Conflictoflaws

(This post is provided by Zeyu Huang, who is an associate attorney of Hui Zhong Law Firm based in Shenzhen. Mr. Huang obtained his LLB degree from the Remin University of China Law School. He is also a PhD candidate & LLM at the Faculty of Law in University of Macau. The author may be contacted at the e-mail address: huangzeyu@huizhonglaw.com)

When confronted with international parallel proceedings due to the existence of a competent foreign court having adjudicative jurisdiction, the seized foreign court located in common law jurisdictions seems to see it as no offence to Chinese courts by granting anti-suit injunctions to restrain Chinese proceedings. This is because the common law court believes that “An order of this kind [anti-suit injunction] is made in personam against a party subject to the court’s jurisdiction by way of requiring compliance with agreed terms. It does not purport to have direct effect on the proceedings in the PRC. This court respects such proceedings as a matter of judicial comity”. [1] However, the fact that the anti-suit injunction is not directly targeted at people’s courts in the PRC does not prevent Chinese judges from believing that it is inappropriate for foreign courts to issue an anti-suit injunction restraining Chinese proceedings. Instead, they would likely view such interim order as something that purports to indirectly deprive the party of the right of having access to Chinese court and would unavoidably impact Chinese proceedings.
The attitude of Chinese courts towards the anti-suit injunction – a fine-tuning tool to curb parallel proceedings – has changed in recent years. In fact, they have progressively become open-minded to resorting to anti-suit injunctions or other similar orders that are issued to prevent parties from continuing foreign proceedings in parallel. Following that, the real question is whether and how anti-suit injunction is compatible with Chinese law. Some argued that Article 100 of the PRC CPL provides a legal basis for granting injunctions having similar effects with anti-suit injunction at common law. [2] It provides that:
“The people’s court may upon the request of one party to issue a ruling to preserve the other party’s assets or compel the other party to perform certain act or refrain from doing certain act, in cases where the execution of the judgment would face difficulties, or the party would suffer other damages due to the acts of the other party or for other reasons. If necessary, the people’s court also could make a ruling of such preservative measures without one party’s application.” [3]
Accordingly, Chinese people’s court may make a ruling to limit one party from pursuing parallel foreign proceedings if such action may render the enforcement of Chinese judgment difficult or cause other possible damages to the other party.
In maritime disputes, Chinese maritime courts are also empowered by special legislation to issue maritime injunctions having anti-suit or anti-anti-suit effects. Article 51 of the PRC Maritime Special Procedure Law provides that the maritime court may upon the application of a maritime claimant issue a maritime injunction to compel the respondent to do or not to do certain acts in order to protect the claimant’s lawful rights and interests from being infringed. [4] The maritime injunction is not constrained by the jurisdiction agreement or arbitration agreement as agreed upon between the parties in relation to the maritime claim. [5] In order to obtain a maritime injunction, three requirements shall be satisfied – firstly, the applicant has a specific maritime claim; secondly, there is a need to rectify the respondent’s act which violates the law or breaches the contract; thirdly, a situation of emergency exists in which the damages would be caused or increased if the maritime injunction is not issued immediately. [6] Like the provision of the PRC CPL, the maritime injunction issued by the Chinese maritime court is mainly directed to mitigate the damages caused by the party’s behaviour to the other parties’ relevant rights and interests.
In Huatai P&C Insurance Corp Ltd Shenzhen Branch v Clipper Chartering SA, the Maritime Court of Wuhan City granted the maritime injunction upon the claimant’s application to oblige the respondent to immediately withdraw the anti-suit injunction granted by the High Court of the Hong Kong SAR to restrain the Mainland proceedings. [7] The Hong Kong anti-suit injunction was successfully sought by the respondent on the grounds of the existence of a valid arbitration agreement. [8] However, the respondent did not challenge the jurisdiction of the Mainland maritime court over the dispute arising from the contract of carriage of goods by sea. Therefore, the Maritime Court of Wuhan City held that the respondent had submitted to its jurisdiction. As a result, the application launched by the respondent to the High Court of the Hong Kong SAR for the anti-suit injunction to restrain the Mainland Chinese proceedings had infringed the legitimate rights and interests of the claimant. In accordance with Article 51 of the PRC Maritime Special Procedure Law, a Chinese maritime injunction was granted to order the respondent domiciled in Greece to withdraw the Hong Kong anti-suit injunction (HCCT28/2017). [9] As the maritime injunction in the Huatai Property case was a Mainland Chinese ruling issued directly against the anti-suit injunction granted by a Hong Kong court, it is fair to say that if necessary Chinese people’s court does not hesitate to issue a compulsory injunction “which orders a party not to seek injunction relief in another forum in relation to proceedings in the issuing forum”. [10] This kind of compulsory injunction is also called ‘anti-anti-suit injunction’ or ‘defensive anti-suit injunction’. [11]
When it comes to civil and commercial matters, including preserving intellectual property rights, the people’s court in Mainland China is also prepared to issue procedural orders or rulings to prevent the parties from pursuing foreign proceedings, similar to anti-suit injunctions or anti-anti-suit injunction in common law world. In Guangdong OPPO Mobile Telecommunications Corp Ltd and its Shenzhen Branch v Sharp Corporation and ScienBiziP Japan Corporation, the plaintiff OPPO made an application to the seized Chinese court for a ruling to preserve actions or inactions.[12] Before and after the application, the defendant Sharp had brought tort claims arising from SEP (standard essential patent) licensing against OPPO by commencing several parallel proceedings before German courts, a Japanese court and a Taiwanese court. [13] In the face of foreign parallel proceedings, the Intermediate People’s Court of Shenzhen City of Guangdong Province rendered a ruling to restrain the defendant Sharp from pursing any new action or applying for any judicial injunction before a Chinese final judgment was made for the patent dispute. [14] The breach of the ruling would entail a fine of RMB 1 million per day. [15] Almost 7 hours after the Chinese ‘anti-suit injunction’ was issued, a German ‘anti-anti-suit injunction’ was issued against the OPPO. [16] Then, the Shenzhen court conducted a court investigation to the Sharp’s breach of its ruling and clarified the severe legal consequences of the breach. [17] Eventually, Sharp choose to defer to the Chinese ‘anti-suit injunction’ through voluntarily and unconditionally withdrawing the anti-anti-suit injunction granted by the German court. [18] Interestingly enough, Germany, a typical civil law country, and other EU countries have also seemingly taken a U-turn by starting to issue anti-anti-suit injunctions in international litigation in response to anti-suit injunctions made by other foreign courts, especially the US court. [19]
In some other IP cases involving Chinese tech giants, Chinese courts appear to feel more and more comfortable with granting compulsory rulings having the same legal effects of anti-suit injunction and anti-anti-suit injunction. For example, in another seminal case publicized by the SPC in 2020, Huawei Technologies Corp Ltd (“Huawei”) applied to the Court for a ruling to prevent the respondent Conversant Wireless Licensing S.A.R.L. (“Conversant”) from further seeking enforcement of the judgment rendered by the Dusseldorf Regional Court in Germany. [20] Before the application, a pair of parallel proceedings existed, concurrently pending before the SPC as the second-instance court and the Dusseldorf Regional Court. On the same date of application, the German regional court delivered a judgement in favour of Conversant. Within 48 hours after receiving the Huawei’s application for an anti-suit injunction, the SPC granted the injunction to prohibit Conversant from applying for enforcement of the German judgment; if Conversant failed to comply with the injunction, a fine (RMB 1 million per day) would be imposed, accumulating day by day since the date of breach. [21] Conversant applied for a reconsideration of the anti-suit injunction, and it was however rejected by the SPC eventually. [22] The SPC’s anti-suit injunction against the German regional court’s decision compelled both parties to go back to the negotiating table, and the dispute between the two parties striving for global parallel proceedings was finally resolved by reaching a settlement agreement. [23]
The SPC’s injunction in Huawei v. Conversant is commended as the very first action preservation ruling having the “anti-suit injunction” nature in the field of intellectual property rights litigation in China, which has prematurely established the Chinese approach to anti-suit injunction in judicial practice. [24] It is believed by the Court to be an effective tool to curb parallel proceedings concurrent in various jurisdictions across the globe. [25] We still wait to see Chinese court’s future approach in other civil and commercial matters to anti-suit injunction or anti-anti-suit injunction issued by itself as well as those granted by foreign courts.

