EAPIL blog

The Organisation for the Harmonisation of Business Law in Africa (OHADA) has selected a team to prepare a draft Uniform Act of Private International Law. After a 10 month selection process, it has chosen a team led by the Paris office of Shearman & Sterling (see the announcement of the firm here).

The  mandate consists of drafting a Uniform Act on conflict of laws, conflicts of jurisdictions and the circulation of judicial and extrajudicial documents. The Act should contain an exhaustive set of PIL rules, which will be directly applicable in the 17 OHADA States and replace any local PIL rules currently applicable in those States. This would be the tenth Uniform Act adopted by OHADA.

OHADA was established in 1993 with the goal of harmonizing the business laws of its member States in order to foster economic development in the region. It comprises States mostly from francophone Central and Western Africa.

The team is composed of attorneys from the Paris office of the firm, but also several academics and practitioners from France and OHADA states (Cameroon and Ivory Coast, in particular).

One is hopeful that the team will want to identify the best solutions for Africa not only by considering the recent codifications of PIL drafted in French (Belgium Code of PIL, Swiss PIL Act, Quebec legislations, in particular), but also the PIL of other legal traditions, including those of neighbouring states such as Nigeria and Ghana.

The author of this post is Lorenzo Acconciamessa, a PhD candidate at the University of Palermo and a teaching assistant at the Catholic University of the Sacred Heart in Milan.

By an order of 29 April 2020 the First Chamber of the Italian Supreme Court asked the Italian Constitutional Court to review the constitutional legitimacy of the combined operation of the various Italian rules of private international law governing the (non-)recognition of a foreign birth certificate attesting the existence of a parent-child relationship between a child born abroad by resorting to gestational surrogacy and his intended parent. In 2019, the Joint Chambers of the Supreme Court ruled that, on a proper interpretation of the Italian provisions of private international, such recognition ought to be denied on the ground that it would offend public policy. Put shortly, by its order of April 2020, the First Chamber of the Supreme Court asked the Constitutional Court to assess whether the above provisions, as interpreted by the Joint Chambers in the ruling of 2019, are consistent with the Italian Constitution.

One of the key issues that the Constitutional Court will need to address is whether, and to what extent, international human rights law – notably as expressed in the European Convention on Human Rights (ECHR) and the UN 1989 Convention on the Rights of the Child (CRC) – affects the ability of State’s authorities to refuse the recognition of personal statuses and family relationships on grounds of public policy, thereby precluding the cross-border continuity of the concerned persons’ family status validly and effectively created abroad. Indeed, pursuant to Article 117, paragraph 1, of the Italian Constitution, legislation cannot infringe the international obligations of Italy. In this regard, the Constitutional Court made clear that in the event of a conflict between a piece of domestic legislation and the obligations arising from an international treaty in force for Italy, the former must be considered to be unconstitutional and accordingly declared void.

The case concerned a same-sex couple of Italian men who got married in Canada. Their marriage was recognised in Italy as a registered partnership, pursuant to Article 32-bis of the Italian Statute on Private International Law. They subsequently had a child in Canada by resorting to surrogate motherhood. Surrogacy is permitted in Canada, provided that the surrogate mother acts freely and altruistically. The child’s birth certificate had been recognised and recorded in Italy following a decision of the Registrar of the Municipality of Verona. However, the certificate merely mentioned the spouse having a biological bond with the child. The couple seised the Supreme Court of British Columbia to have the birth certificate rectified: they wished that both – the biological and the intended fathers – be referred to as the parents of the child. Their application was successful. The couple then requested that such rectification be recognised in Italy. The Registrar, however, dismissed the request, arguing that recognition would be at variance with the Italian public policy.

On several occasions, in the past, the Italian Supreme Court restricted public policy to such fundamental values as are shared by the international community. On those grounds, the First Chamber ruled in 2016 that the public policy defence could not be raised to prevent the recognition of a foreign birth certificate attesting the family relationship between a child and his two mothers (the biological one, who carried on the pregnancy, and the genetical one, who had donated the ovum). Public policy, the Court argued, encompasses fundamental principles enshrined in the Italian Constitution as well as in supranational and international human rights instruments by which Italy is bound. The best interests of the child, and his right to personal and social identity, are then to be considered as public policy principles.

