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Freezing orders, i.e., orders that prevent a person from disposing of their assets pending a determination as to the existence of a claim, are governed by procedural rules that vary greatly from one legal system to another.

English courts, and more generally the courts of common law jurisdictions, may grant orders that can prove remarkably powerful in practice.

Unlike the freezing injunctions that civil law courts are normally permitted to issue, which operate in rem, English freezing orders are in personam measures. They are not given in respect of one or more assets designated for this purpose,  but rather address the person of the (alleged) debtor. The latter will found themselves in contempt of court, and face the relevant penalties (which may include imprisonment, in some circumstances), if they ignore or breach the order.

How Well Do Freezing Injunctions Travel Abroad?

Injunctions granted in common law countries may aim to prevent the person concerned from disposing of any of their assets, mo matter whether those assets are located in the forum State. The issue arises then of whether a “worldwide” freezing injunction may be given effect in a State other than the State of origin, notably a State whose law ignores in personam precautionary orders.

The enforceability of a foreign worldwide freezing injunction can only be at issue, in reality, where and to the extent to which the law of the State where the assets are located includes interim measures among the foreign decisions that are eligible, in principle, for recognition and enforcement.

Domestic rules on the recognition and enforcement of foreign decisions mostly exclude interim measures from their scope, but some internationally uniform texts provide otherwise, subject to appropriate safeguards. That is the case, in particular, of the Brussels I bis Regulation, pursuant to Article 2(a), which applies to provisional measures originating in a Member State of the Union.

The markedly different approach to freezing orders followed by civil law and common law jurisdictions, respectively, involves that injunctions emanating from a common law country could be denied (recognition and) enforcement in a civil law country on grounds of public policy. Secondly, where a common law injunction is not prevented as such from having effect in a civil law State, the issue may arise of whether, and how, the measure should undergo some adaptation (as the term is understood in Article 54 of the Brussels I bis Regulation) in the State requested, at the stage of enforcement.

The View or the Italian Supreme Court’s on the Issue

A ruling of the Italian Supreme Court (order No 25064, of 16 September 2021) provides an illustration of the kind of concerns that may surround the first of the two issues above (the second issue will not be discussed here).

The Case in a Nutshell

The Supreme Court’s ruling, in reality, only deals with the issue in an indirect way. The question, in fact, was not whether a foreign freezing injunction qualified for enforcement in Italy, but rather whether a foreign judgment on the merits ought to be denied recognition on the ground that, in the course of the proceedings leading to that judgment, a freezing injunction had been granted against the party that eventually lost the case.

By a judgment of 2011, the Royal Court of Guernsey awarded damages to Credit Suisse Trust Ltd for the negligent performance by N.G. and others of their obligations under a contract for professional services (it is worth noting that during the period when the United Kingdom was a Member State of the European Union, Guernsey was neither a Member State nor an Associate Member of the Union; some EU law provisions applied to Guernsey and in Guernsey, but these did not include legislation on judicial cooperation in civil matters, such as the Brussels I Regulation).

Credit Suisse Trust filed an application with the Court of Appeal of Rome to have the judgment enforced in Italy. The Court, however, dismissed the request on the ground that the judgment failed to meet the requirements for recognition set out in Article 64(b) and (g) of the Italian Statute on Private International Law. Article 64(b) provides that a foreign judgment may not be recognized in Italy if the act instituting the proceedings was not served upon the defendant in conformity with the law of the State of origin and if the basic rights of defence (“i diritti essenziali della difesa”) were violated in the proceedings in that State. Article 64(g), for its part, stipulates that a foreign judgment may not be given effect in Italy if doing so would contravene public policy.

The Court of Appeal came to this conclusion based on the fact that, on 26 January 2011, upon a request by Credit Suisse Trust, the Royal Court of Guernsey had granted a freezing order which restrained N.G. from dealing with his assets, whether located in Guernsey or anywhere else in the world, under penalty of contempt of court. The order belonged to the kind of interim measures that English courts used to refer to as Mareva injunctions.

The measure in question, the Court of Appeal noted, was an in personam freezing injunction, whereas, under Italian law, a freezing order cannot operate otherwise than in rem, meaning that it necessarily refers to one or more particular assets, specified in the order itself.

Additionally, the Court of Appeal noted that the Guernsey Court had ordered that the respondent disclose his most valuable assets, and do so within days, again under penalty of contempt, whereas Italian law courts are generally not permitted to impose a duty of disclosure of this kind, let alone one requiring such a prompt reaction, in connection with an asset preservation order. According to the Court of Appeal, the Royal Court of Guernsey had, by granting a freezing injunction with the described characteristics, undermined the ability of N.G. to present his case, and had significantly limited N.G.’s right to deal with his assets.

The result, the Court of Appeal found, was all the more objectionable since the orders of the Royal Court of Guernsey apparently failed to put any burden on the other party in the proceedings and its assets. In the view of the Court of Appeal, all this substantiated a violation of the principle of the equality of arms, as well as of the principle whereby all parties should be given an opportunity to effectively present their case, which implies the right to adequate time and facilities to prepare a defence.

Credit Suisse Trust sought to have the ruling of the Court of Appeal quashed by the Italian Supreme Court. The move proved successful.

The Supreme Court’s Ruling

The Corte di Cassazione held that the fact that the order was of a kind unknown to Italian law does not entail, as such, that the proceedings were unfair, let alone that the resulting judgment should be barred from recognition. The public policy defence, taken in its procedural limb, can only succeed, the Supreme Court reasoned, where it clearly appears that the proceedings before the court of origin were tainted by a serious violation of basic procedural rights.

Thus, a judgment on the substance of the case may not be refused recognition on grounds of public policy for reasons relating to an interim measure given in the course of the proceedings in the State of origin, unless it is established that, by granting such a measure, the court of origin violated the procedural rights of the party concerned in such a fundamental way as to undermine the fairness of the whole proceedings. The Corte di Cassazione, however, found no evidence of such a violation in the circumstances. In fact, the Court considered that the freezing order and the disclosure order came with appropriate safeguards and concluded that the Guernsey judgment fulfilled the conditions for recognition in Italy.

The Supreme Court reached this conclusion based on an analysis of the concerns underlying the common law and the Italian law approach to freezing injunctions.

The Court began by observing that Interim measures, specifically those aimed at preserving assets, are an essential component of all domestic legal systems. They are not meant, as such, to discriminate the alleged debtor vis-à-vis the requesting party. The goal of interim measures is rather to ensure the effectiveness of the decision that the court is ultimately asked to render and avert such risks as may be associated with the time needed to bring the proceedings on the substance to an end.

While the goal pursued is basically common to all legal systems, each jurisdiction surrounds interim measures with the safeguards that it considers appropriate. One should not give a decisive weight to the diversity of these safeguards, the Supreme Court argued, insofar as they all ensure the equality of the parties’ arms.

One key question, then, is whether, in the State of origin, the person affected by the order had been granted “arms” which enabled him to react to the “arms” of the other party. In the case at hand, the Supreme Court noted, the Royal Court of Guernsey had retained the power to revoke and modify the measure upon a request by the alleged debtor, and had the power to require the applicant to enter into such undertakings on such terms as may be specified, notably to compensate such prejudice as the freezing order may cause to the other party. Significantly, the Supreme Court added, a failure to comply with such an undertaking may result in the applicant, too, being in contempt of court, in the same way as the respondent in the event of a failure to observe the freezing or the disclosure orders.

The Supreme Court further observed that the fact that the Guernsey orders involved the threat of harsh penalties in case of non-compliance does not entail that the granting of the measures in question necessarily involve a violation of procedural public policy.

