Conflictoflaws

The EAPIL Young Research Network is looking forward to welcoming the academic and research community to the beautiful city of Dubrovnik on 14 and 15 May 2022 for a closing conference on the EAPIL Young Research Network’s third research project with the title: Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended?

The research project aimed at facilitating a critical discussion of the possibility envisaged in Art. 79 Brussels Ibis Regulation of extending the personal scope of the jurisdictional rules contained in the Regulation.

The conference will include a presentation of the research project and its core results as well as discussions with the representatives of the European Commission, the Hague Conference on Private International Law and leading scholars. The Conference will be held at the Inter-University Centre located at the address Don Frana Buli?a 4, in close vicinity of the Dubrovnik historical centre.

There is no fee for attending the conference and we are providing limited assistance in booking the most appropriate accommodation (as explained in the application form).

Please direct all inquiries regarding the conference to youngresearch@eapil.org.

• Conference Program
• Application Form

Today, 2 March 2022, the United States of America (USA) signed the HCCH 2019 Judgments Convention. This made the world’s largest economy the sixth signatory state to the new legal instrument, following Uruguay, Costa Rica, Israel and, intricately, Ukraine and the Russian Federation. However, read in conjunction with the recent proposal of the European Commission, the U.S. signature demonstrates the (still) strong interest in a global legal framework for judicial cooperation in the recognition and enforcement of foreign judgments.

Originally posted on the NGPIL website

The NGPIL previously announced a Prize of 300 British Pounds Sterling for the best paper on Nigerian conflict of laws for an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practicing and residing in Nigeria.

A call for paper commenced in September 2021 with submissions received from participants across various States in Nigeria, entries from undergraduates and postgraduates in law, and early years post-call practitioners.

Following the submission deadline on 10 January 2022, the NGPIL made an assessment that Mr Solomon Adegboyo, an LLM student at the University of Ibadan, emerged winner of the competition.  Mr Adegboyo’s winning entry is titled “Tort in the Conflict of Laws: A Comparative Analysis”. Mr Olawale Adeosun, an LLM student at the University of Lagos, emerged the first runner up. Miss Hope Olajumoke a Nigerian law graduate (1 year post call to the Bar, Ekiti State University) emerged the 2nd runner up.

The response to the call was very encouraging and it is hoped this will be the springboard to encouraging, nurturing, and strengthening the foundations of private international law in Nigeria from earlier stages of academia and practice. This initiative will also assist with targeting areas of improvement such as addressing the lack of materials and resources on conflict of laws in Nigeria.

Huge congratulations to the winner and thank you to our runners-up and other participants!

Yesterday (1 March 2022) the Institute of International Law approved a declaration on the aggression in Ukraine. The declaration is available by clicking the following links:

Declaration of the Institute of International Law on Aggression in Ukraine – 1 March 2022 (EN)-1

Déclaration de l’Institut de Droit international sur l’agression en Ukraine – 1 mars 2022 (FR)

The current developments in Ukraine and the measures and sanctions currently in place have undoubtedly an impact across all areas, including private international law. See for example the measures adopted by the European Union here.

I include an excerpt of the declaration below:

The Institute recalls that the ongoing military operations call ipso facto for the application of international humanitarian law, including the rules relating to occupation, as well as all the other rules applicable in times of armed conflict. It recalls also that persons responsible for international crimes as defined by international law may be prosecuted and sentenced in accordance with the law in force.

Faithful to its mission, the Institute remains convinced that, while international law alone cannot prevent the outbreak of violence, it must remain the compass by which States are guided, and it is more than ever determined to strengthen its work to promote “the progress of international law”. The Institute adds its voice to that of other actors in the international community, including the learned societies acting in defense of the rule of law, who call for an end to the war in Ukraine and the settlement in good faith of disputes between the States concerned through all appropriate means of peaceful settlement.

The Institute for Private International and Comparative Law of the University of Cologne (Professor Mansel) is looking to appoint one to two Research Assistant(s) (Wissenschaftliche/r Mitarbeiter/in) on fixed-term contracts for 2 years, with contract extension possible, based in Cologne. The successful candidate(s) can be appointed full time (39.83 hrs/week) or part-time (19.92 hrs/week), with the latter option allowing for the completion of a PhD thesis. A German State Exam in law with above-average marks is required. In addition, proficiency in the Dutch, Italian, Spanish, or French language is an advantage. The remuneration will be based on pay group 13 TV-L.

The University of Cologne promotes equal opportunities and diversity in its employment relationships. Women are expressly invited to apply and will be given preferential treatment in accordance with the LGG NRW. Applications from severely disabled persons are very welcome. They will be given preferential consideration if suitable for the position.

Interested candidates are invited to send their detailed application including the usual documents in a single .pdf file by 20 March 2022 to ipr-institut@uni-koeln.de, for the attention of Professor Mansel.

In Memoriam Prof. Konstantinos D. Kerameus (21.4.1937-26.12.2021)

Professor Kerameus started his academic career at the Law School of the Aristotle University of Thessaloniki, in his home town, and completed his career at the University of Athens. He taught Civil Procedure, Comparative and International Procedural Law in Greek and other leading Universities abroad.

He was awarded Honorary Doctor of Laws by the Universities of Hamburg (1993), Paris II Pantheon-Assas (2000), Liege (2003) and Vienna (2003). He was the President of the International Academy of Comparative Law (1998-2006), Director of the Hellenic Institute of International and Foreign Law (1990-2007), member of the European Academy (since 1994), the International Union of Legal Science (since 1993) and the International Union of Procedural Law (since 1995)y. He represented Greece in the conference on the Lugano Convention, in the negotiations for the accession of Greece to the Brussels Convention, as well as in various committees for the harmonization of the law of contracts, torts and civil procedure in the EU.

His Report, co-authored with Dimitrios Evrigenis, on the accession of Greece in the Brussels Convention (OJ C-298/24-11-1986) has always been a leading guide in the field of European procedural law. The breadth of his interests also covered the work of the Hague Conference. In this context, he gave lectures on the topic of ‘Enforcement in the International Context’– Collected Courses of the Hague Academy of International Law (Volume 264), 1997.

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The 2019 Hague Convention on the Recognition of Foreign Judgments will make it possible for foreign, non-EU, decisions to be recognized under common terms in EU jurisdictions, and vice versa. The presentation of these developments is the main subject of the present issue (Focus).

The introduction (Praefatio) was conducted by the Greek Attorney General to the ECJ, Honorary President of the Council of State, Mr. Athanasios Rantos. The main topic of the issue was the subject of an online conference (3.12.2021), with the participation of experienced professionals on the topic in our country,and of leading foreign scientists, who participated in the works of the 2019 Hague Convention.

The general introduction was assigned to the Director of the Directorate-General for Justice of the European Commission, Dr. Andreas Stein, who participated in the works of the 2019 Convention as the head of the EU delegation.

The Chair of the meeting, Emeritus Professor of the Law School of Thessaloniki Ms. Anastasia Grammatikaki-Alexiou, who has repeatedly represented Greece in the works of the Plenary or Committees of the Hague Conference, and has taught at the  Hague Academy of International Law, outlined ‘[t]he great contribution of the Hague Conference in the field of private international law’.

