Conflictoflaws

On September 1st, 2023, the 2019 Hague Judgments Convention will enter into force for the Member States of the EU and Ukraine. According to the HCCH, the Convention is “a true gamechanger in international dispute resolution”, which will “reduce transactional and litigation costs, facilitate rule-based multilateral trade and investment, increase certainty and predictability” and “promote effective justice for all”. The international conference taking place in Bonn later this week will likely strike an equally celebratory tone.

This sentiment is not shared universally, though. In a scathing article just published in Zeitschrift für Europäisches Privatrecht (ZEuP) entitled ‘Judgments Convention: No Thanks!‘, Haimo Schack (University of Kiel) labels the Convention as “evidently worthless”.

Schack comes to this damning conclusion in three steps. First, he argues that the 2005 Choice of Court Convention, the first outcome of the decades-long HCCH Jurisdiction Project, has been of minimal use for the EU and only benefited Singapore and London. Second, he points out the limited scope of the 2019 Convention, which is not only (inherently) unable to limit the exorbitant exercise of jurisdiction or avoid, let alone coordinate parallel proceedings, but also contains a long list of excluded areas of law in its Art. 2 (including, most significantly, the entire field of intellectual property: Art. 2(1)(m)). Schack argues that combined with the equally long list of bases for recognition and enforcement in Art. 5, the Convention will make recognition and enforcement of foreign judgments significantly more complicated. This effect is exacerbated, third, by a range of options for contracting states to further reduce the scope of application of the Convention, of which Art. 29 is particularly “deadly”, according to Schack. The provision allows contracting states to opt out of the effect of the Convention vis-à-vis specific other contracting states, which Schack fears will lead to a ‘bilateralisation’ similar to what prevented the 1971 Convention from ever getting off the ground, which will reduce the 2019 Convention to a mere model law. All in all, Schack considers the Convention to do more harm than good for the EU, which he fears to also lose an important bargaining chip in view of a potential bilateral agreement with the US.

Leaving his additional criticism of the HCCH’s ongoing efforts to address the problem of parallel proceedings aside, Schack certainly has a point in that the 2019 Convention will not be easy to apply for the national courts. Whether it will be more complicated than a myriad of rarely applied bilateral conventions may be subject to debate, though. It also seems worth pointing out that the 1971 Convention contained a significantly more cumbersome mechanism of bilateralisation that required all contracting states to conclude additional (!) bilateral agreements to enter into force between any given pair of them, which is quite different from the opt-out mechanism of Art. 29. In fact, it seems at least arguable that the different ways in which contracting states can tailor their accession to the Convention to their specific needs and concerns, up to the exclusion of any treaty relations with a specific other contracting state, may not be the proverbial nail in the coffin as much as it might be a key to the Convention’s success. While it is true that these mechanisms appear to undermine the internationally binding nature of the Convention, bringing it closer to a model law than a binding treaty, they also make it possible to accommodate different degrees of mutual trust within a single legal framework. The fact that the 2005 Convention has preserved some degree of judicial cooperation between the EU Member States and the UK in an area now otherwise devoid of it may be testimony to the important purpose still served by international conventions in the area of international civil procedure despite – but maybe also as a result of – their increasingly limited, tailor-made scope(s).

On 31 May 2023, the European Commission presented a proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults (in the following: EU Adult Protection Regulation – EUAPR). This proposal is a response to significant demographic and social changes in the EU: Many Member States face enormous challenges posed by an increasingly aging population. Due to considerable improvements in medical care in recent decades, people grow much older than they used to, and this lengthening of the average lifespan in turn leads to an increase in age-related illnesses such as Alzheimer’s disease. This demographic change creates problems for private international law, because the mobility of natural persons has increased within the EU where borders may, in principle, be crossed without restrictions. Many people who have left their state of origin in search for work elsewhere in their youth or middle age do not return to their home state after retirement, but rather spend the last part of their lives where they have established a new habitual residence. Besides, more and more people decide to leave their home state once they have reached the age of retirement. Such processes of migration at a late stage in life may have different reasons: Some old-age movers may want to avoid a heavy taxation of their estates that would put a burden on their heirs, some may wish to circumvent other restrictions of domestic inheritance laws (e.g. the right to a compulsory portion), others may simply wish to spend the remaining parts of their lives in milder climates, e.g. the Mediterranean, or look for a place to stay where the cost of living is lower, e.g. in some parts of Eastern Europe. When these persons begin to suffer from an impairment or an insufficiency of their personal faculties which no longer allows them to protect their interests themselves, however, intricate conflict of laws problems may arise: The authorities or courts of which state shall have jurisdiction to take protective measures concerning vulnerable adults or their property? Which law is to be applied to such measures? Under which conditions may protective measures taken in one state be recognised and enforced in other states?

The EUAPR is meant to solve these problems. It is in many parts based on proposals made by two working groups set up by the European Law Institute and the European Association of Private International Law, respectively. The Regulation will partially supersede and complement the Hague Convention on the International Protection of Adults (in the following: Hague Adult Protection Convention – HAPC), a derogation which is permitted by Art. 49(2) and (3) HAPC. The Hague Convention was concluded on 13 January 2000 and entered into force on 1 January 2009 between France, Germany and the United Kingdom (restricted to Scotland, however). Today, the Convention is in force as well in Switzerland, Finland, Estonia, the Czech Republic, Austria, Monaco, Latvia, Portugal, Cyprus, Belgium, Greece, and Malta. The Netherlands, Ireland, Italy, Luxembourg, and Poland have signed the Convention, but have not ratified it yet. In the Netherlands, however, the Convention is already applied by the courts as a part of Dutch autonomous law (see Hoge Raad 2 February 2018, ECLI:NL:HR:2018:147). Thus, more than 23 years after the HAPC was concluded, the status of ratifications is rather unsatisfactory, as only 12 EU Member States have ratified the Convention so far. In order to speed up this process, the Regulation shall be accompanied by a Council Decision authorising Member States to become or remain parties, in the interest of the EU, to the HAPC.

For a long time, it was controversial whether the EUAPR could be based on the EU’s general competence in PIL matters (Art. 81(2) TFEU) or whether such a measure ought to be classified as concerning family law within the meaning of Art. 81(3) TFEU. On the one hand, adult protection is traditionally codified in the family law sections of many Member States’ civil codes (e.g. in Germany), and people will frequently benefit from the protection of family members (see COM(2023) 280 final, p. 4). On the other hand, a guardian, curator or a person endowed with a power of representation does not necessarily have to be a relative of the vulnerable adult. Following the example set by the EU Succession Regulation, the Commission eschews the cumbersome special procedure envisioned for family law matters and bases its proposal on Art. 81(2) TFEU instead.

As far as the spatial scope of the EUAPR is concerned, Art. 59 EUAPR contains detailed rules on the relation between the Regulation and the HAPC. The basic factor that triggers the application of the EUAPR is the vulnerable adult’s habitual residence in the territory of a Member State (Art. 59(1)(a) EUAPR).  There are some exceptions to this rule, however, in order to ensure a smooth coordination with the Contracting States of the HAPC which are not Member States of the EUAPR (see Art. 59(1)(b) and (2) EUAPR). The substantive scope of the EUAPR is broadly similar to that of the HAPC, although it should be noted that Art. 2(2) EUAPR speaks of “matters” to which the Regulation shall apply, whereas Art. 3 HAPC uses the narrower term “measures”. This may allow the inclusion of ex-lege powers of representation which are not directly covered by the HAPC. The Regulation’s personal scope is defined in Art. 3(1), which states that, for the purposes of the EUAPR, an adult is a person who has reached the age of 18 years. Although the Regulation is largely a response to problems created by an aging population, it must be borne in mind that its scope is not restricted to elderly people, but encompasses all adults above the age of 18, and, if the exceptional condition of Art. 2(2) EUAPR is met, even younger people.

With regard to the rules on jurisdiction, the Regulation largely refers to the HAPC, with one significant divergence, though. The Convention does not permit a direct prorogation of jurisdiction, because it was feared that an uncontrolled freedom of prorogating the authorities of another state could be abused to the detriment of the adult concerned. Art. 8(2)(d) HAPC merely gives the authorities of a Contracting State having jurisdiction under Art. 5 or 6 HAPC the possibility of requesting the authorities of another Contracting State designated by the adult concerned to take protective measures. Contrary to this restrictive approach, Art. 6(1) EUAPR provides that the authorities of a Member State other than the Member State in which the adult is habitually resident shall have jurisdiction where all of the following conditions are met:

• the adult chose the authorities of that Member State, when he or she was still in a position to protect his or her interest;
• the exercise of jurisdiction is in the interest of the adult;
• the authorities of a Member State having jurisdiction under Art. 5 to 8 HAPC have not exercised their jurisdiction.

