Conflictoflaws

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features the following articles on private international and comparative law:

 

Werner F. Ebke: Prüfungs- und Beratungsnetzwerke und die Unabhängigkeit des Abschlussprüfers: Versuch einer europarechtskonformen Konturierung des § 319b Abs. 1 Satz 3 HGB

Independence is the cornerstone of the law requiring corporations to have their annual financial statements and consolidated statements audited by independent accountants. To ensure confidence in the audit function, EU Directive 2006/43/EC and EU Directive 2014/56/EU emphasize that statutory auditors and audit firms should be independent when carrying out statutory audits. Accordingly, Member States are required to ensure that an auditor or an audit firm shall not carry out a statutory audit if there is any direct or indirect financial, business, employment or other relationship – including the provision of additional non-audit services – between the statutory auditor, audit firm or network and the audited entity from which an objective, reasonable and informed third party would conclude that the statutory auditor’s or audit firm’s independence is compromised. Building on these two Directives, Regulation (EU) 537/2014 states that a statutory auditor or an audit firm carrying out the statutory audit of a public-interest entity (PIE), or any member of the network to which the statutory auditor or the audit firm belongs, shall not directly or indirectly provide to the audited entity, to its parent company or to its controlled companies within the EU any of the prohibited non-audit services listed in its Article 5. The reference to a “network” takes account of the fact that, since the 1980ies, audit firms are increasingly cooperating with each other, both nationally and internationally, to provide audit and consulting services pursuant to (worldwide) uniform standards close to their clients with highly qualified personell at reasonable costs (economies of scale; regional or global presence). Article 2 No. 7 of EU Directive 2006/43/EC contains a broad defintion of the term “network” which is also applicable within the ambit of Regulation (EU) 537/2014. The German legislature has implemented the definition in § 319b of the Commercial Code (HGB), although not verbatim. After a short desciption of the rules requiring the auditor’s independence (II.), we shall illuminate the legal environment within which § 319b operates (III.). Thereafter, the present essay analyses the term “network”, using the classic means of interpretation of statutes and secondary European law in light of the jurisprudence of the ECJ (IV.). Against this backdrop, the application of § 319b will be examined (V.). A brief summary of the findings will conclude the essay (VI.).

 

Francesco A. Schurr/Angelika Layr: Emission und Übertragung von DLT-Wertrechten im internationalen Privatrecht Liechtensteins und der Schweiz

The legal scholarly discussion of the last decade has brought to the establishment of various models in the fields of contract law, property law, company law, securities law etc. Thus, various legal problems in these fields of law could be solved. On the contrary, many legal questions regarding the tension between DLT and the conflict of law rules still need to be answered. The present paper intends to contribute to finding answers to these questions and analyses the progressive legislation of Liechtenstein and Switzerland in the fields of Blockchain. In most scenarios analysed in the paper there is a need to rely on a choice of law clause in order to achieve the desired legal certainty.

 

Marco Lettenbichler: Die Generalversammlung der liechtensteinischen Aktiengesellschaft und die Übertragung von deren Befugnissen auf andere Organe

This article deals with the question whether powers of a general meeting of a Liechtenstein stock corporation are transferable to other organs. According to Art. 338 (3) PGR, the flexible Liechtenstein Persons and Companies Act allows for transferring all tasks assigned by law and by the articles of association to another body. This norm is the subject of this article. It is to be examined whether a full transfer of tasks is compatible with the Liechtenstein legal system. After a legal comparison with Austrian, German and Swiss stock corporation law, it is concluded that there is an inalienable and non-transferable core area of tasks of the general meeting.

 

WANG Qiang: Optimiert oder nur halbherzig geändert? – Die Erbenhaftung für Nachlassverbindlichkeiten in Chinas neuem Erbrecht im rechtswissenschaftlichen und -terminologischen Vergleich zum deutschen Erbrecht

On May 28th 2020, the People’s Republic of China witnessed the promulgation of its Civil Code after having it put on high political and legislative agenda in the past years. Since its founding in 1949, the PRC have undertaken numerous endeavors to codify its civil law, which finally culminated in this codification. A landmark law of the PRC, the new Civil Code embodies furthermore a significant milestone in China’s legal history, especially of civil law legislation, which, in contrast to its long and turbulent history, had not started until the late Qing-Dynasty (1911). With the Civil Code’s implementation on January 1st, 2021, the leges speciales, which had been drawn upon as essential basis for the seven books of the Civil Code, were replaced by the latter. Expecting comprehensive law renewals fulfilled in the course of the codification, legal scholars in the PRC, especially those of the inheritance law, set great hope on the newly codified inheritance law as an initiative to thoroughly update and improve the old one, which had been in force as lex specialis ever since 1985 and needed urgent reform in numerous aspects. However, the long-expected substantial reform of the outdated inheritance law has failed to materialize. First and foremost, the regulations on the heirs’ liabilities for obligations of the estate, which are comprehensive in content and therefore complicated, but at the same time highly important in legal practice, still remain extremely cursory. The article aims at providing an in-depth analysis of the afore-mentioned regulations stipulated in the newly codified inheritance law in comparing them with those of the German inheritance law. Shedding light nevertheless on the reform achievement of the new inheritance law in certain aspects, this article will probe into the roots of the relevant problems while exploring potential solutions mainly from the legal-technical, legal-systematic and legal-terminological perspective.