———-

1. See Impala Warehousing and Logistics (Shanghai) Co Ltd v Wanxiang Resources (Singapore) Pte Ltd [2015] EWHC 811, para.144.
2. See Liang Zhao, ‘Party Autonomy in Choice of Court and Jurisdiction Over Foreign-Related Commercial and Maritime Disputes in China’ (2019) 15 Journal of Private International Law 541, at 565.
3. See Article 100, para.1 of the PRC CPL (2017).
4. See Article 51 of the PRC Special Maritime Procedure Law (1999).
5. See Article 53 of the PRC Special Maritime Procedure Law (1999).
6. See Article 56 of the PRC Special Maritime Procedure Law (1999).
7. See Huatai Property & Casualty Insurance Co Ltd Shenzhen Branch v Clipper Chartering SA (2017) E 72 Xing Bao No.3 of the Maritime Court of Wuhan City.
8. See HCCT 28/2017 of the High Court of the Hong Kong SAR.
9. See (2017) E 72 Xing Bao No.3.
10. See Andrew S. Bell, Forum Shopping and Venue in Transnational Litigation (Oxford University Press 2003), at 196.
11. See ibid.
12. See (2020) Yue 03 Min Chu No.689-1.
13. See ibid.
14. See ibid.
15. See ibid.
16. See ibid.
17. See ibid.
18. See ibid.
19. See Greta Niehaus, ‘First Anti-Anti-Suit Injunction in Germany: The Costs for International Arbitration’ Kluwer Arbitration Blog, 28 February 2021.
20. See Huawei Technologies Corp Ltd and Others v Conversant Wireless Licensing S.A.R.L. (2019) Zui Gao Fa Zhi Min Zhong No.732, No.733, No.734-I.
21. See ibid.
22. See Conversant Wireless Licensing S.A.R.L. v Huawei Technologies Corp Ltd and Others, (2019) Zui Gao Fa Zhi Min Zhong No.732, No.733, No.734-II.
23. See Case No.2 of the “10 Seminal Intellectual Property Right Cases before Chinese Courts”, Fa Ban [2021] No.146, the General Office of the Supreme People’s Court.
24. See ibid.
25. See ibid.

Written by Ekaterina Pannebakker

On 1 July 2021, Switzerland, which is the depository of the Lugano Convention 2007, notified the Parties to the Convention of the EU’s refusal to give its consent to the UK’s accession to the Convention. The notification is available on the website of the Swiss Department of Foreign Affairs in several languages. It states the EU is not ‘in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention’, quoting the note verbale received by the depository from the EU on 28 June 2021.

This is the final chord in the consideration of the UK’s after-Brexit application to accede to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Lugano, 2007. As previously reported on conflictoflaws (inter alia), the accession to the Convention is subject to the consent of all the current Parties. The EU’s refusal was expected, since the European Commission gave a negative advice to the European Parliament. Noteworthy is perhaps that the Convention does not limit the number of attempts a State can make to accede to the Convention. This means (theoretically) the UK can apply again in the future.

 

This Thursday AG Campos Sánchez-Bordona delivered his Opinion in the case IB, C-289/20. It is another request for a preliminary ruling addressing the issue of multiple places of residence. The recent take on this issue concerned the framework established by the Succession Regulation. In its judgment in the case E.E., C-80/19, the Court of Justice held the last habitual residence of the deceased, within the meaning of that regulation, must be established by the authority dealing with the succession in only one of the Member States.

In the case IB, C-289/20, the Court is invited to interpret the Brussels II bis Regulation in the context of a request for a preliminary ruling originating from the proceedings for a divorce.

The preliminary question reads as follows:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of [the Brussels II bis Regulation] that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

In his Opinion, AG proposes to the Court to consider that under the Brussels II bis Regulation a spouse may have only one place of habitual residence (points 83 et 90). If, in fact, as the preliminary question presupposes, a spouse divides his life between two Member States, it has to be considered that he or she does not have a place of habitual residence within the meaning of Article 3 of the Regulation (point 98). If that leads ultimately to the situation where no forum within the EU can hear the case for a divorce, in order to remedy situations of denial of justice, the jurisdiction might be exceptionally attributed to the courts of one of the Member State where the spouse resides (points 100 and 101).

Instead of providing a summary of the elaborate analysis offered by the Opinion, it seems more meaningful to highlight some of its points.

At the outset, AG observes that the entry into force of the Regulation 2019/1111 will not affect the rules on jurisdiction of relevance for a divorce already provided for in the Brussels II bis Regulation (point 27).

He also seems to reject the idea that notion of ‘habitual residence’ should necessarily receive the same meaning among the EU private international law instruments that elevate the place of habitual residence to the role of a connecting factor (point 39). Scepticism regarding this idea is expressed on several occasions (see, for instance, point 50).

The subjective factor that corresponds to the intention of a spouse might come into play when identifying the place of habitual residence. According to AG, the criteria that normally characterize “habitual residence” may be supplemented – or even replaced – by the intentions of a spouse (point 66).

Under the Brussels II bis Regulation a spouse may have only one place of habitual residence and multiple places of “non-habitual” residence which are, however, irrelevant for the purposes of Article 3 (points 83 et 90).

Ultimately, where no court has jurisdiction pursuant to the Brussels II bis Regulation, including the national rules of jurisdiction that may be of relevance under Article 7 of the Regulation (residual jurisdiction), the courts of one of the Member States where the spouse (non-habitually) resides may exercise jurisdiction in order to remedy situations of denial of justice (points 100 and 101). This consideration seems to draw inspiration from the doctrine of the forum of necessity, even though this notion itself does not appear in the Opinion. Besides, at least to a certain extent the terms employed here seem to echo the wording of Recital 16 of the Maintenance Regulation and Recital 31 of the Succession Regulation, which contrary to the Brussels II bis Regulation explicitly provide for a forum of necessity. In a similar vein, the reference to the “deprivation of the judicial protection within the Union” at point 99 (“ne priverait pas nécessairement les parties de la protection juridictionnelle au sein de l’Union”) may make one think of Article 47 of the Charter.

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

On July 20, 2021 (14.00 – 19.00), Università degli Studi, Milan will host (in streaming) the Annual Conference of the EU-funded project Jean Monnet Module on “Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe”.

The topic of this year – “Incentives and Challenges to Transnational Access to Justice” – will be addressed by distinguished panelists in two Round-Tables on, respectively, Third-party Funding in International Dispute Resolution and E-Justice in International Dispute Resolution.

The event is organized with the support of the Eramus+Programme of the European Union, the Centre of Research on European and Transnational Dispute Settlement (EUTraDiS), the European Court of Arbitration (CEA) and the Jean Monnet Chair on EU Health Legal Framework and Competition Law (EHCL).

Please find here the complete programme.

Registration is due by 15 July 2021, by completing and submitting this registration form (also referred to in the flyer).

For any information, please contact Prof. Albert Henke (albert.henke@unimi.it)

Andrea Bonomi and Patrick Wautelet, with the cooperation of Ilaria Pretelli, Eva Lein, Guillaume Kessler, Sara Migliorini and Konstaninos Rokas published Le droit européen des relations patrimoniales de couple (Bruylant). This is an extensive commentary (1368 pages) on the EU Regulations on Matrimonial Property (2016/1103) and on the Property Consequences of Registered Partnerships (2016/1104). These regulations came about through the process of enhanced cooperation and are in force in eighteen of the twenty-seven EU Member States.

The book is similar to the Commentary on the EU’s Succession Regulation (650/2015), Le droit européen des successions by the same main authors.

The book starts with an elaborate introduction which sets the context and gathers information on the preparatory steps towards the regulations (the kind of thing we miss since we don’t have an official report on the Regulations). It refers the reader to various studies and opinions that were produced in the preparatory phase. The introduction further sets out the main characteristics of the Regulations, which the authors have identified as the following:

• one single attachment;
• unchangeability of the applicable law;
• preference for party autonomy;
• coordination with other EU regulations on related matters;
• dissociation between jurisdiction and applicable law.