The following paragraphs 2 to 3 of Art. 6 EUAPR concern formal requirements and the integration of the adult’s choice of court into the HAPC’s jurisdictional framework. The possibility of choosing the competent authorities is a welcome addition to the choice-of-law provision on powers of representation in Art. 15 HAPC.

In order to determine the applicable law, Art. 8 EUAPR refers to Chapter III of the HAPC. As in the HAPC, there are no specific conflicts rules for ex-lege powers of representation. Moreover, advance medical directives that are not combined with a power of representation (Art. 15 HAPC) are neither covered by the HAPC nor the EUAPR. Since the authorities exercising their jurisdiction under the HAPC usually apply their own law pursuant to Art. 13(1) HAPC, the spatial scope of the Convention’s jurisdictional rules also indirectly determines the reach of its conflicts rules. This will lead to a new round of the debate that we are familiar with in the context of the relationship between the Hague Child Protection Convention and the Brussels IIb Regulation, i.e. whether the intended parallelism only works if at least a hypothetical jurisdiction under the respective Convention’s rules can be established, or whether it suffices that jurisdiction is established according to a provision that is only found in the respective Regulation. Within the framework of the EUAPR, this problem will arise with regard to a choice of court pursuant to Art. 6 EUAPR, an option that is not provided for by the HAPC. Applying Art. 13(1) HAPC in this context as well seems to be the preferable solution, which leads to an indirect choice of law by the vulnerable adult even in cases where no voluntary power of representation is established under Art. 15 HAPC.

The recognition of measures taken in other Member States is governed by Art. 9 and 10 EUAPR. Notwithstanding mutual trust – and, in this particular area of law, with good reason – , the Regulation still contains a public policy clause (Art. 10(b) EUAPR). For the purpose of enforcement, Art. 11 EUAPR abolishes the declaration of enforceability (exequatur) that is still required under Art. 25 HAPC, thus allowing for simplified enforcement procedures within the EU.

A major innovation is found in Chapter VII. The Regulation will introduce a European Certificate of Representation (Art. 34 EUAPR) which will supersede the certificate under Art. 38 HAPC. The Certificate shall be issued for use by representatives, who, in another Member State, need to invoke their powers to represent a vulnerable adult (Art. 35(1) EUAPR). The Certificate may be used to demonstrate that the representative is authorised, on the basis of a measure or confirmed power of representation, to represent the adult in various matters defined in Art. 35(2) EUAPR.

Apart from those substantive achievements, the Regulation contains necessary rules on rather procedural and technical subjects, such as the cooperation between the competent authorities (Chapter VI EUAPR), the establishment and interconnection of protection registers (Chapter VIII EUAPR), digital communication (Chapter IX EUAPR), and data protection (Chapter X EUAPR). These rules will also lead to a major modernisation compared with the older rules of the HAPC.

In sum, the proposal of the EUAPR will considerably strengthen the international protection of vulnerable adults within the EU.

“Recognition” and “enforcement” are fundamental concepts when dealing with the international circulation of foreign judgments. Although they are often used interchangeably, it is generally agreed that these two notions have different purposes and, ultimately, different procedures (depending on whether the principle of de plano recognition is accepted or not. See Béligh Elbalti, “Spontaneous Harmonization and the Liberalization of the Recognition and Enforcement of Foreign Judgments, Japanese Yearbook of Private International Law, Vol. 16, 2014, p. 269).

However, in legal systems where this fundamental distinction is not well established, the amalgamation of the two notions may give rise to unnecessary complications that are likely to jeopardize the legitimate rights of the parties. The following case, very recently decided by the Dubai Supreme Court, is nothing but one of many examples which show how misconceptions and confusion regarding the notion of “recognition” would lead to unpredictable results (cf. e.g., Béligh Elbalti, “Perspective of Arab Countries”, in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (Hart, 2023) pp. 1983-184ff).

The case

The parties, in this case, are (1) A British Virgin Islands company (hereinafter ‘X1’) and its judicial liquidator (hereinafter ‘X2’, collectively “Xs”) and (2) four companies having considerable estates in Dubai (hereinafter ‘Y’).

In 2021, Xs brought an action before the Dubai Court of First Instance (hereinafter “DCFI”) seeking a ‘declaration of validity’ of a decision of the British Virgin Islands Supreme Court declaring the dissolution of X1 and appointing X2 as its judicial liquidator (hereinafter “the foreign judgment”). Xs justified their action by stating that they intended to bring legal actions against Y for the recovery of due sums of money that they were entitled to and, eventually, would avoid their actions being dismissed for lack of standing.

The DCFI dismissed the action on the ground that Xs had failed to show that service had been duly effected and that the foreign judgment had become final according to the law of the state of origin (DCFI, Case No. 338/2021 of 27 October 2021). Xs appealed to the Dubai Court of Appeal (hereinafter “DCA”) arguing, inter alia, that legal notification to the X1’s creditors had been duly served through two newspapers and that, therefore, the foreign judgment should be given effect. However, without addressing the issue of the recognizability of the foreign judgment, the DCA dismissed the appeal holding that Xs had failed to prove their case (DCA, Appeal No. 3174/2021 of 27 January 2022).

Instead of appealing to the Supreme Court, Xs returned to the DCFI to try again to have the foreign judgment be given effect. Having learned from their first unsuccessful attempt, Xs this time ensured that they had all the necessary evidence to show that service had been duly effected, that the foreign judgment had been rendered following regular procedure, and that it had become final and no longer subject to appeal. The DCFI, however, dismissed the action considering that its subject matter concerned, in fact, the “enforcement” of the foreign judgment and, therefore, applications for enforcement should be made by filing a petition to the Execution Court and not by initiating an ordinary action before the DCFI (DCFI, Case No. 329/2022 of 14 November 2022).

Xs appealed to the DCA before which they argued that the foreign judgment did not order Y to perform any obligation but simply declared the dissolution of X1 and appointed X2 as judicial liquidator. Xs also argued that the DCFI had erred in characterizing their claim as a request for “enforcement” as they were not seeking to enforce the foreign judgment. Therefore, it would have been inappropriate to pursue their claim following the prescribed procedure for enforcement where the main purpose of their action is to “recognize” the foreign judgment. The DCA dismissed the appeal holding that the Xs’ action lacked legal basis. According to the DCA, Xs’ request for the foreign judgment to be “declared valid” was not within the jurisdiction of the UAE courts, which was limited to “enforcing” foreign judgments and not declaring them “valid”. As for the enforcement procedure, the DCA considered that it was subject to the jurisdiction of the Execution Court in accordance with the procedure prescribed to that effect (DCA, Appeal No. 2684 of 25 January 2023). Dissatisfied with the outcome, Xs appealed to the Supreme Court (hereinafter “DSC”).

Before the DSC, Xs made the same argument as before the DCA, insisting that the purpose of their action was not to “enforce” the foreign judgment but to “recognize” it so that they could rely on it in subsequent actions against Y. The DSC rejected this argument and dismissed the appeal on the basis that the UAE courts’ jurisdiction was limited only to “enforce” foreign judgments in accordance with the prescribed rules of procedure, which were of a public policy nature. The DSC also held that the lower courts were not bound by the legal characterization made by the litigants but should independently give the correct legal characterization to the actions brought before them in accordance with the rules of law in force in the State (DSC, Appeal No. 375 of 23 May 2023).

 

Comments 

The case reported here is particularly interesting. It illustrates the difficulty that Dubai courts (and UAE courts in general) have in dealing with some fundamental concepts of private international law.

Unlike the international conventions ratified by the UAE, which generally distinguish between “recognition” and “enforcement” of foreign judgments”, UAE domestic law refers mainly to “enforcement” but not “recognition”. Moreover, as mentioned in a previous post, the procedure for enforcement has recently undergone an important change, as the former procedure based on bringing an ordinary action before the DCFI has been replaced by a more another procedure consisting of filing a petition for an “order on motion” before the Execution Court (new Art. 222 of the New Federal Civil Procedure Act [FCPA]). However, the current legislation in force says nothing about the “recognition” of foreign judgments.

If one looks at the practice of the courts, one can observe two different tendencies. One tendency, which seems to be prevailing, consists in denying effect (notably res judicata effect) to foreign judgments that were not declared enforceable. In some cases, UAE courts considered that foreign judgments could not be relied upon because there was no proof that they had been declared enforceable (See, e.g., Federal Supreme Court, Appeal No 320/16 of 18 April 1995; Appeal No. 326/28 of 27 June 2006) or that foreign judgments could only have legal authority (hujjia) after being declared enforceable and consistent with public policy (Abu Dhabi Supreme Court, Appeal No. 31/2016 of 7 December 2016).