Written by Mayela Celis, UNED

The oral arguments of the case Golan v. Saada (20-1034) will take place tomorrow (Tuesday 22 March 2022) at 10 am Washington DC time before the US Supreme Court. For the argument transcripts and audio, click here. The live audio will be available here.

We have previously reported on this case here and here.

“QUESTION PRESENTED

The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is:

Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.” (our emphasis)

Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition). Also referred to as protective measures in other regions.

This case stems from the fact that there is a split in the US circuits (as well as state courts).

There were several amicus curiae briefs filed, three of which are worthy of note: the amicus brief of the United States, the amicus brief of Hague Conventions delegates Jamison Selby Borek & James Hergen and finally, the amicus brief filed by Linda J. Silberman, Robert G. Spector and Louise Ellen Teitz.

The amicus brief of the United States stated:

“Neither the Hague Convention on the Civil Aspects of International Child Abduction nor its implementing legislation requires a court to consider possible ameliorative measures upon finding under Article 13(b) that there is a grave risk that returning a child to his country of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Rather, the Convention and ICARA leave consideration of possible ameliorative measures to a court’s discretion.”

The amicus brief of the Hague Delegates coincide with this statement of the United States, while the brief of professors Silberman, Spector and Teitz holds the opposite view.

As is widely known, the US Executive Branch’s interpretation of a treaty is entitled to great weight. See Abbott vs. Abbott 560 U. S. _ (2010); Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176.

In my personal opinion, the position taken by the United States is the correct one.

The fact is that the Hague Abduction Convention is silent on the adoption of ameliorative measures. Article 13 indicates: “the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that […]” (our emphasis). The discretion of the court is thus key. Besides, and as we all aware, the Child Abduction Convention is not a treaty on recognition and enforcement of protective measures.

In some legal systems, this void has been supplemented with additional legislative measures such as the Brussels II ter Regulation (2019/1111) in the European Union. Importantly, this instrument provides for the seamless enforcement of  provisional – including protective – measures, which makes it a much more cogent system (see, for example, recitals 30, 45 and 46, and articles 2(1)(b), 15 – on jurisdiction-, 27(5), 35(2) and 36(1)). And not to mention the abolition of the declaration of enforceability or the registration for enforcement, which speeds up the process even more.

Furthermore, and particularly in the context of the United States, the onus that ameliorative measures exist or could be made available should be placed mainly on the parties requesting the return, and not on the court. See the amicus brief filed by former US judges where they stressed that “mandating judicial analysis of ameliorative measures forces US courts beyond their traditional jurisdiction and interactions with foreign law / civil law judges perform investigatory functions; common law judges do not.”

Arguably, the 13(1)(b) Guide to Good Practice may be read as supporting both views. See in particular:

See paragraph 36: “The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence.” (our emphasis).}

See paragraph 44: “Protective measures may be available and readily accessible in the State of habitual residence of the child or, in some cases, may need to be put in place in advance of the return of the child. In the latter case, specific protective measures should only be put in place where necessary strictly and directly to address the grave risk. They are not to be imposed as a matter of course and should be of a time-limited nature that ends when the State of habitual residence of the child is able to determine what, if any, protective measures are appropriate for the child. In certain circumstances, while available and accessible in the State of habitual residence, measures of protection may not be sufficient to address effectively the grave risk. An example may be where the left-behind parent has repeatedly violated protection orders.” (our emphasis)

But see in contrast paragraph 41 of the Guide, which was mentioned in the amicus brief of Child Abduction Lawyers Association (CALA).

Putting this legal argument aside, and in the context of the United States, there are several reasons why US courts should not be required to consider ameliorative measures (but may do so on a discretionary basis):

• The United States is not a Contracting Party to any global treaty that would allow the recognition and enforcement of protective measures (such as the 1996 Hague Protection of Children Convention – USA is only a signatory State);
• A great number of child abductions occur to and from the United States and Mexico. The Mexican legal system is not familiar with the recognition and enforcement of undertakings or with adopting mirror orders in the context of child abduction (or in any other context for that matter);
• Requiring courts to look into ameliorative measures in every single case would unduly delay abduction proceedings;
• Social studies have revealed that undertakings are very often breached once the child has been returned (usually with the primary carer, the mother), which has the direct result of leaving children and women in complete vulnerability. See Lindhorst, Taryn, and Jeffrey L Edleson. Battered Women, Their Children, and International Law : The Unintended Consequences of the Hague Child Abduction Convention. Northeastern Series on Gender, Crime, and Law. Boston, MA: Northeastern University Press, 2012.

In conclusion, I believe that we all agree that ameliorative measures (or undertakings) are important. But they must be adequate and effective and should not be adopted just for the sake of adopting them without any teeth, as this would not be in the best interests of the child (in concreto).

NASAMER Law Blog, by Dr. Nüsret-Semahat Arsel International Business Law Implementation and Research Center at Koç University, is an online platform featuring posts about international business law – defined broadly.

The blog has been launched in January this year with the inaugural piece written by Prof. Dr. Klaus Hopt entitled “Corporate Governance in the International Discussion“. The Academic Advisory Board of the blog is comprised of prominent scholars from the Universities of Oxford, Zürich, Singapore, LSE and Koç University.