According to this view, the mere incompatibility between foreign judgments or public acts and domestic mandatory provisions is not enough to trigger the public policy defence. The same approach was followed by the Court of Appeal of Venice in the case that the Italian Constitutional Court is now called upon to consider. In particular, the Court of Appeal submitted that the fact that Italian law fails to make provision for same-sex marriage and for the attribution, to both the parties of a same-sex couple, of the parental status over a child born through medically assisted procreation, is not, in itself, evidence of the existence of a corresponding public policy principle. The statutes providing for such rules, indeed, are mere expression of the legislature’s political discretion.

However, the State Attorney was not satisfied by the judgment of the Court of Appeal and moved to have the ruling reviewed by the Supreme Court. He argued that the recognition of the Canadian judgment would be in clear breach of the Italian legislation on filiation and medically assisted procreation and, as a consequence, at odds with the public order of Italy. The State Attorney, in particular, invoked a different conception of the public policy, as adopted by the Joint Chambers of the Supreme Court.

And indeed, in 2019 the Joint Chambers remarked that other principles of the forum must be taken into account when determining the scope of public policy, in addition to the principles arising from the Constitution and international instruments. Domestic ordinary legislation may be seen as providing evidence of the fundamental policies of the Italian legal order as well, namely where it implements the principles enshrined in the Constitution.

According to that approach, while the recognition of the family relationship between the child born under a surrogacy arrangement and the intended biological father – through the recording of the birth certificate – is justified by the existence of a biological relationship, the recording of the part of the certificate mentioning as parent the merely intended (non-biological nor genetic) father would be at odds with the Italian (criminal) prohibition of gestational surrogacy arrangements, provided for in Article 12, paragraph 6, of the Italian Statute on Medically Assisted Procreation. Such regulation is deemed by the Joint Chambers to implement constitutional principles concerning the protection of the dignity of the woman and, consequently, to express a public policy principle. In the Joint Sections’ view, such a statement is imposed by an incontestable appreciation of the legislator and by the Constitutional Court’s case-law. As a consequence, judges would be precluded from substituting their own assessment on this matter.

The Joint Chambers added that the protection of the (best) interests of the child, in any case, would be guaranteed by the possibility, for the intended, non biological parent, to resort to the “adoption in particular cases”, pursuant to Article 44, paragraph 1, of the Italian Statute on Adoption. It is a sort of last resort clause allowing for recognition of the emotional bond between the child and the intended parent, when he/she is also the biological parent’s spouse, or, in any case, provided that the relationship has been established as a social reality. The Joint Chambers tried to frame their approach within the European Court of Human Rights’ (ECtHR) doctrine of the margin of appreciation. In particular, they considered that Italy had already complied with ECHR standards by providing full recognition of the child’s relationship with the biological parent. By contrast, in the absence of a biological link with the intended parent, State’s authorities would retain a wide margin of appreciation in choosing the appropriate mechanism for assuring the establishment of a legal relationship comparable (not identical) to natural filiation.

The Joint Chambers’ approach is not in itself at odds with the ECHR standards, at least as they were standing at the moment of the 2019 ruling. In the Strasbourg judges’ opinion, the right to personal identity, enshrined in Article 8 ECHR, may imply a right to the cross-border continuity of personal statuses and family relationships created abroad (see Marongiu Buonaiuti and Baratta). And indeed, non-recognition of family statuses validly and effectively created abroad interferes with the right to private and family life. The case at hand fulfils the conditions required under Article 8 ECHR to be entitled to that right: (1) from a formal point of view, the family tie has been validly and legally created before seeking its recognition; (2) from a substantial point of view, the family relationship has been established a social reality, having the child lived with the biological and the intended father since he was born. Moreover, the case involves essential interests of a child, which should be a primary consideration of the State (Neuliger and Shuruck, para. 135).

According to the Court’s well-established case-law, however, if the interference is prescribed in accordance with the law, pursues a legitimate aim and is “necessary in a democratic society” for achieving it, it can be defined as legitimate. Such right might be limited by applying the public policy clause, which is a rule of law aimed at protecting the essential interests (and values) of the State. States enjoy a margin of appreciation in striking such a fair balance between States’ interests and individuals’ rights, that, nevertheless, has been progressively restricted by the ECtHR.