Another tendency consist in admitting that foreign judgment could be granted effect. Some cases, indeed, suggest that recognition can be incidentally admitted if certain conditions are met. These include, in particular, the following: (1) that the foreign judgment is final and conclusive according to the law of the rendering state, and (2) the foreign judgment was rendered between the same parties on the same subject matter and cause of action (see, e.g., Federal Supreme Court, Appeal No. 208/2015 of 7 October 2015; DSC, Appeal No. 276/2008 of 7 April 2009; Abu Dhabi Supreme Court, Appeal No. 106/2016 of 11 May 2016; Appeal No. 536/2019 of 11 December 2019. In all these cases, recognition was not granted). Only in a few cases have the UAE courts (in particular Dubai courts) exceptionally recognized foreign judgments (DSC, Appeal No. 16/2009 of 14 April 2009; Appeal No. 415/2021 of 30 December 2021 upholding the conclusions of DCFI accepting the res judicata effect of a foreign judgment.)

 

Unlike the cases cited above, the case reported here is one of the rare cases in which the parties sought to recognize a foreign judgment by way of action. The arguments of the Xs, in this case, were particularly convincing. According to Xs, since the foreign judgment did not order the defendants to perform any obligation and since Xs merely sought formal recognition of the foreign judgment, there was no need to have the foreign judgment declared “enforceable” in accordance with the enforcement procedure provided for in Art. 222 FCPA.

However, the decisions of the Dubai courts that UAE courts are only entitled to “enforce” foreign judgments are particularly problematic. First, it demonstrates a serious confusion of basic fundamental notions of private international law. The fact that Xs sought to have the foreign judgment “declared valid” does not mean that Dubai courts were required to consider the foreign judgment’s validity as such but rather to consider whether the foreign judgment could be given effect in the UAE, and this is a matter of “recognition”. Secondly, the courts seem to have forgotten that – as indicated above – they did consider whether a foreign judgment could be given effect in the UAE, albeit incidentally. The fact that such an examination is brought before the court by way of action does not change in anything the nature of the problem in any way. Finally, in the absence of any specific provision on the recognition of foreign judgments, particularly where a party seeks to do so by way of action, there would appear to be nothing to prevent the courts from allowing an interested party to proceed by way of an ordinary action before the court of first instance since the ultimate purpose is not to declare the foreign judgment “enforceable”, as this, indeed, would require compliance with the special procedure set out in Art. 222 FCPA. (For a discussion of the issue from the 2019 HCCH Judgments Conventions, see Béligh Elbalti, “Perspective of Arab Countries”, op.cit., pp. 183, 202, 205).

Conventions & Instruments

On 12 May 2023, Canada deposited its instrument of accession to the 1961 Apostille Convention. This accession marked a historical milestone: the 1000th treaty action relating to an HCCH Convention or Protocol. The 1961 Apostille Convention, which now has 125 Contracting Parties, will enter into force for Canada on 11 January 2024. More information is available here.

On 16 May 2023, North Macedonia signed the 2019 Judgments Convention. The Convention, which currently has 28 Contracting Parties, will enter into force in September 2023, and for North Macedonia only after the deposit of an instrument of ratification (pursuant to Art. 28(2) of the Convention). More information is available here.

On 16 May 2023, Singapore deposited its instrument of accession to the 1965 Service Convention. The Convention, which now has 81 Contracting Parties, will enter into force for Singapore on 1 December 2023 subject to the Article 28 procedure. More information is available here.

On 25 May 2023, Georgia signed the 2007 Child Support Convention and the 2007 Maintenance Obligations Protocol. The Convention and the Protocol will enter into force for Georgia further to the deposit of instruments of ratification. More information is available here.

Meetings & Events

On 15 and 16 May 2023, the seminar “Recognition and Enforcement of Foreign Judgments in the Western Balkan Region: HCCH 2019 Judgments Convention”, co-organised by the Center for International Legal Cooperation (CILC) and the HCCH, was held in The Hague. More information is available here.

On 31 May 2023, the Permanent Bureau of the HCCH organised an online event on the occasion of the 30th anniversary of the 1993 Adoption Convention. More information is available here.

Upcoming Events

Registrations are open for the conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, organised by the HCCH and the University of Bonn. The conference will be held in person on 9 and 10 June 2023 in Bonn, Germany. More information is available here.

Registrations are open for the webinar “Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention”, organised by the HCCH and the Asian Business Law Institute. The webinar will be held on 27 June 2023, 10:00 a.m. to 11:10 CEST. More information is available here.

Other

On 11 May 2023, the Permanent Bureau of the HCCH announced the formal approval of the HCCH-UNIDROIT Joint Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Just a quick note to assure you that last minute registration is welcome. All information is available here.

Written by Veerle Van Den Eeckhout, working at the Research and Documentation Directorate of the CJEU

On 29 April 2023, Veerle Van Den Eeckhout gave a presentation on recent case law of the Court of Justice of the European Union. The presentation, now available online, was entitled “CJEU case-law. A Few Observations on Recent CJEU Case Law with Attention for Some Aspects of Logic and Argumentation Theory.” The presentation was given during the Dialog Internationales Familienrecht 2023 at the University of Münster. This presentation builds upon a previous presentation of the Author, “Harmonized interpretation of regimes of judicial cooperation in civil matters?”, which is now also available online.

 

CJEU case-law. A Few Observations on Recent CJEU Case Law with Attention for Some Aspects of Logic and Argumentation Theory

The presentation focuses on case law of the CJEU regarding international family law, but adopts a broad view, particularly by taking into account also case law outside the field of international family law – especially when issues arise both in the context of international family law and in the context of PIL outside the field of international family law – , and by paying attention to case law of the CJEU outside the pure interpretation of PIL regulations – where a national court  is not asking in its question referred for a preliminary ruling, as such, for an interpretation of a PIL regulation, but the case might, possibly, affect PIL or interrelate with PIL; thus, for example, a recent judgment such as Belgische Staat (Réfugiée mineure mariée), Case C-230/21, regarding a right to family reunification based on Directive 2003/86 was also considered in the analysis.

While presenting case law of the CJEU in PIL matters, the presentation  particularly aimed to explore some aspects of methodology, reasoning, deductions and “consistency”. The research thus presents some aspects of methodology of interpretation of European law by the CJEU – regarding methods the CJEU is using to interpret European law -, as well as some issues of analysis of case law of the CJEU – whereby a case of the CJEU subsequently raises questions regarding its content and reasoning -, and some questions regarding possible further deductions based on the case law of the CJEU. The presentation does not pretend any exhaustiveness in this regard, but rather explores and presents some of these aspects, looking at recent cases of the CJEU.

The PowerPoint of the presentation is available here. A version of this PowerPoint including also an extended version thereof is available here.

 

Harmonized interpretation of regimes of judicial cooperation in civil matters?

The presentation of 29 April 2023 continued on some aspects that were presented in a discussion of case law of the CJEU at the “Lugano Experts Meeting” in June 2022. The  Lugano Experts Meeting 2022 was organised in Bern. The previous Lugano Experts Meeting had taken place in 2017.

The presentation at the Lugano Experts Meeting 2022, on 1 June 2022, essentially concerns case law of the CJEU between 2017 and 2022. It discusses issues of harmonised interpretation of regimes of judicial cooperation in civil matters. It includes some notes on case law of the CJEU regarding the Lugano convention 2007, the Brussels 1 bis regulation, and several second generation regulations such as the European Enforcement Order Regulation, the European Order for Payment Procedure Regulation, and the European Small Claims Procedure Regulation.

As a matter of fact, one may observe a wide range of instruments that are indicated as instruments of “Judicial cooperation in civil matters” (Chapter 3 of Title V of the Treaty on the Functioning on the European Union), interpreted in a continuous stream of decisions (judgments and orders) by the CJEU. The presentation of case law of the CJEU at the Lugano experts meeting offers, inter alia, a discussion of issues of (in)consistency and influence/interaction between regimes, of giving or not a harmonised interpretation, of making possible deductions from a judgment in one context to another context. The relevance thereof is presented particularly in light of preliminary questions to the CJEU, with attention for article 53, paragraph 2, and article 99 of the Rules of Procedure of the Court. Issues and questions arising thereby include, inter alia, the following: what are national judges “supposed to know already” when reflecting about asking a preliminary question to the CJEU; how wide should the CJEU’s field of vision be when assessing whether a question should be answered by order of by judgment, and when deciding about the content of the judgment – taking thereby or not into account the interpretation that has already been given in the context of another instrument.

The PowerPoint of this presentation is available here.

 

*Any view expressed in these presentations is the personal opinion of the author.