The Editorial Board would like to invite submissions in the form of opinion & current awareness pieces discussing recent news and developments such as judgments and legislative changes and research pieces reporting on recently published or forthcoming literature such as journal articles and books, as well as on recent academic events such as conferences and workshops.

More information about the submission rules, the Academic Advisory Board, and the Editorial Board can be found on the blog website. For any inquiries, please do not hesitate to contact the editors via nasamerblog@ku.edu.tr.

The Chinese University of Hong Kong’ Cross-Border Legal issues Dialogue Seminar Series presents this online seminar by Professor Richard Garnett on 1st April 2022 12.30pm -2pm (Hong Kong time; GMT +8 hours).

The conflict of laws has traditionally drawn a sharp distinction between jurisdiction and applicable law. The conventional approach suggests that a court only reaches the question of the law to be applied to the merits after the tribunal has determined that it has the power to adjudicate the action. Common law systems have however long recognised that a court has a discretion to accept or decline jurisdiction (determine the appropriate forum) and that a relevant factor in this discretion is the applicable law.

The purpose of this presentation is to examine the current status of the applicable law in jurisdiction and forum disputes, noting the trend in countries such as Australia to give the factor substantial weight and significance.

About the speaker:

Richard Garnett is Professor of Private International Law at the University of Melbourne, Australia and a consultant in international disputes at Corrs Chambers Westgarth. Richard regularly advises on cross-border litigation and arbitration matters and has appeared as advocate (barrister) before several tribunals including the High Court of Australia. Richard has written extensively in the fields of conflict of laws, foreign state immunity and international arbitration, with his work cited by leading tribunals around the world, including the International Court of Justice, the European Court of Human Rights, the English Court of Appeal, United States federal district courts, the Singapore Court of Appeal and Australian, Israeli and New Zealand courts. Richard has also served as expert member of the Australian Government delegation to the Hague Conference on Private International Law, to negotiate the 2005 Hague Convention on Choice of Court Agreements and the 2019 Convention on Recognition and Enforcement of Foreign Judgments.

Please register by 5 pm, 31 March 2022 (Hong Kong time; GMT +8 hours) to attend the seminar.

 

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has just issued an “Information Note – Children deprived of their family environment due to the armed conflict in Ukraine”. Click here for the English version and here for the French version. The HCCH news item is available here.

The Center for Law, Economics and Policy Studies (CEDEP) is organising an online course on Choice of Law, International Contracts and the Hague Principles. For more information on this course, click here.

The course will officially begin on Tuesday 22 March 2022, with weekly sessions (a total of 9) to be released on Tuesdays (which may be supplemented with additional lessons in May). The sessions will be in English with Spanish subtitles and will be available throughout the year 2022 on the CEDEP e-learning platform, thus there is no deadline for registration. The registration fee is 90USD – several payment methods are possible (including online). To register click here.

CEDEP has kindly provided in advance the link to the Introductory Session (Choice of Law – 22 March 2022) for Conflictoflaws.net readers, which may be viewed free of charge here: 1. Choice of Law – Introductory Session.

The speakers of the Introductory Session are Luca Castellani (UNCITRAL), Anna Veneziano (UNIDROIT) and Ning Zhao (HCCH) and the topic is UNCITRAL, HCCH, and UNIDROIT Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales. The Legal Guide and other information may be accessed on the Hague Conference website, click here.

The e-learning platform will also make available relevant bibliography, the presentations of the speakers, discounts for a relevant publication and much more. A certificate of participation will be given if a minimum attendance is confirmed.

Below is a list of the speakers per session:

Written by William S. Dodge (Professor, University of California, Davis, School of Law)

Should courts in the United States refuse to recognize and enforcement Chinese court judgments on the ground that China does not provide impartial tribunals or procedures compatible with the requirements of due process of law? Last April, a New York trial court said yes in Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., relying on State Department Country Reports as conclusive evidence that Chinese courts lacked judicial independence and suffered from corruption. As Professor Wenliang Zhang and I pointed out on this blog, the implications of this decision were broad. Under the trial court’s reasoning, no Chinese judgment would ever be entitled to recognition in New York or any of the other U.S. states that have adopted Uniform Acts governing foreign judgments. Moreover, U.S. judgments would become unenforceable in China because China enforces foreign judgments based on reciprocity. But on March 10, just three weeks after oral argument, New York’s Appellate Division answered that question no, reversing the trial court’s decision.

As background, it is important to note that the recognition and enforcement of foreign country judgments in the United States is generally governed by state law. Twenty-eight states and the District of Columbia have enacted the 2005 Uniform Foreign-Country Money Judgments Recognition Act. In nine additional states, its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act, remains in effect. At the time of the trial court’s decision, the 1962 Uniform Act governed in New York, but it was superseded by the 2005 Uniform Act on June 11, 2021. Both Uniform Acts provide for the nonrecognition of a foreign judgment if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”

This systemic lack of due process ground for nonrecognition comes from the U.S. Supreme Court’s 1895 decision in Hilton v. Guyot, issued at a time when lawyers routinely distinguished between civilized and uncivilized nations. It was incorporated in the 1962 Uniform Act at the height of the Cold War, and included in the 2005 Uniform Act without discussion, apparently to maintain continuity with the 1962 Act. Despite its codification for nearly sixty years, fewer than five cases have refused recognition on this ground. The leading case is Bridgeway Corp. v. Citibank, involving a Liberian judgment issued during its civil war, when the judicial system had almost completely broken down.