In Negrepontis-Giannisis the Court ruled that the refusal on public policy grounds to recognize an adoption pronounced (in 1984) by a Court in the U.S. between an adult and his uncle, a bishop of the Orthodox Church, violated Article 8. A few years later, the Court asserted in Paradiso and Campanelli that the public policy defence cannot be resorted to as a sort of “charte blanche for any measure, since the State ha[s] an obligation to take the child’s best interests into account irrespective of the nature of the parental link, genetic or otherwise” (para. 80). The Grand Chamber reversed the judgment because it considered that no family relationship existed in the considered case. Therefore, it was unnecessary to determine whether the interference produced by the public policy defence was legitimate, given that there was no right to interfere with.

In two well-known cases concerning the recognition of the family relationship between the child born under a surrogacy arrangement and the biological parent, the ECtHR considered that, even when a State is invoking the international public policy exception, the Court “must, however, verify whether in applying that mechanism … the domestic courts duly took account of the need to strike a fair balance between the interest of the community in ensuring that its members conform to the choice made democratically within that community [prohibiting gestational surrogacy arrangements] and the interest of the applicants – the children’s best interests being paramount – in fully enjoying their rights to respect for their private and family rights” (Labassee, para. 63 and Mennesson, para. 84). It then concluded that the children’s right to personal identity– which involves the right to have their family relationship with the (intended) biological or genetic parent recognized – trumped the State’s interests in protecting those it considers as fundamental values of the fore. According to the Court, the State had to grant the recording of the birth certificate for, at that time, no valid alternatives existed, according to the case-law of the French Court of Cassation, for establishing such a family relationship.

As for the family relationship between the child born under a gestational arrangement and the (merely) intended (non biological nor genetic) parent, the ECtHR expressed its views in the first advisory opinion, delivered, pursuant to Protocol No. 16 to the ECHR, on 10th April 2019. Indeed, following the 2014 judgment in the Mennesson case, the French Cour de Cassation asked the Grand Chamber whether the State had, under the ECHR, an obligation to recognize the family relationship also with respect to the intended parent and whether, in this case, allowing the adoption of the child sufficed. As for the first question, the Court considered that «the general and absolute impossibility of obtaining recognition of the relationship … is incompatible with the child’s best interests» (para. 42). The Court did not distinguish between the fact of the intended mother being or not also the genetic or biological mother As for the second question, the Court stipulated that the case required a fair and appropriate balancing of interests. The invocation of the public policy clause – with the aim of denying direct recognition of the foreign birth certificate or judgment – would be legitimate, in the light of the State’s margin of appreciation, provided that, in any case, adoption or other available proceedings constitute “an effective [alternative] mechanism […], enabling the relationship to be recognized” (para. 54). Such a mechanism, in the Court’s opinion, should be appropriate (guaranteeing an effective recognition of parent-child relationship), rapid, and should allow for “an assessment by the courts of the child’s best interests in the light of the circumstances of the case” (ibidem). Moreover, recognition, whatever the legal instrument resorted to, must intervene not after its effective instauration as a social reality.

Although the ECtHR’s advisory opinion is not legally binding, the First Chamber of the Supreme Court in the 2020 Order considered it had to uphold its findings. It then questioned the Joint Chambers arguments concerning the public policy defence by highlighting, inter alia, that it is at odds with the developments in the ECtHR’s case law, at least for two reasons. On the one hand, the Court considered it is illegitimate to qualify the prohibition of surrogacy as public policy, and to make it automatically prevail over the best interests of the child, without an appropriate case-by-case evaluation. For this end, it should be assessed whether effective alternatives exist for upholding the best interests of the child. On the other hand (and consequently), the Italian legal system is currently at odds with the ECHR for the “adoption in particular cases” do not qualify as an effective alternative mechanism, in the abovementioned meaning.

The First Chamber relied on a combination of domestic and international human rights sources to shape the extent of public policy and concluded that the principle of the best interests of the child is part of the Italian international public policy. The application of the public policy exception then requires a balancing of interests between, on one hand, the child’s interest in having his/her relationship with the intended parent recognized and, on the other hand, the State’s interests in avoiding recognition of acts which are perceived as incompatible with domestic fundamental values. According to the First Chamber, such a balancing assessment might lead to the application of a foreign law or the recognition of foreign judgments (or public document) even in violation of domestic (ordinary) rules, provided that the supreme principles of the legal order – in particular, those concerning the fundamental rights and human dignity – are not violated.

