Flux des sites DIP

The one sorry outcome of [2017] EWHC 374 (Ch) Microsoft (Nokia) v Sony is that by rejecting jurisdiction, the Commercial Court did not have an opportunity to review the application of Rome II’s provisions on applicable law in the case of infringement of competition law.

The following background is by Kirsty Wright, who also alerted me to the case: the claim centred on allegations by Microsoft (who had acquired Nokia of Finland) that the Defendants had caused loss by engaging in anti-competitive conduct relating to the sale of Li-ion Batteries over a period of 12 years. In 2001 Nokia and the Sony Corporation (the mother corporation: with seat outside of the EU) concluded a Product Purchase Agreement for Li-ion Batteries. This agreement contained an English choice of law clause and required any dispute to be resolved by way of arbitration in the International Chamber of Commerce (ICC). Microsoft became the assignee of these rights following its purchase of parts of Nokia in 2013 and therefore could bring claims in contract against Sony Corporation and claims in tort against the other three Defendants. Sony Corporation is a subsidiary of Sony Europe Limited: it is the anchor defendant in this case: none of the corporations other than Sony Europe are domiciled in the EU.

Smith J in a lengthy judgment determined that the agreement between Microsoft and Sony Corporation to arbitrate in the ICC also extended to the parent company Sony Europe. Therefore proceedings against all defendants were stayed in favour of ICC arbitration subject to English law. This required him first of all to hold that under English law, the arbitration agreement (as opposed to, under EU law, for the issue of choice of court: see CDC) extends to non-contractual obligations (infringement of competition law evidently not being part of one’s contractual rights and obligations; see here for a review of the issues; in Dutch I’m afraid: must find time for an EN version) but also that the clause extended to the mother company: hence releasing the jurisdictional anchor.

Microsoft had anticipated such finding by suggesting such finding may be incompatible with EU law: its contention was that the operation of the Brussels I Regulation (Recast) must permit the effective protection of rights derived from competition law, including private law rights of action for infringement, these being rights accorded by EU law, and that an arbitration clause which caused the fragmentation of such rights of action was, for that reason, in breach of EU law (at 76). It made extensive reference to Jaaskinen AG’s call in CDC for the Brussels I Recast to be aligned with Rome II’s ambition to have one single law apply to the ensuing tort. (The jurisdictional regime as noted leads to a need to sue in various jurisdictions).

As I have noted in my review of the CJEU’s judgment, on this point the Court however disagreed with its AG. Indeed while the AG reviews and argues the issue at length (Smith J recalls it in the same length), the Court summarily sticks to its familiar view on the application of (now) Article 7(2) in competition cases; it is the CJEU’s view which the Commercial Court of course upholds.

A great case, extensively argued.

Geert.

(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.9.1; Heading 2.2.9; Chapter 4, Heading 4.6.2).

On the 9th and 10th of March 2017, the Academy of European Law (ERA) hosted the conference “Property regimes of international couples and the law of succession” in Trier, Germany. It gave an opportunity to more than 60 academics and practitioners of 24 different nationalities to discuss property aspects of marriage and registered partnerships at European level. The focus has been put on the two new additions to European family, i.e. the property regime Regulations (No 2016/1103 and 2016/1104) and their interplay with the already applicable Succession Regulation (No 650/2012).

This post by Amandine Faucon, research fellow at the MPI Luxembourg, provides an overview of the presentations and the discussions held at the Conference.

Setting the scene

Enhanced cooperation in family matters: genesis of the Regulations – María Vilar Badia (EU Commission) explained that the aim of the Regulations was to complete the existing European family law framework. In that perspective, two texts were proposed to the European legislator in 2011 but were rejected, after four years of negotiations, by Poland and Hungary. The main obstacle was the indirect recognition of same-sex couples. Given the lack of necessary unanimity, the Council suggested adopting the already negotiated texts through the enhanced cooperation process. This approach was supported and six months later, in June 2016, the instruments were adopted by eighteen Member States.

A comprehensive set of EU rules on international family estate law – Prof. Dieter Martiny acknowledged the broad scope of EU Regulations, now covering almost all aspects of family life. He briefly presented each of these instruments as well as their material scope. Furthermore, he discussed the interplay of the new Regulations with the already applicable ones, especially with regard to characterization matters, since one act can raise questions that have to be solved under different texts (e.g.: donation). He then presented the recurrent features of all existing instruments, e.g. the existence of party autonomy, and pointed out some issues such as the lack of common general provisions.