The authors also point out the drawbacks of some of the choices that the legislator made, such as that courts often have to apply foreign law, and that different legal systems might apply to divorce, maintenance, succession and matrimonial property if couples move across borders.

After an explanation of the scope of application (material, temporal and spatial), the commentary follows an article-by-article approach. Every article is discussed in detail, in the context of  legislation and case law (on the EU and Member State levels) and a wealth of legal literature. The reader is offered sound theory combined with practical examples in the form of (fictitious) cases. The makes the book a useful tool for practitioners, judges, notaries and academics alike.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

O. Remien: The European Succession Regulation and the many questions of the European court practice – five years after entry into force

After five years of application of the European Succession Regulation it is time to have a look at European court practice: The general connecting factor of habitual residence has somehow been addressed by the European Court of Justice (ECJ) in E.E., but especially national court practice shows many interesting cases of the necessary overall assessment. Choice of law by the testator is particularly important and a notary should point not only at the present situation, but also at possible developments in the future. Estate planning has become more interesting. The legacy per vindicationem (Vindikationslegat, i.e. with in rem effect) recognized in Kubicka poses specific problems. The position of the surviving spouse under § 1371 BGB in German law has become a highly debated subject and here the aspect of free movement of persons is highlighted. The European Succession Certificate also raises many questions, among them the applicability of the competence rules in case of national notarial succession certificates or court certificates, cases Oberle, WB and E.E.. The article pleads for an equilibrated multilateral approach. Donation mortis causa will have to be dealt with by the ECJ soon. Five years of application of the Succession Regulation – and many questions are open.

 

P. Hay: Product Liability: Specific Jurisdiction over Out-of-State Defendants in the United States

“Stream of commerce” jurisdiction in American law describes the exercise of jurisdiction in product liability cases over an out-of-state enterprise when a product produced and first sold by it in another American state or a foreign country reached the forum state and caused injury there. The enterprise cannot be reached under modern American rules applicable to “general” (claim unrelated) jurisdiction. Can it be reached by exercise of “specific” (claim related) jurisdiction even though it did not itself introduce the product into the forum state? This is an important question for interstate American as well as for foreign companies engaged in international commerce. The applicable federal constitutional limits on the exercise of such “stream of commerce” jurisdiction have long been nuanced and uncertain. It was often assumed that the claim must have “arisen out of” the defendant’s forum contacts: what did that mean? The long-awaited U.S. Supreme Court decision in March 2021 in Ford vs. Montana now permits the exercise of specific jurisdiction when the claim arises out of or is (sufficiently) “related” to the defendant’s in-state contacts and activities. This comment raises the question whether the decision reduces or in effect continues the previous uncertainty.

 

W. Wurmnest: International Jurisdiction in Abuse of Dominance Cases

The CJEU (Grand Chamber) has issued a landmark ruling on the borderline between contract and tort disputes under Article 7(1) and (2) of the Brussels I-bis Regulation. Wikingerhof concerned a claim against a dominant firm for violation of Art. 102 TFEU and/or national competition law rules. This article analyses the scope of the ruling and its impact on actions brought against dominant firms for violation of European and/or national competition law and also touches upon the salient question as to what extent such disputes are covered by choice of court agreements.

 

C.F. Nordmeier: The waiver of succession according to Art. 13 Regulation (EU) 650/2012 and § 31 IntErbRVG in cases with reference to third countries

According to Art. 13 Regulation (EU) 650/2012, a waiver of succession can be declared before the courts of the state in which the declarant has his habitual residence. The present article discusses a decision of the Cologne Higher Regional Court on the acceptance of such a declaration. The decision also deals with questions of German procedural law. The article shows that – mainly due to the wording and history of origin – Art. 13 Regulation (EU) 650/2012 presupposes the jurisdiction of a member state bound to the Regulation (EU) 650/2012 to rule on the succession as a whole. Details for establishing such a jurisdiction are examined. According to German procedural law, the reception of a waiver of succession is an estate matter. If Section 31 of the IntErbRVG is applicable, a rejection of the acceptance demands a judicial decree which is subject to appeal.

 

P. Mankowski: The location of global certificates – New world greets old world

New kinds of assets and modern developments in contracting and technology pose new challenges concerning the methods how to locate assets. In many instances, the rules challenged are old or rooted in traditional thinking. Section 23 of the German Code of Civil Procedure (ZPO) is a good example for such confrontation. For instance, locating global certificates requires quite some reconsideration. Could arguments derived from modern legislation like the Hague Intermediated Securities Convention, Art. 2 pt. (9) EIR 2015 or § 17a DepotG offer a helping hand in interpreting such older rules?

 

S. Zwirlein-Forschner: All in One Star Limited – Registration of a UK Company in Germany after the End of the Brexit Transition Period

Since 1 January 2021, Brexit has been fully effective as the transition period for the UK has ended. In a recent decision, the Federal Court of Justice (BGH) has taken this into account in a referral procedure to the Court of Justice of the European Union (CJEU). The decision raises interesting questions on the demarcation between register law and company law, on conflict of laws and on the interpretation of norms implementing EU law. This article comments on these questions.

 

K. Sendlmeier: Informal Binding of Third Parties – Relativising the Voluntary Nature of International Commercial Arbitration?

The two decisions from the US and Switzerland deal with the formless binding of third parties to arbitration agreements that have been formally concluded between other parties. They thus address one of the most controversial issues in international commercial arbitration. Both courts interpret what is arguably the most important international agreement on commercial arbitration, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The Supreme Court has ruled that the Convention does not preclude non-signatories from being bound by arbitration based on equitable estoppel in US arbitration law. In the Swiss decision, the binding nature of a non-signatory is based on its interference in the performance of the main contract of other parties. According to the established case law of the Swiss Federal Tribunal, this binding approach does not conflict with the New York Convention either.

 

K. Bälz: Can a State Company be held liable for State Debt? Piercing of the Corporate Veil vs. attribution pursuant to Public International Law – Cour d’appel de Paris of 5 September 2019, No. 18/17592

The question of whether the creditor of a foreign state can enforce against the assets of public authorities and state enterprises of that state is of significant practical importance, particularly in view of the increasing number of investment arbitrations. In a decision of 5 September 2019, the Paris Court of Appeal has confirmed that a creditor of the Libyan State can enforce an arbitral award against the assets of the Libyan Investment Authority (LIA), arguing that – although the LIA enjoys separate legal personality under Libyan law – it was in fact an organ (émanation) of the Libyan State, that was functionally integrated into the state apparatus without clearly separated assets of its own. This approach is based on public international law concepts of state liability and diverges from corporate law principles, according to which a shareholder cannot generally be held liable for the corporation’s debts.

 

O.L. Knöfel: Liability of Officials for Sovereign Acts (acta iure imperii) as a Challenge for EU and Austrian Private International Law

The article reviews a decision of the Supreme Court of the Republic of Austria (Case 1 Ob 33/19p). The Court held that a civil action for compensation brought in Austria, by the victim of a downhill skiing accident, against a German school teacher on account of alleged negligence during a reconnaissance ride down an Austrian ski slope, does not constitute a “civil and commercial matter” under the Rome II Regulation, as it involves an actum iure imperii (Art. 1 cl. 1 Rome II Regulation). As a consequence, the Court applied German Law, relying on an alleged customary conflicts rule (lex officii principle), according to which indemnity claims against officials who act on behalf of the State are inevitably and invariably governed by the law of the liable State. Finally, the Court held that an action brought directly against a foreign official in Austria is not barred by sec. 9 cl. 5 of the Austrian Act of State Liability (Amtshaftungsgesetz). The Court’s decision is clearly wrong as being at variance with many well-established principles of the conflict of laws in general and of cross-border State liability in particular.

 

E. Piovesani: Italian Ex Lege Qualified Overriding Mandatory Provisions as a Response to the “COVID-19 Epidemiological Emergency”

Art. 88-bis Decree-Law 18/2020 (converted, with modifications, by Law 27/2020) is headed “Reimbursement of Travel and Accommodation Contracts and Package Travel”. This provision is only one of the several provisions adopted by the Italian legislator as a response to the so-called “COVID- 19 epidemiological emergency”. What makes Art. 88-bis Decree-Law 18/2020 “special” is that its para. 13 qualifies the provisions contained in the same article as overriding mandatory provisions.

