EAPIL blog

As announced in a previous post, a seminar series on the recast of Brussels I bis Regulation, is taking place during the 2023-2024 academic year, both in Paris at the Cour de cassation and online (in French), under the scientific coordination of Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne).

The second seminar will take place on 18 January 2024 from 16.00 to 18.00 (UTC+1).

It will be devoted to the recast of the Brussels I bis Regulation’s provisions on special jurisdiction. The main topics to be discussed include jurisdiction on contractual matters, in litigation over financial damage and in disputes relating to collective redress.

The list of speakers includes David Sindres (University of Angers), Bernard Haftel (University of Sorbonne Paris Nord), Caroline Kleiner (University of Paris Cité) and Valérie Pironon (University of Nantes).

The programme, as well as registration and access details can be found here.

The recording of the first seminar (30 November 2003) is now available online.

The other seminars will take place from 16.00 to 18.00 (UTC+1) on 26 February, 18 March, 22 April, 30 May and 24 June 2024.

The seminar series is organised by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation).

On 12 January 2024, the United Kingdom signed the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters. As reported by Ugljesa Grusic on this blog, the UK government had announced some weeks ago its intention to move towards joining the Convention.

The next step will consist for the UK in ratifying the Convention.

The Convention will then enter into force for the UK pursuant to Article 28(2), that is, “on the first day of the month following the expiration of the period during which notifications may be made in accordance with Article 29(2)” with respect to the UK.

The notifications referred to in Article 29(2) are statements whereby a Contracting State may inform the depositary, within twelve months, that the ratification of another State (the UK, in the circumstances) “shall not have the effect of establishing relations between the two States pursuant to this Convention”. In practice, Contracting States may decide that they will not be bound by the Convention vis-à-vis any State that would later join the Convention. The Convention is currently in force for the European Union and Ukraine (since 1 September 2023), and is set to enter into force for Uruguay on 1 October 2024. None of the latter States is expected to make use of this opportunity as regards the UK.

The eighteenth annual bibliography of private international law, compiled by Symeon C. Symeonides, Willamette University, is now available.

The bibliography lists 124 books and 288 journal articles on private international law or conflict of laws and related fields, such as prescriptive jurisdiction, extraterritoriality, federal-state conflicts, as well as certain aspects of arbitration, the law of foreign relations, and international human rights.

The books and articles included in the list appeared in print in 2023, in English.

The bibliography has been posted on SSRN and can be found here.

An unintended consequence of the war in Ukraine is that a number of Ukrainian surrogate mothers have travelled to other countries to give birth.

The French press has reported that surrogate mothers who had entered into agreements with French residents were repatriated to France to give birth there.

The problem is that surrogacy is prohibited in France. This is why the French Court of Cassation initially ruled that the entire enterprise aimed at evading French law, and that the parenthood resulting from the surrogacy should thus be denied recognition in France. But, as readers will know, the ECtHR ruled that this result violates the child’s right to respect for private life within the meaning of Article 8 of the European Convention on Human Rights.

Does the fact that the birth takes place in France as opposed to a country where surrogacy is legal change anything?

Establishing Parenthood

The first problem arising in this case scenario is that French law (obviously) does not establish the parenthood of the intended mother and cancel the parenthood of the surrogate mother. Quite to the contrary, if a Ukrainian woman gives birth in France, she is automatically the mother.

As a consequence, the intended parents put in place the following scheme:

1. The intended (and typically biological) father recognised the child before birth, in accordance with French law and before a French authority.
2. The surrogate mother gave birth after declaring that she does not want to be on record and wants to remain anonymous. This is allowed under French law, and should normally lead to the child being adopted by one of the many couples waiting for this. But here, the father is known.
3. The partner of the father, typically the intended mother, files an application to adopt the child.

Is This Still a Foreign Surrogacy?

An interesting question is whether one could still claim that the surrogacy was validly constituted abroad.

Two major differences between this case scenario and the more traditional one is that the birth occurred in a country were surrogacy is illegal, and that no foreign document establishes the parenthood of the intended mother. It is therefore difficult to say that the issue is one of ‘recognition’ of a foreign situation, or of a foreign official act.

But even this is not so, which law should a French court apply to determine the validity of the surrogacy? To my knowledge, this is an issue of first impression, but one would tend to think that the choice of law applicable to parenthood should be applied. This would lead, in France, to the application of the national law of the mother. Although the relevant provision does not define the concept of mother, it seems clear that the French lawmaker had in mind the biological mother. Thus, Ukrainian law might apply, and the surrogacy might be foreign irrespective of where the birth took place.

The next steps of the reasoning would then be whether the result would comport with French public policy, and whether you would need to determine separately the applicable law to the parenthood of the intended parent.

Does it Matter?

Maybe not, at least from the perspective of PIL.

The European Court of Human Rights has repeatedly insisted that the fundamental right of the children demand some form of acceptance of surrogacy. And it does not seem that the court has limited the scope of this right to cases where the surrogacy was validly constituted abroad.

Why should it, after all? The problem of the children is not fundamentally different if the parents acted illegally.

What about Criminal Law?

The issue might be different from the perspective of criminal law. It is easier to argue that a surrogacy eventually resulting in a birth in France falls within the territorial scope of French criminal law than a surrogacy organised from France by the intended parents.

The French press has reported that a French organisation has informed prosecutors in five different cities, and that one prosecutor has initiated criminal investigations in one of them. There are a number of French criminal offences which might apply to the process of surrogacy: “provocation à l’abandon d’enfant”, “entremise entre un couple et une personne acceptant de porter l’enfant”, “substitution volontaire, simulation ou dissimulation ayant entraîné une atteinte à l’état civil d’un enfant”.

The prosecutor, however, closed the case in October 2023. Remarkably, he did so on the ground that the surrogacy was “carried out” in a country where it is legal, and that the constitutive elements of the offences had thus taken place abroad. The French criminal code provides that it is enough that one constitutive element of the offence took place in France for French criminal law to apply. It is hard to see how the birth could not be one of the constitutive elements of all of these offences.

Is the case law of the ECtHR relevant in this context? Probably not: the criminal consequences of the actions of the parents will be personal, and will not directly affect the children.

Should French Social Security Pay for the Costs of the Delivery?

Two hospitals where Ukrainian surrogate mothers gave birth have sent an invoice to the intended parents for the costs of the delivery.

French social security covers the medical costs of birth for women entitled to such benefit. The French couples who organised Ukrainian surrogacies would likely be entitled to see most of the costs of their delivery being paid by social security, but not women covered by a foreign social security (although there might be rules for covering emergency birth on French territory: comments from specialists of international social security law welcome).

Several French intended parents have refused to pay the invoice, and have announced that they will challenge the decision of the hospitals to issue the invoices in administrative courts. Will French courts accept that evasion of French law should be funded by French taxpayers?