The Court acknowledged that indirect coercive measures raise some delicate issues. It noted, however, that recourse to coercive measures to promote compliance with a court order is not alien to the Italian legal system: Article 388 of the Italian criminal code, for example, makes it a criminal offense to deliberately evade from an order given in court proceedings, and Article 127 of the Italian code on intellectual property goes as far as to criminalize any failure to answer (or any false information in response to) the questions that a court may ask where seized of proceedings relating to counterfeiting and other infringements of intellectual property rights. According to the Supreme Court, this is an indication that the mere fact that the provision of penalties, in common law jurisdictions, for the non-compliance of freezing orders is not in itself a reason to regard such orders as inconsistent with Italian public policy.

A more detailed analysis of the ruling (in English) can be found in a comment which appeared on the open-access journal Italian Review of International and Comparative Law, published by Brill.

As already announced on this blog, the University of Bonn will host a two-day conference titled The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlook, 9 and 10 June 2023.

The event, organised in cooperation with the Permanent Bureau of the Hague Conference on Private International Law, is meant to provide a comprehensive analysis of the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil and commercial matters, and to assess its possible implications in various regions of the world.

Opened by welcome addresses by Matthias Weller (University of Bonn) and Christophe Bernasconi (Secretary General of the Hague Conference on Private International Law), the conference will feature panels  moderated by Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, João Ribeiro-Bidaoui, nd Melissa Ford. Speakers include Xandra Kramer, Wolfgang Hau, Pietro Franzina, Marcos Dotta Salgueiro, Cristina Mariottini, Paul Beaumont, Andreas Stein, Linda J. Silberman, Geneviève Saumier, Ilija Rumenov, Burkhard Hess, Béligh Elbalti, Abubakri Yekini, Chukwuma Okoli, Verónica Ruiz Abou-Nigm, Adeline Chong, Zheng (Sophia) Tang, Ning Zhao, José Angelo Estrella-Faria, and Hans van Loon.

Registrations are still open. Those willing to attend are invited to write an e-mail to sekretariat.weller@jura.uni-bonn.de.

The full programme, together with information concerning the registration fees and other practical aspects, can be found here. See also the conference poster here.

A collection of essays on the Judgments Convention, written by the experts involved in the conference, is due to be published by Bloosmbury in May 2023.

 

The CJEU last week held in C-177/22 JA v Wurth Automotive. The case concerns the consumer title of Brussels Ia, in particular a refinement of the CJEU  C-630/17 Milivojević and C-28/18  Petruchová case-law (involvement of people with a background in the sector), C-498/16 Schrems (evolvement of use from non-professional to professional or the other way around) and  CJEU C‑464/01 Gruber criteria (dual (non-)professional use).

Applicant in the main proceedings, whose partner is a car dealer and managing director of an online platform for the sale of motor vehicles, was mentioned on the homepage of that platform as the graphic and web designer, without actually having carried out that activity at the time of the facts in the main proceedings. At the request of the applicant in the main proceedings, the partner did some research and contacted the defendant in the main proceedings from his professional email address, in which he indicated a price offer for the purchase of a vehicle. It was stated in that email that the contract of sale was to be concluded on behalf of the applicant in the main proceedings, however a little while after the purchase the partner enquired (but was rebuffed) about the possibility to indicate the VAT amount of the invoice (typically only of interest to business buyers).

Firstly, in applying the consumer title, must account be taken of current and future purposes of the conclusion of that contract, and of the nature of the activity pursued by that person as an employed or self-employed person? As for the latter, the CJEU answer [27] is clearly ‘no’, with reference to Roi Land Investments. As for the former, whether the purpose for the use is current or planned in the future, per Milivojević [88-89], is held by the CJEU not to be of relevance. I would personally add to both Milivojević and Wurth Automotive that any such future use must have been somehow signalled to the business. While the CJEU in Schrems confirmed the possibility to lose the consumer status as a result of subsequent professional use, it has not held (and in my view ought not to) that an initial professional use later changed to non-professional use, may belatedly trigger the consumer section (it has of course supported the later ‘internationalisation’ of the contract per Commerzbank).

Next, what is the burden of proof on whom, and what needs to be proven, when a good or service has been procured for dual professional and non-professional use. Here, the CJEU [30] ff confirms that first of all the professional use or not of the good or service needs to be established on the basis of the objective elements of the file. Only if “that evidence is not sufficient, that court may also determine whether the supposed customer had in fact, by his or her own conduct with respect to the other party, given the latter the impression that he or she was acting for business purposes, such that the other party could legitimately have been unaware of the non-professional purpose of the transaction at issue” [32].

[36] “the impression created by the conduct of the person claiming the status of ‘consumer’….on the part of the other contracting party, may be taken into account to establish whether that person should be afforded the procedural protection laid down in Section 4 of that regulation.”

In the case at issue,

[38] inaction following the presentation of a contract identifying the buyer as a trader, can constitute evidence (but not of singlehandedly determinative value) that the applicant in the main proceedings could have created, on the part of the defendant in the main proceedings, the impression that she was acting for professional purposes;

[39] ditto the sale of the vehicle shortly after the conclusion of the contract and [40] the potential making of a profit, albeit that the latter would in the view of the CJEU ordinarily not be of great impact.

The CJEU finally is not prepared (despite a self-confessed [47] in Wurth Automotive] potential to read same in CJEU Gruber) to read a benefit of the doubt, in inconclusive cases, to the benefit of the alleged consumer, leaving that with reference to CJEU TOTO to national procedural law. Here I think the Court could have held against such benefit on the basis of Brussels Ia itself.

Geert.

EU private International Law, 3rd ed. 2021, 2.231 ff.

 

CJEU this AM C-177/22 Wurth Automotive
Jurisdiction for consumer contracts, Brussels Ia
Non-objection to proposed B2B contract, Qs from purchaser's partner (professionally active in sector concerned) re VAT on invoice, do feed into 'consumer' qualificationhttps://t.co/SSEVaWHQiP

— Geert Van Calster (@GAVClaw) March 9, 2023

The Council on General Affairs and Policy (CGAP) of the HCCH met from 7 to 10 March 2023. The meeting was attended by over 450 participants, representing 80 HCCH Members, 8 non-Member States, 7 intergovernmental organizations, 9 international non-governmental organizations, and members of the Permanent Bureau. The Conclusions & Decisions adopted by CGAP are now available in English and French.

In terms of work relating to possible new legislative instruments, CGAP mandated the establishment of a Working Group on private international law (PIL) matters related to legal parentage generally, including legal parentage resulting from an international surrogacy arrangement. Noting progress made by the Working Group on matters related to jurisdiction in transnational civil or commercial litigation in the development of provisions for a draft Convention, CGAP invited the convening of two further Working Group meetings. It also supported further exploratory work on the PIL implications of the digital economy, including, among other, by mandating the conduct of a study on the PIL implications of CBDCs and by endorsing the launch of the HCCH-UNIDROIT Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens. Across several projects, CGAP welcomed the cooperation with UNCITRAL, UNIDROIT, and WIPO, including with respect to work in the areas of digital economy, insolvency proceedings and intellectual property.