The “adoption in particular cases” would not entail such a fair balance, for it does not create a full parent-child relationship, it requires a time-consuming and complex proceeding, exposing the child’s to a period of incertitude, and is conditioned upon the parties’ will. As for the content of the established relationship, it is not comparable to natural filiation, given that it does not involve family bonds between the child and the adopter’s relatives nor succession rights. And while the State’s margin of appreciation under the ECHR, the Supreme Court argued, is wide as regards the means by which family relationships are recognised, it is not as wide as regards the “intensity” and content of such relationships.

For all the above reasons, the First Chamber of the Italian Supreme Court asked the Constitutional Court whether the Joint Sections’ approach is constitutionally legitimate, also, and in particular, in the light of the State’s obligations arising from the ECHR and the CRC.

One should also consider that the “downgrading” of the family relationship through the “adoption in particular cases”, beyond being illegitimate in light of the constitutional principle of the unity of the status filiationis irrespective of the modality and circumstances of the child’s conception and birth, would also infringe the standards that have been recently clarified by the ECtHR.

Indeed, two months after the order of the First Chamber the ECtHR delivered its judgment in D. v. France. The Court implicitly confirmed the necessity of a full legal recognition of the intended parent-child relationship, although it admitted that the methods for achieving that aim can be determined by the State in the exercise of its margin of appreciation. It means that such recognition must not necessarily be achieved through the recording of the birth certificate, provided that the State guarantees and effective and rapid recognition. The ECtHR indeed concluded that the refusal to record the birth certificate of a child born in Ukraine through a gestational arrangement as long as it mentioned the intended mother – who was also the genetic mother – as the legal mother, did not violate Article 8 ECHR. In the Court’s reasoning, the French Cour de Cassation had already confirmed possibility for the (intended) mother to adopt her spouse’s child – for the birth certificate had been recorded in respect of the intended biological father – by way of full adoption. In the Court’s view, that possibility sufficed in order to establish an effective legal parent-child relationship. And indeed, full adoption is pronounced through a rapid proceeding (para. 67) and produces « des effets de même nature que la transcription de l’acte de naissance étranger s’agissant de la reconnaissance du lien de filiation entre l’enfant et la mère d’intention » (para. 66). The case seems then to confirm, a contrario, the Italian First Chamber’s argument: the denial to record the birth certificate is legitimate as long as an alternative mechanism enabling the establishment of a full parent-child relationship exist. Therefore, in Italy, where full adoption is not allowed in the same circumstances, the recording of the birth certificate seems the last valid alternative.

The approach of the First Chamber is commendable from an inter-systemic point of view, for it gives due relevance to the ECtHR approach. In this regard, one should also consider that France already complied with the ECtHR recommendation, given that the intended parent can resort to full adoption. Moreover, in the Mennesson case the Court de Cassation finally allowed the recognition of the parent-child relationship through the recording the foreign birth certificate which mentioned the intended mother as the legal mother (see Arrêt n. 648 P+B+R+I). Given the circumstances of the case, in fact, the Court considered that, following 15 years of judicial proceedings, the best interests of the child required an immediate recognition of the relationship, without imposing to the intended mother the institution of an adoption proceeding.

However, it is unlikely that the Italian Constitutional Court will conclude that non-recognition amounts to a violation of the Constitution. In fact, the Court itself ruled in the past that gestational arrangements violate the woman’s dignity and that, in any case, the adoption in particular cases is an adequate alternative to the (full) recognition of the parent-child relationship (Judgment No. 272 of 2017). It has also ruled against same-sex filiation through medically assisted procreation (Judgment No. 221 of 2019).

The relevant issue will thus concern the parameter of constitutionality arising from Article 117 of the Italian Constitution. Pursuant to that provision, as interpreted by the Constitutional Court since the twin Judgments Nos 348 and 349 of 2007, the legitimacy of ordinary legislation is also assessed against such international treaties as are in force for Italy. The Constitutional Court is then, first of all, called to assess whether the developments in the ECtHR’s case-law have already restricted the State’s margin of appreciation in respect of the recognition of the family relationship between the child born abroad under a surrogacy arrangement and the intended parent.