New rules on matrimonial property regimes

Jurisdiction in case of death or divorce and in all other cases – Prof. Costanza Honorati illustrated the characterisation issue notably with the concept of marriage and registered partnership. Regarding jurisdiction, she stated that the new Regulations fulfil classical private International law objectives by aiming at concentrating jurisdiction, through a reference to the forum successionis and the forum divortii, and at favoring the application of the lex fori by making a detour by the applicable law, in case it is a chosen one. For the rest, habitual residence and nationality are the main criteria.

Applicable law, its scope and effects in respect of third parties and which choices can be made? – Dr. Ian Summer first explained the difficulty of knowing which Regulation to apply through the example of a relationship being considered as a marriage in a country and a registered partnership in a second. He then criticized the exclusion of pension rights which are a significant part of patrimonial disputes. As regard to applicable law, he explained the main features of the new Regulations: unity, universality and a hierarchy of connecting factor in the absence of a choice of law. The latter, being the privileged factor, was particularly detailed notably as regard to the different choice possible and the formal conditions to be fulfilled. The effects of the law applicable with respect to third party were also addressed.

Special rules for property consequences of registered partnerships – María Vilar Badia laid out the differences existing between the Regulation on matrimonial property regime (No 2016/1103) and the Regulation on the property consequences of registered partnerships (No 2016/1104). The overall objective of the legislator was to have very similar text so that both types of relationships are treated equally. The differences are therefore rare and consist of additional safeguards to protect registered partners, as this status does not exist in every participating State.

Crossover: property regimes and succession law

Workshop: Making the right choice – party autonomy in property & succession law

Within the workshop the following case has been set as working hypothesis: An Italian and an Austrian got married in Belgium where they lived for six months before moving to Germany. The wife bought a holiday apartment in Antibes and received a flat in Italy. After a while, they separated and the wife moved back to Italy. The participants addressed the relevant questions of property regime, divorce, succession and maintenance. The concept of habitual residence and the application of party autonomy as a tool to achieve some coherence were particularly examined. The participants concluded that there is no unique answer to the case and that the final outcome largely depends on the will of the parties involved. It is, therefore, fundamental for practitioners to carefully provide legal advises to their clients.

Equalization of accrued gains and pension rights adjustment – Peter Junggeburth discussed the characterization problem regarding pension rights and its impact on the increase in the share of the succession or divorce. The presentation was given from the point of view of German inheritance and matrimonial property law but contemplated the impact of the questions raised in cross-border situations.

Planning cross-border successions

Options for drafting a last will under the EU Succession Regulation: first experiences – Dr. Julie Francastel first considered the general rule – the law of the last habitual residence of the deceased – and raised the issue of determining the habitual residence. She used the case of a retired person living part-time in Mallorca and part-time in Germany as an example. In that situation, choosing the law applicable can be advisable. She stressed the impact of such a choice on jurisdiction and added that a choice should be considered even if a situation does not bear cross-border elements at first sight. The formal conditions of the choice and the issue of succession contracts (that do not exist in every Member States) were also addressed.

European Certificate of Succession and the division of the estate – Dr. Jan-Ger Knot presented the European Certificate of Succession (hereafter ECS) and its objectives. He stressed that its operation in practice remains very unclear and leads to many difficulties for practitioners. It was also recalled that depending on the Member State, the authorities issuing the ECS can be a Notary or a Court. He then described the effects of the ECS and the different means to challenge it. The problem of conflicting ECS was also addressed and in this respect the European Network of Registers of Wills Association has been introduced as a possible solution.

Paying inheritance tax twice? – Prof. Alain Steichen first gave an overview of the main reasons leading to double taxation: the location of the deceased, heirs and assets in Member States having different taxation systems. Given the increasing mobility of citizens and purchases abroad, the problem is expanding but there are no possibilities to force Member States to avoid double taxation. He presented the Model for treaties on double taxation on inheritance from the OECD (1982) and the EU recommendation (2011) favoring the taxation at the residence of the heir but their impact is limited. A common rule to be followed by every State should be imposed to avoid the problem.