In relation to post-Convention work, CGAP approved the Toolkit to Prevent and Address Illicit Practices on Intercountry Adoption and the Model Forms for use under the 1993 Adoption Convention, mandated the development of a Template for Country Fact Sheets on available post-adoption services relating to search for origins, and mandated the establishment of a Working Group on financial aspects of intercountry adoption. CGAP also agreed upon the extension of the scope of the International Hague Network of Judges (IHNJ) to matters relating to the 2000 Protection of Adults Convention. CGAP endorsed the Conclusions & Recommendations of the recent meetings of the Special Commissions (SCs) on the practical operation of the 1993 Adoption, 2000 Protection of Adults, and 2007 Child Support Conventions, and welcomed the preparations for the upcoming meetings of the SCs on the practical operation of the 1980 Child Abduction and 1996 Child Protection Conventions, to be held in the second half of 2023, and on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions. Finally, CGAP mandated the PB to continue work, in partnership with relevant subject-matter experts, and subject to available resources, to study the 2006 Securities Convention and digital developments in respect of securities markets; the interpretation of analogous institutions for the purpose of Article 2 of the 1985 Trusts Convention; and, in relation to the 2015 Choice of Law Principles, the feasibility, desirability and necessity of developing guidance on applicable law in international contracts providing protection to weaker parties.

From a good governance perspective, CGAP approved the HCCH Strategic Plan for 2023-2028. It also decided to adopt Spanish as an official language of the HCCH as of 1 July 2024. Finally, CGAP decided to recommend Dr Christophe Bernasconi to the Netherlands Standing Government Committee on Private International Law for the position of Secretary General of the HCCH for another five-year mandate.

The author of this post is Francesca Maoli (University of Genova).

On 9 March 2023, the CJEU delivered a judgment on the European Certificate of Succession, created by Regulation No 650/2012 on matters of succession, and the recording, in a land register, of a right of ownership in immovable property (C‑354/21, R.J.R. v Registrų centras VĮ).

The Court held that land registry authorities of a Member State may reject an application for registration of immovable property, where the only document submitted in support of that application is a European Certificate of Succession which does not identify the immovable property in question.

The Case

The facts of the case are summarized here. The matter concerned the refusal of the Lithuanian VĮ Registrų centras (State Enterprise Centre of Registers) to register ownership rights on the basis of a European Certificate of Succession alone, which was issued by the competent German probate court. According to Lithuanian authorities, the Certificate did not contain the data required by the Lithuanian Law on the Real Property Register, as it did not identify the immovable property inherited by the applicant. In other words, no information was provided to clearly detect the asset(s) attributed to the heir for whom certification was requested.

The decision was appealed and the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) referred a question to the CJEU for a preliminary ruling. The Lithuanian judge highlighted a prima facie incompatibility between German succession law and Lithuanian law concerning the recording of a right of ownership in land registers. In fact, German law of succession is governed by the principle of universal succession and consequently, it is not possible to indicate or designate the assets forming part of the estate. In particular, according to the Lithuanian court, this happens where a single heir inherits the deceased’s entire estate. On the other hand, the Lithuanian Law on the land register provides that an application for registration of rights in rem in immovable property shall contain supporting documents and information that allow for precise identification of the immovable property in question: in particular, it requires the address and the so-called Unikalus No. (unique number of the property).

The Court’s Ruling

The CJEU – by reframing the question proposed by the domestic court – identified the issue as concerning not only the relationship between Article 1(2)(l) and Article 69(5) of the Succession Regulation, but also Article 68, that specifically concerns the content of the European Certificate of Succession.

The Court highlighted that Article 1(2)(l) of the Succession Regulation excludes from its scope of application “any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording of failing to record such rights in a registers”. According to Article 69(5), the European Certificate of Succession constitute a valid document for the recording of succession property in the relevant register of a Member State “without prejudice to points (k) and (l) of Article 1(2)”. Coherently, the Certificate contains certain information in so far as it is necessary for the purpose for which it is issued and “if applicable, the list of rights and/or assets for any given heir” (Article 68(l)).

According to the CJEU, the content of the Certificate may vary from case to case. However, this does not depend only on the applicable succession law, but rather on the purposes for which the Certificate is issued. While the Certificate may constitute a valid document for the recording of succession property in public registers, the legal requirements for such recording are governed by national law. This means that, according to the Succession Regulation, each Member State is free to determine the conditions for the registration of an immovable property and may impose the applicants to include all identifying data of such a property. If the only supporting document to the application is a European Certificate of Succession which does not contain those information, national authorities may reject that application.

Assessment  

The CJEU adopted an interpretation of the Succession Regulation that does not go beyond the intent and aim of its provisions. While the European Certificate of Succession has the scope to demonstrate the quality and the rights of the heirs, Article 1(2)(l) is clear in attributing to national law the discipline of the legal requirements for property registration. According to the CJEU, the effet utile of the Certificate is not undermined by the need to identify the immovable property on which the heir may exercise their rights.

Indeed, the CJEU’s reasoning is coherent with the position expressed by the European Commission already in 2016. In response to a question from the European Parliament, the Commission stated that the European Certificate of Succession must contain all the required information, based on the purpose for which it is issued: since the function of the certificate is primarily to enable the heir to prove their status with regard to the assets of the estate located in another Member State, it is necessary for these assets to be identified and described in the document. Only in this way can the certificate constitute a valid title for the registration of the property in the relevant registers of a Member State.

In the specific case, the situation was quite straightforward: as the heir was the sole heir, the German probate court could have easily identified the assets, especially if Lithuanian registers were to make it possible to trace a deceased person’s property. On the other hand, German case law considers this practice incompatible with German inheritance law, regardless of the circumstances of the case. At the same time, Lithuanian law is free to determine the rules and conditions for property registration: the Succession Regulation is clear in this regard.

Indeed, an interesting consideration stems from the opinion of Advocate General Szpunar, who fostered the effet utile of the European Certificate of Succession, which the CJEU did not follow.  According to the Advocate General, the content of the Certificate is determined by the applicable succession law. Since German law adheres to the principle of universal succession, the heir succeeds to the estate as a whole, rather to particular assets, which are transferred as a totality. This means that the fragmentation of domestic succession laws may indeed undermine the effet utile of the Certificate, since the Certificate alone may not be sufficient to allow for the recording in national land registers and therefore to produce its effets in all Member States according to Article 69(5).

This book, by Adeline Chong and Man Yip, faculty members at the Yong Pung How School of Law at the Singapore Management University, is part of the Oxford Private International Law Series. There is a 30% discount for purchases made through the OUP website using the promotion code AUTHFLY30. The publisher’s blurb is as follows:

 

“There has been significant reform in Singapore private international law in recent years. Developments such as the establishment of the Singapore International Commercial Court, the incorporation of the Hague Convention on Choice of Court Agreements into Singapore law, and the enactment of the Insolvency, Restructuring and Dissolution Act 2018, have all thrown the country into a period of rapid growth.

Singapore Private International Law: Commercial Issues and Practice provides a roadmap to assist readers in navigating this changing landscape. In it, Chong and Yip offer an overview of Singapore’s legal system, exploring how governmental and judicial efforts have capitalised on Singapore’s location at the heart of Asia, its status as a leading financial centre globally, and its modern infrastructure, to make it the hub of choice for cross-border disputes and insolvency and restructuring efforts. Practical guidance is given to matters such as changes to jurisdiction, protective measures, the recognition and enforcement of foreign judgments, general choice of law issues, and issues specific to contract, tort, unjust enrichment, equitable obligations, trusts, property, corporations, and international insolvency and corporate restructuring. The book also looks at how the English common law principles have been implemented and developed in Singapore, with relevant cases, legislation, and foreign sources used to offer a comparative perspective.”

 

Further information can be found at this link: https://global.oup.com/academic/product/singapore-private-international-law-9780198837596?cc=sg&lang=en&#

For more than 40 years, the ICC Institute of World Business Law has been enhancing ties between the academic world and practising lawyers.