 

The General Secretariat of the International Social Service (ISS) in Geneva has published an important bilingual study in English and French entitled:  “KAFALAH – Preliminary analysis of national and cross-border practices” – “La KAFALAH: analyse préliminaire de pratiques nationales et transfrontières” (2020).

For a general overview of the ISS and its relationship with PIL, see our previous post “The Role of the International Social Service in the History of Private International Law,” written by Roxana Banu.

Below is a summary of the publication “KAFALAH – Preliminary analysis of national and cross-border practices” based on the foreword drawn up by Hans van Loon, Member of the Institut de Droit International and Former Secretary General of the Hague Conference on Private International Law, and Hynd Ayoubi Idrissi, Professor of Law at the Université Mohammed V and Member of the United Nations Committee on the Rights of the Child. 

By way of background, please note the difference between adoption and kafalah. As stated in this publication: “the very essence of adoption is the creation of a stable legal and social filiation bond between the adoptee and his/her adoptive  parent(s)  and  (in  full  adoption)  the  cessation  of  the biological bond with the family of origin. From a Western perspective,  this  is  the  main  criterion  for  differentiating  between  adoption  and  kafalah.  From the perspective of countries whose legal systems are based on or influenced by Sharia, despite the specificities of each country, reference is often made to a common approach to adoption – that is, its prohibition.”  (p.15). As to its meaning, “Kafalah is a child protection measure in countries whose legal systems are based on or influenced by Islamic law (Sharia […]). Its effects vary greatly from one country to the next” (p. 4).

***

Despite its modest title, this publication covering 222 pages is a unique and undoubtedly one of the most extensive studies carried out on the institution of the kafalah (also spelled kafala). The kafalah is widely applied in countries whose legal system is based on or influenced by Sharia law. For those countries (except for a minority that also recognise adoption) kafalah is the preeminent child care measure for children without a family environment or with one that is at risk of breakdown. Although the kafalah increasingly interacts with the legal systems of Western countries, it is not well-known or understood in Europe, the Americas, Australia and New Zealand. The impetus of this study came from the practical experience of ISS’s International Reference Centre for the Rights of Children Deprived of the Family at the International Social Service (ISS/IRC), which showed that this lack of understanding can seriously affect children deprived of parental care in cross-border situations.

Following the introduction, Part I sets the international scene of kafalah. An important step to greater international recognition of this institution as an alternative care measure for children deprived of their families was the specific reference to kafalah in the Convention on the Rights of the Child (1989), followed by its inclusion as a child protection measure in the Hague Child Protection Convention (1996) and the UN Guidelines on the Alternative Care of Children (2009). Part I then continues analyzing the various forms, structures and functions of kafalah, comparing it to other protection measures such as adoption, and noting the Western perspective on kafalah.

Part II provides an extensive and detailed overview of the implementation of kafalah and analogous institutions in countries whose legal system is based on or inspired by Sharia law, with in-depth studies on Egypt, Iran, Iraq, Jordan, Morocco, Pakistan, Sudan, Djibouti, Lebanon, Malaysia, and Tunisia, and practical comments and suggestions by ISS/IRC for each State.  It analyses the many social problems surrounding kafalah in these States, several of which have very large populations (e.g., Indonesia, Pakistan, Egypt, Iran) or must deal with large numbers of displaced or refugee families and children (e.g., Iraq, Lebanon). Many of these countries are facing poverty, lack of adequate infrastructures for the protection of children and families, stigmatization of single mothers, child abandonment, and child labour, among others. A Technical Note provided by ISS/IRC mentions many ongoing efforts to regulate kafalah in order to better protect children’s rights, and suggests a number of issues to consider, offering practical tools to national stakeholders, including a compelling case study on “Preventing unjustified family separation”.

Part III addresses the recognition of kafalah and analogous institutions in “receiving States”. It starts with a Case Study on “The crucial questions to ask oneself as a professional in a receiving State”, when confronted with a kafalah issue, with alternative suggestions for possible approaches. Then follow: a discussion of the principle of subsidiarity in cross-border kafalah placements; “Considerations about the (non)-applicability of the 1993 Hague Convention to cross-border kafalah placements” by Laura Martínez-Mora (Secretary at the Hague Conference); and a discussion of the 1996 Hague Convention on Child Protection as an international framework for cross-border kafalah. See in particular the interview with Hans van Loon “4. The 1996 Hague Convention on Child Protection: An international framework for cross-border kafalah?,” which provides an insight into the interaction between Kafalah and the modern Hague Children Conventions (pp. 135-137).

Part III concludes with a comprehensive analysis of the treatment of kafalah in several receiving States: Australia, Belgium, Denmark, France, Germany, Italy, New Zealand, Norway, Spain, Switzerland, and the United States of America. Like Part II, Part III concludes with a Technical Note with a summary of positive trends as well as common challenges regarding the kafalah in receiving States, during the four different stages of (1) the pre-placement process; (2) the decision to establish a Kafalah; (3) the transfer of the child and immigration considerations; and (4) the treatment of the kafalah in the receiving State and post-placement considerations.

The study concludes with four Annexes and an extensive bibliography (see in particular Annex IV).

Annex I: Historical and contemporary considerations on Sharia Law, by M. Keshavje Mohammed, a renowned international specialist on cross cultural mediation, offers helpful background insights on the legal systems where kafalah is practiced.

Annex II: International case law relating to kafalah provides an overview and analysis of cases dealt with by the European Court of Human Rights and the UN Committee on the Rights of the Child.

Annex III: EU l instruments applicable to kafalah, deals with the European Union Directives on Family Reunification Directive and the Citizens’ Rights Directive and presents case law of the Court of Justice of the European Union.

Annex IV: Tools to foster strengthened cross-border cooperation. This Annex suggests and develops the possibility of strengthening cooperation between kafalah and non-kafalah States through a bilateral agreement. To that end it presents (1) a Checklist for the establishment of such a bilateral agreement: how to ensure better protection of children placed abroad under a kafalah in (and beyond) the context of the 1996 Hague Convention, and (2) a Model for the establishment of such an agreement regarding the cross-border placement of children in a foster family or institution, or their provision of care by kafalah or an analogous institution. It offers one Model for States that are both bound by the 1996 Hague Convention, and another, more extensive, one for States that are not both bound by the 1996 Hague Convention.

Annex IV concludes with a brief overview, written by Justice V. Bennett and M. MacRitchie, on the benefits of direct judicial communication and sharing the Australian experience on how direct judicial communication could be applied to cross-border kafalah placements

On Tuesday, July 6, 2021, the Hamburg Max Planck Institute will host its twelfth monthly virtual workshop in private international law at, exceptionally, 15:00-16:30. Since January of this year, we have been alternating between English and German language. Hannah Buxbaum (Indiana University) will speak, in English, about the topic

Equivalence Regimes in Transnational Regulation: From Comparability to Convergence

The presentation will be followed by open discussion. All are welcome. More information and sign-uphere This is the twelfth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, Macjiej Szpunar in January, Dagmar Coester-Waltjen in February, Horatia Muir Watt in March, Burkhard Hess in April, Marta Pertegas in May, and Tania Domej in June. The series will take a summer break in August and return in September. Stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

 

 

 

 

The Nigeria Group on Private International Law held its inaugural lecture on June 21, 2021. The video recording of the event is now available on the Group’s website: here  

Back in April we reported about the Opinion delivered by AG Campos Sánchez-Bordona in the case Vorarlberger Landes- und Hypotheken-Bank, C-301/20, which revolves around the effects produced by an European Certificate of Succession and its certified copy, time-wise (first and third questions) as well as ratione personae, by reason of the person concerned (second question). At the request of the Court, the Opinion covered only the third preliminary question. In today’s judgment, the Court addresses all three questions.

In brief, the case concerned a certified copy of an European Certificate of Succession, which bore a marking ‘unlimited’ in the ‘Valid until’ field (element linked to the first and third questions). Moreover, the certified copy in question was issued on the application of only one of the two heirs concerned by the main proceedings emanating from Austria (element linked to the second question).