Directly from the USA, the President of the American Association of Comparative Law, Professor of the Law School at Willamette University, Mr. Symeon Symeonides, who participated in the work of the 2019 Convention as the representative of the Republic of Cyprus, gave his valuable thoughts on the topic. Professor Symeonides presented the theme ‘The Hague Treaty for the Recognition of Foreign Decisions-The Lowest Common Denominator’, identifying the most interesting points of the Convention and highlighting critical aspects of its text.

Judge Dimitrios Titsias, Justice Counselor, Permanent Representation of Greece to the EU, explored ‘[t]he limits of EU’ s external jurisdiction over the Hague Conventions’. The rest of the panel analyzed the individual provisions of the Hague Conventions, which will be of considerable concern to our courts in the near future. Dr. Ioannis Revolidis, Lecturer of Media, Communications and Technology Law at the University of Malta, discussed the topic of the ‘Recognition and enforcement of international judgments after the revival of the Hague Convention’; Ms. Anastasia Kalantzi, Doctoral Candidate at the Aristotle University of Thessaloniki analyzed the topic ‘Points of convergence and divergence of the Hague Convention of 2005 and Regulation 1215/2012 on issues of extension of jurisdiction’; Dr. Vassilios Sarigiannidis, Head of the competent authority at the Ministry of Justice, presented the issue of ‘The system of cooperation between Central Authorities in the framework of the implementation of the 1980 and 1996 Hague Conventions on the protection of children’.

Among the judgments presented in this issue, a special mention has to be made of the following: the ECJ decision of 18.5.2021, Asocia?ia ‘Forumul Judec?torilor din Rumania’, with a comment by the associate in the International Hellenic University Ms. Raf. Tsertsidou, on the relationship between the regulations on the organization of justice in Romania and the requirements of the rule of law and the independence of the judiciary; the ECJ decision of 9.9.2021, Toplofikatsia Sofia, with a case comment by Judge Mr. Ant.Vathrakokilis; the ECJ decision of 3.9.2020, mBank S.A./PA, with a case comment by Judge Ms. St.-Ag. Kapaktsi.

Concerning national court decisions, it is worth mentioning the 2020 Supreme Court of Cyprus judgment (No 122/13, 143/13), with a case comment by Cypriot jurists Dr. N. Mouttotos, University of Bremen, and Dr. N. Kyriakides, University of Nicosia, regarding the effect of the Directive No 93/13 on consumer contracts in the reversal of the final judgment under national law; the judgment of the Greek Supreme Court No 820/2021, with a note by Dr. Ap. Anthimos and Solicitor (England/Wales) Dr. K. Voulgarakis, on the obstruction of the right to judicial protection by orders of courts of another Member State, which led to the submission of relevant preliminary question to the ECJ, as well as the decision of the Athens First Instance Court No 312/2019, with a case note by Dr. Ch. Meidanis, on the role of the jurisdiction of torts in case of the fall of a Greek warplane in a NATO exercise in Spain.

In the column of Scientific Topics, the volume hosts a study by Dr. G.-A. Georgiadis, on the 10-year anniversary of the 2007 Hague Protocol on the law applicable to maintenance obligations, while the L&F Praxis section presents the main problems of the EAPO, which raise many practical concerns, by Judge Mr. I. Valmantonis.

Bianca Scrabak has recently published an innovative book on international jurisdiction in contract and tort under the Brussels Ia Regulation, in which she develops a comprehensive solution for cases in which Article 7(1) and 7(2) vest special jurisdiction in the courts of more than one Member State.

The different solutions adopted by the CJEU to mitigate the problems resulting from a multiplicity of places of ‘contract performance’ or ‘harmful events’ are well-known. They range from the infamous ‘mosaic approach’ developed in Case C-68/93 Shevill (most recently confirmed in Case C-251/20 Gtflix tv) to a variety of centre-of-gravity approaches (see, eg, Cases C-386/05 Color Drack, C-204/08 Rehder, C-19/09 Wood Floor, and C-352/13 CDC Hydrogen Peroxide) to the unavailability of special jurisdiction (Case C-256/00 Besix). Still, the Court regularly accepts the coexistence of multiple fora with special jurisdiction.

Now, Scrabak argues that this coexistence often violates the ‘principle of concentration of conflicts’, which she derives from Articles 5(2), 8, 21(1), 24, and 29–34 Brussels Ia, as well as the principles of legal certainty and proximity. After a detailed review of the existing case law, she comes to the conclusion that each of the approaches that have so far been applied by the CJEU also conflicts with core principles of the Regulation and fails to provide a unitary solution for both contract and tort cases.

Against this backdrop, Scrabak proposes an approach of ‘limited choices’ for the claimant: as a starting point, based on the wording of the Regulation, any claimant must be free to select any forum that fulfils the requirements of Articles 7(1) or 7(2), without any limitation of its jurisdiction (thus rejecting the mosaic approach); yet, to protect the legitimate interests of the defendant, certain fora must be excluded based on the remote character of their connection to the dispute. More specifically, Scrabak proposes to exclude all fora that can be considered subsidiary both in comparison to the overall tort or contractual obligation and in comparison to other available fora – which appears to require some kind of reverse centre-of-gravity analysis not dissimilar from a forum non conveniens test. While providing a serious alternative to the CJEU’s notoriously unconvincing approach to online torts, it can certainly be debated if this approach provides a better alternative to the answers found by the CJEU in all case. Still, Scrabak’s ‘principle of concentration of conflicts’ offers an interesting new vantage point and useful frame of reference to think about a wide range of seemingly unrelated scenarios.

The convenors of the SLS Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, would be delighted to receive abstract submissions from conflictoflaws.net readers, emphasising that there is an option to present virtually on the 8th September, with the 9th September reserved for in-person papers at Kings College, London. They have kindly shared the following call for papers.

SLS Conflict of Laws Section: Call for Papers/Panels for 2022 SLS Annual Conference at King’s College London – The links and connections to legal development.

This is a call for papers and panels for the conflict of laws section of the 2022 Society of Legal Scholars Annual Conference to be held at King’s College, from 6th – 9th September.  The conflict of laws section will meet in the second half of the conference on 8th – 9th September and will have four sessions, each lasting 90 minutes.

The Society of Legal Scholars’ 2022 annual conference explores how links and connections both within one legal system and across different legal systems work to influence the development of law.  Legal rules, ideas and concepts develop as a result of diverse influences, both internal and external to any legal system.   Existing studies have identified the importance of legal diffusion and of legal transplants between legal systems as agents of legal change and development.   Similarly, within one legal system the development of a particular subject matter is often undertaken as a result of borrowings or copying from another subject matter within the same legal system.  The importance of links and connections in legal development can be demonstrated in many different ways, including the examination of particular links between people, within institutional and political networks or with bodies in other legal systems. Proposals are invited for papers which consider, broadly or specifically, how links and connections have worked to influence legal development in any area of law.

The 2022 conference will be held in person at King’s College London on Tuesday 6th – Friday 9th September. A new online attendance option will allow delegates the opportunity to attend and to present papers virtually in the sessions held on the 7th and 8th of September, so, for the conflict of laws section, the 8th of September.  When submitting an abstract you must indicate whether you intend to present your paper in person or virtually in the event your proposal is accepted.  It will not be possible for presenters to deliver their paper online on the days which are listed as in person only since the facilities will be unavailable. The organisers anticipate that there may be somewhat greater opportunities to present papers in person. Papers which have been accepted on the basis that they are to be delivered in person cannot later be delivered online.

Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme. There will not be a separate doctoral stream at the 2022 conference.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 25th March 2022.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/3743/submitter – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

Decisions will be communicated by the end of April.

We welcome proposals for papers and panels on any issue relating to the conflict of laws. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, speakers should not present twice at the conference at the expense of another credible paper.  With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
• Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
• The judges may announce a shortlist at their discretion with the winner to be announced by the first week in November.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 17th June 2021 in order to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Dr Lauren Clayton-Helm
Dr Bobby Lindsay

 

 

 

The fourth issue of 2021 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Antonietta Di Blase, (formerly) Professor at the University “Roma Tre”, Genitorialità della coppia omosessuale e riconoscimento dello status filiationis nell’ordinamento italiano (Same-Sex Couples and Recognition of Parentage in the Italian Legal System) [in Italian]

This paper addresses the recognition of the status of the child when a same-sex couple accesses techniques of assisted reproduction abroad. According to recent European and Italian Constitutional case law, a form of legal recognition in favor of both partners is due when at least one of them is genetically linked to the child, on account of the duty to grant the child’s identity within a family. The need and the legal form of recognition has to be assessed in the light of the interests of the child, which should prevail over national rules limiting the use of medically assisted reproduction.

Luigi Fumagalli, Professor at the University of Milan, Problemi vecchi e nuovi nella cooperazione per l’assunzione delle prove all’estero in materia civile: la rifusione della disciplina nell’Unione europea (Old and New Problems in the Cooperation for the Taking of Evidence Abroad in Civil Matters: The Recasting of the EU Regime) [in Italian]

The analysis of Regulation (EU) 2020/1783 of 25 November 2020 provides an opportunity to review the overall regulatory framework of cooperation in the taking of evidence applicable in the relations between the Member States of the European Union, to underline the elements of novelty or to detect the critical issues that still exist. It shows that the mechanisms envisaged appear to be suitable for achieving the objectives which the uniform framework sets itself: they oblige the authorities of the Member States to cooperate, almost without exception; the instruments by which this is achieved are shown to be capable of allowing, in reasonably short terms and without excessive formalism, the taking, in a manner which is absolutely tolerable for the Member State in which it is carried out, of evidence that can be used in the proceedings for which it is required. The main novelty profile consists in the wide space left to the use of communication technologies for the implementation of judicial assistance mechanisms: they mark the distance with respect to the oldest communication tools and touch each “segment” of the overall activity through which evidence is taken in a State other than that of the trial. However, the framework defined by Regulation 2020/1783 continues to suffer from certain limitations. In the first place, one cannot fail to highlight a series of formal (relating to the Italian version of the text) or conceptual inaccuracies. Alongside this, it should be noted the strong constraints that derive, for the implementation of the assistance procedures brought by the Regulation, from domestic procedural law, which the European legislation has not modified (nor has it intended to modify). Within these limits, the rules laid down appear, however, to take into account the complexity of the procedural mechanisms involved in the implementation of international judicial assistance procedures, and mark a step forward in the integration between the systems, laying the foundations for further developments.

Alberto Malatesta, Professor at the University “Cattaneo LIUC” in Castellanza, Circolazione delle sentenze tra Unione europea e Regno Unito: a favore di una cooperazione in seno alla Conferenza dell’Aja (Circulation of Judgments between the European Union and the United Kingdom: In Support of a Cooperation in the Framework of the Hague Conference) [in Italian]

This essay outlines the various options for a future cooperation between the EU and the UK in the field of recognition and enforcement of judgments in civil and commercial matters. After examining some alternatives, it focuses especially on the 2007 Lugano Convention, which appears to be a good tool for this purpose. However, pursuant to Art. 72(3) of the Convention itself, the EU has recently objected to the UK’s application of accession. The Author explains the reasons why the EU’s position is appropriate from the point of view of the Member States’ interests and upholds the Hague Conference of Private International Law as the best venue where cooperation between the EU and the UK can be strengthened.

The following comments are also featured:

Silvia Marino, Associate Professor at the University of Insubria, La climate change litigation nella prospettiva del diritto internazionale privato e processuale (Climate Change Litigation from the Perspective of Private International and Procedural Law) [in Italian]

The present article tackles the classic private international law issues in the field of climate change litigation. The introduction offers a definition of climate change litigation according to the current case-law. The article then proceeds to investigate international law commitments on climate change and environmental protection, noting that no specific international conventions exist on the subject-matter. Therefore, the EU system within the civil judicial cooperation appears relevant. Against this background, Regulations EU No 1215/2012 and No 864/2007 are examined in the light of the climate change litigation, stressing their potential solutions and problems within this field. In this framework, some recent suggestions and proposals for the improvement of the private international law systems in the human rights’ field are discussed. Finally, the concluding remarks pay due attention to the efficiencies of the current EU system, yearning for a more articulated international cooperation in all the possible involved facets.

Emilia Maria Magrone, Researcher at the University of Bari, Pluralità di fonti per la tutela di un minore straniero presente in Italia e necessità di un loro coordinamento (Plurality of Sources in the Protection of a Foreign Child Present in Italy and Need for Coordination) [in Italian]

This article analyses a decree issued by the Court of Appeal of Bari rejecting the complaint of an Albanian citizen against a previous decree of the Family Tribunal of Bari. The Tribunal had ordered the forfeiture of the woman from parental responsibility towards her young child (an Albanian citizen, as well) and other measures for the protection of the child. The cross-border features of the case have provided the opportunity for highlighting the different regulatory sources likely to be applied in the field of protection of foreign children such as Regulation (EC) No 2201/2003, the 1996 Hague Convention on the protection of children and the Italian rules on jurisdiction and applicable law, and to verify whether the relevant rules relating to both jurisdiction and applicable law have been correctly applied. In this regard, the decree of the Court of Appeal is substantially compliant with the best interests of the child, but raises some perplexities for the failure to ascertain the habitual residence of the child and consequently for having applied the internal rule on tacit acceptance of jurisdiction rather than Article 8 of Regulation No 2201/2003. Another unclear aspect of the Court’s ruling is that it did not specify on the basis of which conflict-of-law rule Italian law was applied.

In addition to the foregoing, in this issue Fausto Pocar, Professor Emeritus at the University of Milan, penned a moving tribute in memoriam of Professor Alegría Borrás.

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Andrew DICKINSON, Edwin PEEL (eds), A Conflict of Laws Companion. Essays in Honour of Adrian Briggs, Oxford University Press, Oxford, 2021, pp. XLIX-377.

Today, Advocate General Maciej Szpunar delivered his Opinion in the above mentioned case on the concept of „habitual residence“ under Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as well as under Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, as well as impacts of Article 47 of the EU Charta on Fundamental Rights in relation to a forum necessitatis as referred to in Article 7 of Regulation No 4/2009. 