Launched in 2007, the Institute created the Institute Prize as a means to encourage focused research on legal issues affecting international business. Contributing to the understanding and progress of international commercial law around the world, the Institute Prize recognises legal writing excellence.

The Institute Prize is open to anyone 40 years of age or under as of deadline date who submits a doctoral dissertation or long essay (minimum of 150 pages) drafted in French or English on the subject of international commercial law, including arbitration.

Rules and deadlines concerning the next Prize edition in 2023 are finally out. The works submitted for the Prize should be sent to the Secretariat of the Institute at the contact address indicated below: iccprize@iccwbo.org by 3 April 2023 at the latest.

It goes without saying that CoL is proud that one of its former editors, Brooke Marshall, was named laureate of the 2021 ICC Institute of World Business Law Prize for her thesis on ‘Asymmetric Jurisdiction
Clauses’. We keep our fingers crossed that perhaps again someone from the global CoL community will be successful.

Following the publication of her monograph on PIL and non-judicial divorce, I have invited Nuria Marchal Escalona to provide an overview of the topic with a focus on the Spanish case. Nuria Marchal is a professor of Private International Law at the University of Granada (Spain).

The tag ‘non-judicial divorce’ does not refer to a single reality; it rather encompasses a number of ways to getting divorced out of court.

The comparison among legal systems allows for the conclusion that the regulation of non-judicial divorce is actually quite diverse, even in neighboring countries.

Roughly summarized, three models co-exist currently. In some jurisdictions, the competence for the dissolution of marriage in non-contentious cases is conferred to non-judicial authorities such as civil registrars, notaries or even mayors, in such a way that their intervention has a proper constitutive effect. This would be the case of Spain.

In other countries, like France, divorce results from the agreement of the spouses. There, the public authority’s role is very limited (Article 229-1st French Civil Code).

Finally, the dissolution of the marriage is pronounced by a religious court in Islamic-inspired legal systems, and are considered as ‘private divorce’.

This diversity accounts to a large extent for the difficulties met by applicants asking for a non-judicial divorce granted elsewhere to be effective in Spain. But also the issuance of a notarial deed of divorce in Spain in situations involving cross-border elements has to surmount a number of obstacles. The most relevant ones are address hereinafter.

Basic Features of Notarial Divorce in Spain

The de-judicialisation of the marital relationship took place in Spain by virtue of Law 15/2015 on Voluntary Jurisdiction. The Act empowers notaries to authorise divorce by mutual consent in both domestic and international cases. To this end, the spouses must draw up a regulatory agreement (Article 87 Civil Code). Besides, some material and procedural requirements must be fulfilled: a Spanish notary cannot issue a public deed of divorce if the settlement agreement is detrimental to one of the spouses, nor where there are non-emancipated minors, or minors with judicially modified capacity, who are dependent on the parents (moreover, children living in the family home and lacking an own income must consent to the measures affecting them).

A notary is also prevented from dissolving the marriage if the parties do not appear in person before him. In practice, however, this last requirement has fortunately been removed by Resolution of 26 January 2021 of the Dirección General de Seguridad Jurídica y Fe Pública allowing for the authorisation of a notarial deed of divorce with the intervention of a special proxy.

International and Territorial Jurisdiction

Spanish notaries can only grant a notarial deed of divorce in cross-border cases provided they are competent (internationally and territorially), both for the dissolution of the marriage and for determining inextricable related matters such as the financial regime of the marriage, the use of the home, or compensatory pension.

It should be noted that Spanish notarial authorities are not entitled to decide on the custody of minors – in other words, as already stated notarial divorce is only possible if the children of the marriage are of legal age, or emancipated.

To determine international jurisdiction, the notary will need to look into an array of legal instruments respectively addressing divorce and ancillary matters (maintenance, use of the family home and matrimonial property regime). This is the outcome of the limited material scope of application of the rules at stake. By way of consequence, the notary will be confronted with issues of characterization, as he will have to decide, for instance, if a particular institution pertains to maintenance or rather to the matrimonial property regime.

Already the question of the legal instruments applicable to the notary’s competence has not a straightforward answer. Whether Spanish notaries are bound by the provisions of the European instruments regulating international jurisdiction in the above-mentioned matters (Regulation No. 2019/1111, or Brussels II ter; Regulation No. 4/2009; Regulation No. 2016/1103), is unclear. It depends on whether they are ‘courts’ in the sense of the Regulations. However, the very notion is not univocal but varies from one instrument to another. Thus, while given the very broad concept of ‘court’ under Article 2.1 Brussels II ter, Spanish notaries will apply this Regulation to determine jurisdiction, they cannot rely on either Regulation No. 4/2009 or Regulation No. 2016/1103 to the same effect, for, according to them, they are not ‘courts’. For subject matters under the latter two Regulations, they are therefore bound by the jurisdictional criteria set out in the Spanish Organic Law of the Judiciary, in particular those listed in Article 22 quater f) for maintenance issues and in Article 22 quater c) for the dissolution of the marriage, and, where appropriate, the liquidation of the matrimonial property regime.

To grant the divorce, the notary has to be territorially competent too. Mismatches may arise in this regard. The allocation of competence among Spanish notaries to authorise a public deed of divorce follows Article 54 of the Notaries Act of 28 May 1862, according to which the spouses must give their consent either before the notary of their last common domicile or that of the domicile or habitual residence of any of them. It may happen that the international jurisdiction criteria do not allow for the identification of the notary territorially competent as indicated by the provision. Where two Spanish nationals resident in Germany apply for a notarial divorce in Spain, the Spanish notary will have international competence, but lack the territorial one. In such cases, one may argue the spouses can apply for divorce before any notary in Spain. The misalliance shows that the provisions of the 1862 Act are not adapted to the particularities of cross-border cases; de lege ferenda it should be amended.

Applicable Law

The ascertainment of the law applicable to grant a public deed of divorce in cross-border cases is also a complex operation. The dissolution of the marriage has further consequences on the relation between the spouses, which must be dealt with separately from the divorce. Just like with international jurisdiction, this is a consequence of the limited scope of application of the rules currently in force. And, again, delimitation problems are accompanied by delicate issues of characterization, with which the Spanish notarial authorities must contend once they have identified the relevant legal regime, which depends in turn on whether they are ‘jurisdictional bodies” as required in the EU Regulations (and related Hague instruments).

There is no consensus on the meaning of ‘jurisdictional bodies’ for the purposes of applying the EU and Hague provisions on applicable law. The lack of agreement impacts negatively on the overall coherence of the system. It is here posited that a Spanish notary, when dissolving a marriage, is vested with a decision-making function of a constitutive nature: in other words, he exercises ‘jurisdictional functions’. Therefore, he must be considered as a ‘jurisdictional body’ in the sense of both Regulation No. 1259/2010 (Rome III) and the 2007 Hague Protocol. Moreover, the same solution should prevail for Regulation No. 2016/1103 in spite of the Communication made by the Spanish Government denying such quality to Spanish notaries. In fact, Spain should immediately correct the declaration. Nonetheless, in the meantime Spanish notaries remain bound by Articles 9.2 or 9.3 of the Spanish Civil Code in order to decide on the law applicable to the matrimonial property regime.

Regarding the specific conflict of law solutions, it is worth mentioning that choice of law is the basic connecting point under the Rome III Regulation (for divorce) and the Hague Protocol of 2007 (for maintenance), as well as under the national rules on the matrimonial property regime, although in the latter case the choice is operative only in the absence of a common nationality of the spouses (Article 9.2 of the Spanish Civil Code). This parallelism facilitates the task of the notary, as it prevents legal fragmentation and problems of qualification and delimitation. However, coordination may fail since the possibility to choose the applicable law varies in scope depending on the instrument where it is embodied.