 

First and third questions, effects time-wise

The Court considered that the first and third question should be examined jointly; for the Court, by these two questions the referring court sought to establish whether a certified copy of an European Certificate of Succession which bears a marking ‘unlimited’ is valid and produces its effects (described in Article 69 of the Succession Regulation) with no further limitation, as long as this copy was valid when it was first submitted to the concerned authority (paragraph 20).

According to the Court’s answer, such certified copy is valid for six month following its issuance and continues to produce its effects, in the sense of Article 69 of the Regulation, if it was valid when it was first submitted to the competent authority (paragraph 37).

 

Second question, effects by reason of the person concerned

By its second question, the referring court sought to establish whether an European Certificate of Succession produces its effects only in favour of the person who has applied for it (under this hypothesis, only that person could use the certificate and rely on its effects) or it produces such effects in favour of all persons who are mentioned in its content by name as heirs, legatees, executors of wills or administrators of the estate, regardless whether they applied for it.

The Court clearly approved the second hypothesis; the European Certificate of Succession produces its effects in favour of all persons mentioned in it, whether they have applied for the issue of certificate or not (paragraph 45).

 

The judgment can be consulted here (in French).

Conventions & Instruments  

On 31 May 2021, Georgia deposited its instrument of accession to the HCCH 1965 Service Convention and the HCCH 1970 Evidence Convention. With the accession of Georgia, the Service Convention now has 79 Contracting Parties. It will enter into force for Georgia on 1 January 2022, subject to the Article 28 procedure. For the Evidence Convention, with the accession of Georgia it now has 64 Contracting Parties. The Convention will enter into force for Georgia on 30 July 2021. More information is available here.

Meetings & Events 

On 1 June 2021, the HCCH and the Asian Business Law Institute co-hosted the webinar “HCCH 1970 Evidence Convention and Remote Taking of Evidence by Video-link”, part of the ongoing celebrations of the Evidence Convention’s golden anniversary. More information is available here.

On 1 June 2021, the HCCH participated in a virtual Regional Discussion on Children’s Rights and Alternative Care, organised by the Council of Europe in preparation to the United Nations Committee on the Rights of the Child Day of General Discussion on this theme. More information is available here.

On 21 June 2021, the HCCH participated in the virtual inaugural event of the Nigeria Group on Private International Law. The recording of the event is available here.

 

Vacancy: The HCCH is currently seeking an Assistant Legal Officer. The deadline for the submission of applications is 23 July 2021 (00:00 CEST). 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.

The ERC Building EU Civil Justice team in Rotterdam is running a series of seminars, covering a variety of topics in the field of European civil justice and international litigation.

On Thursday 1 July, 16-18 hrs CET, the webinar is dedicated to the topic Representing Future Generations: Private Law aspects of Climate Change Litigation. Speakers are Chantal Mak, Geert Van Calster and Sanne Biesmans, and the panel is moderated by Jos Hoevenaars. They will address the relationship between climate litigation, fundamental rights and the role of European judges; private international law aspects of climate litigation and strategic aspects; and liability aspects of climate litigation and implications of the recent Dutch Shell judgment (see our earlier blogpost).

Participation is free of charge. You can register here at Eventbrite.

The two remaining sessions of the series are dedicated to:

• The Arbitralization of Courts – Friday, 2 July (09:30-11:30 CET), with Georgia Antonopoulou and Masood Ahmed as speakers and moderated by Xandra Kramer (register)

• European Civil Justice in Transition: Past, Present & Future – Thursday 15 July  (15.30-17.30 CET) with Alan Uzelac, Burkhard Hess, John Sorabji and Eva Storskrubb, moderated by Alexandre Biard and Xandra Kramer (register)

The summary below has been kindly provided by the author:

The International Commission on Civil Status has been working for seventy years for international cooperation in the field of civil status. In this period, 34 Conventions and 11 Recommendations were adopted. Notably, the Commission developed innovative methods, for example, multilingual Forms and Coding of entries in order to overcome translation problems related to civil status documents. Its results are remarkable to a point that some of its instruments serve as a model specially for the European Union.

Despite all the work already accomplished and the many projects still existing, the International Commission on Civil Status is now in risk of vanishing, mainly because of France and Germany’s recent withdrawal.

Still, its know-how is vital in the face of the new challenges posed by changes in the civil status of persons: same-sex marriage, medically assisted reproduction, surrogate motherhood, etc. In this context and for the common interest of present and future generations, rather than abandoning the Commission and the question of civil status in the international arena, it is more than ever time to get involved, by joining it and actively participating in its work.

In that perspective, the article constitutes a plea intended to convince the German authorities of course, but also those of other States, former members of the International Commission on Civil Status or not, to invest in it in order to save an institution which works in an essential field for private relations of an international character.

Such an investment would be all the more appropriate given that the International Commission on Civil Status has fundamentally changed its statutes and its mode of operation in recent years. For example, English is now the second official language of the Commission beside French.

These efforts must henceforth be accompanied. If this were not the case, the risk of losing all the patiently drawn up normative acquis which goes well beyond civil status in the strict sense but also affects family and nationality law exists.

The article is part of an awareness campaign carried out by eminent Authors for several months now.

 

Source: G. Cerqueira, « Internationale Kommission für das Zivilstandswesen. Eine einzigartige, beispielhafte und notwendige internationale Organisation», StAZ Das Standesamt, n. 6, Juni, 2021, p. 169-170.

 

           

 

Comments by Ivana Isailovi? & Alice Margaria

 

The case of Valdís Fjölnisdóttir and Others v. Iceland brings to the attention of the European Court of Human Rights (ECtHR) the no longer new, yet persistently complex, question of the determination of legal parenthood following international surrogacy arrangements. Similar to previous cases, such as Mennesson v France, Labassee v France, andParadiso and Campanelli v Italy, this complaint originated from the refusal of national authorities to recognise the parent-child relationship established in accordance with foreign law on the ground that surrogacy is prohibited under national law. Valdís Fjölnisdóttir and Others is the first case of this kind involving a married same-sex couple who subsequently divorced. Like the applicants in the case of Paradiso and Campanelli v Italy, Ms Valdís Glódís Fjölnisdóttir and Ms Eydís Rós Glódís Agnarsdóttir are not biologically linked to their child, who was born in California.

 

Ivana Isailovi? & Alice Margaria’s comments answer three questions:

1) What’s new in this case?

2) What are the legal effects of this decision?

3) What are alternative legal framings and ideas?

 

1. Were you surprised by this ruling? Is there anything new in this case?

Alice: This judgment is emblematic of the ECtHR’s generally cautious and minimalistic approach to assessing the proportionality of non-recognition vis-à-vis unconventional parent-child relationships. It is widely agreed (e.g., Liddy 1998; Stalford 2002; Choudhry and Herring 2010) that the Court has over time expanded the boundaries of what constitutes ‘family life’ and supported the adoption of more inclusive and diverse conceptions of ‘family’ through its dynamic interpretation of Article 8 ECHR. Yet, as I have argued elsewhere, this conceptual expansion has not translated into the same protection of the right to respect for family life for all unconventional families. Valdís Fjölnisdóttir and Others is a further manifestation of this trend. The Court has indeed no difficulty in qualifying the bonds existing between the two women and their child as ‘family life’. As far as the applicability of the ‘family life’ limb of Article 8 is concerned, the quality and duration of the relationship at stake trump biological unrelatedness. Yet when it comes to assessing the proportionality of the interference of non-recognition with the applicants’ right to respect for family life, the Court is satisfied with the de facto preservation of the family ties existing between the applicants, and diminishes the disadvantages created by lack of recognition of their parent-child relationship – just as it did in Mennesson. Icelandic authorities had taken steps to ensure that the applicants could continue to enjoy their family ties in spite of non-recognition by placing the child in the foster care of the two women and making these arrangements permanent. This had – from the Court’s perspective – alleviated the distress and anguish experienced by the applicants. In addition, the child had been granted Icelandic citizenship by a direct act of Parliament, with the effect of making his stay and rights in the country regular and secure. As a result, according to the Court, non-recognition had caused the applicants only limited practical hindrances to the enjoyment of their family life. As in Mennesson, therefore, the Court finds that there is family life among the three applicants, but no positive obligation on the part of the State to recognise the parent-child relationships in accordance with the California birth certificate. Whilst it is true that, in the case at hand, the family ties between the applicants had indeed been afforded some legal protection through foster care arrangements (unlike in previous cases), it seems that the unconventional nature of the family at stake – be it due to the lack of a biological link, the fact that it involves two mothers, or because they resorted to surrogacy – continues to hold back the Court from requiring the State to recognise the existing ties ab initio and through filiation. This is also line with the Advisory opinionof 10 April 2019 (request no. P16-2018-001), where the Grand Chamber clarified that States have the obligation to provide ‘only’ some form of legal recognition – e.g., adoption – to the relationship between a child born from surrogacy and their non-genetic mother.