Hands-on experience: Planning cross-border successions with a view to third states and offshore jurisdictions

EU and Switzerland – Tobias Somary first indicated that internationality is becoming normality and therefore stressed the importance of estate planning. In that regard, the law applicable to matrimonial property regime should be carefully considered, as it can significantly impact the size of the estate and its distribution at the dissolution of the matrimonial regime. He then turned to the inheritance question and stressed that according to the Succession Regulation the law of a non-member State, such as Switzerland, can be applied to the inheritance. He, therefore, advised to plan the succession carefully and gave some examples as an illustration of the possible difficulties.

UK before & after BREXIT and off-shore jurisdictions – Alex Ruffel explained that the UK is not part of the Succession Regulation and therefore applies its own private International law. She presented the related English provisions and illustrated them with practical examples. She then stressed out the present uncertainty as to whether the UK should be considered as a third State with regard to the application of Article 34 of the Succession Regulation (renvoi). This problem will vanish post-Brexit and is the only before/after difference regarding successions. Concerning off-shore jurisdictions, she explained that although most have a common law system, creating a trust or a company is advisable to avoid further complications.

The concluding remarks were presented by Prof. Dieter Martiny who noted the willingness of the EU to ease the life of European citizens but stressed that many uncertainties remain and lay in the hands of the European Court of Justice.

Erasmus School of Law (Erasmus University Rotterdam) has six vacancies in the area of private international law and civil procedure.

• One vacancy for an Assistant professor Private International Law for a period of max. five years. The position involves teaching and research in the area of private international law and international and European litigation. Start date is 1 August 2017 at the latest. The deadline to apply is 1 May 2017. More information on the vacancy, the requirements and how to apply is available here.
• Five research positions (2 PhD and 3 Postdoc positions) within the ERC Consolidator project ‘Building EU civil justice: challenges of procedural innovations bridging access to justice’ (EU-JUSTICE). This project, financed by the European Research Council, investigates how digitalisation, privatisation, self-representation, and specialisation trends influence access to justice in selected Member States, and what the repercussions are for the emerging EU civil justice system. Further information on the project, the vacancies, and how to apply is available here. The closing date is 14 April 2017.

Fraus omnia corrumpit (fraud corrupts all; alternatively formulated as ex turpi causa non oritur actio) is not easily applied in conflict of laws. See an earlier post here.  In Sinocore International Co Ltd v RBRG Trading , the Commercial Court granted permission for the enforcement of a foreign arbitral award despite allegations that the transaction in question had been “tainted” by fraud: this is how the case is summarised by Mayer Brown and I am happy broadly to refer to their overview and analysis.

The Commercial Court’s relaxed attitude is another sign of strong support of the English courts for the New York Convention and its narrow application of ordre public.

An interesting case for comparative conflicts /arbitration classes.

Geert.

The book Free Movement of Civil Judgments in the European Union and the Right to a Fair Trial (T.M.C. Asser Press/Springer, 2017), authored by Monique Hazelhorst, has just been published. It is the commercial edition of a PhD thesis succesfully defended at Erasmus School of Law (Rotterdam).

This book examines the attainment of complete free movement of civil judgments across EU member states from the perspective of its conformity with the fundamental right to a fair trial. In the integrated legal order of the European Union, it is essential that litigants can rely on a judgment no matter where in the EU it was delivered. Effective mechanisms for cross-border recognition and the enforcement of judgments provide both debtors and creditors with the security that their rights, including their right to a fair trial, will be protected. In recent years the attainment of complete free movement of civil judgments, through simplification or abolition of these mechanisms, has become a priority for the European legislator.
The text uniquely combines a thorough discussion of EU legislation with an in-depth and critical examination of its interplay with fundamental rights. It contains an overview and comparison of both ECtHR and CJEU case law on the right to a fair trial, and provides a great number of specific recommendations for current and future legislation.
With its critical discussion of EU Regulations from both a practical and a theoretical standpoint, this book is particularly relevant to legislators and policymakers working in this field. Because of the extensive overview of the functioning of the EU’s mechanisms and of relevant case law it provides, the book is also highly relevant to academics and practitioners.

More information is available here.

Professor Tim W. Dornis (Leuphana Law School) has authored a book on trademark and unfair competition conflicts that has been released by Cambridge University Press a few weeks ago.