The second issue of 2023 of the open-access journal Cuadernos de Derecho Transnacional has been released. As usual, it contains studies (Estudios) and notes (Varia), in Spanish and in other languages.

A selection kindly provided by the editorial team of the journal include the following studies.

Alfonso Luis Calvo Caravaca/Javier Carrascosa González, Ley aplicable a los regímenes económicos matrimoniales y Reglamento 2016/1103 De 24 Junio 2016. Estudio técnico y valorativo de los puntos de conexión (Law Applicable to Marriage Property Regimes in Regulation 2016/1103 of June 24, 2016. A Technical and Value Analysis of the Connecting Factors)

The purpose of this study is to explore the system of connections to determine the Law applicable to the matrimonial property regime in Regulation (EU) 2016/1103 of the Council of June 24, 2016 establishing reinforced cooperation in the field competition, applicable law, recognition and enforcement of resolutions in matrimonial property regimes. Not only are the connecting factors in the Regulation analyzed through a technical examination, but also using a value focused test. From a technical point of view, some solutions could have been presented with greater transparency and coherence with other European regulations. On the contrary, from a value view, it should be highlighted that the connecting factors used lead to efficient, predictable and clear solutions that favour proper management of matrimonial assets in our current social scenario, in which the spouses frequently change their country of habitual residence and nationality and in which the assets linked to the matrimonial economy are usually scattered throughout several countries.

Briseida Sofía Jiménez-Gómez, Distributed Ledger Technology in Financial Markets: The European Union Experiment (La tecnología de registro descentralizado en los mercados financieros: el experimento de la Unión Europea) 

 The European Union Regulation 2022/858 of 30 May 2022 establishes a pilot regime for market infrastructures based on distributed ledger technology. The Pilot Regulation is part of the 2020 Digital Finance Strategy whose objective is for the European Union to embrace the digital revolution and to benefit consumers and business. This article analyses the reasons of this new regulatory option and why this represents a different paradigm of legislation, considering first some advantages, risks and challenges that applying distributed ledger technology in financial markets can encounter. Moreover, this article examines the content of the EU Pilot Regulation with a critical perspective, comparing the previous proposal of Regulation with the current Pilot Regulation which enters into force mainly in March 2023. Significance of this Pilot Regulation could be enhanced if it coordinates with other policy goals such as sustainability and transparency set by the EU legislator. Lacking that coordination, this Pilot Regulation could be perceived as a miss opportunity to foster a digital and green financial markets transition.

 Juliana Rodríguez Rodrigo, La publicidad de l@s influencers. (Influencer marketing)

Studies show that surreptitious advertising is a common practice carried out by influencers. This behaviour is an attack on the followers and on the advertiser’s competitors. In relation to the former, because it is not clear about the commercial nature of the influencer’s message and may make them think that they are dealing with a personal opinion of their leader. Regarding the latter, because, with it, they are making the brand compete unfairly with the rest of the competitors in the market. It is important, therefore, to identify when the advertising carried out by influencers is illegal because it is covert. There are two elements that must be present in order to reach this conclusion. Firstly, there must be a commercial purpose, which can be proven by the existence of a remuneration. And, secondly, this promotional purpose of the influencer does not appear clear and unequivocal to the user. In relation to the latter, the follower cannot deduce this commercial character either from the content of the message or from its location and, on the other hand, the influencer has not incorporated the necessary information to make it known.

The notes, instead, include the following.

Isabel Antón Juárez, Louboutin vs. Amazon: ¿Un litigio más sobre la responsabilidad de las plataformas digitales en el uso de una marca?. Comentario de la sentencia del TJUE de 22 de diciembre de 2022, asuntos C-148/21 y C-184/21 (Louboutin vs. Amazon: One more litigation about the liability of digital platforms in the use of a trademark? Commentary on the ECJ ruling of 22 December of 2022, cases C-148/21 and C-184/21)

The aim of this paper is the analysis of the ECJ ruling of 22 of December of 2022. The question that is resolved in the ruling we analyze is whether the fact that a third party that uses Amazon as a means to advertise and market counterfeit products can imply that the platform itself is directly liable for said infringement. It must be kept in mind that this direct responsibility of the platform would only be possible if it is considered that the platform itself uses another’s trademark within the meaning of art. 9.2 letter a) of Regulation (EU) 2017/1001. The study of this matter is necessary because it implies a greater precision even we can consider a change in the case law of the ECJ on the direct trademark liability of platforms. Following this ruling, a platform can be considered to use a trademark if, based on the perception of the average user who uses the platform, a link can be established between the trademark and the platform due to aspects such as (1) the way in which the platform offers the products (ad ex. in a homogeneous manner without differentiating between its own products and those of its sellers) and (2) the complementary services that the platform itself offers to its sellers.

Fernando Díez Estella, De nuevo la batalla por la cuantificación del daño y la estimación judicial: La STJUE tráficos Manuel Ferrer (Again, the battle of harm quantification and judicial estimation: the CJEU ruling tráficos Manuel Ferrer)

Almost a decade after the approval of Directive 2014/104/EU on damages arising from anticompetitive offenses, although the principles that inspire it are now firmly established, its practical application has encountered a myriad of problems, both substantive and procedural. The main obstacle faced today by those who exercise their right to compensation is undoubtedly the quantification of the damage. Together with the tools of access to the sources of evidence, or the presumptions to redistribute the burden of proof in the process, the possibility of judicial estimation of the compensable damage has been configured. This commentary analyzes this novel figure, following the CJEU Judgment in the Tráficos Manuel Ferrer case, as well as the Spanish jurisprudence in this respect, such as the emanating from the Commercial Court nº 3 of Valencia, and essentially the landmark Supreme Court’s sentences of June 2023. Although there are still some aspects to be defined, all these pronouncements have delimited when it is possible and when it is not possible to make use of this capacity.

On 20 December 2023, the English Court of Appeal gave private international lawyers interested in the relationship between private and public international law a small Christmas treat. It delivered a unanimous judgment (Vos MR, with Popplewell and Phillips LLJ agreeing) in UK P&I Club NV v Republica Bolivariana de Venezuela. This judgment addresses the question, within the context of a state immunity dispute, of whether an anti-suit injunction is part of the court’s adjudicatory or enforcement jurisdiction.