Shanghai Yongrun involved a business dispute between two Chinese parties, which was submitted to a court in Beijing under a choice-of-forum clause in the parties’ agreement. The defendant was represented by counsel, presented its case, and appealed unsuccessfully. Nevertheless, the New York trial court held that the Chinese judgment was not enforceable because China lacks impartial tribunals and procedures compatible with due process. The court relied “conclusively” on China Country Reports prepared by the State Department identifying problems with judicial independence and corruption in China.

In a brief order, the Appellate Division reversed. It concluded that the trial court should not have dismissed the action based on the Country Reports. These Reports did not constitute “documentary evidence” under New York’s Civil Practice Law and Rules. But more fundamentally, reliance on the Country Reports was inappropriate because they “primarily discuss the lack of judicial independence in proceedings involving politically sensitive matters” and “do not utterly refute plaintiff’s allegation that the civil law system governing this breach of contract business dispute was fair.”

On this, the Appellate Division was clearly correct. The State Department prepares Country Reports to administer provisions of the Foreign Assistance Act denying assistance to countries that consistently engage in gross violations of human rights, not to evaluate judicial systems for other purposes. See 22 U.S.C. §§ 2151n & 2304. The Reports themselves warn that they “they do not state or reach legal conclusions with respect to domestic or international law.” Moreover, if these Reports were used to determine the enforceability of foreign judgments, China would not be the only country affected. An amicus brief that I wrote and fourteen other professors of transnational litigation joined noted that State Department Country Reports expressed similar concerns about judicial independence, corruption, or both with respect to 141 other countries, including Argentina, Brazil, Italy, Japan, Mexico, South Korea, and Spain.

The Appellate Division concluded that “[t]he allegations that defendants had an opportunity to be heard, were represented by counsel, and had a right to appeal in the underlying proceeding in the People’s Republic of China (PRC) sufficiently pleaded that the basic requisites of due process were met.” By focusing on the facts of the specific case, the Appellate Division appears to have taken a case-by-case, rather than a systemic, approach to due process. Such a case-by-case approach is expressly permitted under the 2005 Uniform Act, which adds as a new ground for nonrecognition that “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.” Such a case-specific approach avoids the overinclusiveness of denying recognition on systemic grounds when there are no defects in the judgment before the court.

The Appellate Division’s decision in Shanghai Youngrun continues the growing trend that Professor Zhang and I have noted of U.S. decisions recognizing and enforcing Chinese judgments. Just two months before this decision, in Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, a U.S. district court in Illinois recognized and enforced a Chinese judgment in another business dispute. The court expressly rejected the New York trial court’s holding in Shanghai Yongrun, noting “the multiple federal cases … where American courts enforced Chinese court judgments and/or acknowledged the adequacy of due process in the Chinese judicial system.” One hopes that this trend will continue.

 

On Tuesday, April 5, 2022, the Hamburg Max Planck Institute will host its 21th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Prof. em. Dr. Dr. h.c. mult. Erik Jayme (University of Heidelberg) will speak, in German, about the topic

 

International Art Law: Signs of Disintegration in Classical Private International Law

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.

Deadline extended: Funding opportunities under the justice programme in the area of judicial cooperation in civil and criminal matters (JUST-2022-JCOO).

The deadline for proposal submission to the call for proposals for action grants to promote judicial cooperation in civil and criminal matters has been extended.

The new deadline for submission is the 30 March 2022 – 17:00:00 CET, Brussel’s time.

The total budget available for the call is EUR 5.500.000. The co-financing rate is 90%.

The key priorities for 2022 under this call are to contribute to the effective and coherent application of the EU acquis relating to judicial cooperation in civil and criminal matters, thus strengthening mutual trust.

In particular, the call aims to

1. facilitate and support judicial cooperation in civil and criminal matters
2. promote the rule of law, independence and impartiality of the judiciary, including by supporting the efforts to improve the effectiveness of national justice systems, and the effective enforcement of decisions

The call-related documents, guidance and other instructions are available in the call page within the funding & tender opportunities portal (F&T).

Project activities under this call would in principle include:

1. facilitating cooperation between competent authorities and agencies, legal practitioners and/or service providers (including multi-disciplinary networks at international, national, regional or local levels);
2. mutual learning, identifying and exchange of best practices, development of working methods which may be transferable to other participating countries;
3. analytical activities, including data collection, surveys, research, etc.;
4. exchange and provision of information and development of information tools;
5. capacity building for professionals;
6. dissemination and awareness raising activities;
7. training activities can also be funded under this call, as long as they are of ancillary nature and not the main purpose of the project.

Any further request for information can be addressed to  EC-JUSTICE-CALLS@ec.europa.eu

Kadir Has University Climate Change and Law Laboratory (CCLLAB), continues its series of events on legal aspects of Climate Change. At the sixth session of Climate Change and Law Seminars, Kadir Has University Climate Change and Law Laboratory (CCLLAB) will be honored by the lecture of Prof. Dr. Sam Fankhauser on Trends in Climate Legislation. Event is open to public via Zoom. No formal registration required; we would appreciate however if you confirm your participation by sending an e-mail to ccllab@khas.edu.tr. To find out more about our lab, please visit https://ccllab.khas.edu.tr/

Sam Fankhauser is Professor of Climate Economics and Policy at the University of Oxford, where he is affiliated with the Smith School of Enterprise and the Environment and the School of Geography and the Environment. He is also Research Director of Oxford Net Zero. Before moving to Oxford, Sam was Director of the Grantham Research Institute on Climate Change and the Environment at the London School of Economics, where he remains a Visiting Professor. He has also worked at the European Bank for Reconstruction and Development (EBRD), the World Bank and the Global Environment Facility.