Opening by a quote from the General Course of 1986 by Paul Lagarde for the Hague Academy of International Law „ ‘The principle of proximity … is nearest to life and is a title of nobility. It carries with it a lesson in modesty by teaching us that no political will, no judge, however pure his or her intention, can claim jurisdiction, in the long term, to rule according to his or her laws on life relationships that are outside his or her discretion.’, the Opinion results, after careful deliberation, in the following elements for a concept of „habitual residence“:

„1.      The spouses’ status as contract staff of the European Union in a third State is not a decisive factor in determining the place of habitual residence, whether in the meaning of Articles 3 and 8 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, or Article 3 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

2.      It is not possible, for the purposes of determining the children’s place of habitual residence, within the meaning of Article 8 of Regulation No 2201/2003, only to take into consideration criteria such as the mother’s nationality, the fact that she resided in a Member State before her marriage, the nationality of the minor children and their birth in that Member State.

3.      With regard to the application for divorce, if the court seised cannot establish its jurisdiction on the basis of Articles 3 to 5 of Regulation No 2201/2003, Article 6 of that regulation then precludes the application of the residual clause contained in Article 7(1) of that regulation and, consequently, the defendant – a national of a Member State – can be sued only before the courts of that Member State.

So far as concerns parental responsibility, if the court seised does not have jurisdiction under Articles 8 to 13 of Regulation No 2201/2003, Article 14 of that regulation applies regardless of the children’s place of habitual residence and the nationality of the defendant.

4.      Article 7 of Regulation No 4/2009 must be interpreted as meaning that the state of necessity may result from exceptional, very serious or emergency situations such that proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected. Those conditions are met, in particular, when the court of the third State with which the dispute is closely connected refuses to exercise jurisdiction or there are abusive procedural requirements, when, due to civil unrest or natural disasters, it is dangerous to go to certain places and the third State’s normal activity is affected, and, lastly, when access to justice is unduly hampered, in particular when legal representation is prohibitively expensive, when the length of proceedings is excessively long, when there is serious corruption within the judicial system, or when there are failures concerning the fundamental requirements for a fair hearing or systemic failures. The parties are not required to demonstrate that they initiated or attempted to initiate proceedings in that State with a negative result.

5.      Articles 7 and 14 of Regulation No 2201/2003, relating to subsidiary jurisdiction in matters of divorce, legal separation or marriage annulment respectively, and Article 7 of Regulation No 4/2009, with regard to the forum necessitatis in matters relating to maintenance, must be interpreted by the court seised in the light of Article 47 of the Charter. National rules on residual jurisdiction, including those relating to the forum necessitatis, must be applied in the light of that same article.“

These findings have emerged from a reference by the Audiencia Provincial de Barcelona (Provincial Court, Barcelona), by judgment of 15 September 2020, in which no less than six rather detailed questions were raised (para.) 26, with a view to the following facts (paras. 17 et seq.):

„17. M P A, a citizen of Spanish nationality, and LC D N M T, a citizen of Portuguese nationality, were married on 25 August 2010 at the Spanish Embassy in Guinea-Bissau. They have two minor children, born on 10 October 2007 and 30 July 2012 in Manresa (Barcelona, Spain). The children have dual Spanish and Portuguese nationality.

18. The spouses lived in Guinea-Bissau from August 2010 to February 2015 and then moved to Lomé (Togo). Following their de facto separation, in July 2018, the applicant in the main proceedings and the children continued to reside in the marital home in Togo and the spouse resided in a hotel in that country.

19.      The spouses are both employed by the European Commission as contract staff of the European Union in its delegation in Togo. The referring court states that contract staff – servants of the European Union in the EU Member States – have the status of diplomatic staff of the European Union only in the country of employment.

20.      On 6 March 2019, the applicant in the main proceedings brought an application before the Juzgado de Primera Instancia de Manresa (Court of First Instance, Manresa, Spain) for divorce and sought the dissolution of the matrimonial property, the determination of the regime and procedures for exercising custody and parental responsibility over the minor children, the grant of a maintenance allowance for the children and rules for the use of the family home in Lomé. She also requested the adoption of interim measures.

21.      The defendant in the main proceedings claimed that the Juzgado de Primera Instancia de Manresa (Court of First Instance, Manresa) did not have international jurisdiction. By order of 9 September 2019, the court declared that it lacked international jurisdiction to hear the case on the ground that the parties were not habitually resident in Spain.

22.      The applicant in the main proceedings brought an appeal against that decision before the referring court. She claims that both spouses enjoy diplomatic status as accredited servants of the European Union in the country of employment and that this status extends to the minor children.“

Willem 1, Buddhist mummy. Statue (L), CT scan (R). (Photos: Drents Museum)

by Zhen Chen, PhD researcher in the Department of Private International Law, University of Groningen, the Netherlands (ORCID ID: https://orcid.org/0000-0001-5323-4271)[1]

In Buddha Mummy Statue case, the Chinese village committees sued the Dutch defendants for the return of a stolen golden statue which contains a 1000-year old mummified buddhist. The parties had different opinions on the legal nature of the mummy contained in the statue. The Chinese court classified the statue as a cultural property and applied the choice of law over movable properties provided in Article 37 of Chinese Private International Law (lex rei sitae). Based on a comparative study, this article argues that a mummy does not fall within the traditional dichotomy between a person and a property. Instead, a mummy should be classified as a transitional existence between a person and a property. If the classification of a mummy has to be confined to the traditional dichotomy, a mummy can be regarded as a quasi-person, or a special kind of property. Following this new classification, a new choice of law rule should be established. In this regard, the Belgian Private International Law Act, which adopts the lex originis rule supplement by the lex rei sitae, is a forerunner. This article advocates that the adoption of the lex originis rule may help to stop the vicious circle of illegal possession and to facilitate the return of stolen cultural objects, especially those containing human remains, to their country of origin.

 

1. Gold or God?

As to the legal nature of the Buddha Mummy Statue in dispute, from the Chinese villagers’ perspective, the mummy contained in the golden statute is a person or God, instead of a property. Specifically, the mummified buddhist Master Zhanggong was their ancestor, who used to live in their village and has been worshipped as their spiritual and religious God for over 1000 years. Master Zhanggong was preserved in a statue moulded with gold to prevent decomposition and to maintain his immortality. The villagers celebrated Master Zhanggong’s birthday every year with feast, music and dance performance, which has become their collective memory and shared belief.

In contrast, from the Dutch art collector’ perspective, the golden statute containing a mummy is a property not a person. It is merely a cultural property with great economic value and worthy of collection or investment. Thus, it is not surprising that the Dutch collector asked for a compensation of 20 million Euro, of which the Chinese villagers whose annual income was around 1000 Euro could not afford it.

The Chinese village committees sued the Dutch art collector both in China and in the Netherlands. The Chinese village committees asserted that the mummified Master Zhanggong contained in the statue was a corpse within the meaning of the Dutch Liability Decree, and the ownership thereof was excluded under the Dutch law.[2] The claimants as the trustees or the agents had the right of disposal.[3] The Dutch art collector argued that the mummified monk contained in the golden statue was not a corpse, as the organs of the monk were missing. The Dutch court did not touch upon the issue of classification of the Buddha Mummy Statue, as the case was dismissed on the basis that the Chinese village committees had no legal standing nor legal personality in the legal proceedings.[4]

 

2. The lex situs under Article 37 Chinese Private International Law Act

The Chinese court classified the Buddha Mummy Statue as a cultural property and applied the law of the country where the theft occurred, namely Chinese law, by virtue of Article 37 Chinese Private International Law Act. Such classification is not satisfactory, as the mummy in dispute was essentially considered as a property. Chinese law was applied because the place of theft was in China and the lex situs was construed by the Chinese court as the lex furti. However, what if the mummy was stolen in a third country during the transportation or an exhibition? The lex furti does not necessarily happen to be the lex originis in all cases involving stolen cultural objects.