The court first found that:

there is no widespread, representative and consistent practice of states, accepted as a legal obligation, regarding injunctions, such as to constitute a rule of international law. Specifically, there is no rule of customary international law that classifies injunctions or anti-suit injunctions as part of a state’s adjudicative jurisdiction. That means that there is no rule of customary international law to the effect that states are not immune to injunctions. Different states have different approaches… The UK is not an outlier in adopting section 13(2)(a) [of the State Immunity Act 1978]. Moreover, an anti-suit injunction is not such a special a type of injunction that puts it into any special category such as to place it within the restrictive doctrine. ([48])

The court further concluded that:

an injunction granted by a court in England and Wales is indeed a coercive order. It threatens potential criminal and financial penalties for non-compliance. That is so whether or not the order is accompanied by a warning in the form of a penal notice. No sensible injunction could be granted if the order were to make clear that there would be no criminal or financial consequences for non-compliance. That demonstrates why an anti-suit injunction is indeed coercive unlike an order for damages. An order for damages has no coercive effect until an enforcement process is initiated. An injunction has a coercive effect immediately it is ordered, because it says to the defendant that it will incur penalties if it takes any step in contravention of it. ([50])

The conclusion that anti-suit injunctions were part of the courts’ enforcement jurisdiction meant that they did not fall within the restrictive doctrine of state immunity, applicable to adjudicatory jurisdiction as part of customary international law. Instead, section 13(2)(a) of the 1978 Act (“relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property”) fell “within the range of possible rules consistent with international practices”. As a result, it was not contrary to Article 6 of the European Convention on Human Rights.

The external activity of the Court of Justice resumes on 8 January 2024. On 11 January, Advocate General M. Szpunar will publish his opinion on C-632/22 (Assignation au siège d’une filiale de la défenderesse). I reported on the case on the occasion of the hearing, which took place last October. The Spanish Supreme Court has sent to Luxembourg these two questions in relation to service of process and the right to a due process in a competition case involving companies with seat in different Member States.

1. In the circumstances surrounding the litigation relating to the trucks cartel, described in this order, is it possible to interpret Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 101 of the Treaty on the Functioning of the European Union, in such a way that service of process on a parent company against which an action for damages for the harm caused by a restrictive trade practice has been brought is considered to have been properly effected when such service was effected (or attempted) at the place of business of the subsidiary company established in the State in which the legal proceedings were brought, while the parent company, which is established in another Member State, has not entered an appearance in the proceedings and has remained in default?
2. If the previous question is answered in the affirmative, is that interpretation of Article 47 of the Charter compatible with Article 53 of the Charter, in the light of the case-law of the Spanish Tribunal Constitucional (Constitutional Court) on the service of process on parent companies established in another Member State in disputes relating to the trucks cartel?

A hearing on case C-187/23 Albausy, will take place at the very end of the month, on Wednesday 31. Faced with an application to grant a European certificate of succession by a (presumptive) heir, with other (equally presumptive) beneficiaries to the estate contesting the will, the Amstgericht Lörrach (Germany) asks several questions on Article 67 of the Succession Regulation (Regulation 650/2012):

(a)     Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as meaning that it also refers to challenges raised in the procedure for issuing the European Certificate of Succession itself, which the court is not permitted to examine, and that it does not refer only to challenges raised in other proceedings?

(b)     If the answer to Question (a) is in the affirmative: Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as meaning that a European Certificate of Succession may not be issued even if challenges have been raised in the procedure for issuing the European Certificate of Succession, but they have already been examined in the proceedings for the issuance of a certificate of inheritance under German law?

(c)     If the answer to Question (a) is in the affirmative: Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as covering any challenges, even if they have not been substantiated and no formal evidence is to be taken of that fact?

(d)         If the answer to Question (a) is in the negative: In what form must the court state the reasons that led it to reject the challenges and to issue the European Certificate of Succession?

At the time of registration, the second question seemed hypothetical as no other proceedings for the issuance of a national certificate were pending, nor is it for sure that the objections raised against the European certificate would be examined there. Further doubts on admissibility will certainly be discussed at the hearing. Should the Court of Justice answer on the merits, other provisions of the Succession regulation (i.e., not only its Article 67) will likely be interpreted as well for the Court to provide useful guidance to the national jurisdiction.

C-187/23 has been allocated to a chamber of five judges (E. Regan, Z. Csehi, M. Ilesic, I. Jarukauti, D. Gratsias). M. Campos Sánchez-Bordona will provide an opinion in due time.

No other requests directly concerning private international law are scheduled to be dealt with in January.

On a wider perspective, I would like to mention case C-4/23, Mirin. This Grand Chamber case, with judge M. Ilesic reporting and an opinion by J. Richard de la Tour, has been prompted by a change of gender (from female to male), followed by the change of the name and a number of documents, of a British national who had actually been born in Romania. The applicant identified as male, on 21 February 2017, by means of the Deed Poll procedure; on 29 June 2020, he obtained in the United Kingdom a Gender Recognition Certificate confirming the male gender identity. In May 2021, he contacted the competent Romanina authorities requesting, directly on the basis of the Deed Poll and the Gender Identity Certificate, that the change of gender and first name be entered in the birth certificate, that the appropriate change be made to the personal numeric code to reflect the male gender, and that a matching birth certificate be issued. He contested the negative to the application before the Judecătoria Sectorului 6 București (Court of First Instance, Sector 6, Bucharest), which is asking now the Court of Justice the following questions:

(1)     Does the fact that Article 43(i) and Article 57 of Legea nr. 119/1996 privind actele de stare civilă (Law No 119/1996 on civil status documents) do not recognise changes in civil status made in another Member State by means of the procedure for legal recognition of gender to entries concerning gender and first name by a transgender man who has dual nationality (Romanian and of another Member State) and require a Romanian citizen to bring, from the outset, separate judicial proceedings in Romania against the local Public Service for Personal Records and Civil Status – proceedings which have been held to lack clarity and foreseeability by the European Court of Human Rights (X and Y v. Romania, nos. 2145/16 and 20607/16, 19 January 2021) and which may lead to a decision contrary to that taken by the other Member State – constitute an obstacle to the exercise of the right to European citizenship (Article 20 of the Treaty on the Functioning of the European Union) and/or the right of citizens of the Union to move and reside freely (Article 21 of the Treaty on the Functioning of the European Union and Article 45 of the Charter of Fundamental Rights of the European Union) in conditions of dignity, equality before the law and non-discrimination (Article 2 of the Treaty on European Union; Article 18 of the Treaty on the Functioning of the European Union, and Articles 1, 20 and 21 of the Charter of Fundamental Rights of the European Union), respecting the right to private and family life (Article 7 of the Charter of Fundamental Rights of the European Union)?

(2)     Does the departure of the United Kingdom of Great Britain and Northern Ireland from the European Union affect the answer to the above question, in particular where (i) the procedure for changing civil status was commenced before Brexit and was completed during the transition period, and (ii) the impact of Brexit means that the person cannot benefit from rights attached to European citizenship, including the right to free movement and residence, except on the basis of Romanian identity or travel documents in which that person appears with a female gender and first name, contrary to the gender identity that has already been legally recognised?

A hearing is scheduled on 23 January 2024.

Technology is challenging private international law as many other areas of law. Difficulties raised by cryptocurrency transfers on blockchain are particularly significant because private international law techniques are relying on localisation, as well as on concepts such as internationality and characterisation that are not easy to identify in this case. Cryptocurrency transfers through blockchain are not relying on intermediation services as applicable in traditional forms of financial transactions. This makes it difficult to idetermine the service provider or the characteristic performer and pinpoint them to a real-world location or to concentrate the connections related to a transaction to a particular place. Further, pseudonymity on the blockchain makes it difficult to identify the participants to the system and their locations.