It may thus happen that, in order to determine the legal framework of the divorce and the ancillary issues, a notary must combine the law chosen by the parties for the dissolution of marriage with another one(s), the latter being ascertained through objective connecting points. Let’s take spouses of Spanish nationality residing in Italy and choosing Italian law to dissolve their marriage in Spain before a notary: the chosen law will be applicable [ex Article 5 a) R. Rome II] to the divorce, whereas Spanish law, ex Article 9.2 of the Spanish Civil Code, will rule on the economic regime of the marriage.

On a side note, it should be added that notarial divorce in Spain may be unnecessarily expensive due to the Spanish Declaration to the Rome III Regulation, coupled with a Resolution-Consultation of the Dirección General de Seguridad Jurídica y Fe Pública of 7 june 2016. According to the Declaration, the choice of law agreement must be concluded prior to obtaining the divorce – in other words, it is not possible before the court.

Besides, additional formal requirements under Article 7 of the Regulation are needed: the choice of law must be granted in an authentic instrument (before a notary public), or an ‘authentic document’ (a document whose date and signatures by the parties are unequivocal, even if it does not take the form of a notarial instrument). Eventually, choosing the applicable law requires a public document different from the public deed of divorce – therefore, higher costs for the spouses.

Recognition

As of today, the recognition in Spain of foreign non-judicial divorce raises many doubts. Due to the plurality of rules in Spanish private international law, this is a highly topical issue, both essential and complex, starting with already with the determination of the applicable rules. One must take into account, besides the usual variables (origin of the divorce, date on which it was granted), the type of non-judicial divorce at stake. This requires examining if a public authority was involved and the role it played: whether or not it has exercised a constitutive function, and (more relevant), whether or not it has performed functions equivalent to those allocated to Spanish courts.

Under the broad concept of ‘court or tribunal’ under Brussels II ter and Regulation No. 4/2009, all authorities in the Member States with jurisdiction in matters falling within the scope of said Regulations can be considered as belonging to such category. That is to say, for the purposes of these instruments, any authority, official or professional is a ‘court’ provided that the legal system to which it belongs confers on it the power to dissolve the marriage.

The CJEU ruled along these lines in its judgment of 15 November 2022 (Case C-646/20): a divorce settlement entered into before the Italian Registrar of Vital Statistics equates a court decision, provided that the issuing authority carries out a review of the settlement, i.e., of the conditions of the divorce under national law, and of the validity of the spouses’ consent. By analogy, a Spanish notarial divorce must be recognised as a ‘judicial determination’ in other Member States, since Spanish notaries perform such tasks. Had it not been withdrawn, the question referred to the Court of Justice of the European Union for a preliminary ruling in Case C-304/22 should had been solved along these lines.

The other ‘side of the coin’ of this broad definition of ‘court’ as interpreted by the CJEU is that a foreign divorce where the public authority has merely approved a private act does not constitute a judicial decision in the sense of the Regulations. This does not automatically entail the non-recognition of such divorce. In fact, Article 65 Brussels II ter acknowledges the effectiveness of registered private agreements and connects them with court judgments. From the procedural point of view, the equating of registered agreements to court decisions implies their automatic recognition in the terms of Article 30 et seq. of Brussels II ter.

Where European rules do not apply, conventional rules come to the forefront. Spain is a contracting State to a considerable number of bilateral conventions on recognition of decisions (ad ex. Colombia, Russia and China).  However, for non-judicial divorce such conventions have little impact, either because family matters are excluded from their scope of application, or because they only apply to the recognition of ‘judicial decisions’, meaning those originating from jurisdictional bodies. This is the reason why many times the legal regime applicable to the recognition of a foreign non-judicial divorce will be defined by national (autonomous) rules. In Spain, there is a plurality of sources in the area:

• The Third Additional Provision of Law 15/2015 on Voluntary Jurisdiction, on the registration of foreign public documents in public registers.
• Articles 11 and 12 of the same Law, addressing registration in public registers of foreign decisions on voluntary jurisdiction (Article 11), and the effects in Spain of voluntary jurisdiction proceedings and acts agreed by foreign authorities (Article 12).  Such provisions prevail over Article 41.2 of Law 29/2015 on International Legal Cooperation in Civil Matters, in accordance with the First Additional Provision of the International Legal Cooperation Act.
• Articles 323 and 144 of Law 1/2000 on Civil Procedure, on the recognition of foreign public documents.
• Articles 96 and 97 of Law 20/2011 on the Civil Register. These provisions deal with the recognition of foreign non-judicial decisions (Article 96) and of foreign extrajudicial documents (Article 97). They should prevail over the Law on Voluntary Jurisdiction when an application is made for the dissolution of the relationship to be registered with the Spanish Civil Registry.

In light of the foregoing, it is easy to imagine that ascertaining the competent rule and, therefore, the conditions to be checked to grant effects to a foreign extrajudicial divorce, can become a quite complicated endeavor.

It does not only depend on the type of divorce obtained (notarial, registered, etc.), thus on the document recording the divorce (notarial deed, extrajudicial decision or public act), but also on the effect that the recognition is intended to have (constitutive, evidentiary, entry into an official registry).

But, fundamentally, it will be conditional upon the function performed by the intervening authority, and on whether it corresponds to those of the Spanish judicial authorities in the field. Eventually, whether the foreign non-judicial divorce falls under the category of foreign ‘judicial decision” or rather under that of foreign ‘public document’, and the corresponding regime, depends on the answer to these questions.

The recognition of so-called ‘private divorces’, i.e. those dictated by a religious authority, poses even greater problems even if they are subsequently approved by a foreign authority. To qualify as a ‘decision’ and, therefore, for the autonomous legal regime on recognition of judgments to apply, the authority must have performed a constitutive function: in other words, it must have acted with ‘imperium’ in accordance with the system of origin. Otherwise, the foreign divorce will get a conflict-of-laws treatment. However, after the amendment of Article 107.2º of the Civil Code in 2015, there is no rule for that purpose under Spanish autonomous PIL provisions.

And, finally, it should not be forgotten that, more often than not, the decision or document on the dissolution of marriage by a non-judicial authority includes statements on the economic regime of the marriage, alimony and even parental relationship. According cross-border effectiveness to a foreign non-judicial divorce does not automatically benefit those ancillary matters. Let’s take a non-judicial divorce by mutual consent by notarial deed from Cuba: in Spain, it will generally be recognised as a non-contentious judicial decision under autonomous PIL. Should the divorce be accompanied by decisions on parental responsibility, the latter will fall under the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The regulatory fragmentation existing in Spanish law in the area may give rise to problems of consistency, and eventually lead to semi-claudicating divorces, meaning that they are effective in terms of the dissolution of the marital bound, but not in terms of its effects in relation to children, maintenance or the liquidation of the matrimonial property regime.

It has already been announced on this blog that a conference on The Law of Treaties as Applied to Private International Law is set to take place in Milan, on 5 and 6 May 2023, under the auspices of SIDI, the Italian Society of International Law and EU Law, and EAPIL.

The early bird period, which was initially meant to end on 6 March, has been extended until 20 March 2023. Those registering before the latter date will benefit from a discounted registration fee of 80 Euros (further reduced to 50 Euros for PhD students and those who earned their PhD over the last few weeks).

For more information, and the registration form, see here.

Applications are now open for three- to six-month legal internships at the Permanent Bureau’s headquarters in The Hague, for the period from July to December 2023!

Interns work with our legal teams in the areas of Family and Child Protection Law, Transnational Litigation and Legal Cooperation, and Commercial, Digital and Financial Law. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings and contributing to the promotion of the HCCH and its work.