Moreover, cultural objects containing human remains are special in comparison with other cultural objects without, as human remains contain biological information of a person. The application of the traditional lex rei sitae rule to all cultural objects, including those containing human remains, is far from satisfactory. In general, the law on dead human bodies precedes over the sale of corpses, and no person, including a good faith purchaser can own somebody else’s corpse both in civil law and common law systems.[5] A corpse must not be downgraded to the status of a property.[6] The characterization of human remains as properties objectifies human remains and thus may violate human dignity.[7] Therefore, it is necessary to distinguish cultural objects containing human remains from other types of cultural objects. The question is how to draw a distinction and what is the legal nature of a cultural object containing human remains, such as a mummy. If a mummy does not fall within the scope of traditional category of a person nor a property, does it mean a new category need to be created? In this regard, the classification of the legal nature of a fertilized embryo in Shen v. Liu may be relevant,[8] since the judge addressed the issue by thinking out of the box and provided a new solution.

 

3. Is a Fertilized Embryo a Property or a Person?

Shen v. Liu was the first case in China that involved the ownership of frozen embryos. Specifically, Shen and Liu, who got married in 2010 and died in 2013 in a car accident, left four frozen fertilized embryos in a local hospital. The parents of Shen (Mr and Mrs Shen), sued the parents of Liu (Mr and Mrs Liu), who also lost their only child, claiming the inheritance of the four frozen fertilized embryos of the deceased young couple.[9] The local hospital where the embryos were preserved was a third party in this case.

 

3.1 A property, a special property, or ‘a transitional existence between person and property’?

The third party Gulou Hospital argued that the frozen embryos do not have the nature of a property. Since Mr. and Mrs. Shen had passed away, the expired embryos should be discarded. Neither the plaintiffs nor the defendants should inherit the embryos.[10] The first-instance court held that fertilized embryos had the potential to develop into life, and thus are special properties that contain biological characteristics of a future life. Unlike normal properties, fertilized embryos can not be the subject of succession, nor be bought or sold.[11]

Nevertheless, the appellate court took the view that embryos were ‘a transitional existence between people and properties’. Therefore, embryos have a higher moral status than non-living properties and deserve special respect and protection. The embryo ethically contains the genetic information of the two families and is closely related to the parents of the deceased couple. Emotionally speaking, the embryo carries personal rights and interests, such as the grief and spiritual comfort for the elderly. The court held that the supervision and disposal of the embryos by the parents from these two families was in line with human ethics and can also relieve the pain of bereavement for both parties.[12] Clearly, the court did not classify the fertilized embryos as people or properties. Instead, the embargo was considered as ‘a transitional existence between a person and a property’, since it is not biotic nor abiotic but a third type in-between.

 

3.2 A mummy as ‘a continuum between a person and a property’

With regard to the distinction between a person and a property, the judgment of Shen v. Liu shows that the Chinese court was not confined to the traditional dichotomy between a person and a property. The same should be applicable to mummies. Embryos and mummies have something in common, as they are two different kinds of life forms. Whereas the embryo in Shen v. Liu is the form of life which exists before the birth of a human being, the mummy in Buddha Mummy Statue case is another form of life which exists after the death of a human being.

Embryos and mummies, as the pre-birth transition and after-death extension of life forms of a human being, involve morality and ‘human dignity’.[13] Such transitional existence or continuum of life forms contains personal rights and interests for related parties, which may justify the adoption of a new classification. As a special form of life, embryos and mummies should not be considered as merely a property nor a person. The strict distinction between people and properties does not apply well in embryos and mummies. Instead, they should be regarded as ‘a transitional existence between a person and a property’ or ‘a continuum between a person and a property’. If it is not plausible to create a third type for the purpose of classification, they should be regarded, at least, as a quasi-person, or a special property with personal rights and interests. An embryo and a mummy cannot be owned by someone as a property. Rather, a person can be a custodian of  an embryo and a mummy. This is also the reason why cultural objects containing human remains should be treated differently.

 

4. A New Classification Requires a New Choice of Law Rule

In order to distinguish cultural objects containing human remains from other cultural objects, or more generally to distinguish cultural properties from other properties in the field of private international law, a new choice of law rule needs to be established. In this regard, the 2004 Belgian Private International Law Act might be the forerunner and serve as a model for not only other EU countries but also non-EU countries.[14]

 

 4.1 The lex originis overrides the lex situs

The traditional lex situs rule is based on the location of a property and does not take cultural property protection into consideration. Courts resolving cultural object disputes consistently fail to swiftly and fairly administer justice, and much of the blame can be put on the predominant lex situs rule.[15] The lex situs rule allows parties to choose more favorable countries and strongly weakens attempts to protect cultural objects.[16]

In Belgium, as a general rule, the restitution of illicitly-exported cultural objects is subject to the lex originis, rather than the lex rei sitae. Article 90 of 2004 Belgian Private International Law Act stipulated that if one object that has been recorded in a national list of cultural heritage is delivered outside this country in a way that against its law, the lawsuit filed in this country for the return of that particular object shall apply the law of the requesting country. This provision designates the law of the country of origin, also known as the lex originis rule. In comparison with the lex rei sitae or the lex furti rule, the lex originis rule is more favorable to the original owners

 

4.2 Facilitating the return of human remains to their country of origin

The establishment of a new choice of law rule for cultural relics containing human remains or cultural objects in general is in line with the national and international efforts of facilitating the return of stolen or illicitly cultural objects to their country of origin. Mummies exist not only in China, but also in many other countries, such as as Japan, Egypt, Germany, Hungary, USA, Russia, and Italy. The adoption of the lex originis rule could facilitate the return of stolen or illicitly exported cultural objects which contain human remains to their country of origin or culturally-affiliated place. This objective is shared in many international conventions and national legislations.

 

5. Concluding remarks

The mummy Master Zhanggong has not been returned to the Chinese village committees yet, since the Dutch defendants have lodged an appeal. This article argues that, in the light of the classification of frozen embryos in Shen v. Liu, mummies should be classified as ‘a transitional existence between a person and a property’. A new classification calls for a new choice of law rule. In this regard, the 2004 Belgian Private International Law Act might serve as a model, according to which the lex originis rule prevails over the traditional lex situs rule, unless the original owner chooses the application of the traditional lex situs or the lex originis rule does not provide protection to the good faith purchaser. The Chinese Private International Law should embrace such approach, since the application of the lex originis may facilitate the return of cultural relics, including but not limited to those containing human remains such as mummies, to their culturally affiliated community, ethnic or religious groups.

—

[1] This is a shortened version of the article published in the Chinese Journal of Comparative Law with open access https://doi.org/10.1093/cjcl/cxac006. Related blogposts are Buddha Mummy Statue case and Conflict of Laws of Cultural Property.

[2] Chinese Village Committees v. Oscar Van Overeem, ECLI:NL:RBAMS:2018:8919, point 3.1.

[3] Ibid.

[4] Ibid., point 4.2.5.

[5] J. Huang, ‘Protecting Non-indigenous Human Remains under Cultural Heritage Law’, 14 Chinese Journal of International Law 2015, p. 724.