Burcu Yüksel Ripley (Senior Lecturer at the University of Aberdeen) is addressing these aspects and the ways in which the law applicable to transfers of cryptocurrencies can be determined in a paper she made available on SSRN. The paper is entitled The Law Applicable to (Digital) Transfer of Digital Assets: The Transfer of Cryptocurrencies via Blockchains and is forthcoming in Fogt, M. M. (ed.) Private International Law in an Era of Change with Edward Elgar.

The abstract reads as follows:

Transfer of digital assets including cryptocurrencies gives raise to various important legal questions. One of them is the law applicable to their transfers via blockchains. Traditional concepts and techniques of private international law are challenged by blockchain in the determination of the applicable law. Disintermediation makes it difficult to identify a service provider or characteristic performer in the systems underpinned by blockchain. The distributed nature of the ledger raises issues with ascribing the ledger or blockchain and an asset digitally recorded on it to a real-world location and also gives rise to the lack of concentration of connections with a particular place. Pseudonymity in the systems underpinned by blockchain poses problems with the identification of the system participants as well as their locations. The purpose of this chapter is to examine some of the key issues concerning the law applicable to (digital) transfer of digital assets by focusing on cryptocurrency transfers via blockchain. These issues include internationality, characterisation and determination of the applicable law under the unitary approach (leading to the application of a single law) and the segmented approach (resulting in splitting the applicable law). In its analysis, this chapter utilises an analogy to electronic funds transfers (EFTs) and funds transfer systems in order to offer an alternative way of thinking to find solutions to the problems concerning cryptocurrency transfers via blockchains. It also aims to contribute to the current academic discourse as well as ongoing law reform projects in the area with a new perspective.

The second issue of 2023 of the Journal of Private International Law is out. It contains the following articles:

Dan Jerker B. Svantesson, Symeon C. Symeonides, Cross-border internet defamation conflicts and what to do about them: Two proposals

Conflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.

Gerard McCormack, Conflicts in insolvency jurisdiction

The Hague Judgments Convention 2019 contains an insolvency exception. The paper suggests that the proposed Hague Jurisdiction Convention should contain an insolvency exception that mirrors that contained in the existing Hague Judgments Convention. It is also submitted that international instruments in the field of insolvency, and related matters, are best dealt with by the United Nations Commission on International Trade Law (UNCITRAL).

Leon Theimer, Protection against the breach of choice of court agreements: A comparative analysis of remedies in English and German courts.

In fixing the place and provider for the resolution of disputes in advance, choice of court agreements increase procedural legal certainty and the predictability of litigation risks. Hence, their protection is crucial. This article undertakes a functional comparison of the remedies for breach of exclusive choice of court agreements in English and German courts, painting a picture of different approaches to a common problem. English courts, now no longer constrained by EU law, employ an entire arsenal of remedies, most strikingly the anti-suit injunction and damages effectively reversing a foreign judgment. In contrast, German courts exercise greater judicial restraint, even though damages for the breach of a choice of court agreement have recently been awarded for the first time. Against this backdrop, two distinct but interrelated reasons for the diverging approaches are identified and analysed, the different conceptions of choice of court agreements and the different roles of comity and mutual trust.

Vera Shikhelman, Enforcement of foreign judgments – Israel as a case study

This article shows how enforcement of foreign judgments in Israel works in practice. Using an original hand-coded dataset, the article seeks to determine empirically which factors increase the likelihood of a foreign judgment being enforced by Israeli courts. To do so the article makes use of two major theories about enforcement of foreign judgments – international comity and vested rights. Also, the article hypothesises that enforcement can be influenced by specific characteristics of the Israeli court and the foreign judgment.
The article finds that the best predictor of foreign judgment enforcement in Israel is the specific characteristics of the foreign judgment and of the Israeli court – cases with a contractual-commercial nature, and cases brought before one of the central districts of Israel are more likely to be enforced. Additionally, the volume of trade between the issuing country and Israel might also be a certain predictor of enforcement. Finally, the article finds that the due process in individual cases might have some influence on the enforcement decision.

Diego Zannoni, How to balance respect for diversity and the rights of the vulnerable? (Non-)recognition of forced and underage marriage under the lens of the European Convention on Human Rights

Partly in view of the migratory phenomenon to which Europe is exposed, forced and underage marriages nowadays deserve careful consideration both as social phenomena and as legal institutions. This paper aims to verify whether and to what extent forced and underage marriages should be recognised in Europe. On the one hand, recognising the validity of these acts could arguably clash with fundamental values and rights protected by the European Convention on Human Rights and the Convention on Preventing and Combating Violence against Women and Domestic Violence. On the other hand, it is not possible to a priori exclude that a flat refusal to recognise a marriage validly established abroad might entail a violation of further rights of the spouses and ultimately have detrimental consequences for the parties that the refusal aims to protect. The aim is to assess whether private international law tools and techniques can offer a proper balance between respect for the fundamental values of reception societies and protection of the rights and interests of the parties involved.

The European Court of Human Rights delivered on 10 October 2023 a judgment on a matter of paternity involving an international element.

The Facts

I.V., the applicant before the European Court of Human Rights, is a Latvian national living in Riga. In spring 2006 he had a son, born in Latvia, from a relationship. The mother no longer permitted contact between I.V. and his son from January 2007 onwards. Shortly afterwards, I.V. found out that another man had acknowledged paternity and been registered as the boy’s father. I.V. then challenged paternity in the Latvian courts.

While those proceedings in the Latvian courts were ongoing, the mother and child moved to Estonia and the child was adopted in April 2018 by the mother’s new husband. I.V. only learnt of the adoption afterwards and lodged an application in the Estonian courts to have the decision annulled.

The Estonian Supreme Court concluded in 2021 that I.V. did not have standing as the (legally recognised) “father” under Estonian law since his paternity had not yet been confirmed in Latvia. It also explained that, even if I.V.’s paternity were later recognised, that would not retroactively invalidate the consent to adoption of the legal father – that is to say the person registered as the child’s father at the time of the adoption.

Ultimately the Latvian courts recognised Mr I.V.’s paternity and registered him as the father, from the boy’s date of birth to the date of his adoption.

Complaint and Court’s Ruling

Relying in particular on Article 8 (right to respect for private and family life) of the European Convention on Human Rights, I.V. complained that his rights had been ignored in the proceedings allowing his son’s adoption and concerning the request to annul the adoption. He argued in particular that his son’s adoption should never have proceeded without his consent as the biological father.

In its judgment, the Court stressed that what was at stake in the present case was not the responsibility of the Latvian authorities, even though the paternity proceedings had lasted for an exceptionally long time in that country, but that of the Estonian State.