Whilst not setting a new jurisprudential trajectory on how to deal with the determination of legal parenthood following international surrogacy, Valdís Fjölnisdóttir and Others brings two novel elements to bear. The first is encapsulated in para 64, where the Court determines the Supreme Court’s interpretation of domestic provisions attributing legal motherhood to the woman who gives birth to be ‘neither arbitrary nor unreasonable’ and, accordingly, considers that the refusal to recognise the family ties between the applicants and the child has a ‘sufficient basis in law’. In this passage, the Court takes a clear stance on the rule mater semper certa est, which, as this case shows, has the potential to limit the recognition of contemporary familial diversity (not only in the context of surrogacy but also in cases of trans male pregnancies, see e.g. OH and GH v Germany, Applications no. 53568/18 and 54941/18, communicated on 6 February 2019). Second, and in contrast, Judge Lemmens’ concurring opinion takes one important step towards demystifying and problematising the relevance of biological relatedness in regulating legal parenthood following international surrogacy. He points out that the negative impact of non-recognition is equal for all children born from surrogacy abroad who find themselves in legal limbo, regardless of whether they are biologically connected to their parents or not. He further adds that, whilst adoption is an alternative means of recognition, it does not always provide a solution to all difficulties a child might be experiencing. In the case at hand, for instance, adoption would have benefited only one parent-child relationship: the couple had indeed divorced through the national proceedings and, therefore, a joint adoption was no longer a possibility for them. This concurring opinion therefore moves towards questioning and potentially revising the terms of the debate between, on the one hand, preventing illegal conduct by intended parents and, on the other hand, tolerating legal limbo to the detriment of children.

 

Ivana:  On the one hand, there is nothing new in this decision. Like in Mennesson (2014) and Paradiso & Campanelli (2017), the Court continues to “constitutionalize” domestic PIL rules. As many PIL scholars argued, this reflects the transformations of conflict of laws rules and methods, as the result of  human rights field’s influence. Following the ECHtR and the CJEU case law, conflicts of laws rules became subordinate to a proportionality test which implies weighing various interests at stake. In this case, it involves balancing applicants’ rights to private and family life, and the interests of the state in banning commercial surrogacy.

Second, like in its previous decisions on surrogacy, by recognizing the importance of the mater semper est principle, the ECtHR continues to make the biological link preeminent when defining the scope of human rights protection

On the other, it seems that there is a major rupture with previous decisions. In Mennesson (para 81 & 99), and the advisory opinion requested by the French Cour de cassation (2019) (para 37-38), the ECtHR emphasized child’s right to a recognition of their legal relationship with their intended parents (part of the child’s right to private and family life). This has in turn influenced the Court’s analysis of the scope of states’ margin of appreciation.

In the case however, the Court pays lip service to child’s interests in having their legal relationship with their intended parents recognized (besides pointing out that, under domestic law, adoption is open to one of the two women, par. 71, and that the State took steps to preserve the bond between the (intended) parents and their child).

Without the legal recognition of the parent-child relationship, however, the child—who is placed in foster care—is left in a vulnerable legal position that is hardly in line with the protection of children’s rights. It is unclear what explains this shift in the Court’s reasoning, and Judge Lemmens’ concurring opinion that tries to make sense of it is unconvincing.

 

2. What are the effects of this decision in terms of the regulation of global surrogacy?

Ivana: There are at least two legal consequences for PIL. First, the decision legitimizes a flawed, biological and marginalizing understanding of legal parenthood/motherhood. Second, it legitimizes feminists’ anti-surrogacy arguments that dovetail with conservative anti-LGBTQ transnational movements’ positions.

According to the Court, mater semper certa est—the notion that the woman who gives birth to the child is the legal mother of that child— which justifies Iceland’s refusal to recognize the foreign parent-child link, is neither “arbitrary nor manifestly unreasonable” (para 69)

But mater semper certa est has consistently been a bit more than an incantation.

In France, scholars showed that the Civil Code from 1804 originally allowed and promoted the constitution of families which didn’t reflect biological bonds, as it was enough to prove marriage to infer kinship. In addition, the mater semper certa est principle has been continuously eroded by assisted reproductive technology, which today enables multiple individuals to be genetic parents.

Motherhood has always been stratified, and mater semper est has operated differently in relation to class, race and gender. Research shows how in the US during slavery, African American women were not considered to be the legal mothers of children they gave birth to, and how today, the state monitors and polices the lives of women of color and poor women (see for instance the work by Angela Davis and Dorothy Roberts). On this side of the Atlantic, between 1962-1984, the French state forcefully deported thousands of children from poor families from Réunion (a former French colony now an oversees territory) to metropolitan France. Finally, this principle penalizes those who do not identify with gender binaries, or with female identity, while being able to give birth, or those who identify as women/mothers, but are unable/unwilling to give birth.

Second, the decision in some respects illustrates the mainstreaming within law of feminists’ anti-surrogacy arguments, which overlap with ant- feminist, conservative, anti-LGBTQ movements’ discourses. Iceland’ s argument that surrogacy is exploitative of surrogates, mirrors  affluent anti-surrogacy networks’ positions that anti-surrogacy feminist groups  adopted in the 1980s. These lobbies argue that surrogacy constitutes the exploitation of women, and that surrogacy severs the “natural maternal bonding” and the biological link between the mother and the child.

This understanding of surrogacy promoted by feminists came to overlap with the one adopted by transnational conservative, pro-life, anti-feminist, anti-LGBTQ groups, and it is interesting that some of the arguments adopted by the Court correspond to those submitted by the conservative institute Ordo Iuris, which intervened in the case. Another example of this overlap, is the EU lobby group No Maternity Trafficking, which includes right-wing groups, such as La Manif pour tous, that organized protests against the same-sex marriage reform in France in 2013.

Here is how the emphasis on the biological link in relation to the definition of legal parenthood may overlap with anti-LGBTQ discourses. As I argued elsewhere, in France, private lawyers, feminists, psychoanalysts, and conservative groups such as La Manif pour tous defended the biological understanding of legal filiation, to oppose the same-sex marriage reform which also opened adoption to same-sex couples, because, according to them, biological rules sustain a “symbolic order” which reflects the “natural order” and outside that order a child will become “psychotic.” This understanding of legal filiation is however relatively recent in France and is in contradiction with the civil law approach to filiation based on individual will. In fact, different actors articulated these arguments in the 1990s, when queer families started demanding that their families be legally protected and recognized. 

 

Alice: This decision confirms the wide, yet not unlimited, freedom States enjoy in regulating surrogacy and the legal consequences of international surrogacy in their territories and legal systems. In so doing, it legitimises the preservation and continuing operation of traditional filiation rules, in particular the mater semper certa est rule, which anchors legal motherhood to the biological processes of pregnancy and birth. It follows that the public order exception can still be raised. At the same time, however, authorities are required to ensure that some form of recognition be granted to de factoparent-child relationships created following international surrogacy through alternative legal routes, such as foster care or adoption. In a nutshell, therefore, the regulatory approach to international surrogacy supported by this decision is one of accommodation, as opposed to recognition, of familial diversity. Parental ties created following surrogacy arrangements abroad have to be granted some form of legal recognition, to be given some standing in the national legal order, but do not necessarily have to be recognised in their original version, i.e., as legal parental ties ab initio.

 

3. If not this legal framing, which one should we (scholars, courts or activists) adopt to think about transnational surrogacy? 

