.

But now consider this clause, from a Brazilian bond (emphasis ours):

The indenture and the debt securities will be governed by, and interpreted in accordance with, the laws of the State of New York without regard to those principles of conflicts of laws that would require the application of the laws of a jurisdiction other than the State of New York . . .; provided, further, that the laws of Brazil will govern all matters governing authorization and execution of the indenture and the debt securities by Brazil.

Does the bold text mean that investors cannot enforce a loan issued in violation of Brazilian law? We aren’t sure. As we discuss in the paper, it can be hard to identify questions of “authorization” and “execution,” especially in the context of sovereign borrowing. Consider the question whether a loan violates a constitutional or statutory debt limit. Does the debt limit negate the sovereign’s capacity to borrow, limit the authority of government officials to bind the sovereign, or make the loan illegal or contrary to policy? How one categorizes the issue will affect the answer to the choice-of-law question. Carve outs like this—which reserve questions of authorization and execution for resolution under local law—appear in around half the New York-law sovereign bonds we examined.

Finally, consider this clause from a Turkish bond (again, emphasis ours):

[The] securities will be governed by and interpreted in accordance with the laws of the State of New York, except with respect to the authorization and execution of the debt securities on behalf of Turkey and any other matters required to be governed by the laws of Turkey, which will be governed by the laws of Turkey

What now? This “other matters” carve out is even odder than the one for questions of authorization and execution. It hints that additional, unspecified matters might be governed by the sovereign’s local law. Indeed, it implies that the sovereign’s own law might determine which issues fall within the “other matters” exception. If so, the clause potentially allows the government to create new exceptions to the governing law clause.

Conclusion

Our discussions with senior sovereign debt lawyers have done little to dispel our uncertainty about the meaning of these clauses. They seem just as confused as we are. All we can say with confidence is that many choice of law clauses include traps for unwary investors. Until drafting practices converge on a consistent and coherent model, the choice-of-law question is likely to remain fodder for litigation.

[This post is cross-posted at Transnational Litigation Blog.]

Filip Šaranović (Queen Mary University of London) is the author of Freezing Injunctions in Private International Law, recently published by Cambridge University Press.

The blurb reads:

The extent of available pre-judgment asset preservation relief is widely regarded as a unique characteristic of English law and one of the key factors attracting international commercial litigation to the English courts. By taking a novel view of the theoretical foundations of a freezing injunction, this book challenges the long-established view that such an injunction is an in personam form of relief whose sole purpose is to prevent unscrupulous defendants from making themselves judgment-proof. Dr Šaranović combines historical and comparative perspectives to identify several theoretical flaws in the court’s jurisdiction to grant this popular form of interim relief. The book demonstrates that the current application of private international law rules in this field leads to inequality among litigants and illegitimate encroachment upon the sovereignty of foreign states. It proposes a range of possible solutions to alleviate concerns about the scope of freezing injunctions both in the domestic and international arena.

Further information available here.

A series of webinars will be held every Thursday in November 2022 at 5 pm (Argentina time, 9 pm CET time) in Spanish. The topics range from international family law to environmental justice to the consequences of the conflict in Ukraine for Private International Law.

Registration is free of charge. To register, click here.

The program is available below:

 

On 9, 10 and 11 November 2022, a Special Commission devoted to the Hague Convention of 13 January 2000 on the international protection of adults will meet in the Hague.

The Hague Adults Convention applies in international situations to the protection of persons aged 18 or more who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. It lays down a comprehensive set of private international law rules in this area: rules on jurisdiction to give measures of protection, on the law applicable both to measures of protection and powers of representation conferred by an adult in contemplation of a possible loss of autonomy, on the recognition and enforcement of measures of protection across Contracting States, and on cooperation between the authorities of such States.

Today, fourteen States are bound by the Hague Adults Convention, the latest to join being Greece (actually, the Convention entered into force for Greece yesterday, 1 November 2022).

Why a Special Commission, and How It’s Been Prepared

While the Hague Adults Convention has generally proved to work well in practice, the Council on General of Affairs and Policy of the Hague Conference on Private International Law considered, in 2019, that the time had come to convene a Special Commission for the purpose of reviewing the practical operation of this instrument.

Preparation work began shortly afterwards, with a questionnaire addressed to States aimed to determine the issues that the Special Commission ought to address (the responses are found here), followed by a questionnaire on the practical operation of the Convention (see here the responses).

Since April 2021, a working group constituted for this purpose has been meeting regularly with the aim to draft a Practical Handbook on the Convention and, more generally, to discuss the various documents that the Special Commission will consider in its meeting (or serve as a background to it). As a member of the working group, the author of this post enjoyed the intense and fruitful exchanges that occurred among the members, and witnessed the amazing job carried out by the Permanent Bureau to assist the group and, generally, to get everything ready for the Special Commission.

The meeting of the Special Commission will only open to delegates designated by States and invited observers (by the way, the European Association of Private International is among the observers: as the readers of the blog may recall, EAPIL received a similar invitation in May 2022 to attend the first meeting of the Special Commission on the Hague Maintenance Convention and Protocol). Of course, the Conclusions that the Special Commission will adopt will be made available once the meeting is over.

What to Expect from the Meeting (1): A Substantial Contribution to the Understanding of the Convention

The November 2022 meeting is the first such meeting devoted to the Hague Adults Convention. In fact, the work carried in preparation of the Special Commission over the last year and a half, and its finalisation by the Special Commission, represents the first major collective exercise of this kind regarding the Convention.

This is in itself remarkable, especially if one considers that, over the years, several Special Commission meetings have taken place to discuss the operation of other Hague instruments. For instance, the Special Commission charged with reviewing the operation of the Hague Convention of 1980 on the civil aspects of international child abduction has met seven times, and the next meeting – due to take place in October 2023 – is already under preparation.