It pointed out that the case at hand had to be assessed as a whole, and that its task was to assess whether the Estonian authorities had struck a fair balance between the competing interests at stake, including both the interests of the applicant as well as those of his son.

However, the Court found that the Estonian authorities had shown a significant lack of diligence in relation to the proceedings concerning the adoption, even though they had to or ought to have been aware of the ongoing paternity proceedings in Latvia, given the Latvian authorities’ request, in January 2018, for judicial cooperation.

Subsequently, the Estonian Supreme Court had rejected the application to annul the adoption solely on formal grounds, without taking into account the particular circumstances of the case. The Supreme Court had found that the applicant did not have standing since his legal paternity had not yet been recognised by a final court judgment in Latvia.

The outcome of the proceedings in Estonia had actually led to the applicant’s legal paternity being recognised by the Latvian courts for a limited period only, that is to say until the date that the child had been adopted in Estonia.

The Court concluded overall that the Estonian authorities had failed to identify and examine the particular circumstances of the case and to assess the various rights and interests of the individuals involved, including those of the applicant, in either set of proceedings (allowing the adoption or concerning the request to annul the adoption). There had therefore been a violation of Article 8.

A symposium titled “Personal Status on the Move” (La circulation du statut personnel), organised by the Société de Législation Comparée (SLC), the International Commission on Civil Status (ICCS), the Law Faculty of University of Côte d’Azur and the Associazione Civilisti Italiani, will take place on 19 January 2024 in Rome at the Corte Suprema di Cassazione.

The main topics covered will be civil status, persons’ identification, the union of persons, parenthood and nationality in a context of international mobility of persons and families.

Speakers (and chairs) include Claudio Scognamiglio (Chairman, Associazione Civilisti Italiani), Gustavo Cerqueira (Chairman, Section Méthodologie comparée du droit civil de la SLC), Nicolas Nord (Secretary General of the International Commission on Civil Status), Francesco Salerno (Università degli Studi di Ferrara), Marion Ho-Dac, Professeur (Université d’Artois), Camille Reitzer (Deputy Secretary General of the International Commission on Civil Status), Giovanni Di Rosa (Università di Catania), Fernand Munschy (Lawyer at the Strasbourg Bar & Université Haute-Alsace), Francesca Bartolini (Università degli Studi Link di Roma), Michele Sesta (Università di Bologna), Lukas Heckendorn Urscheler (Institut suisse de droit comparé), Alessandra Spangaro (Università di Bologna), Enrico Al Mureden (Università di Bologna), Ilaria Pretelli (Institut suisse de droit comparé), Renzo Calvigioni (Associazione Nazionale Ufficiali di Stato Civile e d’Anagrafe, ANUSCA), Gordon Choisel (Université Paris Panthéon-Assas), Mirzia Bianca (Università di Roma La Sapienza), Sylvain Bollée, (Université Paris 1 Panthéon-Sorbonne), Roberto Senigaglia (Università Ca’ Foscari Venezia), Hugues Fulchiron (Conseiller extraordinaire à la Cour de cassation, France), Sabine Corneloup (Université Paris Panthéon-Assas), Liliana Rossi Carleo (Università di Roma Tre).

Presentations will be held in French and Italian.

Those interested in attending can do so either in-person or on-line.

Attendance is free, but prior registration is required by 12 January 2024, through segreteria.civilistiitaliani@gmail.com.

Additional information, including the full programme of the conference, can be found here.

A link to follow the conference remotely will be provided shortly.

From 15 February 2024 to 17 February 2024, an early career research workshop will be held at Freie Universität Berlin to discuss works in progress on dispute resolution mechanisms and competence-competence in multi-level systems. The workshop invites young researchers working on related topics from all fields of legal research and is open to different methodological approaches to analyse the research questions. The workshop aims to generate a constructive and friendly atmosphere to test working hypotheses and discuss findings.

Further information in the call for abstracts here.

Applications and questions can be addressed to Maren Vogel at maren.vogel@fu-berlin.de.

The University of Luxembourg will host a conference on Enforcing Arbitral Awards against Sovereigns: Recent Trends and Practice on 10 January 2024. The conference is organised in partnership with Bonn, Steichen and Partners.

The conference will be divided in four parts. The first will discuss the influence of EU law on enforcement. The second will address new issues related to enforcement such as assignment of awards and the influence of the right to property. The third will be concerned with issues relating to attachment of assets, including sovereign immunities and asset tracing. The fourth will discuss States’ international obligations to comply with arbitral awards.

Speakers will include Gary Born (WilmerHale), Nicholas Lawn (Lalive), Ana Stanic (E&U Law Limited), Gilles Cuniberti (University of Luxembourg), Yael Ribco Borman (Gaillard Banifatemi Shelbaya Disputes), Javier Garcia Olmedo (University of Luxembourg), Fabio Trevisan (Bonn Steichen), Laura Rees-Evans (Fietta LLP), Thierry Hoscheit (Supreme Court, Luxemburg), Paschalis Paschalidis (Arendt & Medernach), Philippa Webb (Twenty Essex/ King’s College London), Michaël Schlesinge (Archipel), Luciana Ricart (Curtis, Mallet-Prevost, Colt & Mosle LLP), Crina Baltag, FCIArb (Stockholm University), Cameron Miles (3 Verulam Buildings), Manuel Casas (Twenty Essex), Loukas Mistelis (Queen Mary University of London/Clyde & Co), Matthew Happold (University of Luxembourg), Laure-Hélène Gaicio (Bonn Steichen).

The full programme can be found here. The event is free of charge, but registration is necessary (here).

The recently published Volume 433 of the Collected Courses of the Hague Academy of International Law includes a course by Salim Moollan (Brick Court Chambers) on Parallel Proceedings in International Arbitration.

The issue of parallel proceedings in international arbitration has been a long-standing and classic problem within the field. Despite this, there have been major developments in practice since the last major academic analysis of the issue in 2006 by the International Law Association and by the Geneva Colloquium on Consolidation of Proceedings in Investment Arbitration, led by Professor Kaufmann-Kohler. With this in mind, now is an opportune moment to re-examine the issue through a fresh theoretical lens and renewed focus on finding practical solutions.

The blog of the European Association of Private International Law has hosted some 300 posts in the course of 2023: 79 of them reported on (and analysed) recent case law, while 64 informed about (and discussed) recent normative developments, at the domestic, European and international level (in 2022, the blog published 75 posts on case law and 38 posts on legislative developments).

Several posts were published to inform the members of the Association, and more generally the blog readers, about the activities of the Association (such as the position papers adopted by the working groups created to discuss the 1980 Child Abduction and the 1996 Child Protection Conventions, and the UNIDROIT draft principles on digital assets) and the Association’s events, including those planned to take place in 2024, including the EAPIL Winter School in Como and the EAPIL Conference in Wroclaw.

More than 60 posts were written by guests, which marks a slight increase compared with 2022. The editors are eager to receive more. So, please, potential guests, don’t hesitate to share with us your submissions! Just write an e-mail to blog@eapil.org.