[6] E.H. Ayau and H. Keeler, Injustice, Human Rights, and Intellectual Savagery, in Human Remains in Museums and Collections, DOI: https://doi.org/10.18452/19383, p. 91.

[7] Ibid.

[8]  Mr and Mrs Shen v. Mr and Mrs Liu, Jiangsu Province Yixing Municipality People’s Court, (2013) Yi Min Chu Zi No 2729; Jiangsu Province Wuxi Municipality Intermediate People’s Court, (2014) Xi Min Zhong Zi No 01235.

[9]  Ibid.

[10] Ibid. The third party also stated that after the embryos are taken out, the only way to keep the embryos alive is surrogacy, which is illegal in China, thus both parties have no right to dispose the embryos.

[11] Ibid. Since the first-instance court held that embryos cannot be transferred or inherited, the case was dismissed in accordance with Article 5 of the General Principle of Civil Law and Article 3 of the Inheritance Law of the PRC.

[12] Ibid. The appellate court analyzed that after the death of Shen and Liu, their parents were the only subjects and most-related parties that care about the fate of embryos. Thus, it was appropriate to rule that the parents of Shen and Liu have the right to supervise and dispose the embryos. However, such supervision and disposal should abide by the law, and must not violate public order and good morals nor infringe the interests of other people.

[13] While birth means a definite initiation into human society, death indicates a final termination of a natural person, which both involve the dignity of an individual human or even humankind. H.G. Koch, ‘The Legal Status of the Human Embryo’, in E. Hildt and D. Mieth (eds.), Vitro Fertilisation in the 1990s, Routledge 1998, p. 3.

[14] T. Szabados, ‘In Search of the Holy Grail of the Conflict of Laws of Cultural Property: Recent Trends in European Private International Law Codifications’, 27 International Journal of Cultural Property 2020, p. 335.

[15] D. Fincham, ‘How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property’, 32 Columbia Journal of Law & the Arts 2008, p.116.

[16] Ibid, p.130.

 

A new book entitled Blurry Boundaries of Public and Private International Law: Towards Convergence or Divergent Still? and co-edited by Dr Poomintr Sooksripaisarnkit (of the University of Tasmania) and Dharmita Prasad (Jindal Global Law School, O.P Jindal Global University) has just been released by Springer.

The description states that the book examines interactions and discusses intersectionality between public international law and private international law. With contributions from scholars from the USA, Canada, Australia, India, and the EU, this book brings out truly international perspectives on the topic. The contributions are arranged in four themes — Public international law and private international law: historical and theoretical considerations of the boundary; Harmonisation of private international law by public international law instruments: evaluation of process, problems and effectiveness; Case studies of intersectionality between public international law and private international law; and Future trends in the relationship between public international law and private international law.

The Foreword by Ralf Michaels is followed by these chapters:

Chapter 1: Public International Law and Private International Law: Setting scene for intersectionality – Poomintr Sooksripaisarnkit and Dharmita Prasad
Chapter 2 – Private International Law’s origins as a branch of the universal law of nations – Marco Basile
Chapter 3 – Recognition – A story of how the two worlds meet – Dulce Lopes
Chapter 4 – Forum non conveniens in Australia – how much weight should be given to comity? – Poomintr Sooksripaisarnkit
Chapter 5 – International rule of law and its relation to harmonisation – Dharmita Prasad
Chapter 6 – A quest for the missing link in the resolution of international investment disputes affecting host states’ citizens under public and private international law – Richard Mlambe
Chapter 7 – Visualising the role of international rule of law in claim funding by third parties – Gautam Mohanty
Chapter 8 – Article 79 CISG: Testing the effectiveness of the CISG in international trade through the lens of the COVID-19 outbreak – Nevena Jevremovic
Chapter 9 – Determination of legal effects of COVID-19 related export bans and restrictions on international sale of goods contracts: Interplay between public and private international law – Burcu Yuksel Ripley and Ulku Halatci Ulusoy
Chapter 10 – Private International Law vs Public International Law: Competing complimentary intersectionality in CISG Article 79? Peter Mazzacano
Chapter 11 – Blocking Statutes: Private individuals finding themselves in interstate conflicts – Marcel Gernert
Chapter 12 – When public international law meets EU private international law: an insight on the European Court of Justice case law dealing with immunity vis-à-vis the application of the Brussels Regime – Maria Barral Martinez
Chapter 13 – Children’s rights law and private international law: What do referencing patterns reveal about their relation? – Tine Van Hof
Chapter 14 – Ringfencing data? – Perspectives on sovereignty and localisation from India – Sai Ramani Garimella and Parthiban B
Chapter 15 – Private international law and public international law – increasing convergence or divergence as usual? – Poomintr Sooksripaisarnkit and Dharmita Prasad

For further details of the book please refer to the respective Springer webpage.
It is worthy of mention that the editors are in the process of planning an online “book launch” event at some point within the second quarter of 2022. Details once finalised will also be announced in this portal.

The Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law is currently recruiting. A fully-funded position as Research Fellow (PhD candidate) for the Department of European and Comparative Procedural Law, led by Prof. Dr. Dres. h.c. Burkhard Hess, is open:

   Fixed-term contract for 2 years; contract extension is possible; full-time based in Luxembourg

The successful candidate will conduct legal research (contribution to common research projects and own publications), particularly in the field of European and Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute, in partnership with renowned international academics.

You may apply online until 20 March 2022 by submitting a detailed CV, including a list of publications (if applicable); copies of academic records; a PhD project description of no more than 1-2 pages with the name of the foreseen PhD supervisor and the name of the institution awarding the PhD certificate.

The Max Planck Institute Luxembourg for Procedural Law strives to ensure a workplace that embraces diversity and provides equal opportunities.

The Sydney Centre for International Law at Sydney Law School is delighted to present the 2022 International Law Year in Review Conference, to be held online on Friday 25 February 2022.

This annual ‘year in review’ conference brings together expert speakers from around the world to give participants insight into the latest developments in international law over the preceding year, especially those most salient for Australia.

Panel 3 will cover Developments in Private International Law in 2022.

Speakers

Martin Jarrett (Max Planck Institute for Comparative Public Law and International Law and University of Heidelberg), “Payment of Australian judgment debts as unlawful European state aid: international legal options for Australia against the European Union”. 

Dr Aida Othman (ZICO Shariah and Messrs. Zaid Ibrahim & Co.), “Arbitration of Shariah and Islamic finance disputes: are the Asian International Arbitration Centre’s i-arbitration rules a game-changer?”

Dr Sarah McKibbin (University of Southern Queensland), “Implementation of the Singapore Convention on Mediation in Australian Law”

Chair: Associate Professor Dr. Jeanne Huang (Sydney Law School)

Date/Time: 25 February, 1:30pm – 3:00 pm AEDT

View the program here. Register to attend here.

Professor Adeline Chong will be speaking on 25 Feb at 12:30
PM – 2:00 PM 9(HKT) on the The Asian Principles for the Recognition and Enforcement of Foreign Judgements.

The portability of foreign judgments across borders helps to faciliate cross-border transactions by lowering transaction costs and associated legal friction among countries. This is important for Asia given initiatives to establish greater economic integration in Asia such as the establishment of the ASEAN Economic Community, the Belt and Road Initiative and free-trade agreements such as the CPTPP and RCEP.

The Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI, 2020) is one of the publications resulting from a project conducted under the auspices of the Asian Business Law Institute (ABLI). The ABLI Foreign Judgments project considered the recognition and enforcement of foreign judgment rules in the ten ASEAN Member States and five of ASEAN’s major trade partners i.e. Australia, China, India, Japan and South Korea. The Asian Principles is a statement of the laws on foreign judgments in the region. It sets out the common principles and differences in the laws and suggests ways in which harmonisation of the foreign judgment rules can occur.

This seminar discusses the Asian Principles and considers the extent to which harmonisation of the foreign judgment rules is possible in the region. Harmonisation would of course increase the portability of judgments across borders. The seminar also examines the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and the likelihood of the Convention being adopted by the Asian countries.

About the speaker:

Adeline Chong is an Associate Professor at the Yong Pung How School of Law, Singapore Management University. She was formerly a lecturer at the School of Law, University of Nottingham. She has published in leading peer-reviewed journals such as the Law Quarterly Review, International and Comparative Law Quarterly, Lloyd’s Maritime and Commercial Law Quarterly and the Journal of Private International Law. She is the co-author of Hill and Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (Oxford, Hart, 4th edn, 2010). She is the Project Lead of the Asian Business Law Institute’s project on the Recognition and Enforcement of Foreign Judgments in Asia. Her work has been cited by various courts including the Singapore, Hong Kong, New South Wales and New Zealand Court of Appeals, the UK Law Commission, as well as in leading texts on conflict of laws such as Dicey, Morris and Collins on the Conflict of Laws (15th edition). She has also been invited to present papers by the British Association of Canadian Studies, British Institute of International and Comparative Law, Kyushu University and the University of Sydney. She has conducted courses for the Attorney-General Chambers of Malaysia and delivered Continuing Professional Development Talks for Singapore’s Attorney-General Chamber’s Academy and the Law Society of Singapore. She has appeared as an expert on Singapore law before a Finnish court and issued a declaration on Singapore law for a US class action.

Register here by 5pm, 24 February 2022 to attend the seminar.

The first issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2022 was just published. It features the following case notes and articles on private international law respectively:

SYC Leung and M Suen, The Extensive Jurisdiction in the Action on an Arbitral Award (case note)

D Foxton, The Jurisdictional Gateways – some (very) modest proposals:

This article reviews the history of the gateways for service out of the jurisdiction in England and Wales, and seeks to identify the rationales which underpin them. The case for abolishing the gateways altogether, and applying only a forum conveniens test for service out purposes, is examined, the article concluding that there are reasons of principle and policy for maintaining the gateway requirement. The article identifies a number of variations or amendments to the current gateways which are consistent with their rationales, and which would better give effect to them. A Kennedy, An Exploration of the Operation and Rebuttal of the Presumption in Enka v Chubb:

The Supreme Court in Enka v Chubb clarified the choice of law rules which help determine the governing law of an arbitration agreement when the law of the contract containing it differs from the law of the arbitral seat. According to that framework, where parties have chosen the law which governs the main contract, that law is presumed also to govern the arbitration agreement. This article identifies, and seeks to provide preliminary answers to, questions surrounding the operation of, and rebuttal of, that presumption, on the basis that such questions are most likely soon to require a judicial answer.

 

Applications are now open for three- to six-month legal internships at the Permanent Bureau’s headquarters in The Hague, for the period from July to December 2022!

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

Due to the current global situation and the associated travel limitations and restrictions, the Permanent Bureau may consider the possibility that internships be carried out remotely. Interns may also be eligible for a monthly stipend.

Applications should be submitted by 17 March 2022. For more information, please visit the Internships Section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH). 

Written by Pilar Jiménez Blanco about her book:

Pilar Jiménez Blanco, Regímenes económicos matrimoniales transfronterizos [Un estudio del Reglamento (UE) nº 2016/1103], Tirant lo Blanch, 2021, 407 p., ISBN 978-84-1355-876-9

The Regulation (EU) No 2016/1103 is the reference Regulation in matters of cross-border matrimonial property regimes. This book carries out an exhaustive analysis of the Regulation, overcoming its complexity and technical difficulties.

The book is divided in two parts. The first is related to the applicable law, including the legal matrimonial regime and the matrimonial property agreement and the scope of the applicable law. The second part is related to litigation, including the rules of jurisdiction and the system for the recognition of decisions. The study of the jurisdiction rules is ordered according to the type of litigation and the moment in which it arises, depending on whether the marriage is in force or has been dissolved by divorce or death. Three guiding principles of the Regulation are identified: 1) The need of coordination with the EU Regulations on family matters (divorce and maintenance) and succession. This coordination can be achieved through the choice of law by the spouses to ensure the application of the same law to divorce, to the liquidation of the matrimonial regime, to maintenance and even to agreements as to succession. In addition, a broad interpretation of “maintenance” that includes figures such as compensatory pension (known, for example, in Spanish law) allows that one of the spouses objects to the application of the law of the habitual residence of the creditor and the law of another State has a closer connection with the marriage, based on art. 5 of the 2007 Hague Protocol. In such a case, the governing law of the matrimonial property regime could be considered as the closest law.

In the field of international jurisdiction, the coordination between EU Regulations is intended to be ensured with exclusive jurisdiction by ancillary linked to succession proceedings or linked to matrimonial proceedings pending before the courts of other Member States. Although the ancillary jurisdiction of the proceedings on the matrimonial property regime with respect to maintenance claims is not foreseen, the possibility of accumulation of these claims is possible through a choice of court to the competent court to matrimonial matters.

2) The unitary treatment of the matrimonial property regime. The general rule is that only one law is applicable and only one court is competent to matrimonial property regimes, regardless of the location of the assets. The exceptions derived from the registry rules of the real estate situation and the effect to third parties are analysed.

3) The legal certainty and predictability. The general criterion is the immutability and stability of the matrimonial property regime, so that the connections are fixed at the beginning of married life and mobile conflict does not operate, as a rule. The changes allowed will always be without opposition from any spouse and safe from the rights of third parties. The commitment to legal certainty and predictability of the matrimonial property regime governing law prevails over the proximity current relationship of the spouses with another State law.

 

Related to applicable law, the following contents can be highlighted:

-The importance of choosing the governing law of the matrimonial property regime. The choice of law has undoubted advantages for the spouses to coordinate the law applicable to the matrimonial property regime with the competent courts and with the governing law of related issues related to divorce, maintenance and succession law. The choice of law is especially recommended if matrimonial property agreements are granted in case of spouses’ different nationalities and different habitual residence, since it avoids uncertainty in determining the law of the closest connection established in art. 26.1.c). Of particular importance is the question of form and consent in the choice of law, given the ambiguity of the Regulation on the need for this consent to be express.

-The interest in conclude matrimonial property agreements and, specially, the prenuptial agreements. Its initial validity requires checking the content of each agreement to verify which is the applicable law and which is included within the scope of the Regulation (EU) No 2016/1103. The enforceability of these agreements poses problems when new unforeseeable circumstances have appeared for the spouses, which will require an assessment of the effectiveness of the agreements in a global manner – not fragmented according to each agreement – to verify the minimum necessary protection of each spouse.