You are kindly invited to the online conference on “Cross-border portability of refugees’ personal and family status – a plea for better interplay between private international law and migration law” by Prof. Dr. Jinske Verhellen on March 16, 2022, Wednesday between 12.30-13.30 (GMT+3). The conference is organized by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge. Please contact us (Jmmigration@bilkent.edu.tr) for participation.

Biography:
Jinske Verhellen is a Professor of Private International Law and Head of the Institute for Private International Law at the Faculty of Law and Criminology of Ghent University (Belgium). She is a member of the Ghent University Interfaculty Research Group CESSMIR (Centre for the Social Study of Migration and Refugees) and of the Ghent University Human Rights Research Network. She has published on various aspects of private international law, international family law, migration law, and nationality law.
Abstract:
The lecture will address several legal problems encountered by refugees with regard to their personal and family status acquired in one country and transferred to another country (such as the absence of documentary evidence, the issue of limping legal relationships). It will focus on the interactions between international refugee law (relating to the rights and obligations of States regarding the protection of refugees) and private international law (dealing with private relationships in a cross-border context). These two sets of rules still operate in very different and even separated universes. The following issues will be covered: specific private international law hurdles that refugees have to take, the concept of personal status (age, parental status, marital status) in international refugee law, and the role of private international law conventions in the international protection of refugees.

This Thursday AG Pikamäe delivered his Opinion in the case LKW Walter, C-7/21. The request for a preliminary ruling originates in the proceedings on a litigation malpractice action, between a company established under Austrian law and the lawyers established in that Member State, who represented the said company in the proceedings in which it acted as a defendant.

By this request, the referring court seeks the interpretation of the Brussels I bis Regulation, of the Service Regulation and of the Article 18(1) TFEU (interdiction of discrimination on the grounds of nationality).

 

Legal and factual context

In litigation malpractice actions, a court seized with such action has usually to establish the hypothetical outcome of the litigation within which the malpractice allegedly had place, assuming that it did not happen. Thus, these actions have the potential of giving rise to a so-called “litigation within litigation” scenario.

The particularity of the case LKW Walter, C-17/21, results from the specific object of action brought before the Austrian courts. Here, the alleged malpractice is supposed to result from the negligence that, according to the claimant, have occurred in the proceedings pending before Slovenian courts.

In fact, a decision on enforcement, in Slovenian, adopted in these proceedings, has been served, by post, to the Austrian company. Under Slovenian law, a reasoned objection against such decision on enforcement must be lodged within eight days.

However, the lawyers – now the defendant lawyers – failed to lodge the reasoned objection within the time limit provided for in Slovenian law. It happened within twelve days of service of the decision. Ultimately, the Austrian company settled in full the debt established by the decision on enforcement.

The Austrian company brought the action against its lawyers before the courts of that Member State. Here, the defendant lawyers argue, in particular, that the time limit set by the Slovenian legislator is not compatible with EU law.

Faced with that line of defence, the Austrian court decided to request a preliminary ruling from the Court of Justice. As an outcome, by its preliminary questions, the referring court in the present case seeks the interpretation of EU law in order to benchmark against it the provisions of Slovenian law. That configuration may bring to mind the judgment of the Court in the case Werynski, C-283/09.

 

Preliminary questions

The referring court in the present case asks:

1) Are Articles 36 and 39 of [the Brussels I bis Regulation], read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and the principles of effectiveness and equivalence [principle of sincere cooperation under Article 4(3) TEU], to be interpreted as precluding a provision of a Member State [under which] an objection [against a decision of enforcement] must be lodged within eight days in the language of that Member State, even if the decision on enforcement is served in another Member State in a language which the addressee does not understand, and the objection is already rejected as being out of time if it is lodged within twelve days?

2) Is Article 8 of [the Service Regulation], read in conjunction with the principles of effectiveness and equivalence, to be interpreted as precluding a national measure which provides that, upon service of the standard form set out in Annex II informing the addressee of his or her right to refuse to accept the document within a period of one week, the period also begins to run in respect of bringing the appeal provided for against the decision on enforcement served at the same time, for which a period of eight days is laid down?

3) Is Article 18(1) TFEU to be interpreted as precluding a provision of a Member State which provides for, as the remedy against a decision on enforcement, an objection, which must be lodged within eight days, and that time limit also applies where the addressee of the decision on enforcement is established in another Member State and the decision on enforcement is not written either in the official language of the Member State in which the decision on enforcement is served or in a language which the addressee of the decision understands?

 

Assessment of the preliminary questions provided for in the Opinion

In his Opinion, AG Pikamäe proposes to the Court to address, in the first place, the second preliminary question on the interpretation of Article 8 of the Service Regulation.