The number of visitors has increased (+7%), and so has the number of subscribers: there are now more than 700 users who are regularly notified by e-mail of new posts. Our LinkedIn page, where the blog posts are re-published, has also attracted an increased number of “impressions”.

The most read posts, among those published in 2023, include Martina Mantovani’s Private International Law and Climate Change: the “Four Islanders of Pari” Case, Pietro Franzina’s Italian Authorities Claim Jurisdiction to Protect Indi Gregory After English High Court Ruled Life Support Should Be Withdrawn, and Matthias Lehmann’s UNIDROIT Principles on Digital Assets and Private Law Adopted.

Blog readers come from all over the world, with Europe, unsurprisingly, being the continent from which the majority of readers are established. Specifically, Italy, Germany, Spain, the United Kingdom, the Netherlands, France and Belgium are at the top of the list. The United States is the non-European country where most of the blog readers are based.

Globally, the posts published in 2023 attracted 115 comments. The most commented posts include Erik Sinander’s Qatari State Immunity for Employment Court Procedure in Sweden, Gilles Cuniberti’s London Steamship: English Court Declines to Follow Ultra Vires CJEU Judgment, Matthias Lehmann’s Club La Costa (Part 1): Group-of-Companies Doctrine and Proof of Corporate Domicile under Brussels I bis, and Ugljesa Grusic’s Are English Courts Becoming the World’s Arbitral Policeman?

Many thanks, on behalf of the editorial team of the EAPIL blog, to all those who read our posts (and react to them with comments), those who draw our attention to recent developments and upcoming events, and those who contribute to our work as guests!

And all the best for the New Year!

Maxence Rivoire (PhD Candidate at the University of Cambridge and an incoming Lecturer in French Law at King’s College London) made available on SSRN his paper on ‘The Law Applicable to the Arbitrability of Registered Intellectual Property Rights’. In 2022 the paper won the Nappert Prize in International Arbitration awarded by McGill University.

The abstract reads as follows:

Although the power of an arbitral tribunal is subject to the will of the parties, some legal systems exclude certain types of intellectual property (IP) disputes from arbitration. This problem is commonly known as ‘arbitrability’. But what law, if any, should international arbitrators apply to arbitrability? This article addresses this question with a special focus on registered IP rights. Part I rejects the conflict rules that have traditionally been suggested to govern arbitrability, including the application of the law governing the arbitration agreement and that of the arbitral seat (lex loci arbitri). Part II argues that arbitrators should instead recognize the existence of a transnational principle whereby contractual, infringement, and ownership disputes are arbitrable. However, due to persisting uncertainty and differences among jurisdictions on the arbitrability of issues relating to the validity of registered IP rights, arbitrators should still give effect to domestic rules in this area. Acknowledging that non-arbitrability rules aim to safeguard the policy objectives of substantive IP laws and to protect the exclusive jurisdiction of national courts. Part III argues that the law applicable to the arbitrability of validity issues should be the law of the country for which IP protection is sought (lex loci protectionis), which corresponds to the law of the country where the IP right is registered. After examining the justification of this principle, Part III also discusses its practical implementation, notably where the dispute concerns IP rights registered in different countries, and where the lex loci protectionis clashes with the lex loci arbitri.

The author proposes a useful framework for international arbitrators who have to deal with conflict of laws relating to the arbitrability of registered IP rights such as patents and trademarks.

Biset Sena Güneş, senior research fellow at the Max Planck Institute for Comparative and International Private Law, has accepted the invitation of the editors of the blog to present her recent book, titled ‘Succession Upon Death: A Comparison of European and Turkish Private International Law’, written in English, and published by Mohr Siebeck.

This book offers a comparative analysis of the European Succession Regulation, the Turkish PILA of 2007, and the Turkish–German Succession Treaty of 1929, with a particular focus on conflict-of-laws and procedural issues which may arise in Turkish–EU Successions. The aim of the analysis is to discuss to what extent decisional harmony can be achieved in Turkish–EU successions. While the European Succession Regulation has been extensively covered in the literature, non-EU or “third-state” perspectives on the regulation have not received the same degree of attention. In adopting such a perspective on the EU Succession Regulation, the book allows for in-depth analysis of possible cases between the EU Member States and Turkey, which from the perspective of succession is an important “third” state due to the significant number of Turkish nationals residing in the EU.

The first chapter of the book elaborates on the practical relevance of Turkish–EU successions and provides the historical background as well as a general overview of the European Succession Regulation, the Turkish PILA of 2007, and the Turkish–German Succession Treaty of 1929. The second chapter addresses conflicts of laws in Turkish–EU successions both in terms of intestate and testamentary succession. Chapter 2 also undertakes a comparative analysis, in particular on the following issues: the principle of unity or scission; the connecting factors (nationality, habitual residence, and thesitus); the option to enter a professio iuris; matters within the scope of the law applicable to succession; the application of renvoi; and possible examples of overriding mandatory rules and ordre public in Turkish–EU successions. Finally, the third chapter analyses procedural issues in Turkish–EU succession conflicts. First, Chapter 3 compares the respective rules on jurisdiction and discusses possible conflicts of jurisdiction in the Turkish–EU context as well as the tools for avoiding such conflicts (especially choice of court agreements, lis pendens, and limitation of proceedings). It then deals with two questions as regards the European Certificate of Succession, namely whether one can be issued for Turkish nationals in Germany within the scope of the Turkish–German Succession Treaty, and whether a European Certificate of Succession issued in a Member State can be recognised in Turkey.

Key Findings

The comparative analysis demonstrates that the provisions of the German–Turkish Succession Treaty (Art. 20(14) and (15)), now-outdated reflections of the time at which the treaty was drafted, in practice create certain problems for persons who fall under them. But the differences between the rules of this treaty and the Turkish PILA are not as significant a factor for those affected as the differences between it and the EU Succession Regulation. Like the German–Turkish treaty regime (Art. 20(14) and (15)), the Turkish PILA adopts nationality as a connecting factor and has retained its traditional understanding regarding the law applicable to and jurisdiction over succession matters involving real property, at least when situated in its territory (Art. 20 and 43). The treaty regime thus still guarantees a level of coordination for succession cases which may arise between Turkey and Germany even though its rules are inconsistent with the Succession Regulation’s unitary approach towards succession and its main connecting factor of habitual residence (especially Art. 4 and Art. 21(1)).

In Turkish–EU successions not covered by the German–Turkish treaty, on the other hand, the decisional harmony which once could have been ensured through the adoption of the connecting factors of nationality and the situs now seems distorted, because the Succession Regulation (especially Art. 21(1)) revolves around the connecting factor of habitual residence. Some level of harmony in such cases can now be provided only through renvoi (under Art. 34(1) of the Regulation) and a professio iuris made by the deceased (under Art. 22 of the Regulation), although such a choice will not be valid in Turkey.