This is a friendly reminder to our co-organised event on next Thursday, free admissions can be registered here.

Online event

When making decisions, adults should think about how their decisions will affect children. Recent years have witnessed, in private international law cases and legislation, the protection of children is increasingly mingled with gender, indigenous issues, refugees, violence, war, surrogacy technology, etc. This is evidenced by the US Supreme Court 2022 judgment Golan v. Saada, the Australian case Secretary, Department of Communities & Justice v Bamfield, the 2023 German Constitutional Court decision, the Chinese Civil Code, the Australia Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022, and developments at the Hague Conference on Private International Law (HCCH Children Conventions) and the United Nations (Convention on the Rights of the Child and its additional Protocols).

On this International Children’s Day, let us join this CAPLUS webinar in cooperation with conflictoflaws.net and American Society of International Law Private International Law Interest Group to hear voices of children in private international law.

Speakers

• Ms. Anna Mary Coburn

After 22-years of public service as a U.S. Department of State Attorney-Advisor for Children’s Issues as well as a USAID Regional Legal Advisor/Senior Advisor for Children/Youth in Conflict, Anna has transitioned to practicing international family law with a focus on child rights cases and issues.

• Mr. Philippe Lortie

Philippe is co-head of the International Family and Child Protection Law Division at the Hague Conference on Private International Law Permanent Bureau and has more than 30 years’ experience in the field of child protection.

• Dr. Miranda Kaye

Dr Miranda Kaye is an academic at the Faculty of Law in the University of Technology Sydney in Australia and a member of Hague Mothers, a project aiming to end the injustices created by the Hague Child Abduction Convention. She also has experience in the public service (Law Commission of England and Wales) and as a practicing solicitor (family law in the UK).

• Professor Lukas Rademacher

Lukas is a Professor of Private Law, Private International Law, and Comparative Law in Kiel, Germany. He studied law at the Universities of Düsseldorf and Oxford, and received his PhD at the University of Münster. He wrote his postdoctoral thesis at the University of Cologne.

• Ms. Haitao Ye

Haitao is a lawyer at the Shanghai Office of the Beijing Dacheng Law LLP specializing in marriage and family dispute resolution, family wealth inheritance and management. She is a former experienced judge in civil and commercial trials at the Shanghai Pudong New District People’s Court in China.

Moderators/commentators

• Dr. Jie (Jeanne) Huang (Associate Professor at Sydney Law School, University of Sydney)

 

Thursday 1 June, 6-7.30pm AEST

(4-5.30am Washington D.C./9-10:30am London/10-11.30am the Hague/4-5.30pm Beijing)

RSVP now your free ticket here.

 

This event is proudly co-presented by the Centre for Asian and Pacific Law at the University of Sydney, conflictoflaws.net and the American Society of International Law Private International Law Interest Group.

In a recent decision, the Dubai Supreme Court (DSC) confirmed that enforcing foreign judgments in the Emirate could be particularly challenging. In this case, the DSC ruled against the enforcement of an English judgment on the ground that the case had already been decided by Dubai courts by a judgment that became final and conclusive (DSC, Appeal No. 419/2023 of 17 May 2023). The case presents many peculiarities and deserves a closer look as it reinforces the general sentiment that enforcing foreign judgments – especially those rendered in non-treaty jurisdictions – is fraught with many challenges that render the enforcement process very long … and uncertain. One needs also to consider whether some of the recent legal developments are likely to have an impact on the enforcement practice in Dubai and the UAE in general.

 

The case

 1) Facts 

The case’s underlying facts show that a dispute arose out of a contractual relationship concerning the investment and subscription of shares in the purchase of a site located in London for development and resale. The original English decision shows that the parties were, on the one hand, two Saudi nationals (defendants in the UAE proceedings; hereinafter, “Y1 and 2”), and, on the other hand, six companies incorporated in Saudi Arabia, Anguilla, and England (plaintiffs in the UAE proceedings, hereinafter “X et al.”). The English decision also indicates that it was Y1 and 2 who brought the action against X et al. but lost the case. According to the Emirati records, in 2013, X et al. were successful in obtaining (1) a judgment from the English High Court ordering Y1 and 2 to pay a certain amount of money, including interests and litigation costs, and, in 2015, (2) an order from the same court ordering the payment of the some additional accumulated interests (hereinafter collectively “English judgment”). In 2017, X et al. sought the enforcement of the English judgment in Dubai.

 

2) The Enforcement Odyssey…

a) First Failed Attempt

i) Dubai Court of First Instance (DCFI)

First, X et al. brought an action to enforce the English judgment before the DCFI in accordance with the applicable rules in force at the time of the action (former art. 235 of the 1992 Federal Civil Procedure Act [“1992 FCPA”]). Based on well-established case law, the DCFI rules as follows: (i) in the absence of an applicable treaty, reciprocity should be established (interestingly, in casu, the DCFI considered that the UAE-UK bilateral convention on judicial assistance could not serve as a basis for enforcement since it lacked provisions on mutual recognition and enforcement); (ii) reciprocity can be established by showing that the enforcement requirements in the rendering State are “the same (identical) or less restrictive” compared to those found in the UAE; (iii) it was incumbent on the party seeking enforcement to submit proof of the content of the foreign law pursuant to the methods of proof admitted in the UAE so that the court addressed could compare the enforcement requirements in both countries. Considering that X et al. had failed to establish reciprocity with the United Kingdom (UK), the DCFI refused the enforcement of the English judgment (DCFI, Case No. 574/2017 of 28 November 2017).

X et al. appealed to the Dubai Court of Appeal.

 

ii) Dubai Court of Appeal (DCA)

Before the DCA, X et al. sought to establish reciprocity with the UK by submitting evidence on the procedural rules applicable in England. However, the DCA dismissed the appeal on the ground that the English court did not have jurisdiction. The DCA started first by confirming a longstanding position of Dubai courts, according to which the foreign court’s jurisdiction should be denied if it is established that the UAE courts had international jurisdiction, even when the jurisdiction of the rendering court could be justified based on its own rules; and that any agreement to the contrary should be declared null and void. Applying these principles to the case, the DCA found that Y1 and 2 were domiciled in Dubai. Therefore, since the international jurisdiction of Dubai courts was established, the DCA found that the English court lacked indirect jurisdiction (DCA, Appeal No. 10/2018 of 27 November 2018).

Dissatisfied with the result, X et al. appealed to the Supreme Court.

 

iii) Dubai Supreme Court (DSC)

Before the DSC, X et al. argued that English courts had jurisdiction since the contractual relationship originated in England; the case concerned contracts entered into and performed in England; the parties had agreed on the exclusive jurisdiction of English court and that it was Y1 and 2 who initially brought the action against them in England. However, the DSC, particularly insensitive to the arguments put forward by X et al., reiterated its longstanding position that the rendering court’s indirect jurisdiction would be denied whenever the direct jurisdiction of UAE courts could be justified on any ground admitted under UAE law (DSC, Appeal No. 52/2019 of 18 April 2019).

 

b) Second Failed Attempt

The disappointing outcome of the case did not discourage X et al. from trying their luck again, knowing that the enforcement regime had since been (slightly) amended. Indeed, in 2018, the applicable rules – originally found in the 1992 FCPA – were moved to the 2018 Executive Regulation No. 57 of the 1992 FCPA (as subsequently amended notably by the 2021 Cabinet Decision No. 75. Later, the enforcement rules were reintroduced in the new FCPA enacted in 2022 and entered into effect in January 2023 [“2022 FCPA”]). The new rules did not fundamentally modify the existing enforcement regime but introduced two important changes.

The first concerns the enforcement procedure. According to old rules (former Art. 235 of the 1992 FCPA), the party seeking to enforce a foreign judgment needed to bring an ordinary action before the DCFI.  This procedure was replaced by a more expeditious one consisting in filing a petition for an “order on motion” to the newly created Execution Court (Art. 85(2) of the 2018 Executive Regulation, now the new Art. 222(2) of the 2022 FCPA).

The second concerns indirect jurisdiction. According to the old rules (former Art. 235 of the 1992 FCPA), the enforcement of a foreign judgment should be denied if (1) UAE courts had international jurisdiction over the dispute; and (2) the rendering court did not have jurisdiction according to (a) its own rules of international jurisdiction and (b) its rules on domestic/internal jurisdiction. Now, Art. 85(2)(a) of the 2018 Executive Regulation (new Art. 222(2)(a) of the 2022 FCPA) explicitly provides that the enforcement of the foreign judgment will be refused if the UAE courts have “exclusive” jurisdiction.