In his view, Article 8(1) and (3) of the Service Regulation, read in conjunction with Article 47 of the Charter, does not preclude a provision of a Member Stater under which the time limit for lodging an objection against a decision embodied in a judicial document served in accordance with Service Regulation begins to run from the time of service of the document in question, and not only after the expiry of the one-week time limit provided for in Article 8(1) for refusing to accept the document (point 56).

As a reminder, Article 8(1) of the Regulation provides that it is possible to refuse to accept the document at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, a language which the addressee understands or the official language of the Member State addressed. The Austrian company, represented by the defendant lawyers, did not exercise such right of refusal after being served with the Slovenian decision on enforcement (see point 99).

 

 

Concerning the first preliminary question, AG debates the admissibility of the question. He considers that the Court should answer it: the question benefits from the presumption of its relevance and the referring court seeks the interpretation of EU law in order to pronounce itself on the line of defence put forward by the defendant lawyers (point 59). I can speculatively imagine that the defendant lawyers could argue that it was not necessary to satisfy the debt established by the decision on enforcement as it was not enforceable in Austria or, in the alternative, it was possible to contest its enforcement in that Member State (and, thus, in the extension of this logic, the Austrian company prematurely settled the debt and/or contributed to the damage it incurred).

In any case, according to AG, the second preliminary question calls for its reformulation. He considers that the referring court in actuality seeks the interpretation of Articles 45(1)(b) and 46 of the Brussels I bis Regulation (ground for refusal of enforcement, based on the improper service of the decision), read in conjunction with Article 47 of the Charter (point 62). In essence, he proposes to consider that these provisions call for a refusal of enforcement of the decision in circumstances such as those of the present case (point 93).

 

Finally, as to the third preliminary question, AG takes that view that Article 18(1) TFEU does not apply to a situation in which the addressee of a judicial document has waived his (her) right to refuse service of that document in accordance with Article 8(1) of the Service Regulation (point 101).

 

The Opinion can be consulted here (no English version yet).

Meeting of the Council on General Affairs and Policy

The Council on General Affairs and Policy of the HCCH met online from 28 February to 4 March 2022, with over 450 participants. Over the course of five days, HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

Several important developments relating to Membership and HCCH Conventions occurred during the meeting:

• El Salvador deposited its instrument of acceptance of the Statute, becoming the 91stMember of the HCCH.
• Ecuador signed the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol and deposited its instrument of ratification of both instruments, which will enter into force on 1 July 2022.
• The United States of America signed the 2019 Judgments Convention, becoming its sixth signatory.

More information on these developments is available here.

 

Other developments

 

Conventions & Instruments

On 1 January 2022, the HCCH 1965 Service Convention entered into force for Georgia. It currently has 79 Contracting Parties. More information is available here.

On 18 February 2022, the Philippines signed the 2007 Child Support Convention. The Convention will enter into force for the Philippines further to the deposit of its instrument of ratification. More information is available here.

 

Meetings & Events

From 11 to 20 January 2022, the International Hague Network of Judges (IHNJ) met via videoconference, with the participation of judges from 35 States. Established in 1998, the IHNJ facilitates international cooperation and communication between judges on the cross-border protection of children. More information is available here.

On 28 January 2022, the HCCH participated in the panel discussion “Thailand and the HCCH Core Conventions: Connecting Possibility and Approach”, organised by the Ministry of Justice of Thailand.

From 7 to 9 February 2022, the International Transfer of Maintenance Funds Experts’ Group met via videoconference. The Group continued its work discussing good practices and identifying possible future improvements in relation to the cross-border transfer of child support payments, with a view to facilitating the most cost-effective, transparent, prompt, efficient and accessible cross-border transfer of funds. More information is available here.

From 14 to 18 February 2022, the second meeting of the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation was held via videoconference. The Group made further progress on the development of draft provisions on parallel litigation in civil or commercial matters, which may occur when separate proceedings are instituted before the courts of different States. More information is available here.

 

Publications and Documentation

On 22 February 2022, the Permanent Bureau launched consultations on the draft Practical Handbook on the Operation of the 2000 Protection of Adults Convention. More information is available here.

On 28 February 2022, the Permanent Bureau announced the publication of the HCCH 2021 Annual Report. More information is available here.

 

Vacancies

Applications are now open for three- to six-month legal internships from July to December 2022. The deadline for the submission of applications is 17 March 2022 (18:00 CET). 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.

From March 15 to May 19, 2022, as part of the three-year European project called Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe, will take place the 2nd edition of the cycle of online seminars on transnational civil and commercial litigation in Europe. Among the novelties of this edition, the participation of professionals from the European Court of Human Rights, the European Central Bank, the World Intellectual Property Organization and the Sabin Center for Climate Change Law, Columbia Law School, New York. The initiative has received the patronage of the Chamber of International Lawyers, the Italian National Council of Notaries, the European Union of Judicial Officers, the Transnational Dispute Management network and the DEuTraDiS Research Center.

Deadline for registration: March 15, 2022.

Here the registration form and the official flyer.

On 7 March 2022, the Conclusions & Decisions of the governing body of the Hague Conference on Private International Law (HCCH), i.e. the Council on General Affairs and Policy (CGAP), were released. Click here for the English version and here for the French version.

For official information on the ceremony of signatures and ratifications of instruments, click here (HCCH news item). For our previous post on the signature of the USA of the 2019 Judgments Convention, click here.