However, the late approach of the Constitutional Court has mitigated to idea of the prevalence of international principles over national ones (Judgment No. 269 of 2017) and has considerably impacted the extent of the binding nature of ECtHR’s judgments for national judges (Judgment No. 49 of 2015). It is then possible that the Constitutional Court will stipulate that the Constitution prevails over those international obligations. In fact, should the Constitutional Court conclude that the absence of suitable alternatives actually precludes Italian authorities, in the light of the ECHR, from invoking the public policy clause, it is also possible that the constitutional judges will invoke the doctrine of the “counter-limits”, although that doctrine, as for now, has been invoked only in relation to customary international law and European Union law. In particular, it has been invoked by the Constitutional Court (Judgment No. 238 of 2014), with respect to the dispute between Italy and Germany which arose when the Italian Supreme Court ruled that Germany was not entitled to immunity from Italian jurisdiction in civil proceedings where the claimants pleaded redress for serious human rights violations perpetrated by the Third Reich in Italy during World War II. The Constitutional Court concluded that respect for international obligations of the State – namely, the customary rule on State immunity as well as the judgment of the International Court of Justice which had condemned Italy to uphold such rule – could not extent to the point of infringing the “supreme” principles enshrined in the Constitution.

In the present case, there is the possibility that the Constitutional Court will conclude that the prohibition of surrogacy arrangements actually implements fundamental constitutional principles that cannot be trumped by ECHR obligations. And given that treaty provision, by definition, must respect constitutional provisions, the Court could also come to the same conclusion without invoking the counter-limits doctrine.

Should the Constitutional Court reject, for that or other reasons, the referral, the First Chamber would be obliged to apply the current interpretation of the public order defence, as stipulated by the Joint Chambers. In this case, the couple might then apply to the ECtHR, seeking a declaration that Italy violated Article 8 ECHR.

In conclusion, while the First Chamber is trying to engage in a dialogue with the ECtHR and to uphold its findings in the Italian legal order, the case also prospects the possibility of a direct clash between the European Court of Human Rights and the Italian Constitutional Court, concerning a very sensitive and ethical issue. Given that it is quite unlikely that the Parliament would opt for a reform of the legislation to comply with the ECHR standards, the Constitutional judgement will decide whether Italy will be in a systemic and persistent situation of breaching the ECHR.

The new issue of the Revue Critique de Droit International Privé (3/2020) is out. It contains three articles and numerous case notes.

In the first article, Horatia Muir Watt (Sciences Po) addresses the challenges raised by the new Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, under a geopolitical perspective (Le droit international privé au service de la géopolitique : les enjeux de la nouvelle Convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale)

The political stakes of the apparently innocuous legal regime governing the cross-border movement of judgments may be more complex and less rational than it might appear on reading the text of the new international convention, which has succeeded unexpectedly in coming into being twenty years after the failure of the previous great millennium project. The key to understanding these stakes lies in four different directions : the new place of the European Union at the negotiating table, exclusive of its Member States ; the awakening of China to the potential of private international law in terms of soft power to be wielded in support of the rebirth of the imperial Silk Route ; the post Brexit reintroduction of the markets of the Commonwealth into the wider game ; the weakening of the position of the United States in the era of “post-shame”. However, a further factor may be that the rules for the recognition and enforcement of foreign judgements are caught up in an additional race between competing models of international commercial dispute resolution.

In the second article, Dominique Foussard (Avocat au Conseil d’Etat et à la Cour de Cassation, French Bar) offers the opportunity to (re)discover the great figure of Jean-Jacques Gaspard Foelix (1791-1853) and its contribution to Private international Law (Le droit international privé de Foelix ou l’art périlleux de la transition, 1840-1847).

In the third article, Christiane Lenz (Rechtsanwältin, Qivive Avocats & Rechtsanwälte, German Bar) discusses the issue of provisional measures, pursuant article 35 of the Brussels I Regulation, in a Franco-German perspective (L’exploitation du rapport d’expertise français par le juge allemand : la toute-puissance de l’article 35 du règlement Bruxelles I bis).

Pursuant to Article 35 of Regulation 1215/2012, French Courts can order provisional measures according to Article 145 of the French Code of Civil Procedure despite a jurisdiction clause in favor of German courts if it is necessary to preserve evidence and if the means of evidence are located in France. French expert reports can be used in front of German Courts on the basis of the principle of substitution. In light of Article 35 of Regulation 1215/2012, Article 145 of the French Code of Civil Procedure must be interpreted in a way which does not require the application of the condition « before any legal process ». In addition, Article 35 of Regulation 1215/2012 may prevent the effects of Articles 29 and 31 (2) of Regulation 1215/2012 and the res iudicata effect.

It is worth noting that the editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Slow savoir et transition périlleuse).

The full table of contents is available here.