Based on these new rules, X et al. applied in 2022 to the Execution Court for an order to enforce the English judgment, but the application was rejected. X et al. appealed before the DCA. However, unexpectedly, the DCA ruled in their favour and declared the English judgment enforceable. Eventually, Y1 and 2 appealed to DSC. They argued, inter alia, that X et al. had already brought an enforcement action that was dismissed by a judgment that is no longer subject to any form of appeal. The DSC agreed. It considered that X et al. had already brought the same action against the same parties and having the same object and that the said action was dismissed by an irrevocable judgment. Therefore, X et al. should be prevented from bringing a new action, the purpose of which was the re-examination of what had already been decided (DSC, Appeal No. 419/2023 of 17 May 2023).

 

Comments

1) The case is interesting in many regards. First, it demonstrates the difficulty of enforcing foreign judgments in the UAE in general and Dubai in particular. Indeed, UAE courts (notably Dubai courts) have often refused to enforce foreign judgments, in particular those rendered in non-treaty jurisdictions, based on the following grounds:

i) Reciprocity (see, e.g., DSC, Appeal No. 269/2005 of 26 February 2006 [English judgment]; DSC, Appeal No. 92/2015 of 9 July 2015 [Dutch judgment (custody)]; DSC, Appeal No. 279/2015 of 25 February 2016 [English judgment (dissolution of marriage)]; DSC, Appeal No. 517/2015 of 28 August 2016 [US. Californian judgment]);

ii) Indirect jurisdiction (see, e.g., DSC, Appeal No. 114/1993 of 26 September 1993 [Hong Kong judgment]; DSC, Appeal No. 240/2017 of 27 July 2017 [Congo judgment]); and

iii) Public policy, especially in the field of family law, and usually based on the incompatibility of the foreign judgment with Sharia principles (see, e.g., DSC, Appeal No. 131/2020 of 13 August 2020 [English judgment ordering the distribution of matrimonial property based on the principle of community of property]. See also, Federal Supreme Court, Appeal No. 193/24 of 10 April 2004 [English judgment conferring the custody of a Muslim child to a non-Muslim mother]; Abu Dhabi Supreme Court, Appeal No. 764/2011 of 14 December 2011 [English judgment order the payment of life maintenance after divorce]). Outside the field of family law, the issue of public policy was raised in particular with respect to the consistency of interests with Sharia principles, especially in the context of arbitration (see, e.g., DSC, Appeal No. 132/2012 of 18 September 2012 finding that compound and simple interests awarded by an LCIA arbitral award did not violate Sharia. But, c.f. Federal Supreme Court, Appeal No. 57/24 of 21 March 2006, allowing the payment of simple interests only, but not compound interests.).

 

Second, the case shows that the enforcement process in the UAE, in general, and in Dubai, in particular, is challenging, and the outcome is unpredictable. This can be confirmed by comparing this case with some other similar cases. For example, in one case, the party seeking enforcement (hereinafter “X”) unsuccessfully sought the enforcement of an American (Nevada) judgment against the judgment debtor (hereinafter “Y”). The DCFI first refused to enforce the American judgment for lack of jurisdiction (Y’s domicile was in Dubai). The decision was confirmed on appeal, but on the ground that X failed to establish reciprocity. Instead of appealing to the DSC, X decided to bring a new action on the merits based on the foreign judgment. The lower courts (DCFI and DCA) dismissed the action on the ground that it was, in fact, an action for the enforcement of a foreign judgment that had already been rejected by an irrevocable judgment. However, DSC quashed the appealed decision with remand, considering that the object of the two actions was different. Insisting on its position, the DCA (as a court of remand) dismissed the action again. However, on a second appeal, the DSC overturned the contested decision, holding that the foreign judgment was sufficient proof of the existence of Y’s debt. The DSC finally ordered Y to pay the full amount indicated in the foreign judgment with interests (DSC, Appeal No. 125/2017 of 27 April 2017).

However, such an approach is not always easy to pursue, as another case concerning the enforcement of a Singaporean judgment clearly shows. In this case, X (judgment creditor) applied for an enforcement order of a Singaporean judgment. The judgment was rendered in X’s favour in a counterclaim to an action brought in Singapore by Y (the judgment debtor). The Execution Court, however, refused to issue the enforcement order on the ground that there was no treaty between Singapore and the UAE. Instead of filing an appeal, X brought a new action on the merits before the DCFI, using the Singaporean judgment as evidence. Not without surprise, DCFI dismissed the action accepting Y’s argument that the case had already been decided by a competent court in Singapore and, therefore, the foreign judgment was conclusive (DCFI, Case No. 968/2020 of 7 April 2021). Steadfastly determined to obtain satisfaction, X filed a new petition to enforce the Singaporean judgment before the Execution Court, which – this time – was accepted and later upheld on appeal. Y decided to appeal to the DSC. Before the DSC, Y changed strategy and argued that the enforcement of the Singaporean judgment should be refused on the ground that the rendering foreign court lacked jurisdiction! According to Y, Dubai courts had “exclusive” jurisdiction over the subject matter of X’s counterclaim because its domicile (place of business) was in Dubai. However, the DSC rejected this argument and ruled in favour of the enforcement of the Singaporean judgment (DSC, Appeal No. 415/2021 of 30 December 2021).

 

2) From a different perspective, one would wonder whether the recent developments observed in the UAE could alleviate the rigor of the existing practice. These developments concern, in particular, (i) the standard based on which the jurisdiction of the foreign should be examined and (ii) reciprocity.

(i) Regarding the jurisdiction of the foreign court, the new article 222(2)(a) of the 2022 FCPA (which reproduces the formulation of article 85(2)(a) of the 2018 Executive Regulation introduced in 2018) explicitly states that foreign judgments should be refused enforcement if UAE courts “have exclusive jurisdiction over the dispute in which the foreign judgment was rendered” (emphasis added). The new wording suggests that the foreign court’s indirect jurisdiction would be denied only if UAE courts claim “exclusive” jurisdiction over the dispute. Whether this change would have any impact on the enforcement practice remains to be seen. But one can be quite sceptical since, traditionally, UAE law ignores the distinction between “exclusive” and “concurrent” jurisdiction. In addition, UAE courts have traditionally considered the jurisdiction conferred to them as “mandatory”, thus rendering virtually all grounds of international jurisdiction “exclusive” in nature. (See, e.g., the decision of the Abu Dhabi Supreme Court, Appeal No. 71/2019 of 15 April 2019, in which the Court interpreted the word “exclusive” in a traditional fashion and rejected the recognition of a foreign judgment despite the fact that the rendering court’s jurisdiction was justified based on the treaty applicable to the case. But see contra. DCFI, Case No. 968/2020 of 7 April 2021 op. cit. which announces that a change can be expected in the future).

(ii) Regarding reciprocity, it has been widely reported that on 13 September 2022, the UAE Ministry of Justice (MOJ) sent a letter to Dubai Courts (i.e. the department responsible for the judiciary in the Emirate of Dubai) concerning the application of the reciprocity rule. According to this letter, the MOJ considered that reciprocity with the UK could be admitted since English courts had accepted to enforce UAE judgments (de facto reciprocity). Although this letter – which lacks legal force – has been widely hailed as announcing a turning point for the enforcement of foreign judgments in general and English judgments in particular, its practical values remain to be seen. Indeed, one should not lose sight that, according to the traditional position of Dubai courts, reciprocity can be established if the party seeking enforcement shows that the rendering State’s enforcement rules are identical to those found in the UAE or less restrictive (see DSC, Appeal No. 517/2015 of 28 August 2016, op. cit.). For this, the party seeking enforcement needs to prove the content of the rendering Stat’s law on the enforcement of foreign judgments so that the court can compare the enforcement requirement in the state of origin and in the UAE. Dubai courts usually require the submission of a complete copy of the foreign provisions applicable in the State of origin duly certified and authenticated. The submission of expert opinions (e.g., King’s Counsel opinion) or other documents showing that the enforcement of UAE judgments is possible was considered insufficient to establish reciprocity (see DSC, Appeal No. 269/2005 of 26 February 2006, op. cit.). The fact that the courts of the rendering State accepted to enforce a UAE judgment does not seem to be relevant as the courts usually do not mention it as a possible way to establish reciprocity. Future developments will show whether Dubai courts will admit de facto reciprocity and under which conditions.

 

Finally, the complexity of the enforcement of foreign judgments in Dubai has led to the emergence of an original practice whereby foreign judgment holders are tempted to commence enforcement proceedings before the DIFC (Dubai International Financial Center) courts (AKA Dubai offshore courts) and then proceed with the execution of that judgment in Dubai (AKA onshore courts). However, this is a different aspect of the problem of enforcing foreign judgments in Dubai, which needs to be addressed in a separate post or paper. (On this issue, see, e.g., Harris Bor, “Conduit Enforcement”, in Rupert Reed & Tom Montagu-Smith, DIFC Courts Practice (Edward Elgar, 2020), pp. 30 ff; Joseph Chedrawe, “Enforcing Foreign Judgments in the UAE: The Uncertain Future of the DIFC Courts as a Conduit Jurisdiction”, Dispute Resolution International, Vol. 11(2), 2017, pp. 133 ff.)