The official abstract kindly provided by the publisher reads as follows:

With the rise of internet marketing and e-commerce around the world, international and cross-border conflicts in trademark and unfair competition law have become increasingly important. In this groundbreaking work, Tim Dornis – who, in addition to his scholarly pursuits, has worked as an attorney, a public prosecutor, and a judge, giving him experience in both civil and common-law jurisdictions – presents the historical-comparative, doctrinal, and economic aspects of trademark and unfair competition conflicts law. The book should be read by any scholar or practitioner interested in the international aspects of intellectual property generally, and trademark and unfair competition law specifically. This title is available as Open Access.

Further information is available on the publisher’s website:

http://admin.cambridge.org/academic/subjects/law/intellectual-property/trademark-and-unfair-competition-conflicts-historical-comparative-doctrinal-and-economic-perspectives?format=HB

The Institute for Private International and Comparative Law, University of Bonn, Germany, is looking for one highly skilled and motivated PhD candidate and fellow (Wissenschaftliche/r Mitarbeiter/in) on a part-time basis (50%) as of 1 June 2017.

The successful candidate holds a first law degree (ideally the First German State Examination) and is interested in the international dimensions of private law, in particular private international law, European law and/or comparative law. A very good command of German and English is expected; good IT skills are required.

The fellow will be given the opportunity to conduct his/her PhD project (according to the Faculty’s regulations). The position is paid according to the German public salary scale E-13 TV-L, 50% (about 1300 Euro net per month). The initial contract period is two to three years, with an option to be extended. Responsibilities include supporting the Institute’s director, Professor Dr Matthias Lehmann, in his research and teaching as well as independent teaching obligations (2 hours per week during term time).

If you are interested in this position, please send your application (cover letter in German; CV; and relevant documents and certificates, notably university transcripts and a copy of law degree) to lehrstuhl.lehmann@jura.uni-bonn.de by April 10, 2017. The University of Bonn is an equal opportunity employer.

The job advert in full detail is accessible here.

Issued on the same day as Zulfikarpašić, Pula Parking Case C-551/15 deals with similar core issues, with a few extras thrown in. Pula Parking, a company owned by the town of Pula (Croatia), carries out, pursuant to a decision of the mayor of that town, the administration, supervision, maintenance and cleaning of the public parking spaces, the collection of parking fees and other related tasks. In September 2010, Mr Tederahn, who is domiciled in Germany, parked his vehicle in a public parking space of the town of Pula. Pula Parking issued Mr Tederahn with a parking ticket. Since Mr Tederahn did not settle the sums due within the period prescribed, Pula Parking lodged, on 27 February 2015, with a notary whose office is in Pula, an application for enforcement on the basis of an ‘authentic document’. A notary issued a writ of execution on 25 March 2015, on the basis of that document.  In his opposition, Mr Tederahn put forward a plea alleging that the notary who issued the writ of execution of 25 March 2015 did not have substantive and territorial jurisdiction on the ground that that notary did not have jurisdiction to issue such a writ on the basis of an ‘authentic document’ from 2010, against a German national or a citizen of any other EU Member State.

Does the Brussels I recast apply at all? And does it relate also to the jurisdiction of notaries in the Republic of Croatia?

On the temporal scope of the Brussels I Recast, the Court repeats its (Brussels Convention) Sanicentral (Case 25/79) finding: the only necessary and sufficient condition for the scheme of the Regulation to be applicable to litigation relating to legal relationships created before its entry into force is that the judicial proceedings should have been instituted subsequently to that date. Accession timing is irrelevant to the case: per C-420/07 Apostolides the Act of Accession of a new Member State is based essentially on the general principle that the provisions of EU law apply ab initio and in toto to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions.

On the substantial scope of the Brussels I Recast Regulation, for the issue of ‘civil and commercial’ the Court refers to its standing case-law (particularly most recently Aertssen and Sapir). In casu, it would seem (the national court is asked to confirm) that the parking debt claimed by Pula Parking is not coupled with any penalties that may be considered to result from a public authority act of Pula Parking and is not of a punitive nature but constitutes, therefore, mere consideration for a service provided. Brussels I applies.