Applications should be submitted by 31 March 2023. For more information, please visit the Internships Section of the HCCH website.

 

 

 

 

 

 

Parveen v Hussain [2022] EWCA Civ 1434 (I am still in clearing the backlog mode) is an excellent illustration of this most peculiar of issues under conflict of laws, the issue of ‘Vorfrage’, with the Court of Appeal ending up recognising the second marriage of a Pakistani lady, but not her prior foreign divorce expressed by her first husband per Talaq.

The Court of Appeal held that the fact that that divorce is not entitled to recognition under the English rules, does not mean that the woman did not have the capacity to (re)marry: her previous divorce was effective under the law of Pakistan.

Moylan LJ summarises that the issue raised by the appeal is in essence the relationship between capacity to marry rules and divorce recognition rules. [7]:

[In England and Wales] “a person’s capacity to marry is governed by the law of their antenuptial domicile. The recognition of a divorce, whether obtained in “the British Islands” (section 44) or in a “country outside the British Islands” (section 45), is governed by the provisions of the [Family Law Act] FLA 1986. What happens when the two are in conflict? In other words, when a person, in this case the wife, has capacity to marry by the law of her antenuptial domicile, Pakistan, but her previous divorce is not entitled to recognition in England and Wales under the FLA 1986, is priority to be given to the law applicable to capacity to marry or to the law applicable to the recognition of divorces.”

After a first marriage in Pakistan, which ended in 2008 by husband Talaq, the wife remarried. The second husband commenced divorce proceedings in 2018. This led to the pronouncement of a Decree Nisi of divorce in 2019. In or about August 2020, the second husband applied for the Decree Nisi to be rescinded and for the Petition to be dismissed on the basis that the wife remained married to her previous husband at the date of her marriage to the  second husband. The husband then issued a nullity Petition in 2021 in which he contended that at “the time of the marriage the (wife) was already lawfully married”. The wife submits that her marriage to the husband is valid because she had capacity to marry under the law of Pakistan which recognised her divorce as having validly determined her previous marriage.

[22] Per Akhtar v Secretary of State for Work and Pensions [2022] 1 WLR 421:

“Validity of Marriage

[60] Under English rules of private international law: (a) the general rule is that the formal validity (i.e. the formalities) of a marriage is governed by the law of the country where the marriage was celebrated, Dicey at para 17R-001; and (b) the general rule is that capacity to marry (or essential validity) is governed by the law of each party’s antenuptial domicile, Dicey at para 17R-057 (now 17R-054). Bigamy is “a matter of capacity”, Dicey at para 17-082 (now 17-079).

[61] If a marriage is valid in respect of both form and capacity it will be recognised as valid under English law and, as a result, the parties will be recognised as having the status of husband or wife.”

‘Bigamy’ is qualified as a rule of capacity to marry (‘essential validity’ or what the civil law is likely to call substantive validity. Extensive review followed of various authorities,  including the well-known Schwebel v Ungar, with the Court of Appeal as in that latter case, giving priority to capacity to marriage. An ordre public exception was rejected on the basis of the wife at all relevant times having been domiciled in and lived in Pakistan. [89] “The public policy objectives would be sufficiently achieved by denying recognition of the divorce to the wife’s previous husband because of his connections with the UK.”

A super case to teach Vorfrage, qualification and ordre public.

Geert.

An excellent illustration of Vorfrage
Relationship between capacity to marry rules and divorce recognition rules
Moylan LJ giving priority to the former, referring ia to Schwebel v Ungar

Parveen v Hussain [2022] EWCA Civ 1434 https://t.co/Tb1jSeCs9P

— Geert Van Calster (@GAVClaw) November 7, 2022

I last updated the draft for this post in November….I am hoping somewhat to catch up with posts this week.

In Transworld Payment Solutions U.K. Ltd, Re [2022] EWHC 2742 (Ch) Freedman J refused an application to set aside an order to serve out of jurisdiction. Claimants’ case is that the E&W proceedings arise out of an alleged “VAT carousel fraud”, carried out in England and Wales, by English and Welsh companies. There are concurrent Curaçao proceedings.

Defendants raise a forum non conveniens jurisdictional defence. They submit that the Curaçao court is presently seised as to the issue as to whether the companies were effectively parties to a number of settlement agreements, and the effect of the same.  These Settlement Agreements are subject to Curaçao law and contain a Curaçao jurisdiction clause (which is not exclusive).  They also submit that the fraud claims will be determined as part of the applications for negative declarations in the Curaçao Proceedings.  The Claimants dispute that the fraud claims or the full scope of the fraud claims will be determined in the Curaçao Proceedings.

There are significant areas of dispute between the parties as regards what is in issue in the Curaçao Proceedings. The issue that is of most interest to the blog, is the consideration of applicable law under Rome II. [79] Freedman J notes “VTB [VTB Capital Plc v Nutritek International Corp [2013] UKSC 5] ,was a case where English law (used as a shorthand to refer to the law of England and Wales) was the proper law of the tort, but where the majority of the court nonetheless stayed the action in favour of the matter being more appropriately litigated in Russia.”

A first issue is the catchment area of Rome II’s ‘non-contractual obligations’, to typically common law equitable wrongs including dishonestly assisting breach of trust/fiduciary duty. [83] the judge holds with reference to Dicey, Morris and Collins 16th Ed. that they likely do. [84] The most likely lex causae following Rome II is English law and  ‘(I)t seems unlikely that Article 4(3) would apply given the closer connection of any tort or delict with England and Wales rather than with Curaçao or any other country. ‘

The issues will be further discussed at trial and one imagines both Rome I and Rome II will return there. But for now, jurisdiction is going ahead.

Geert.

Largely unsuccessful application for forum non conveniens (viz: Curacao) set-aside of permission to serve out of jurisdiction
Considers ia applicable law Rome II viz deceit, conspiracy, equitable wrongs

Transworld Payment Solutions [2022] EWHC 2742 (Ch) https://t.co/ly6m6XRFsN

— Geert Van Calster (@GAVClaw) November 7, 2022

The first instance court of Gelderland held in X v Lufthansa that the latter’s limitation to objecting to territorial jurisdiction within The Netherlands, rather than to jurisdiction of the Dutch courts as such, amounts to submission under A26 BIa, leaving the Dutch courts to decide on territorial jurisdiction with reference to internal Dutch civil procedure rules (CPR).

The remainder of the judgment then agrees with Lufthansa on the basis of Dutch CPR identifying the defendant’s office or branch as the territorially relevant factor, leaving Gelderland without jurisdiction. The court seemingly rejected itself as forum contractus, holding that CJEU C-204/08 Rehder v Air Baltic does not apply due to the flight in current case not being intra-EU (final destination being Baku). I would have expected the court to consider C-20/21 LOT Polish Airlines, where the final destination equally was outside the EU.

I do not know what claimant argued (forum contractus one assumes, perhaps locus damni per A7(2) BIA?), at any rate it is wrong to hold that a limitation of jurisdictional objection to internal distribution, implies submission per A26 BIa, for those heads of jurisdiction which assign jurisdiction territorially, not just nationally. That includes A7 forum contractus and forum delicti.

Geert.

 

I should really keep this for exam purposes
First instance Gelderland holds opposition to court's territorial jurisdiction, not to NL jurisdiction as a whole, does not obstruct A26 Brussels Ia submission
Ahum…

X v Lufthansa ECLI:NL:RBGEL:2023:900https://t.co/QS53WEXmSp

— Geert Van Calster (@GAVClaw) March 4, 2023

On 8 February 2023, the European Commission presented two proposals, the purpose of which is to pave the way to the negotiation (and conclusion) of bilateral agreeements between France and Algeria in the field of private international law.