Alice: Conflicts of laws in this context can result in two opposing outcomes: openness to familial and other types of diversity, but also – as this case shows – attachment to conventional understandings of parenthood, motherhood and ways of creating and being a family. If we imagine a continuum with the abovementioned points as its extremes, the Court seems to take an intermediary position: that of accommodating diversity. The adoption of such an intermediary position in Valdís Fjölnisdóttir and Others was facilitated by the existence of foster care arrangements and the uninterrupted care provided by the first and second applicants to their child since his birth. In the Court’s eyes, therefore, the child in this case was not left in ‘complete’ legal limbo to the same extent as the children in Mennesson, nor put up for adoption as in the case of Paradiso and Campanelli.

To address the question ‘which framing shall we adopt?’, the answer very much depends on who ‘we’ is. If ‘we’ is the ECtHR, then the margin for manoeuvring is clearly more circumscribed than for activists and scholars. The Court is bound to apply some doctrines of interpretation, in primis the margin of appreciation, through which it gains legitimacy as a regional human rights court. The application of these doctrines entails some degree of ‘physiological’ discretion on the part of the Court. Determining the width of the margin of appreciation is never a mechanical or mathematical operation, but often involves drawing a balance between a variety of influencing factors that might concur simultaneously within the same case and point to diametrically opposed directions. Engaging in this balancing exercise may create room for specific moral views on the issue at stake – i.e., motherhood/parenthood – to penetrate and influence the reasoning. This is of course potentially problematic given the ‘expressive powers’ of the Court, and the role of standard setting that it is expected to play. That being said, if regard is given to the specific decision in Valdís Fjölnisdóttir and Others, despite the fact that the outcome is not diversity-friendly, the reasoning developed by the Court finds some solid ground not only in its previous case law on surrogacy, but more generally in the doctrinal architecture that defines the Court’s role. So, whilst scholars advocating for legal recognition of contemporary familial diversity – including myself – might find this decision disappointing in many respects (e.g., its conventional understandings of motherhood and lack of a child-centred perspective), if we put Valdís Fjölnisdóttir and Others into (the Strasbourg) context, it would be quite unrealistic to expect a different approach from the ECtHR. What can certainly be hoped for is an effort to frame the reasoning in a manner which expresses greater sensitivity, especially towards the emotional and psychological consequences suffered by the applicants as a result of non-recognition, and thus gives more space to their voices and perceptions regarding what is helpful and sufficient ‘to substantially alleviate the uncertainty and anguish’ they experienced (para 71).

 

Ivana:  In some respects, this decision mirrors dominant PIL arguments about surrogacy. For some PIL scholars, surrogacy challenges traditional (“natural”) mother-child bond, when historically legal motherhood has always been a stratified concept. Other PIL scholars argue that surrogacy raises issues of (over)exploitation of surrogates and that women are coerced into surrogacy, but never really explain what these terms mean under patriarchy, and in a neoliberal context.

Like many economic practices in a neoliberal context, transnational surrogacy leads to abuses, which are well documented by scholars. But, understanding what law can, cannot or should do about it, requires, questioning the dominant descriptions of and normative assumptions about surrogacy that inform PIL discourses.

Instead of the focus on coercion, or on a narrow understanding of what womanhood is, like the one adopted by relational feminism, I find queer and Marxist-feminists’ interventions empirically more accurate, and normatively more appealing.

These scholars problematize the distinctions between nature/ technology, and economy/ love which shape most of legal scholars’ understanding of surrogacy (and gestation). As Sophie Lewis shows in her book Full Surrogacy Nowprocreation was never “natural” and has always been “technologically” assisted (by doctors, doulas, nurses, nannies..) and gestation is work. Seeing gestation as work seeks to upend the capitalist mode of production which relies on the unpaid work around social reproduction. Overall, these scholars challenge the narrow genetic understanding of kinship, argue for a more capacious definition of care, while also making space for the recognition of surrogates’ reproductive work, their voices and their needs.

Legally recognizing the reproductive labor done by surrogates, may lead to rethinking how we (scholars, teachers, students, judges, activists…) understand the public policy exception/ recognition in PIL, and the recent proposals to establish binding transnational principles, and transnational monitoring systems for regulating transnational surrogacy in the neoliberal exploitative economy.

 

Ivana Isailovic is Assistant Professor of Law at the University of Amsterdam and is a member of the Sustainable Global Economic Law project. She is the co-leader (with Ralf Michaels) of the Gender & Private International Law project. Her research and teaching sit at the intersection of law, gender and political economy in transnational contexts.

Alice Margaria is a Senior Research Fellow in the Law & Anthropology Department at the Max Planck Institute for Social Anthropology. Her current research focuses on fatherhood, cultural/religious diversity and human rights. She teaches ‘Gender and Diversity in the International Context’ at Freie Universität (Berlin).

 

By Tobias Lutzi, University of Cologne

There should be few readers of this blog, and few conflict-of-laws experts in general, to whom Adrian Briggs will not be a household name. In fact, it might be impossible to find anyone working in the field who has not either read some of his academic writings (or Lord Goff’s seminal speech in The Spiliada [1986] UKHL 10, which directly credits them) or had the privilege of attending one of his classes in Oxford or one of the other places he has visited over the years.

Adrian Briggs has taught Conflict of Laws in Oxford for more than 40 years, continuing the University’s great tradition in the field that started with Albert Venn Dicey at the end of the 19th century and had been upheld by Geoffrey Cheshire, John Morris, and Lawrence Collins (now Lord Collins of Mapesbury) among others. His writings include four editions of The Conflict of Laws (one of the most read, and most readable, textbooks in the field), six editions of Civil Jurisdiction and Judgments and his magnus opus Private International Law in English Courts, a perfect snapshot of the law as it stood in 2014, shortly before the UK decided to turn back the clock. His scholarship has been cited by courts across the world. Still, Adrian Briggs has managed to maintain a busy barrister practice in London (including well-known cases such as Case C-68/93 Fiona Shevill, Rubin v Eurofinance [2012] UKSC 46, and The Alexandros T [2013] UKSC 70) while also remaining an active member of the academic community regularly contributing not only to parliamentary committees but also, on occasion, to the academic discussion on this blog.

To honour his impact on the field of Conflict of Laws, two of Adrian’s Oxford colleagues, Andrew Dickinson and Edwin Peel, have put together a book, aptly titled ‘A Conflict of Laws Companion’. It contains contributions from 19 scholars, including four members of the highest courts of their respective countries, virtually all of whom have been taught by (or together with) the honorand at Oxford. The book starts with a foreword by Lord Mance, followed by three short notes on Adrian Briggs as a Lecturer at Leeds University (where he only taught for about a year), as a scholar at Oxford, and as a fellow at St Edmund Hall. Afterwards, the authors of the longer academic contributions offer a number of particularly delightful ‘recollections’, describing Adrian Briggs, inter alia, as “the one time wunderkind and occasional enfant terrible of private international law” (Andrew Bell), “the perfect supervisor: unfailingly generous with his time and constructive with his criticism” (Andrew Scott), and “a tutor, colleague and friend” (Andrew Dickinson).

The academic essays that follow are conventionally organised into four categories: ‘Jurisdiction’, ‘Choice of Law’, ‘Recognition and Enforcement of Foreign Judgments’, and ‘Conflict of Laws within the Legal System’. They rise to the occasion on at least two accounts. First, they all use an aspect of Adrian Briggs’ academic oeuvre as their starting point. Second, they are of a quality and depths worthy of the honorand (possibly having profited from the prospect of needing to pass his critical eye). While they all are as insightful as inspiring, Ed Peel’s contribution on ‘How Private is Private International Law?’ can be recommended with particular enthusiasm as it picks up Adrian Briggs’ observation (made in several of his writings) that, so far as English law is concerned, “a very large amount of the law on jurisdiction, but also on choice of law, is dependent on the very private law notions of consent and obligation” and critically discusses it from the perspective of contract-law expert. Still, there is not one page of this book that does not make for a stimulating read. It is a great testament to one of the greatest minds in private international law, and a true Conflict of Laws companion to countless students, scholars, colleagues, and friends.