However, notaries in casu do not act as courts: in a twin approach with Zulfikarpašić, the Court holds that the writ of execution based on an ‘authentic document’, issued by the notary, is served on the debtor only after the writ has been adopted, without the application by which the matter is raised with the notary having been communicated to the debtor. (at 58) Although it is true that debtors have the opportunity to lodge oppositions against writs of execution issued by notaries and it appears that notaries exercise the responsibilities conferred on them in the context of enforcement proceedings based on an ‘authentic document’ subject to review by the courts, to which notaries must refer possible challenges, the fact remains that the examination, by notaries, in Croatia, of an application for a writ of execution on such a basis is not conducted on an inter partes basis.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

Si terrà a Torino, il 17 e il 18 marzo 2017, il secondo tirocinio formativo dedicato al regolamento n. 1215/2012 concernente la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (Bruxelles I bis), il quarto evento organizzato nella cornice del progetto European Civil Procedure for Lawyers: Promoting Training to Improve the Effectiveness of Transnational Justice, cofinanziato dalla Commissione europea (si veda questo post).

Si tratta, come i precedenti (organizzati a Lucca e a Torino, per cui vedi qui, qui e qui), di un un tirocinio formativo a partecipazione attiva con presentazione, discussione e risoluzione di casi concreti rientranti nell’ambito di applicazione del regolamento Bruxelles I bis. La prima giornata sarà dedicata ai criteri di giurisdizione e agli accordi di attribuzione della competenza giurisdizionale, mentre nel secondo giorno si parlerà di riconoscimento ed esecuzione delle decisioni. I lavori saranno presieduti da Elena D’Alessandro (Univ. Torino), Silvana Dalla Bontà (Univ. Trento), Paolo Lombardi (Bar of Turin), Ester di Napoli (Bar of Florence), Violetta Zancan and Carlo Negro (both Bar of Turin).

La partecipazione al seminario è gratuita, prevede la distribuzione di materiali didattici e l’attribuzione di 4 crediti formativi per gli avvocati. L’evento è aperto fino ad un massimo di 30 partecipanti.

Per maggiori informazioni scrivere a: info@europeancivilprocedureforlawyers.eu. La locandina dell’evento è disponibile qui.

On March 30, 2017, the Minister of Justice of the Land Hessen (Federal State of Hesse), Eva Kühne-Hörmann, will organise a conference in Frankfurt to present the „Justizinitiative Frankfurt“ (Justice Initiative Frankfurt). This initiative was launched by Professor Hess (MPI Luxembourg for Procedural Law), Professor Pfeiffer (Heidelberg University), Professor Duve (Freshfields Bruckhaus Deringer) and Professor Poseck (President of the Frankfurt Court of Appeal). It suggests strengthening the regional and the higher regional courts in order to attract more financial disputes to Frankfurt. The initiative envisages both organisational and procedural improvements in order to raise the attractiveness of the courts in Frankfurt. The government of Hessen has endorsed the proposals which will be presented and discussed at the conference. The programme of the conference, together with a registration form (to be sent the 24 March at the latest),  can be found here.

Venue: Foyer des Präsidialgebäudes der Goethe-Universität Frankfurt am Main, Campus Westend, Theodor-W.-Adorno-Platz 1, 60323 Frankfurt am Main.

The Special Commission set up by the Council on General Affairs and Policy of the Hague Conference on Private International Law to prepare a preliminary draft convention on the recognition of judgments in civil and commercial matters (the Judgments Project) met for the second time between 16 and 24 February 2017.

Building on the draft text elaborated in 2016, the Special Commission completed a new draft (the February 2017 draft Convention), which should form the basis for a new round of discussions in November 2017.

The Special Commission set up by the Council on General Affairs and Policy of the Hague Conference on Private International Law to prepare a preliminary draft convention on the recognition of judgments in civil and commercial matters (the Judgments Project) met for the second time between 16 and 24 February 2017.

Building on the draft text elaborated in 2016, the Special Commission completed a new draft (the February 2017 draft Convention), which should form the basis for a new round of discussions in November 2017.

Dear Martin, dear all,

We would like to take the opportunity and thank you, Martin, very much for setting up and taking care of the blog for more than 10 years! Under your supervision the blog has developed into one of the leading and most influential platforms in the field of conflict of laws and this is a great achievement.