Harmony does not seem to exist in such cases at the procedural level, either. Potential jurisdictional conflicts between Turkey and Member State courts may arise especially where the deceased was habitually resident or domiciled in Turkey at the time of death and left assets both in Turkey and in a Member State. This is because Turkish courts in such a case will be competent to hear the case pursuant to Art. 43 of the Turkish PILA because the last domicile of the deceased was in Turkey. At the same time, the courts of the Member State in which the assets of the estate are located will also be competent to rule on the succession as a whole (even on assets located in Turkey) in accordance with Art. 10(1) of the Succession Regulation. Notwithstanding this, neither jurisdiction seems to have tools for coordinating jurisdiction (e.g., a mechanism for choice of court agreements or to stay proceedings based on a lis pendens) to eliminate such conflicts in the Turkish–EU context. The only provision which may be helpful in this regard is Art. 12 of the Succession Regulation, on the limitation of proceedings. But Art. 12 only applies on motion of the parties and even then on a discretionary basis.

In a post published on 8 June 2023, I introduced Zubaydah v Foreign, Development and Commonwealth Office, a case heard by the UK Supreme Court on 14 and 15 June.

Abu Zubaydah, the claimant (respondent in the appeal), has brought a tort claim against the UK government (appellants in the appeal), alleging that MI5 and MI6 officers made requests, from their London offices, to their CIA counterparts to interrogate him in circumstances where they knew or ought to have known of his rendition, unlawful imprisonment and torture by the CIA. The central issue was the law applicable to the claim, specifically focusing on the disputed application of the escape clause from section 12 of the Private International Law (Miscellaneous Provisions) Act 1995. The facts of the case, the claim, the central issue and the parties’ arguments are presented in my post of 8 June.

On 20 December 2023, the court delivered its judgment, dismissing the appeal in a four to one decision (Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lord Stephens; Lord Sales dissenting). The court held that English law governed the claim, and not the laws of Afghanistan, Lithuania, Morrocco, Poland and Thailand and the law in force in Guantanamo Bay (“Six Countries”).

Interestingly, the court found that both the High Court and the Court of Appeal had erred in their approaches to section 12. The Court of Appeal, in particular, erred by focusing solely on the defendants’ conduct said to have occurred in England. It should have also taken into account the CIA’s conduct ([80], [81]). Hence, the Supreme Court conducted its own choice-of-law analysis.

The connections between the torts and the Six Countries were held to be weak for five reasons. First, Zubaydah was involuntarily present in the Six Countries ([75], [93]). Second, the defendants were entirely indifferent to Zubaydah’s location ([76], [94]). Third, Zubaydah was rendered to and detained in de facto black legal holes ([77], [95]). Fourth, he was held in six such facilities in six countries ([96]). Fifth, his gaolers and torturers were not agents of the Six Countries, but of a third country, ie the US ([97]).

Conversely, the connections between the torts and England were deemed strong for three reasons. First, the defendant is the UK government ([99]). Second, the relevant events occurred partly in England and for the perceived benefit of the UK ([78], [100]). Third, the defendants acted “in their official capacity in the purported exercise of powers conferred under the law of England and Wales… The defendants are all emanations of the UK Government and were at all material times subject to the criminal and public law of England and Wales.” ([101]; similarly [78])

Considering all these factors, the court held that it was substantially more appropriate for the applicable law to be English law.

In my post of 8 June, I noted that this case holds importance for private international law for two reasons.

Firstly, it highlights the role of private international law in holding the executive accountable and vindicating fundamental rights, particularly in cases involving alleged wrongs arising out of the external exercise of British executive authority. In my book on the topic, Torts in UK Foreign Relations, I argue that there are no compelling theoretical justifications for the application of foreign law in general to tort claims arising out of the external exercise of British executive authority. I further argue that the English courts should apply English law to tort claims arising out of the external exercise of British executive authority and reserve the application of foreign law only for certain issues, such as the lawfulness of the relevant conduct. The main reason for advocating the application of English tort law is that, together with English criminal and public law, it is fine-tuned for assuring the accountability of British public authorities. Foreign tort law is unlikely to be able to substitute for English tort law.

The Supreme Court essentially adopts this argument by placing decisive weight on the connections between the torts and England. It reinforces this point in relation to the misfeasance claim by noting, at ([62]), that “there is scope for suggesting, for example, that on the presumed facts of this case, it is a constitutional imperative that the applicable law in relation to the tort of misfeasance in public office in relation to the acts and omissions of the UK Services should be the law of England and Wales”.

Secondly, the parties and the court relied on reasonable/legitimate expectations as important factors in the choice-of-law process. Zubaydah’s involuntary presence in the Six Countries meant that he did not have a reasonable expectation that his situation or activities might be governed by the local laws ([75], [93]). Furthermore, the defendants’ indifference to Zubaydah’s location meant that the defendants never expected or intended their conduct to be judged by reference to the local laws ([94]). It is by partial reliance on this fundamental principle underlying the application of foreign law that the court held that foreign laws did not apply.

The Supreme Court judgment is important for two more reasons. It clarifies that an appellate court can interfere with an evaluative judgment under sections 11 and 12 of the 1995 Act if there is shown to be a clear error of law or the judge has reached a conclusion not reasonably open to them ([57]). Furthermore, it sheds light on the handling of accessory liability claims in choice of law. Such claims involve a secondary wrongdoer defendant and a primary wrongdoer third party. The court held that the “factors which connect a tort or delict” with a country, which the courts should consider when applying the escape clause from section 12, cover not only the allegedly wrongful conduct of the secondary wrongdoer (UK Services) but also that of the primary wrongdoer (the CIA) ([80], [81]). Although this judgment was made in the context of the 1995 Act, these aspects of its reasoning can easily be extrapolated to other choice of law contexts.

The recently published Volume 433 of the Collected Courses of the Hague Academy of International Law includes the course by Kartsten Thorn (Bucerius Law School) on The Protection of Small and Medium-sized Enterprises in Private International Law.

Speaking about the protection of structurally weaker parties in private international law, this normally refers to non-business parties as consumers or employees. However, in many cases also entrepreneurs are protected. Well-known examples are the commercial agent under European law, the subcontractor in France and the franchisee in many US jurisdictions.

This paper systematizes these cases, looks for underlying policies and develops a proposal for future private international law rules with regard to small and medium sized enterprises (SMEs). It understands private international law in the broad French sense encompassing jurisdiction rules and even international commercial arbitration.

Methodologically, the interplay between substantive law, conflict of laws rules and jurisdiction rules for the protection of weaker parties in the context of different legal systems is shown and evaluated with special consideration of their internationally mandatory rules. Legal gaps to European Private International law are identified in comparison to foreign jurisdictions. Following an economic analysis, a new approach to the protection of SMEs is presented which also encompasses international commercial arbitration as an alternative method of dispute resolution.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. This issue features a symposium with several articles focussing on fundamental rights and private international law, one of them in English, the others in German. The following abstracts have been kindly provided to us by the editor of the journal.