One proposal is for a decision of the Council of the Union and the European Parliament that would authorise France to negotiate a bilateral agreement on matters related to judicial cooperation in civil and commercial matters (COM/2023/65 final). The other is for a Council decision authorising France to negotiate a bilateral agreement with Algeria on matters related to judicial cooperation concerning family law matters (COM/2023/64 final).

The future agreements are meant to replace bilateral agreements concluded in 1962, 1964 and 1980, and to align cooperation with Algeria with EU standards in this area.

The subject matter of the new agreements falls, to a large extent, within the exclusive external competence of the Union. In these circumstances the negotiation of bilateral agreements of Member States with third countries is generally limited to the possibilities offered by the special mechanism provided by Regulation No 662/2009 (on particular matters concerning the law governing contractual and non-contractual obligations) and Regulation No 664/2009 (regarding jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, as well as regarding the law applicable to matters relating to maintenance obligations).

Also relevant, in principle, is Article 351 TFEU. This begins by establishing that the rights and obligations arising from agreements pre-dating the launch of the European integration process between one or more Member States on the one hand, and one or more third countries on the other, are not affected by EU law. However, the provision goes on to state that, to the extent that such agreements are not compatible with the Treaties (and EU legislation), “the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established”.

When the prospect of one or more bilateral agreements between the two States emerged, in 2016, the Commission, while recognizing the exceptional economic, cultural, historical, social and political ties between France and Algeria, remarked that, in its judicial cooperation with third States, the Union broadly relies on the existing multilateral framework, such as the one created by the Hague Conference on Private International Law, rather than bilateral agreements. The Commission observed that  authorising a Member State to negotiate and conclude bilateral agreements with third countries in the area of civil justice falling outside the scope of Regulations No 662/2009 and No 664/2009 would not be in line with the EU policy in this field.

The position of the Commission was later reviewed in light of further developments and additional information, including the fact that an accession of Algeria to key Hague Conventions was (and still is) unlikely to happen in the foreseeable future (Algeria is not a member of the Hague Conference and has not acceded, so far, to any convention elaborated under the auspices of the Conference), and the fact that an EU-Algeria agreement related to judicial cooperation in civil matters is not planned by the Commission.

The Commission observed that the EU policy in the field of private international law is based on multilateralism, and that bilateral agreements between the EU and a third country, even where the third country consistently refuses to accede to Hague Conventions, could be contemplated only where a sufficiently strong Union interest can be identified based on the substantial relevance of judicial cooperation with this country across Member States and not only for an individual Member State. In the opinion of the Commission, this is not the case of the relations with Algeria.

The Commission further contended that neither the possibility offered by Article 351 TFEU nor an authorisation under Regulations 662 and 664/2009 are applicable in the present case.

Article 351, the Commission explained, is of no avail because it applies, for a founding Member (like France), only to agreements concluded prior to 1958, whereas the existing bilateral agreements between France and Algeria date from 1962, 1964 and 1980 (the Commission does not seem to give weight to the fact that, back in 1985, the European integration process simply did not include judicial cooperation: the latter became a concern for the European Community, as it was then, only with the entry into force of the Amsterdam Treaty, in 1999).

The Regulations of 2009, for their part, are of limited help, according to the Commission, because their scope is very narrow and they do not cover the range of matters dealt with in the France-Algeria draft agreements. Besides, the Commission stressed, the two Regulations are of exceptional nature and should be interpreted in a restrictive manner.

Therefore, the Commission concluded that an ad hoc authorization under Article 2(1) TFEU to France could be considered (according to Article 2(1), where the Treaties confer on the Union “exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts”, but clarifies that the Member States are permitted to do so themselves, inter alia, “if so empowered by the Union”).

The decisions that the Commission has proposed to adopt would authorise France to negotiate (and at a later stage conclude) bilateral agreements with Algeria in matters falling within the EU exclusive external competence, having considered the exceptional ties which link these two countries, provided that this would not constitute an obstacle to the development and the implementation of the Union’s policies.

In the memorandum that accompanies the two proposals, the Commission reiterated that “multilateralism remains a cornerstone of the EU policy towards third countries in the field of judicial cooperation in civil and commercial matters”, and clarified that the authorisation to negotiate, if granted, should be “considered exceptional” and by no means serve as a precedent. The mere refusal of a third State to accede to the relevant Hague Conventions, the Commission added, “should not be regarded as a the only pre-requisite to grant an authorisation under Article 2(1) TFEU, but evidence of the exceptional situation of the relationship of a Member State with a given third country should be duly demonstrated”.

The call for papers is open for the IX International Conference on Private International Law of the Carlos III University of Madrid, which will take place on 4 and 5 May 2023.

This year’s conference will focus on the Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, presented by the European Commission on 7 December 2022.

The proposed papers will be selected by the Scientific Committee of the Conference, composed of Alfonso-Luis Calvo Caravaca, Heinz-Peter Mansel, Javier Carrascosa Gonzalez, Ilaria Pretelli and Fabrizio Marongiu Buonaiuti. Papers may subsequently be published in the online journal Cuadernos de derecho transnacional.

All those interested are invited to send the title of the paper they intend to propose and an abstract of a maximum length of 800 words by 17 April 2023 to the email congresodipr@uc3m.es.

For all further info, see here.

May today’s milestone (reported here) be also an ode to late professors Alegría Borrás and Julio González Campos for their absolute tireless efforts regarding the Spanish language at the Hague Conference on Private International Law (HCCH) and their infatuation with the Spanish language.

Let us remember that we are standing on the shoulders of giants.

 

Take a last look at this image from the website of the HCCH; it will likely change soon. The HCCH has adopted Spanish as an official language from 1 July 2024. . . Here is the official announcement from The Hague Conference (the link provides also the Spanish version): During the annual meeting of the Council on General Affairs and Policy (CGAP), the Members of the Hague Conference on Private International Law (HCCH) expressed their unanimous support for the introduction of Spanish as an official language. From 1 July 2024, Spanish will join English and French as one of the three official languages of the Organisation. This development represents an important further step contributing to universality and inclusiveness at the HCCH, reflecting the importance of multilingualism and multilateralism as core pillars of its work. The adoption of Spanish as an official language will facilitate the proper and effective implementation and operation of the HCCH’s Conventions and instruments in Spanish-speaking States and will therefore have a decisive positive impact on the lives of the hundreds of millions of native Spanish-speakers around the world. The adoption of Spanish will also simplify the lives of the countless other individuals who interact with Spanish-speaking States – be it through commerce, travel, personal relations, or other. The decision to adopt Spanish as an official language of the HCCH will be reflected in CGAP’s Conclusions and Decisions, to be published in the coming days. . . And here is a first blog entry from Claudia Martínez, appropriately in Spanish. . . Notably, a Spanish version of the HCCH website has existed since the launch in 2009. Then, it was the only language version other than the English and French ones. Today, (more or less) full versions exist also in German and Portuguese;  other language sites provide translations of Hague Conventions.

Alexander DJ Critchley has added an enriching installment to Hart’s renowned Studies in Private International Law Series entitled “The Application of Foreign Law in the British and German Courts”.