As a matter of fact, some practically important issues regarding the Hague Adults Convention had not been the object of detailed analysis before the working group and the Permanent Bureau engaged in this exercise.

One such issue is whether, and in which manner, the Convention applies to ex lege powers of representation, that is powers of representation that, according to the law of some States, a person close to the adult (e.g., their spouse) is entitled to exercise for the purposes of protecting them. A preliminary document, drawn up by the Permanent Bureau with the assistance of the working group provides an account of the questions that surround these powers, and discusses how they could (or should) be dealt with under the Convention.

Doubts have been raised in literature and among practitioners as regards the way in which the Hague Adults Convention deals with advance directives concerning matters of health, welfare and other personal matters. This topic, too, is the object of a preliminary document.

The Special Commission will offer a unique opportunity to collect the views of States and observers on these and several other issues. The finalised Practical Handbook (the latest revised draft is available here) will eventually help shape a common understanding of the operation of the Convention, notably as regards the issues that have prompted doubts and disputes.

While the Practical Handbook and the Conclusions of the Special Commission will not be formally binding on State courts and other authorities, the consensus that the Commission will be able to record on the various topics under discussion will in fact serve as a guideline for anybody having to do with the Convention.

What to Expect from the Meeting (2): A New Wave of Ratifications

One recurring criticism concerning the Hague Adults Convention is that it is in force only for relatively few States. Admittedly, the pace of ratifications has been disappointing.

Experts generally agree that the Convention significantly facilitates the handling of cross-border cases, and authorities in Contracting States frequently report about the benefits offered by the Convention in cases governed by its rules, compared with cases for which the Convention is of no avail (e.g., when the need arises to coordinate proceedings before local courts with proceedings in a State that is not bound by the Convention). Yet, several States have apparently never considered joining the Convention, and many among those that have expressed an interest in ratifying the Convention have so far contented themselves with taking preliminary steps in that direction.

The Special Commission of November 2022 is likely to encourage new ratifications and accessions. There are various reasons for that.

To begin with, the Convention has slowly come under the limelight, these last years. There has been an increase in the number of scholarly writings and academic initiatives regarding the protection of adults, and the practical importance of the topic is no longer challenged. The Special Commission itself is meant, inter alia, to draw the attention of States and stakeholders on the problems surrounding the international protection of adults, and will further increase the visibility of the Convention. All this will plausibly lead more States to consider joining the Convention, or work at its ratification.

Secondly, the Special Commission will enable States to develop a more thorough understanding of the Convention. The benefits of ratification should in fact prove easier to assess based on the information collected in preparation of the Special Commission. The work that individual Contracting States are expected to carry out in the future should also be of help in this respect. Reference is made to the “Country Profiles” that States are invited to prepare in accordance with a draft that the Commission will discuss. The States that will join the Convention in the future will thus be able to rely on a rich collection of data produced both by the Hague Conference and by the current parties. The will not bear the price, in terms of information, that “pioneer” States must face when joining a uniform regime whose actual functioning has not been fully tested or is not thoroughly documented.

What to Expect from the Meeting (3): A Step Towards a Limited Amendment to the Convention Itself?

So far, the Hague Adults Convention has been ratified only by European States. Apart from Switzerland, Monaco and the UK, all of the States parties to the Convention are also Members of the European Union.

As the readers of this blog know, EU institutions have on various occasions expressed the view that the protection of adults in cross-border deserves greater attention on the part of Member States and the Union itself.

Building on the conclusions adopted by the Council in June 2021, the European Commission launched a public consultation in December 2021 on the measures that the Union should adopt in this field (EAPIL issued a position paper in response to that consultation), and published a study on the matter. The Commission is reportedly working at an impact assessment study that would accompany a possible proposal for a regulation.

One of the hurdles that the Union faces in this area is that the EU cannot itself become a party to the Hague Adults Convention, for this is only open to States. This means that the EU could, at best, authorise the Member States that have not yet done so to ratify the Convention “in the interest of the Union”, as it occurred with the Hague Convention of 19 October 1996 on the protection of children.

At a workshop organised by the Czech Presidency of the Council of the EU in September 2022, the question has been put forward by the First Secretary of the Hague Conference, Philippe Lortie, of whether it would make sense to amend the Convention so as to include a “REIO clause”, i.e., a clause that would enable regional economic integration organisations, such as the EU, to join the Convention. Other provisions in the Convention could be amended on the same occasion: these additional changes would not alter the substance of the Convention, but rather clarify the meaning of provisions whose uniform interpretation could otherwise be difficult to achieve. The possible scope of the various amendments, together with the issues that this move would entail, are outlined in a dedicated preliminary document that has also been prepared in view of the Special Commission.

The prospect of a direct involvement of the EU as a party to the Hague Convention raises some politically sensitive questions, both for the Member States (external action by the Union is a delicate subject) and for the Union itself. One should consider, among other things, that an amendment to the Convention would take several months to complete: if that path were to be taken, the plans of the European Commission regarding new legislation in this area would likely need to be put on hold for some time, and adapted to the changed context.

The implications of the Union becoming a party to the Convention, however, would also be practically significant. Among other things, the Court of Justice would find itself in a position to issue preliminary rulings on the Convention, thereby in fact playing a key role in the uniform interpretation of its provisions.

It remains unclear whether States (not just EU Member States) may in fact have an appetite for this and/or other changes to the Convention. The Special Commission will provide a first opportunity to discuss this prospect. The topic, however, will likely be rediscussed in the broader context of the next meeting of the Council on General Affairs and Policy of the Conference, due to be held in March 2023.