Just late yesterday, Uniform Law Review  published an interesting article that is of significance and relevance to comparative law and conflict of laws. It is titled EE Clotilde, “The reception of OHADA Law in anglophone Cameroon: appraisals and proposals” The abstract reads as follows:

This article assesses the extent to which the law under the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) has been received in anglophone Cameroon after 26 years of existence, with specific focus on the Fako judicial division.1 With regard to the tenets of qualitative research, it is observed that, from the viewpoint of the legal reception technique, it is indisputable that OHADA law has been infused into the English-speaking legal system in Cameroon through legal techniques of transposition. Through the use of interviews and questionnaires as our research tools, it is revealed that this reception remains limited because most judicial actors still find it difficult to implement legislation that they have not yet mastered. Linguistic issues and the difficulties faced in accessing the Common Court of Justice and Arbitration based in Ivory Coast in Abidjan on OHADA-related matters are serious obstacles to its effective implementation. This situation has been worsened by the poor articulation of clichés that tend to radically oppose OHADA law compared to common law principles. This article tries to deconstruct the ideas received as it shows some of the similarities in the substantive law under the two systems and consequently advocates on this basis the idea that efforts be made to familiarize common law jurists with the content of OHADA law. The article recommends that linguistic issues be tackled by OHADA lawmakers right from the stage of legal drafting by using drafting techniques that will reduce the feeling that the common law is being neglected. For uniform acts yet to be translated, the translation process should associate experts in comparative law to enable the use of appropriate legal language in translation from French into English. Only such efforts will entice the common law African countries that are still hesitating to join OHADA law and, by so doing, will render investment in Africa more attractive.

On Tuesday, June 6, 2023, the Hamburg Max Planck Institute will host its 34th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 CEST. Holger Spamann  (Havard Law School) will speak, in English, about the topic

Law Matters – Less Than We Thought. Or: Do Judges Actually Follow Conflict of Law Directives

About the topic:
We conduct a randomized lab experiment with U.S. federal judges. The experiment puts the judges in the shoes of a judge deciding the applicable state law in a civil traffic accident case, which will determine whether a damage cap applies. We randomize the forum (with its choice of law directive) and the location of the accident in one state and the parties’ common domicile in another state.
One forum applies the traditional lex loci delicti rule, which calls for the application of the law of the state where the accident happened. The other forum applies the Restatement 2nd’s “most significant relationship” standard, which in our case calls for application of the law of common domicile. Judges’ decisions reflect this variation, but barely so. The data suggest that they tend to have a preference for lex loci delicti, and against damages caps. By contrast, we do not find that they are biased towards the more sympathetic party, which had been a third experimental treatment in our study.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

To celebrate the 30th anniversary of the 1993 Adoption Convention, the Permanent Bureau of the HCCH will be hosting an online event on Wednesday, 31 May 2023, from 14:00 to 18:00 CEST.

The event will feature two round tables, one on “Learning from the Past” and one on “Looking to the Future”, composed of adoption experts from across the world. It will also feature a panel composed by a birth mother, an adoptive mother, and adopted persons, who will discuss their lived experiences.

During the event, panellists will present their views and will respond to selected questions sent in advance of the event.

 

To register, please visit: https://bit.ly/40Dnptk

For more information, please visit: https://bit.ly/3H8IV2j

 

 

Carlos Santaló Goris, Lecturer at the European Institute of Public Administration in Luxembourg, offers an analysis of an upcoming legislative reform in Montenegro concerning the European Account Preservation Order

In 2010, Montenegro formally became a candidate country to join the European Union. To reach that objective, Montenegro has been adopting several reforms to incorporate within its national legal system the acquis communautaire. These legislative reforms have also addressed civil judicial cooperation on civil matters within the EU. The Montenegrin Code of Civil Procedure (Zakon o parni?nom postupku) now includes specific provisions on the 2007 Service Regulation, the 2001 Evidence Regulation, the European Payment Order (‘EPO’), and the European Small Claims Procedure (‘ESCP’). Furthermore, the Act on Enforcement and Securing of Claims (Zakon o izvršenju I obezbe?enju) also contains provisions on the EPO, the ESCP, and the European Enforcement Order (‘EEO’). While none of the referred EU instruments require formal transposition into national law, the fact that it is now embedded within national legislation can facilitate its application and understanding in the context of the national civil procedural system.

Currently, the Montenegrin legislator is about to approve another amendment of the Act on Enforcement and Securing of Claims, this time concerning the European Account Preservation Order Regulation (‘EAPO Regulation’). This instrument, which entered into force in 2017, allows the provisional attachment of debtors’ bank accounts in cross-border civil and commercial claims. It also allows creditors  with a title at the time of application to apply for an EAPO. According to the Montenegrin legislator, the purpose of this reform is to harmonize the national legislation with the EAPO, as well as creating ‘the necessary conditions for its smooth application’.

In terms of substance, the specific provisions on the EAPO focus primarily on identifying the different authorities involved in the EAPO procedure from the moment it is granted to its enforcement. In broad terms, the content of the provisions corresponds to the information that Member States were required to provide to the Commission by 18 July 2016, and that can be found in Article 50. One provision establishes which are the competent courts to issue the EAPO and to decide on the appeal against a rejected EAPO application. Regarding the appeal procedure, it establishes that creditors have to submit their appeal within the five following days of the date the decision dismissing the EAPO application is rendered. Such a deadline contradicts the text of the EAPO Regulation, which sets a 30-day deadline to submit the appeal, which cannot be shortened by national legislation. This is an aspect that has been uniformly established by the EU legislator, thus it does not depend on national law (Article 46(1)).

Regarding the debtors’ remedies to revoke, modify or terminate the enforcement of an EAPO contained Articles 33, 34 and 35, the reform contains a specific provision to determine which are the competent courts. Interestingly, it also establishes  a 5-day deadline to appeal the decision resulting from the request for a remedy. In this case, the EAPO Regulation does not establish any deadline, giving Member States discretion to establish such deadline. The short deadline chosen contrasts with the 15 days established in Luxembourg (Article 685-5(6) Nouveau Code de Procedure Civile), the one-month deadline chosen by the German legislator (Section 956 Zivilprozessordnung).

Concerning the enforcement phase of the EAPO, it determines which are the authorities responsible for the enforcement. It also acknowledges that there are certain amounts exempted from attachment of an EAPO under Montenegrin law.

Last but not least, the reform also tackles the information mechanism to trace the debtors’ bank accounts. The information authority will be Montenegro’s Central Bank (Centralna Banka). The method that will be employed to trace the debtors’ bank accounts consists of asking banks to disclose whether they hold the bank accounts. This method corresponds to the first of the methods listed in Article 14(5) that information authorities can use to trace the debtors’ bank accounts.

The entry into force of these new EAPO provisions is postponed until Montenegro joins the EU.  While these provisions might seem rather generic, they clearly reveal Montenegro’s commitment to facilitate the application of the EAPO within its legal system and make it more familiar for national judges and practitioners that will have to deal with it.

 

This is a special moment for us after a long way, and forgive us for highlighting it in a special edition of our Repository: Our book on the HCCH 2019 Judgments Convention that we have worked on over the last years has come out! Big thanks to all involved, including Hart Publishing who made this possible.

The HCCH 2019 Judgments Convention
Cornerstones, Prospects, Outlook

 

As kindly highlighted in the Series Editor’s Preface, the book is enriched by the diverse perspectives not only of distinguished legal scholars from around the world, but also experienced practitioners from the HCCH, UNCITRAL and the EU who are familiar with the intricacies of negotiating within the HCCH framework. Furthermore, the volume does not limit itself to examining the legal cornerstones of the convention (Part I) but also strives to illuminate its prospects in leading regions of the world (Part II) and, finally, ventures – based on the insights gained from the judgments project’s genesis – an outlook on future developments (Part III). Hence, the book provides a truly global appraisal of the HCCH 2019 Judgments Convention and is therefore likely to become a major point of reference for legislators, judges, legal scholars and lawyers in the field of Private International Law.

We are happy to announce that the volume will be available at special rates to the conference participants in Bonn on 9 and 10 June 2023. If you are interested in discussing the latest advancements in global judicial cooperation with our learned authors, please be invited to register with sekretariat.weller(at)jura.uni-bonn.de. We will be able to handle last minute registrations …

Today the Hague Academy of International Law begins its celebrations to mark its centenary.