-The singularities of the scope of application of the governing matrimonial property regime law. The issues included in the governing law require prior consultation with said law to identify any specialty in the matrimonial property regime relations between the spouses or in relation to third parties. This has consequences related to special capacity rules to conclude matrimonial property agreements, limitations to dispose of certain assets, limitations for contracts between spouses or with respect to third parties or the relationship between the matrimonial property regimes and the civil liability of the spouses. Of particular importance is the regime of the family home, which is analysed from the perspective of the limitations for its disposal and from the perspective of the rules of assignment of use to one of the spouses.

-The balance between the protection of spouses and the protection of third parties. From art. 28 of the Regulation, derives the recommendation for the spouses to register their matrimonial property regime, whenever possible, in the registry of their residence and in the property registry of the real estate situation. The recommendation for third parties is to consult the matrimonial property regime in the registries of their residence and real estate. As an alternative, it is recommended to choose – as the governing law of the contract – the same law that governs the matrimonial property regime.

– The effects on the registries law. Although the registration of rights falls outside the scope of the Regulation, for the purposes of guaranteeing correct publicity in the registry of the matrimonial property regimes of foreign spouses, it would be advisable to eventually adapt the registry law of the Member States to the Regulation (EU) No 2016/1103. A solution consistent with the Regulation would be to allow the matrimonial property regime registry access when the first habitual residence of the couple is established in that State.

 

Related to jurisdiction, the following contents can be highlighted:

-The keys of the rules of jurisdiction. The rules of jurisdiction only regulate international jurisdiction, respecting the organization of jurisdiction among the “courts” within each State. It will be the procedural rules of the Member States that determine the type of intervening authority (judicial or notarial), as well as the territorial and functional jurisdiction.

The rules of jurisdiction are classified into two groups: 1) litigation with a marriage in force, referred to in the general forums of arts. 6 et seq.); 2) litigation in case of dissolution of the marriage, due to death or marital crisis. These are subject to two types of rules: if the link (spatial, temporal and material) with the divorce or succession court is fulfilled, this court has exclusive jurisdiction, in accordance with arts. 4 and 5; failing that, it goes back to the general forums of the Regulation.

Jurisdiction related to succession proceedings (based on art. 4) poses a problem of lack of proximity of the court with the surviving spouse, especially when the criterion of jurisdiction for the succession established by Regulation (EU) No 650/2012 has little connection with that State. This will be the case especially when the jurisdiction for succession is based on the location of an asset in that State (art. 10.2) or on the forum necessitatis (art. 11).

Jurisdiction related to matrimonial proceedings (based on art. 5) poses some problems such as the one derived from a lack of temporary fixation of the incidental nature. The problem is to determine how long this court has jurisdiction.

-The interest of the choice of court. The choice of court is especially useful to reinforce the choice of law. Submission may also be convenient, especially to the State of the celebration, for marriages that are at risk of not being recognized in any Member State by virtue of art. 9 (for example, same-sex marriages).

The inclusion of a submission in a prenuptial agreement or in a matrimonial property agreement does not avoid the uncertainty of the competent court. There is a clear preference for the concentration of the jurisdiction of arts. 4 and 5 apart from the pact of submission made between the spouses. In any case, the choice of court can be operative if the proceedings on the matrimonial issue has been raised before courts with the minimum connection referred to in art. 5.2.

Problems arise due to the dependence of the jurisdiction on the applicable law established in art. 22 of the Regulation, since it requires anticipating the determination of the law applicable to the matrimonial property regime in order to control international jurisdiction.

 

Related to recognition, the following contents can be highlighted:

-The delimitation between court decision and authentic instrument does not depend on the intervening authority – judicial or notarial –, but on the exercise of the jurisdictional function, which implies the exercise of a decision-making activity by the intervening authority. This allows notarial divorces to be included and notoriety acts of the matrimonial property regime to be excluded.

The recognition system follows the classic model of the European Regulations, taking as a reference the Regulation (EU) No 650/2012 on succession. Therefore, the need for exequatur to enforceability of court decisions is maintained.

The obligation to apply the grounds for refusal of recognition with respect to the fundamental rights recognised in the EU Charter and, in particular, in art. 21 thereof on the principle of non-discrimination. This supposes an express incorporation of the European public policy to the normative body of a Regulation. Specially, the prohibition of discrimination based on sexual orientation means the impossibility of using the public policy ground to deny recognition of a decision issued by the courts of another Member State relative to the matrimonial property regime of a marriage between spouses of the same sex.

 

The study merges the rigorous interpretation of EU rules with practical reality and includes case examples for each problem area. The book is completed with many references on comparative law, which show the different systems for dealing with matters of the matrimonial property regime applied in the Member States. It is, therefore, an essential reference book for judges, notaries, lawyers or any other professional who performs legal advice in matrimonial affairs.

 

On Tuesday, Mar 1, 2021, the Hamburg Max Planck Institute will host its 20th monthly virtual workshop Current Research in Private International Law at 14:00-15:30 CET. Geneviève Saumier (McGill University) will speak, in English, about the topic

Security for Costs and Access to Justice in Cross-Border Dispute Resolution

Several multilateral instruments prohibit, directly or indirectly, security for costs based solely on the foreign status of a plaintiff. Regional examples can be found in Europe and Latin America; two multilateral examples are the 1954 and the 1980 HCCH Conventions. The justification is typically based on anti-discrimination and access-to-justice arguments. The 2019 HCCH Judgments Convention has taken a slightly different approach following a lack of consensus among the negotiating states. Moreover, several states continue to impose security for costs on foreign plaintiffs. In this workshop, Geneviève Saumier will present the current results of comparative research on security for costs and seek to identify remaining barriers to its elimination.

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.

A new issue of  Commentaries on Private International Law, (Vol 4. Issue 1), the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG) has been released.

The primary purpose of the newsletter is to communicate new developments on PIL rather than provide substantive analysis, to provide specific and concise raw information that readers can then use in their daily work. These new developments on PIL may include information on new laws, rules and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

Commentaries includes sections dealing with regional issues, edited by specialists on the field: Africa, edited by Lamine Balde & Sedat Sirmen; Asia, by Yao-Ming Hsu & Charles Mak; the Americas by Juan Pablo Gomez (Central and South America and Mexico), and Carrie Shu Shang (North America); Europe, by Patricia Snell, Charles Mak & Christos Liakis; and Oceania, by Jeanne Huang.

This issue of Commentaries covers more countries and includes recent developments in PIL in each area of the world. Each regional section consists of a particular chapter devoted to new scholarly work, which is particularly important for those areas of the world. Those are not necessarily linked to a specific region or country in the world but are truly transnational or global. 

Commentaries would not have been possible without Cristian Gimenez Corte (Universidad Nacional del Litoral, Santa Fe, Argentina), Jeanne Huang (University of Sydney Law School), Sedat Sirmen (Ankara University Faculty of Law), Yao-Ming Hsu (National Cheng- Chi University), Patricia Snell (Covington & Burling LLP), Charles Mak (University of Glasgow), Juan Pablo Gómez- Moreno (Cartagena Refinery), Lamine Balde (Shanghai Jiao Tong University), Christos Liakis (National & Kapodistrian University of Athens), and is coordinated by PILIG Co-Chairs Rekha Rangachari (New York International Arbitration Center) and Carrie Shu Shang (California State Polytechnic University, Pomona). In addition, PILIG is constantly looking forward to your suggestions to improve our services to our members.