Mareike Schmidt, Kulturalität der Rechtsanwendung und internationale Rechtsvereinheitlichung – Überlegungen am Beispiel des UN-Kaufrechts (Cultural Dimensions in the Application of Law and International Unification of Law – The Example of the CISG)

The uniform application of law, in general, and of international uniform law, in particular, is confronted with the challenges of cultural diversity. Drawing on a meaning-based understanding of culture and using the example of the United Nations Convention on Contracts for the International Sale of Goods, the article examines the extent to which cultural conceptions of normality shape the individual steps in the application of law and illustrates this influence with concrete examples. Overall, it becomes clear that the cultural nature of the application of law goes well beyond what is usually discussed. The analysis advances an understanding of the application of international uniform law as the processing of cultural difference, in the context of which – and within an entire network of actors – foreign conceptions of normality are often interpreted with the aim of integrating them into one’s own system of meaning. The resulting depiction of interconnections within this network, which concludes the text, can serve as a starting point for a more detailed analysis of the processes involved.

Maarten Herbosch, Contracting with Artificial Intelligence – A Comparative Analysis of the Intent to Contract

Computer systems based on artificial intelligence (AI) are an increasing presence in everyday legal practice. They may even be used to form contracts on behalf of their users. In such instances, it is not necessarily required that the system has been set up to take precise, pre-specified actions from an engineering perspective. As a result, the system may enter into contracts unforeseen by its user. This comes into friction with the requirements that contract formation depends on the contracting parties’ intent to be bound or that a contract constitutes a meeting of the minds. It is obscure how the intent to form a specific contract or a meeting of the minds can be present if one of the parties may not even know that a particular contract is being entered into. To tackle this challenge, this article thoroughly examines the intent requirement in various legal systems. It becomes clear that the intent requirement is often loosely applied and that its role is formulated too generally, unnecessarily obstructing a straightforward application to contract formation via AI systems. Supplying nuance to the role of intent in contract formation helps clarify that the intent requirement is not in fact an obstacle to contract formation via AI systems.

Ralf Michaels, Einleitung zum Symposium: Grundrechte und IPR im Lichte der Entscheidung des Bundesverfassungsgerichts zum Kinderehenbekämpfungsgesetz ( Symposium Introduction: Fundamental Rights and Private International Law after the Federal Constitutional Court Decision on the Act to Combat Child Marriages)

This issue presents the contributions to a symposium which examined the German Federal Constitutional Court’s ruling on the Act to Combat Child Marriages from the perspectives of constitutional law and the conflict of laws. This introduction summarizes the Court’s ruling and situates it in the scheme of German jurisprudence; thereafter, the symposium and the presented papers are described.

Henning Radtke, Zu den Maßstäben der verfassungsrechtlichen Beurteilung von Regelungen des deutschen Internationalen Privatrechts (On the Standards of Constitutional Review of Provisions of German Private International Law)

The German Federal Constitutional Court regularly reviews the constitutionality of domestic provisions of private international law and their application by the competent courts. In doing so, it takes into account the special features of this type of legislation that result, for example, from the cross-border dimension of the situations it is supposed to address and from the necessary respect for the validity of foreign legal systems. With regard to the protection of marriage and the family, this applies in particular when determining the scope of protection and the structural principles underlying art. 6 para. 1 and other provisions under the German Basic Law. The level of scrutiny when examining constitutionality is primarily determined on the basis of the principle of proportionality.

Susanne Lilian Gössl, Grundrechte und IPR – Von beidseitigem Desinteresse zu höflicher Aufmerksamkeit – und zu angeregtem Austausch? (Fundamental Rights and Private International Law: From Mutual Disinterest to Respectful Attention – and on to Animated Exchange?)

The relationship between German constitutional law and the field of conflict of laws has been discussed for decades, especially when decisions of the Constitutional Court (BVerfG) addressing private international law issues have been pending or published. The most recent occasion to reflect on this relationship is the decision of the BVerfG on the Act to Combat Child Marriages. Initially, German scholars had assumed that conflict of laws, as a value-neutral and merely technical body of law, was constitutionally irrelevant. Fundamental rights could – according to a first Constitutional Court decision – at most become relevant through the ordre public clause. Foreign law was subsequently upgraded by the widow’s pension decision, with the result that foreign rules can expand the scope of German fundamental rights. Ultimately, the BVerfG has affirmed that – like private law generally – private international law is bound to the German Constitution as part of the collective legal order and, furthermore, that it shapes the expression of constitutional guarantees in the German legal order. Nevertheless, many theoretically intriguing questions remain open, such as the character of foreign law in the jurisprudence of the Constitutional Court. These questions invite further inquiry and academic exchange.

Lars Viellechner, Die Anwendbarkeit der Grundrechte im Internationalen Privatrecht: Zur Methodik der Entscheidung des Bundesverfassungsgerichts über die Kinderehe (The Applicability of Fundamental Rights in Private International Law: On the Methodology of the Federal Constitutional Court’s Decision Regarding Child Marriage)

In its decision on the Act to Combat Child Marriages, the Federal Constitutional Court of Germany does not explicitly address the applicability of fundamental rights in private international law. It only considers some cross-border effects of the statute in the context of the proportionality test. According to its own earlier case law, however, it should have taken a position on this question. It could also have taken the opportunity to further develop a constitutional notion of conflict of laws, which equally shines through its decisions on the relationship between the Basic Law and both international law as well as European Union law. With resort to such a method, not only could it have clarified a question of principal significance regarding the relationship between fundamental rights and private international law, it might also have reached a different result in the present case.

Dagmar Coester-Waltjen, Die »Kinderehen«-Entscheidung des Bundesverfassungsgerichts: Welche Schlussfolgerungen ergeben sich für das internationale Eheschließungsrecht? (The Early Marriage Decision of the Federal Constitutional Court: What Does It Mean for International Marriage Law?)

The decision of the Federal Constitutional Court on art. 13 para. 3 no. 1 of the Introductory Act to the Civil Code raises many questions of private international law. Although the court ultimately held the provision unconstitutional, a welcome outcome, the decision also weakens the protection of legal statuses acquired under foreign law and allows the specifications and classifications of German internal law to apply as the standard even for marriages validly entered into under foreign law. The court roughly indicates a few possible ways to remedy the disproportionality of the provision, but it would seem difficult to implement these remedies in a way that both systematically conforms with the principles of private international law and does not create serious practical issues. As an alternative, the legislator should instead consider declaring all underage marriages, including the »earliest of the early«, to be voidable, because although the court’s ruling accepts their classification as non-marriages, it does not necessarily require such a harsh categorization. The article concludes by examining the potential of a fundamental reform of art. 13 of the Introductory Act to the Civil Code.

The table of contents in German is available here.