As indicated on its website: “Tirelessly since 1923, the Academy works, in The Hague, rightly named the International City of Peace and Justice, on “the teaching, study, dissemination and wider appreciation of international law”, to take the words of the United Nations General Assembly. After 100 years, it is time to make a short pause, at the occasion of a Solemn Sitting on 24 May, and look at what has been, what is, and also what, beyond the Centenary, must be accomplished by the Academy.”

There are two main events organised:

On Wednesday 24 May a solemn sitting will take place, the agenda is available here.

On Thursday 25 May  and Friday 26 May a colloquium will be held, the agenda is available here. Some of the interesting sessions in our area are “public interest in international law”, “public interest in litigation”, “humanization of private international law” and “the law applicable to international arbitration”.

Both events will be streamed online but only accessible to registered participants.

We (and I am sure all of its alumni) rejoice with the Hague Academy in celebrating this important milestone.

 

 

This post was written bij Helga Luku, PhD researcher at the University of Antwerp.

On 1 March 2023, the Supreme Administrative Court of the Republic of Bulgaria issued its final decision no. 2185, 01.03.2023 (see here an English translation by Nadia Rusinova) in the Pancharevo case. After an appeal from the mayor of the Pancharevo district, the Supreme Administrative Court of Bulgaria ruled that the decision of the court of first instance, following the judgment of the Court of Justice of the European Union (CJEU) in this case, is “valid and admissible, but incorrect”. It stated that the child is not Bulgarian due to the lack of maternal ties between the child and the Bulgarian mother, and thus there is no obligation for the Bulgarian authorities to issue a birth certificate. Hereafter, I will examine the legal reasoning behind its ruling.

Background

On 2 October 2020, the Administrative Court of the City of Sofia in Bulgaria requested a preliminary ruling from the CJEU in the case C-490/20 V.M.A. v. Stolichna Obshtina, Rayon ‘Pancharevo’. It sought clarification on the interpretation of several legal provisions. Specifically, the court asked whether a Member State is obliged, under Article 4(2) of the Treaty on European Union (TEU), Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU), and Articles 7, 24, and 45 of the Charter of Fundamental Rights of the European Union (the Charter), to issue a birth certificate to a child, who is a national of that Member State, in order to obtain the identity document. This inquiry arose with respect to a child, S.D.K.A., born in Spain, whose birth certificate was issued by Spanish authorities, in accordance with their national law. The birth certificate identifies a Bulgarian national, V.M.A., and her wife, a British national, as the child’s mothers, without specifying which of the two women gave birth to the child.

The CJEU decided that Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter, read in conjunction with Article 4(3) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged

• to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and
• to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

The trajectory of the case within the Bulgarian courts

On the basis of the decision of the CJEU in the Pancharevo case, the referring court, i.e. the Administrative Court of the City of Sofia obliged the authorities of the Pancharevo district to draw up the birth certificate of S.D.K.A., indicating two women as her parents.

The mayor of the Pancharevo district then filed an appeal to the Supreme Administrative Court of Bulgaria, contending that the decision is inadmissible and incorrect.

Based on its considerations, the Supreme Court held that the decision of the court of first instance is “valid and admissible but incorrect”. Its rationale is premised on several arguments. Firstly, it referred to Article 8 of the Bulgarian Citizenship Law, which provides that a Bulgarian citizen by origin is everybody of whom at least one of the parents is a Bulgarian citizen. In the present case, the Supreme Court deemed it crucial to ascertain the presence of the biological link of the child, S.D.K.A. with the Bulgarian mother, V.M.A. Thus, it referred to Article 60 of the Bulgarian Family Code, according to which the maternal origin shall be established by birth; this means that the child’s mother is the woman who gave birth to the child, including in cases of assisted reproduction. Therefore, the Supreme Court proclaimed in its ruling that the Bulgarian authorities could not determine whether the child was a Bulgarian citizen since the applicant refused to provide information about the child’s biological mother. Consequently, the authorities could not issue a birth certificate and register the child’s civil status. Furthermore, in a written defence presented to the court of first instance by the legal representative of V.M.A., it was provided that S.D.K.A. was born to K.D.K., the British mother, and the British authorities had also refused to issue a passport to the child, as she was not a British citizen.

The Supreme Administrative Court of Bulgaria ruled that the child is not a Bulgarian citizen, and the conclusion of the CJEU that the child is a Bulgarian citizen and thus falls within the scope of EU law (Articles 20 and 21 TFEU and Article 4 of Directive 2004/38/EC) is inaccurate. According to the Supreme Court’s legal reasoning, these provisions do not establish a right to claim the granting of Bulgarian citizenship, and Union citizenship is a prerequisite for enjoying free movement rights.

In these circumstances, the Supreme Administrative Court of Bulgaria held that the refusal to issue a birth certificate does not result in the deprivation of citizenship or the violation of the child’s best interests. It referred to the law of the host country, Spain. Article 17 of the Spanish Civil Code of July 24, 1889, provides that Spanish citizens by origin are persons born in Spain to parents:

• who are foreigners if at least one of the parents was born in Spain (except for the children of diplomatic or consular officials accredited to Spain),
• who are both stateless, or
• neither of whose national laws confer nationality on the child.

According to this Article, the Supreme Court reasoned that since the national laws of the parents named in the child’s birth certificate (i.e. Bulgarian and UK legislation), issued in Spain, do not grant citizenship to the child, baby S.D.K.A. must be considered a Spanish citizen by virtue of this provision.

The applicability of Spanish law was expressly confirmed by the Spanish Government during the hearing at the CJEU, provided in paragraph 53 of Advocate General Kokott’s Opinion, stating that if the child could claim neither Bulgarian nor UK nationality, she would be entitled to claim Spanish nationality. Thus, the Supreme Court ruled that the child is Spanish and averted the risk of leaving the child stateless.

Is the decision of the Supreme Administrative Court of Bulgaria in conformity with EU law interpretation?

In light of the ruling of the CJEU on the Pancharevo case, certain aspects might have required further scrutiny and more attention from the Supreme Court. Paragraph 68 of the Pancharevo judgment provides:

“A child, being a minor, whose status as a Union citizen is not established and whose birth certificate, issued by the competent authorities of a Member State, designates as her parents two persons of the same-sex, one of whom is a Union citizen, must be considered, by all Member States, a direct descendant of that Union citizen within the meaning of Directive 2004/38 for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto.”

According to this paragraph, it can be inferred that Bulgaria and other Member States must recognize a child with at least one Union citizen parent as a direct descendant of that Union citizen. This paragraph has important implications as regards the establishment of the parent-child relationship. The CJEU, in its case law (C-129/18 SM v Entry Clearance Officer), has firmly established that the term “direct descendant” should be construed broadly, encompassing both biological and legal parent-child relationships. Hence, as a family member of the Bulgarian mother, according to Article 2 (2)(c) of Directive 2004/38, baby S.D.K.A., should enjoy free movement and residence rights as a family member of a Union citizen. In its decision, however, the Supreme Administrative Court of Bulgaria did not conform to the CJEU’s expansive understanding of the parent-child relationship. Therefore, its persistence in relying on its national law to establish parenthood exclusively on the basis of biological ties appears to contradict the interpretation of EU law by the CJEU.

The Supreme Administrative Court of Bulgaria seems relieved to discover that the child probably has Spanish nationality. It can be doubted, however, at what conclusion the court would have arrived if the child were not recognized as Spanish under Spanish nationality laws, especially considering that the child was not granted nationality under UK legislation either. In such a scenario, the Supreme Court might have explored alternative outcomes to prevent the child from becoming stateless and to ensure that the child’s best interests are always protected.

Posted at the request of Shiva Patil, Technical Editor at Trade, Law and Development.

Trade, Law and Development

Call for Submissions

Special Issue

“Sustainability and Inclusivity: Evolving Paradigms of the Global Economy”

Founded in 2009, the philosophy of Trade, Law and Development (TL&D) has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. Towards these ends, the Journal has published works by noted scholars such as the WTO DDG Yonov F. Agah, Dr. (Prof.) Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Dr. (Prof.) Gabrielle Marceau, Prof. Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for several years by Washington and Lee University, School of Law.

Pursuant to this philosophy, the Board of Editors of TL&D is pleased to announce “Sustainability and Inclusivity: Evolving Paradigms of the Global Economy” as the theme for its next Special Issue.