We also thank you and the other editors for entrusting us with the responsibility for this blog, and we will certainly try to continue its success story in close cooperation with all editors and readers. We will keep you posted on how we will proceed in the future and hope for your continued support and input.

Giesela and Matthias

A short working paper by Veerle Van Den Eeckhout on Private International Law in an Era of Globalisation has been published on SSRN. It is written in Dutch.

The English abstract reads as follows:

In times of (discussions about) globalisation, due attention must be given to the operation of rules of private international law. Examination of the ongoing developments in private international law itself and in private international law in its interaction with other disciplines from the perspective of “protection of weak parties” and “protection of planetary common goods” allows carrying out the analysis to which current developments invite.

The Court held  yesterday in Zulfikarpašić Case C-484/15. I review Bot AG ‘s Opinion here.  At issue is the interpretation of ‘court’ and ‘judgment’ in the European enforcement order Regulation. Mutatis mutandis therefore the case has implications for most other EU private international law instruments, which employ similar terms. In all of these Regulations, the terms ‘court’ and ‘judgment’ are under- or not at all defined. The CJEU in fact refers to considerations under the Brussels I Recast in its judgment yesterday.

For the determination of a ‘court’ the AG had emphasised guarantees as to independence and impartiality; the power to decide on one’s own authority; leading to a finding which was or may be subject to an exchange of arguments and may be challenged before a judicial authority. The AG had suggested that whether these conditions are fulfilled is for the national courts to assess.

The Court itself referred to a number of classic principles for the interpretation of EU private international law: autonomous interpretation; mutual trust; legitimate expectations. It then reformulated but essentially suggests similar criteria as its AG: for a finding to be qualified as a judgment, it must have been delivered in court proceedings offering guarantees of independence and impartiality and of compliance with the principle of audi alteram partem (at 43).In the Croatian procedure at issue, the notary issues an authentic instrument which, if it is challenged as to its content, is moved up the pecking order to court proceedings. The proceedings before the notary not meeting with the Court’s generic criteria, in contrast with the AG the Court itself already holds that the notaries at issue do not act as courts and their decisions are not ‘judgments’.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

We’re very sorry for our disappearance over the last week or so, and we’re grateful to those of you who alerted members of our team to the problems in accessing the site. As it transpired, the problem was quite a serious one, and it has involved a great deal of fuss and bother to resolve it. But we are now back, and we’re back for good.

Those technical problems, however, have also highlighted the need for conflictoflaws.net to be cared for properly, which I no longer have the time to do. I created this website back in April 2006, with the simple aim of keeping up-to-date on a large and complex subject that I was researching as a postgrad. Since then, the site has grown beyond all measure, and that really is down to the core of committed scholars who keep the content interesting and useful for us all. It is time that we allowed other colleagues to steer the future of this website, and take it forward into the next decade. I’m very pleased to say that Giesela Rühl and Matthias Weller have offered to take on that responsibility, and I wish them every success. I shall be cheering them on from the sidelines as, like all of you, I will remain an avid reader of conflictoflaws.net.

All the best, Martin George

In C-54/16 Vinyls Italia (in full: Vinyls Italia SpA, in liquidation v Mediterranea di Navigazione SpA) Szpunar AG opined last week (the Opinion is not available in English). At the core of the case is the application of Article 13 of the Insolvency Regulation 2000 (Article 16 in the 2015 version; see my general review here), however the case opens an interesting discussion on the meaning of ‘international’ in ‘private international law’.

For the general context of Article 13 (16 new) I should like to refer to my review of Lutz and Nike. At issue in the case at hand are payments made by Vinyls to Mediterranea for the transport of chemicals of the former by the latter. Both are Italian registered companies. Shipment was presumably carried out in Italy (an extra-Italian element in the actual transport does not feature in the factual analysis re ‘international’, which I refer to below). However the contract made choice of law in favour of English law. Mediterranea makes recourse to Article 13 juncto English law as the lex contractus to ward off an attempt by Vinyls to have the payments return to its books.