Although a wide range of topics was discussed, I would like to focus on two: publications and future meetings.

1) Publications

This meeting was very fruitful in getting the necessary approval for HCCH publications. There were three publications approved, ranging from family law to access to justice for international tourists.

Family law

The Council adopted the following decision: “12. CGAP approved the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children, subject to editorial amendments, for publication.”

The Report of the Experts’ Group on Cross-Border Recognition and Enforcement of Agreements in Family Matters Involving Children (meetings of 14-15 September and 29-30 November 2021) is available here. The Chair of the Experts’ Group is Professor Paul Beaumont. The work of this Expert’s Group has ended.

The draft of the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children has been made available. For French, click here.

As some of you may be aware, this tool is an alternative to the drafting of a binding instrument in this area. In 2017, the Experts’ Group drafted the following Conclusion and Recommendation for the attention of the Council on General Affairs and Policy of March 2018:

“Therefore the Experts’ Group recommends to the Council to develop a new Hague Convention that would build on, and add value to, the 1980, 1996 and 2007 Hague Conventions, and be developed with a view to attracting as many States as possible.”

The reasoning of the Experts’ Group was the following:

While the existing Hague Family Conventions encourage the amicable resolution of disputes involving children, they do not contemplate the use of “package agreements” (i.e., family agreements related to custody, access, relocation and/or child support and which may include spousal support and other financial matters, such as property issues) and do not provide a simple, certain or efficient means for their enforcement. From the Group’s experience it is recognised that such agreements are increasingly frequently used. Very often the matters covered require the simultaneous application of more than one Hague Family Convention while some elements of those package agreements are not within the scope of any of the existing Hague Family Conventions. This creates difficulties for the enforcement of package agreements.

Unfortunately (or fortunately depending on how people may view this), this initiative was not taken on board by Council in 2018. See here.

Apostille

The Council adopted the following decision: “31. CGAP approved the second edition of the Practical Handbook on the Operation of the Apostille Convention, subject to editorial amendments, for publication.” This draft is not yet publically available.

The first edition of the Apostille Handbook is available here.

Access to Justice for international tourists and visitors

The Council adopted the following decision: “3. CGAP approved the Practical Guide to Access to Justice for International Tourists and Visitors, subject to editorial amendments, for publication on the HCCH website.”

The draft of the Practical Guide to Access to Justice for International Tourists and Visitors is available here.

As with the recognition and enforcement of agreements reached in the course of family matters, the initial proposal was the developing of a new instrument.

At its meeting in 2013, the CGAP took note of the suggestion by Brazil to undertake work on co-operation in respect of protection of tourists and visitors abroad. See in particular Prel. Doc. No 3 of February 2018 – Final report concerning a possible future Convention on Co-operation and Access to Justice for International Tourists drafted by Professor Emmanuelle Guinchard.

2) Meetings

With regard to future meetings, there are a few meetings in the pipeline:

Special Commission meetings (SC) in 2022 (basically, a global meeting of experts):

• Special Commission on the practical  operation  of  the  2007 Child Support Convention and its Protocol  – to be held from 17 to 19 May (in-person meeting) – This will be the first meeting ever of the SC on this topic
• Special Commission on the practical  operation  of  the  1993  Adoption  Convention – to be held from 4 to 8 July (online meeting)
• Special Commission on the practical  operation  of  the  2000 Protecion of Adults  Convention – to be held from 9 to 11 November – Tnis will be the first meeting ever of the SC on this topic

And finally, the Working Group on matters related to jurisdiction in transnational civil or commercial litigation – to hold “two further meetings before the 2023 meeting of CGAP, with intersessional work as required”.

 

A research seminar on the topic “Hard Legal Problems and Comparative Legal Analysis: The case of parental child abduction in international and Islamic law” is organised by the Aberdeen Centre for Private International Law under the auspices of the Aberdeen Law School Research Seminar Series. The seminar will be delivered by Professor Anver Emon from the Faculty of Law of the University of Toronto, Canada, and will be held on Friday 11 March 2022, 5-6.30 p.m. (UK time), through MS Teams. For more information, click here.

A new series of webinars on the application of the EU Succession Regulation in the Member States will be organised in the framework of the ELI SiG Family and Succession Law. In five webinars of two hours each, representatives of the Member States will talk about their experiences within their respective legal systems.

The organizers state the objectives of the event series as follows (emphasis added):

 

“Join us for the webinar series on the ‘Application of the EU Succession Regulation in the Member States’! 

The five webinars organized within the Special Interest Group on Family and Succession Law of the European Law Institute will take place between March and June 2022 and shall shed light on the actual practice regarding cross border succession cases in the Member States. The reporters will open the webinars with short introductory statements and will then take part in a lively panel discussion on the application of the EU Succession Regulation in their respective jurisdictions. The results of these webinars will be presented as comparative reports at an online conference in September 2022.

 

Attendance is free of charge. A ZOOM link will be sent to those who register by sending an e-mail to  zivilrecht@uni-graz.at

 

For more information see the program (provided below)!