It is indisputably true that sustainability which comprises the three interdependent pillars of “economic growth, social equity, and environmental protection”, is increasingly gaining traction among governments, businesses, research organisations, scholars and the general populace. Discussions in international economic law, including those surrounding world trade, cross-border investment, and development, have abundantly focused on this. Economic benefits of trade ultimately decline while the social and environmental costs rise to unbearable levels, if sustainable trade rules are not in place. Whereas, a more sustainable trade strategy would recognise the need for a more varied export mix, invest in technology, and have minimal trade barriers while balancing long-term resilience with short-term ambitions. Since TL&D’s objective is to provide a forum of exchange of ideas and constructive debate on legal and policy issues, the above-mentioned factors arguably constitute some of the biggest issues for international economic law discourse this year.

While the theme is broad enough to cover a wide range of issues, an indicative list of specific areas is as follows:

• Trade Rules and Environmental Interactions
• Environmental Protection Clauses in International Investment Agreements
• Trade and Human Rights
• Promoting Entrepreneurship/ Trade Facilitation
• Trade and Gender Justice
• Transparency and Good Governance Obligations
• Sustainable Agriculture
• Sustainable Fisheries
• Indigenous Peoples Interaction with International Trade and Investment
• Sustainable Development Goals

These sub-issues are not exhaustive, and the Journal is open to receiving submissions on all aspects related to sustainability and inclusivity in the global economy.

Accordingly, the Board of Editors of TL&D is pleased to invite original, unpublished manuscripts for publication in the Special Issue of the Journal in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’, focusing on the theme of “Sustainability and Inclusivity: Evolving Paradigms of the Global Economy”.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

PATRON: P.P. Saxena | ADVISORS: Raj Bhala | Jagdish Bhagwati | B.S. Chimni | Glenn Wiser | Daniel B. Magraw, Jr. | Vaughan Lowe | Ricardo Ramirez Hernandez | W. Michael Reisman | M. Sornarajah | FACULTY-IN-CHARGE: Dr. Rosmy Joan | BOARD OF EDITORS: Swikruti Nayak | Aastha Asthana | Rashmi John | Ria Chaudhary | Ananya Awasthi | Jahnavi Srivastava | Yashvi Hora | Sunchit Sethi | Shiva Patil| Rishi Pareek | Anoushka | Himanshu Sharma| Priyanshu Shrivastava | Simran Bherwani | Yana Gupta | Alka Mahapatra | Anandita Srivastava | Ishaan Pant | Krishna Ravishankar | Neel Rao | Samiksha Lohia | Shambhavi Uniyal | Sonali P. Raju

In 2014, Adrian Briggs published his own comprehensive account of English Private International Law, taking stock of centuries of English case law and decades of growing European influence. Other than the author’s unique ability to present even the most complex concepts with both clarity and style, the book’s strongest selling point arguably was his conscious decision to put the European instruments at the front and centre of the book, presenting English private international law as the hybrid system that it had long become. As Adrian Briggs later admitted, though, the timing of this project could be described as sub-optimal.

Indeed, in light of the UK’s subsequent departure from the EU and the resulting ‘realignment of the planets’, the second edition required changes that went far beyond a mere update. While some parts of the first edition that engaged with European sources and materials could be preserved as historical background (see, eg, pp. 18-21; 123) or even as descriptions of what has now become ‘retained EU law’ (mainly the Rome I and II Regulations, and with important caveats), other parts had to be rewritten almost entirely. This is most notable in the chapter on Jurisdiction (ch. 3), which according to the author, is now subject to ‘a corpus iuris which is a shambles’, ‘a mess in urgent need of reform’ (p. 129).

It is all the more commendable that Adrian Briggs has undertaken this difficult and presumably depressing task to paint, for the second time, a full picture of English private international law as it stands, again drawing heavily from his decades of experience as an author, teacher, and practitioner. It seems fair to say that most of the apparent coherence of this picture is testimony not to the ease with which European instruments, rules and thoughts could be removed from English law but to the author’s ability to patch up what was left.

(As a footnote, it is a pity for the reader that not only much European law but also the paragraph numbers have been lost between the first and second edition.)

The Belgian Court of Cassation found in a judgment of 10 March 2023 (in Dutch) that the Brussels Court of Appeal was wrong to refuse the granting of a cautio iudicatum solvi against a US company, with principal seat in Colorado.

As previously reported, the cautio iudicatum solvi as stated in the Belgian Code of Civil Procedure (or Judicial Code), Article 851 was declared unconstitutional by the Belgian Constitutional Court in 2018. The Constitutional Court found that the criterion of nationality as basis for the granting of the cautio was not relevant to reach the goal pursued by the legislator, namely to ensure payment of procedural costs and possible damages if the plaintiff loses the suit. The Court called on the legislator to amend the article, but this never happened.

The Brussels Court of Appeal refused to issue the cautio requested by a Belgian defendant as against the US plaintiff, on the basis of the unconstitutionality of the provision. The Court of Cassation, however, stated that Article 851 does not in general infringe Article 6 of the European Convention on Human Rights; the Constitutional Court’s finding of unconstitutionality was based on the principle of non-discrimination, in so far as a Belgian defendant could not use the cautio against any plaintiff without property in Belgium, but only against a non-Belgian plaintiff. As long as the legislator has not rectified the provision, it must according to the Court of Cassation be interpreted in line with the Constitution. This means that the cautio may be granted against any plaintiff with insufficient property in Belgium, irrespective of the plaintiff’s nationality. The Court reiterated that the cautio is outlawed by several international conventions, but none of these conventions applied in the present case.

Just yesterday, Hart Studies in Private International Law officially published an edited book titled: T Lutzi et al, Jurisdiction over Non-EU Defendants: Should Brussels Ia Regulation be Extended?  The blurb reads as follows:

This book looks at the question of extending the reach of the Brussels Ia Regulation to defendants not domiciled in an EU Member State. The Regulation, the centrepiece of the EU framework on civil procedure, is widely recognised as one of the most successful legal instruments on judicial cooperation. To provide a basis for the discussion of its possible extension, this volume takes a closer look at the national rules that currently govern the question of jurisdiction over non-EU defendants in each Member State through 17 national reports. The insights gained from them are summarised in a comparative report and critically discussed in further contributions, which look at the question both from a European and from a wider global perspective. Private international lawyers will be keen to read the findings and conclusions, which will also be of interest to practitioners and policy makers.

The latest Volume (Vol. 65, 2022) of the Japanese Yearbook of International Law – published by the International Law Association of Japan – has been recently released. It features the following articles, case notes as well as English translation of some relevant court decisions relating to private international law.

 

GLOBALIZATION OF SOCIETY AND INTERNATIONAL FAMILY LAW IN JAPAN

Takami Hayashi, Introductory Note (p. 167)

Ryoko Yamaguchi, Interests of the Child in Child Abduction and Visitation Cases — Differences Between Japan’s Domestic and International Criteria— (p. 169)

Takami Hayashi, Transboundary Child Protection in Japan (p. 191)

HAYAKAWA Shinichiro, Japanese Perspective on Legal Issues of International Surrogacy (p. 213)

Moonsook Kim, International Adoption in Korea (p. 231)

Manabu Iwamoto, International Recovery of Maintenance in Japan (247)

 

CASES AND ISSUES IN JAPANESE PRIVATE INTERNATIONAL LAW

Chisato Nakamura, Failure of Service of Judgment Documents and Public Policy Control at The Stage of Recognition and Enforcement of Foreign Judgments (p. 336)

Miho Shin, Habitual Residence in Japanese Private International Law (p. 348)

 

JUDICIAL DECISIONS IN JAPAN (Private International Law)

 

Supreme Court (3rd Petty Bench), Judgment, May 25, 2021 (p.423)

Enforcement of Foreign Judgment — Punitive Damages — Contrary to Public Policy

 

Intellectual Property High Court, Judgment, September 29, 2021 (p. 426)

Applicable Law — Copyright — Employee Work — Copyright Transfer

 

Tokyo District Court, Judgment, February 12, 2020 (p. 430)

Lawsuit for State Redress — Conduct of a Public Employee Outside of Japan

 

Tokyo District Court, Judgment, November 20, 2020 (p. 433)

Applicable Law — Characterization — Succession to Immovables Abroad — Unjust Enrichment

 

Tokyo District Court, Judgment, January 21, 2021 (p. 438)

Nationality Law — Case Requesting Confirmation of Japanese Nationality — Loss of Japanese Nationality due to the Acquisition of Foreign Nationality

 

Tokyo District Court, Judgment, March 9, 2021 (p. 443)

Enforcement of Foreign Judgment — Service of Documents During the Litigation Proceedings — Contrary to Procedural Public Policy

 

More information on the Yearbook (former Annual) and the content of its past volumes are available at http://www.ilajapan.org/jyil/.

The Full text of Vols. 1~62 (1957-2019) is accessible on HeinOnline.