First up is the question whether courts should apply Article 13 ex officio: for Mediterranea’s claim was made after the procedural deadline foreseen by Italian law. Szpunar AG in my view justifiably suggest it does not: he refers to the Virgos Schmit report [„Article 13 represents a defence against the application of the law of the State of the opening, which must be pursued by the interested party, who must claim it” – § 136 of that report, para 43 of the AG’s Opinion) and to the CJEU’s finding in C-310/14 Nike at 26. The AG does point to the particulars of the case: Mediterranea seemingly had provided proof supporting its view that the substantial conditions of Article 13 had been met (in particular an expert opinion by an English lawyer) but had not expressis verbis requested its application. Szpunar refers the final say to the Italian court, which needs to judge on the basis of Italian civil procedure however does suggest that it seems fairly inconceivable to have provided proof for the fulfillment of a legal proviso, without meaning to request its application.

The question on the applicability of Rome I at all (which is required if Mediterranea want to make recourse to the provisions of English law as lex contractus per Rome I or the Rome convention) may not make it to the CJEU. As Szpunar AG notes, the underlying contract dates prior to 17 December 2009, which is the cut-off date of the Rome I Regulation. The referring court being a court of first instance, it is not in a position to request preliminary review of Rome I’s predecessor, the 1980 Rome Convention. The AG completes the analysis anyway (the Court itself will not, should it find Rome I not to be applicable) and takes in my view the right, expansionist approach (one which I also defend in my handbook): especially given the presence of Article 3(3)’s proviso for ‘purely domestic’ contracts, it is clear that it suffices for Rome I to be applicable that parties make choice of court in favour of a foreign law. Further in the opinion (137 ff) he also suggests that such application is not tantamount to fraude a la loi (fraus legis) and again I agree: the relevance of fraus has been seriously diminished by the provisions on party autonomy in both Rome I and the Rome Convention.

The use of choice of law per Rome I (or the Convention) in turn serves as a jack to trigger the application of the insolvency Regulation. That too is correct in my view, and with undramatic consequences. Choice of law for the underlying contract only identifies its lex causae (where relevant, with an impact on Article 13 of the Insolvency Regulation). It does does not of course in and of itself determine the lex concursus: the latter is determined by the Insolvency Regulation once /if insolvency occurs. Parties have no means to manipulate this at the time of the formation of the contract.

Exciting, conceptual stuff. Most probably the Court itself will not be in a position to assess it all.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.1; Heading 3.2.8.1; chapter 5; Heading 5.7.1.

Monique Hazelhorst, Free Movement of Civil Judgments in the European Union and the Right to a Fair Trial, Springer, 2017, ISBN 9789462651616, pp. 448, EUR 155,99

This book examines the attainment of complete free movement of civil judgments across EU member states from the perspective of its conformity with the fundamental right to a fair trial. In the integrated legal order of the European Union, it is essential that litigants can rely on a judgment no matter where in the EU it was delivered. Effective mechanisms for cross-border recognition and the enforcement of judgments provide both debtors and creditors with the security that their rights, including their right to a fair trial, will be protected. In recent years the attainment of complete free movement of civil judgments, through simplification or abolition of these mechanisms, has become a priority for the European legislator.

By an order of 23 February 2017, the Court of Appeal of Trento recognised the parent-child relationship of two twins born from foreign surrogacy with a same-sex couple.

One of the two men who formed the couple was the biological father of the twins, but a foreign judgment (the country of origin of which does not appear on the available copy of the order) had subsequently changed the birth certificates, indicating both men as the fathers of the children.

The couple had first tried to register the the birth certificates in Italy, but their request had been denied by the civil registrar on the ground that it was at odds with the Italian public policy.

Seised of the recognition of the foreign judgment, the Court of Trento relied on a recent judgment of the Italian Supreme Court (judgment No 19599/2016, on the recognition of a parent-child relationship between a child born through medically assisted procreation and the two women indicated as the child’s mothers in a birth certificate issued in Spain), to assert that a child’s right to the continuity of the status lawfully acquired abroad is grounded, inter alia, on Article 33 of the Italian Statute on Private International Law (No 218 of 1995), regarding filiation.

This right, the Court added, is also implicitly enshrined in Article 8(1) of the UN Convention on the rights of the child, pursuant to which States Parties have undertaken ‘to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference’.

The Court further stated that despite surrogacy is prohibited in Italy under Law No 40 of 2004 on medical assisted procreation, that prohibition is not enough to deny the recognition of such foreign measures, issued in accordance with the law applicable in the country of origin, as recognise a parent-child relationship between the non-biological parent and the children born from surrogacy in the framework of a parental project.