Chinese Private International Law

Edited by Xiaohong Liu and Zhengyi Zhang

Written with the assistance of a team of lecturers at the Shanghai University of Political Science and Law, this book is the leading reference on Chinese private international law in English. The chapters systematically cover the whole of Chinese private international law, not just questions likely to arise in commercial matters, but also in family, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes.  The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement.  They also look into conflict of law questions arising in arbitration and assess China’s involvement in the harmonisation of private international law globally and regionally within the Belt and Road Initiative. Similarly to the Japanese and Indonesian volumes in the Series, this book presents Chinese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of Chinese private international law.

 

Xiaohong Liu is Professor and President and Zhengyi Zhang is Associate Professor and Deputy Director of the International Affairs Office, both at Shanghai University of Political Science and Law, China.

 

May 2021   |   9781509924370   |   352pp   |   Hbk   |    RSP: £130

Discount Price: £104

Order online at www.hartpublishing.co.uk – use the code UG7 at the checkout to get 20% off your order!

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The Project Jean Monnet Network – BRIDGE, co-funded by the Erasmus+ Programme of the European Union, and the Latin-American Center for European Studies invite young Latin American researchers to submit their works to the “Monograph Contest for Young Latin American Researchers – Jean Monnet Award”, whose main objective is to foster excellence in research on topics related to European integration in Latin America.

Only unpublished monographs submitted by young researchers who are up to 30 years old at the date of the submission will be accepted. Authors must also be enrolled in any higher education institution of Latin America.

Monographs (between 60-120 pages) written in English, Spanish or Portuguese will be accepted and authors must submit their monographs by 1 August 2021.

For more information, access: https://eurolatinstudies.com/laces/announcement/view/25.

 

By Stephen G.A. Pitel, Western University

In common law Canada, it has long been established that a court will not recognize and enforce a foreign judgment concerning title to land in the forum.  The key case in support is Duke v Andler, [1932] SCR 734.

The ongoing application of that decision has now been called into question by the British Columbia Court of Appeal in Lanfer v Eilers, 2021 BCCA 241 (available here).  In the court below the judge relied on Duke and refused recognition and enforcement of a German decision that determined the ownership of land in British Columbia.  The Court of Appeal reversed and gave effect to the German decision.  This represents a significant change to Canadian law in this area.

The Court of Appeal, of course, cannot overturn a decision of the Supreme Court of Canada.  It reached its result by deciding that a more recent decision of the Supreme Court of Canada, that in Pro Swing Inc v Elta Golf Inc, 2006 SCC 52, had overtaken the reasoning and result in Duke and left the Court of Appeal free to recognize and enforce the German decision (see paras 44-45 and 74).  This is controversial.  It has been questioned whether Pro Swing had the effect of superseding Duke but there are arguments on both sides.  In part this is because Pro Swing was a decision about whether to recognize and enforce foreign non-monetary orders, but the orders in that case had nothing to do with specific performance mandating a transfer or title to land in the forum.

I find it hard to accept the decision as a matter of precedent.  The title to land aspect of the foreign decision seems a significantly different element than what is at issue in most non-monetary judgment decisions, such that it is hard to simply subsume this within Pro Swing.  What is really necessary is detailed analysis of whether the historic rule should or should not be changed at a normative level.  How open should courts be to recognizing and enforcing foreign judgments concerning title to land in the forum?  This raises related issues, most fundamentally whether the Mocambique rule itself should change.  If other courts now know that British Columbia is prepared to enforce foreign orders about land in that province, why should foreign courts restrain their jurisdiction in cases concerning such land?

In this litigation, the defendant is a German resident and by all accounts is clearly in violation of the German court’s order requiring a transfer of the land in British Columbia (see para 1).  Why the plaintiff could not or did not have the German courts directly enforce their own order against the defendant’s person or property is not clear in the decision.  Indeed, it may be that the German courts only were prepared to make the order about foreign land precisely because they had the power to enforce the order in personam and that it thus did not require enforcement in British Columbia (analogous to the Penn v Baltimore exception to Mocambique).

Given the conflict with Duke, there is a reasonable likelihood that the Supreme Court of Canada would grant leave to appeal if it is sought.  And if not, a denial of leave would be a relatively strong signal of support for the Court of Appeal’s decision.  But the issue will be less clear if no appeal is sought, leaving debate about the extent to which the law has changed.

 

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of some aspects of a judgment rendered by the Paris Court of Appeals.

Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”) introduced not only the first uniform provisional measure at the EU level but also the first European specific system to search for the debtors’ bank accounts. The so-called information mechanism is, though, less accessible than the EAPO itself. According to Article 5 of the EAPO Regulation, creditors can apply for an EAPO ante demandam, during the procedure on the substance of the matter; or when they have already a title (a judgment, a court settlement, or an authentic document). However, only creditors with a title can submit a request for information. Furthermore, in case the title is not yet enforceable, creditors are subject to specific additional prerequisites.

In broad terms, the information mechanism operates following a traditional scheme of cross-border cooperation in civil matters within the EU. A court in a Member State sends a request for information to an information authority in the same or other Member State. The information authority then searches for the bank accounts and informs the court of origin about the outcome of that search.

Member States have a wide margin of discretion in implementing the information mechanism. They can freely pick the national body appointed as information authority. They also have the freedom to choose whichever method they consider more appropriate to search for the debtors’ bank accounts as long as it is “effective and efficient” and “not disproportionately costly or time-consuming” (Article 14(5)(d) EAPO Regulation).

France assigned the role of information authority to its national enforcement authority, the bailiffs (“huissiers”). Information about the debtors’ bank accounts is obtained by filing an application with FICOBA (“Fichier national des comptes bancaires et assimilés”). FICOBA is a national register hold by the French tax authority containing data about all the bank accounts existing in France. Other Member States, such as Poland or Germany, have also relied on similar domestic registers.

This is where the paradox emerges. In France, creditors without an enforceable title who apply for a French domestic preservation order do not have access to FICOBA; conversely, creditors without an enforceable title who apply for an EAPO do. Article L151 A of the French Manual on Tax Procedures (“Livre des procédures fiscales”) expressly indicates that bailiffs can access FICOBA for the purpose of ensuring the execution of an enforceable title (“aux fins d’assurer l’exécution d’un titre exécutoire”). The only exception is found, precisely, when they have to search for information in an EAPO procedure. This situation generates an imbalance between creditors who can access the EAPO Regulation and those who cannot.

In a judgment rendered by the Paris Court of Appeal on 28 January 2021 (Cour d’appel de Paris, Pôle 1 – chambre 10, 28 janvier 2021, n° 19/21727), the court found that such a difference of treatment between creditors with and without access to the EAPO Regulation “constitutes an unjustified breach of equality and discrimination between creditors” (“cette différence de traitement constitue une rupture d’égalité injustifiée et une discrimination entre créanciers”). Relying on the principle of equality, the court decided to extend access to FICOBA, beyond the context of the EAPO Regulation, to those creditors without an enforceable title.

The relevance of this judgment lies in the French court’s use of the EAPO Regulation to interpret a national domestic procedure. The influence of the national civil procedures system on the European procedure is well known. Uniform European civil procedures, such as the EAPO Regulation, contain numerous references to the Member States’ national law. Furthermore, courts tend to read these instruments through the lens of the national civil procedural systems, even with regard to those aspects that should apply uniformly (here is an example concerning the EAPO Regulation kindly offered by Prof. Requejo Isidro). The Paris Court of Appeal shows us that the European civil procedures can also be a source of inspiration when it comes to interpreting domestic procedural law.

The irony behind this judgment is that, during the travaux préparatoires of the EAPO Regulation, the French delegation expressly requested to restrain access to the information mechanism to those creditors who had “an enforceable title to support [their] application”. One of the reasons argued by the delegation was that “in French law, access to information is only given if the creditor possesses an enforceable title”. Ultimately, it is the French civil procedural system that is being influenced by the EAPO Regulation, and not the other way around.

 

 

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking an Assistant Legal Officer. The successful candidate will work in the field of International Family Law and Child Protection, primarily in relation to the 2000 Convention on the Protection of Adults and the 2007 Convention on Child Support and its Protocol, but also the 1961 Convention on the Form of Testamentary Dispositions and 1970 Convention on the Recognition of Divorces.

Applications should be submitted by Friday 23 July 2021 (00:00 CEST). For more information, please visit the Recruitment section of the HCCH website.

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