 

Gregor Christandl        Jens Kleinschmidt       Jan Peter Schmidt

Univeristät Graz                   Universität Trier          Max Planck Institute

 

 

 

PANEL 1 TUESDAY, 15 MARCH, 4-6 pm CET Belgium Patrick Wautelet, Université de Liège Estonia Karin Sein, University of Tartu France Stefan Stade, ArteJURIS Cabinet d’Avocats, Strasbourg Portugal Afonso Patrão, University of Coimbra PANEL 2 TUESDAY, 5 APRIL, 4-6 pm CET Bulgaria Boriana Musseva, University of Sofia Latvia Janis Grasis, Riga Stradins University Malta Paul George Pisani, Notary Public, Victoria The Netherlands Katja Zimmermann, University of Groningen Spain Guillermo Palao Moreno, University of Valencia PANEL 3 TUESDAY, 26 APRIL, 4-6 pm CET Czech Republic Magdalena Pfeiffer, Charles University, Prague Germany Lena Kunz, University of Heidelberg Lithuania Katažyna Bogdzevic, Mykolas Romeris University Poland Anna Wysocka-Bar, Jagiellonian University Romania Daniel Berlingher, Vasile Goldis Western University of Arad PANEL 4 TUESDAY, 31 MAY, 4-6 pm CET Austria Brigitta Lurger, University of Graz Croatia Mirela Župan, University of Osijek Hungary Csongor István Nagy, University of Szeged Slovakia Elena Judova, Matej Bel University Slovenia Jerca Kramberger Škerl, University of Ljubljana PANEL 5 TUESDAY, 21 JUNE, 4-6 pm CET Cyprus Achilles Emilianides, University of Nicosia Finland Tuulikki Mikkola, University of Turku Greece Haris P. Pamboukis, Giorgos Nikolaidis, University of Athens Italy Domenico Damascelli, University of Salento Sweden Michael Bogdan, University of Lund ”

Additional information may be obtained from the accompanying PDF Document.

 

 

 

 

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The seventh EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

In this framework, the EFFORTS International Exchange Seminar was organised and hosted online by the Max Planck Institute Luxembourg on February 25th, 2022: an account of the resulting engaged discussions between academics and practitioners in the field of cross-border enforcement of claims will be given in the Report on practices in a comparative and cross-border perspective, to be published soon on the Project website.

Regular updates are also available via the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

The Conference represents the final event of the JUDGTRUST Project, funded by the Justice Programme of the European Union. The objective of the Project is to identify best practices and to provide guidelines in the interpretation and application of Regulation 1215/2012 (BI-bis). The JUDGTRUST Project is coordinated by the T.M.C. Asser Instituut and carried out in partnership with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut.

The Conference will host panels on, inter alia, the scope of application, relationship with other instruments, rules on jurisdiction, provisional measures, as well as enforcement and recognition of foreign judgments. Additionally, the key findings from the National Reports of the EU Member States will be presented. It aims to bring together academics, policy makers and legal practitioners. It will take place on 21 – 22 April 2022 at the T.M.C. Asser Instituut, The Hague.

Further information and a link for registration can be found @ T.M.C. Asser Instituut – Events.

Speakers:
Prof. Dr. Markus Tobias Kotzur, University of Hamburg
Dr. Vesna Lazic, Asser Institute, The Hague; Utrecht University
Prof. Dr. Burkhard Hess, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law
Mr. David Althoff, International Legal Institute, The Hague
Prof. Dr. Louise Ellen Teitz, Roger Williams University School of Law, Bristol, Rhode Island
Prof. Dr. Wolfgang Hau, Ludwig-Maximilians University of Munich
Prof. Dr. Antonio Leandro, University of Bari
Mr. Michiel de Rooij, Asser Institute, The Hague
Prof. Dr. Javier Carrascosa González, University of Murcia
Prof. Dr. Pietro Franzina, Catholic University of the Sacred Heart in Milan
Prof. Dr. Gilles Cuniberti, University of Luxembourg
Dr. Fieke van Overbeeke, International Legal Institute, The Hague
Dr. Mukarrum Ahmed, University of Lancaster
Prof. Dr. Jachin Van Doninck, Free University Brussels
Prof. Dr. Luis de Lima Pinheiro, University of Lisbon
Ms. Lisette Frohn, International Legal Institute, The Hague
Prof. Dr. Beatriz Añoveros Terradas, University of Barcelona
Dr. Pontian Okoli, University of Stirling
Prof. Dr. Francesca Clara Villata, University of Milan

Moderators:
Prof. Dr. Johan Meeusen, University of Antwerp
Prof. Dr. Marta Pertegás Sender, University of Antwerp
Dr. Fieke van Overbeeke, International Legal Institute, The Hague
Ms. Lisette Frohn, International Legal Institute, The Hague

Coordinator

JUDGTRUST is coordinated by Vesna Lazic, senior researcher in private international law at the Asser Institute. She is part of the ‘Public interest(s) inside/within international and European institutions and their practices’ research strand. She has published extensively on international trade law, international commercial arbitration, and European private international law.

The EAPIL asked us to share information about their Webinar “What Measures Should the EU Adopt to Enhance the Protection of Adults in Europe?” on 10 March from 17 to 19.00 Central European Time (GMT +1). You can register until 9 March.

This is in response to the European Commission’s public consultation on the need for improved EU cooperation in the field of the protection of adults, in conjunction with the Hague Convention of 2000.

Also of note is that the Hague Conference on Private International Law is in the process of drawing up a practical handbook and has launched its consultation with Member States on the the draft practical handbook.