Actually, according to the Court, ‘the consequences of the violation of the rules set forth in Law No 40 of 2014 committed by adults should not fall back on the new born’.

Con ordinanza depositata il 23 febbraio 2017, la Corte d’appello di Trento ha riconosciuto lo status di figlio a due gemelli nati da un contratto di maternità surrogata all’estero stipulato da una coppia di persone dello stesso sesso.

Si evince dalla decisione che uno dei due uomini era il genitore biologico dei gemelli e che un provvedimento straniero (gli omissis che compaiono nel testo attualmente disponibile dell’ordinanza impediscono di identificare lo Stato d’origine) aveva successivamente modificato gli atti di nascita dei minori in modo che entrambi gli uomini risultassero padri dei gemelli.

La coppia aveva dapprima richiesto la trascrizione dei certificati di nascita nei registri dello stato civile, ma l’istanza era stata respinta in ragione della sua contrarietà all’ordine pubblico italiano. Chiamata a pronunciarsi sull’efficacia del provvedimento straniero, la Corte trentina ha fatto leva sui rilievi svolti dalla Cassazione nella sentenza n. 19599/2016 relativa al riconoscimento del rapporto di filiazione tra un minore e le due donne indicate come madri nel relativo atto di nascita, formato in Spagna. Essa ha così rilevato che “il diritto alla continuità [dello status di figlio legittimamente acquisito all’estero] è conseguenza diretta del favor filiationis scolpito [nell’art.] 33 commi 1 e 2 della legge n. 218 [del 1995, di riforma del sistema italiano di diritto internazionale privato] ed [è] implicitamente riconosciuto nell’art. 8 par. 1 della convenzione di New York [sui diritti del fanciullo]”, in virtù del quale gli Stati contraenti si sono impegnati, fra l’altro, a rispettare l’identità, dei minori, compresa la loro nazionalità, il nome e le relazioni familiari, così come riconosciute dalla legge, senza ingerenze illegittime.

La Corte ha poi affermato che il divieto di ricorrere alla maternità surrogata, sancito dalla legge n. 40 del 2004, sulla procreazione medicalmente assistita, non basta a “negare effetti nel nostro ordinamento al provvedimento [straniero] che, in applicazione della legge [del paese d’origine] ha riconosciuto un rapporto di filiazione tra il [genitore non biologico] ed i minori nati facendo ricorso alla maternità surrogata e nell’ambito di un progetto genitoriale”.

Secondo la Corte, infatti, “le conseguenze della violazione delle prescrizioni e dei divieti posti dalla legge n. 40 del 2014 imputabili agli adulti … non possono ricadere su chi è nato”.

Ilaria Riva, Il certificato successorio europeo. Tutele e vicende acquisitive, Edizioni Scientifiche Italiane, 2017, ISBN 9788849532630, pp. 228, EUR 28

Il lavoro propone in primis un’analisi dei contenuti più rilevanti per lo studioso del diritto privato del recente Regolamento UE n. 650/2012 sulle successioni internazionali, particolarmente significativo per le scelte in materia di legittima e di patti successori. In un’ottica più generale, emerge come il Regolamento segni un momento di svolta per il diritto delle successioni, ponendosi quale primo passo verso una possibile armonizzazione di una branca del diritto notoriamente refrattaria all’uniformazione e quale chiaro segnale dell’urgenza di una nuova attenzione a questa materia: una nuova attenzione rivestita da una rinnovata sensibilità alla prospettiva europea e internazionale. Lo studio si concentra poi sul tema del certificato successorio europeo, introdotto in Italia e negli altri Stati aderenti al Regolamento con l’intento di fornire ai soggetti coinvolti a vario titolo in successioni per causa di morte aventi collegamenti con diversi Stati membri una sorta di «documento di legittimazione» proveniente da una pubblica autorità, utile a far valere ovunque la propria qualità e i propri poteri. I rilevanti effetti di diritto sostanziale riconosciuti al certificato, in un’ottica di tutela dell’affidamento dei terzi e di sicurezza della circolazione dei beni di provenienza ereditaria, conducono l’indagine verso il tema delle vicende circolatorie dei diritti, e precisamente all’interno della multiforme categoria degli acquisti a non domino.