The author has extensive experience as solicitor in Scots law with a specialisation in family law. His book is the publication of a doctoral thesis completed with distinction at the university of Tübingen (Germany). The blurb reads as follows:

This book explores the application of foreign law in civil proceedings in the British and German courts. It focuses on how domestic procedural law impacts on the application of choice of law rules in domestic courts. It engages with questions involved in the investigation and determination of foreign law as they affect the law of England and Wales, Scotland, and Germany. Although the relevant jurisdictions are the focus, the comparative analysis extends to explore examples from other jurisdictions, including relevant international and European conventions. Ambitious in scope, it expertly tracks the development of the law and looks at possible future reforms.

Please check out Hart’s banner at the top of this page for special discounts for CoL readers.

 

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP.

I reported here on the French judgment which questioned the Court of Justice of the European Union (ECJ) on res judicata. Two months later, in a Recamier case, the French Court of cassation referred again to the ECJ on res judicata as reported by François Mailhé here.

AG Pikamäe delivered his opinion on 16 February 2023 in the first case C-567/21, BNP Paribas. As a reminder, the case relates to an action for payment of various sums, brought in France against a French company by one of its former employees in connection with his dismissal. Previously, he had initiated proceedings in London, his last place of work, and had obtained a judgment ordering the company to pay him compensation for unfair dismissal. In the first instance, a French labour court declared the claims relating to his dismissal inadmissible, because of the res judicata effect of the English judgment. On appeal, the judgment was overturned: the Court of Appeal considered that the various claims for compensation had not been examined by the English court.

The first question referred to the ECJ concerns the obligation to concentrate claims provided for by both legal system at stake.  The second and third questions are related to the notions of cause and subject-matter of the action. In this case, the question is whether an action for unfair dismissal in the United Kingdom has the same cause of action and the same subject-matter as an action for dismissal without real and serious cause in French law or an action for payment of bonuses or premiums provided for in the employment contract, as these actions are based on the same contractual relationship between the parties.  The answers depend on the respective role of Union law and national laws to determine res judicata. Res judicata is not mentioned in the Brussels I Regulation. So the Advocate General first looks at the relationship between res judicata and recognition. Not surprisingly, he states that res judicata is one of the facets of recognition.

AG Pikamäe focuses on two issues, that of the scope of res judicata and that of the consequences for the court of another Member State hearing a related case.

Res Judicata

In a first step, regarding the scope of res judicata and the impact of an national rule of concentration of claims, AG Pikamäe refers to the Jenard Report and the Hoffman judgment (145/86) to justify appliying the doctrine of “extension of effects”, leaving it to the law of the Member State of origin to determine the effects of the judgment invoked in a second Member State (para 46). Therefore, no independent interpretation of the res judicata is given. The Gothaer judgment that might have led to the opposite conclusion. is here irrelevant. It is specific and only apply to jurisdictional decisions.

Thus the law of the United Kingdom must be “taken into account” (applied would have been more precise) for the purpose of determining the authority and effectiveness of the judgment given by the British court (para 52).

But the obligation to concentrate claims does not affect the authority and effectiveness of the judgment (para 53). For AG Pikamäe the rule of “abuse of process”, which is the source of this obligation is not related to res judicata: it is only a means to sanction abuses (para 55). Here it seems that in a somewhat confusing way AG Pikamäe is not interpreting EU law but English law. He refers also to the scheme of Regulation 44/2001 and considers that taking into account, at the stage of the recognition of a decision, a national rule on the concentration of claims could jeopardise the subsequent implementation of the specific rules on jurisdiction in matters relating to individual contracts of employment and of the provisions governing lis pendens and related actions (para 60).  The reasoning does not really convince even in matters of employment contracts where the rules of jurisdiction ensure the protection of the worker. Indeed, one could consider that the protective effect is exhausted with the first proceeding initiated by the worker against his employer. In other words, the employee only has the option of choosing between the place of work and the employer’s home once.

AG Pikamäe goes very far in questioning procedural autonomy when he states that the application of the provisions of Regulation 44/2001 cannot depend on the content of the procedural rules of a Member State (para 62). It does not matter, he adds, that the two Member States concerned have the same rule (para 63). He concludes that a domestic procedural rule on concentration of claims is not an effective criterion for determining the authority attached to a decision given in a Member State. In short, the concentration of claims rule has no consequences for the recognition of decisions. This statement may be surprising. It is up to the law of the country from which the decision originates to specify the extent of res judicata, but the rule on the concentration of claims that it contains is not applied. Thus, while new claims could not have been made in the State of origin, they can be made in another State. Such an attitude is likely to fuel forum shopping and sharpen procedural strategies. In any case the aim of procedural economy is clearly not a priority.

Cause and Subject Matter of Action

In a second step, the opinion focuses on the concepts of cause and subject-matter. The French Cour de cassation had asked the Court of Justice whether a claim for unfair dismissal in the UK has the same cause of action and the same subject-matter as a claim for dismissal without real and serious cause under French law. It also wondered whether a claim for unfair dismissal in the UK has the same cause of action and the same subject-matter as claim for payment of bonuses or premiums provided for in the employment contract, since these actions are based on the same contractual relationship.

The answer to these questions presupposes a precise comparison of the provisions of English labour law with those of French labour law, which is beyond the role of the Court (para 71) but
AG Pikamäe suggests that the Court reformulates the questions referred to it in this way : for the purposes of Articles 33 and 36 of Regulation No 44/2001, do actions based on the same employment contract and relating to obligations arising out of the performance of that contract and to obligations arising out of its termination have the same cause of action and the same subject-matter?

As expected, a parallel between the conditions of lis pendens and those of res judicata is made. AG Pikamäe notes that “the rules on lis pendens and recognition have the common purpose of contributing to the full authority of the judgment given in the Member State of origin, which must not be called into question by a judgment given by a court in another Member State” (para 80). Consequently, he suggests transposing the criterion of identity of parties, cause and subject-matter applicable to lis pendens to res judicata (para 90). As for lis pendens, the terms cause and subject-matter must be regarded as independent.

Building on Gubisch Maschinenfabrik (144/86), Tatry (C‑406/92), and Merck (C‑231/16), AG Pikamäe considers that the claims brought before the Employment Tribunal and those brought before the French Courts, based on the same contractual relationship, are based on the same cause of action.

As regards the ‘subject matter’, the case is more complicated. The Court has stated on different occasions that this means the end the action has in view, that the concept is to be interpreted broadly and cannot be restricted so as to mean two claims which are formally identical and that account must be taken in that regard of the applicants’ respective claims in each of the sets of proceedings. AG Pikamäe distinguishes then between claims relating to the termination of the employment contract and its financial consequences and those relating to the performance of the employment contract (claims for payment of sums due for the performance of work). They have not the same subject-matter (para 106). Nevertheless, the “second” court hearing claims for payment of remuneration in respect of the performance of an employment contract should take into account the possible implications of the original decision. An example is given, the case of the determination, in accordance with the law of the State of origin, by the initial decision of the date of termination of the employment contract, which would be likely to have an impact on the end of the period during which remuneration is due.

AG Pikamäe focuses on the distinction between issues relating to the end of the contract and those relating to the performance of the contract. He considers then that a claim for unfair dismissal in the UK has not the same subject-matter that a claim for payment of sums due for the performance of work. In doing so, it leaves part of the question unanswered. Has a claim for unfair dismissal in the UK the same subject-matter as a claim for dismissal without real and serious cause under French law? A positive answer is only suggested. It is to be hoped that the ECJ will be clearer. The worker is sometimes encouraged to pick and choose among the different laws that may be applied to the employment relationship. The effect would be multiplied if he were also allowed to multiply the proceedings in different countries.

The first view of the second issue of ICLQ  for 2023 contains a private international law article that was published online just recently:

 

S Matos, Arbitration Agreements and the Winding-Up Process: Reconciling Competing Values

Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.