On the occasion of the 70th birthday of Herbert Kronke, pupils, friends, companions and colleagues got together to honor him with this commemorative publication.

As director of the Institute for Foreign and International Private and Business Law at the University of Heidelberg, as Secretary General of UNIDROIT, as a member of the German Council for International Private Law, as a judge at the Iran-United States Claims Tribunal and as chairman of the German Institution for Arbitration, Prof. Kronke has contributed to the development of cross-border private law in a very special way, creating like no other brigdes among national, international and transnational law

The contents of the book reflect the diverse areas of Prof. Kronke’s academic activity: international private and procedural law as well as international law; comparative law; commercial arbitration and investor-state dispute resolution; foreign and German private and commercial law.

Click here to access the table of contents.

The Hague Lectures of Lauro Gama (Pontifical Catholic University of Rio de Janeiro) on the Unidroit Principles and the Law Governing International Commercial Contracts (Les principes UNIDROIT et la loi régissant les contrats de commerce international) were published in volume 406 of the Collected Course of the Hague Academy of International Law.

The book is written in French, but the author has kindly provided the following abstract in English:

This course outlines the challenges related to the application of the UPICC as the law governing international commercial contracts. It examines the UPICC both in the context of disputes submitted to State courts and arbitration, and how and why the UPICC differ from domestic law and international conventions in the role of governing law. It also analyses cases in which the UPICC apply as primary or subsidiary governing law. In addition, the course highlights the limits of the current rules of private international law to deal with the new kind of normativity represented by the UPICC. Traditional conflict rules tend to prevent both the choice and application of a non-state law such as the UPICC, as well as the concomitant use of multiple normative instruments as law applicable to the merits of a dispute. As a substantive non-state law in motion, a “work in progress” in permanent dialogue with domestic law and international conventions, the UPICC remains a challenge from the point of view of private international law.

The Supreme Administrative Court in Poland (Naczelny Sąd Administracyjny – NSA) issued on 10 September 2020 two judgments concerning the legal status in Poland of a child born by a surrogate mother in the US.

A US birth certificate indicated a Polish national as the father and also contained information that the child was born through surrogacy (without mentioning the surrogate mother’s name).

Two judgments were issued as a result of two separate administrative proceedings instituted by the father. One concerned the application for the transcription of the US birth certificate into Polish civil status registry. The other was resulted from the application for a confirmation that the child acquired Polish nationality by birth.

In both cases administrative authorities had rejected the requests based on grounds of public policy, stating that surrogacy arrangements are against fundamental principles of the legal order in Poland. One of these fundamental principles is that the mother is always a woman, who gave birth to the child, whereas paternity results from a scheme of legal presumptions. This argument is not new, as similar cases were dealt with before by administrative authorities and administrative courts.

This argument was also upheld by the NSA in the first judgement (signature: II OSK 1390/18) where it underlined that a foreign birth certificate, which does not indicate the mother, but only the father may not be transcribed into Polish civil status registry.

What shows a slight evolution in the Court’s attitude is the second judgment (signature: II OSK 3362/17), where the NSA stated that a foreign birth certificate is the only proof of an occurrence mentioned in it and its probative force may not be questioned in the course of an administrative proceeding concerning acquisition of the nationality. For a confirmation to be produced, it suffices that the foreign birth certificate indicates a Polish national as a parent.

Here it might be reminded that an opposite view of the NSA with respect to nationality of children born by a surrogate mother resulted in a claim filed to the European Court of Human Rights against Poland in 2015 (communicated in 2019 – see cases nos. 56846/15 and 56849/15: here).

The two commented cases show that in NSA’s view surrogacy arrangements are against public order in Poland, but at the same time the fact of being born by a surrogate mother should not impact the legal status in every respect and consequently quality of life of the child in Poland. In the first mentioned judgement, the NSA underlined that even without Polish birth certificate the child should be able to obtain a PESEL number (explained below), a national ID card and a passport. The practical question is whether the above is a wishful thinking of the NSA or this will happen in practice.

It must be explained that for an everyday life and functioning in Poland one should have a PESEL number (which name comes from the first letters of the Powszechny Elektroniczny System Ewidencji Ludności – the General Electronic System of Population Registration).

A PESEL must be provided when one applies for ID card, passport, files a tax return or wants to get a drug prescription. Similarly, a child’s PESEL must be indicated if parents/legal representatives apply for child’s ID card, want the child to be covered by the national social security system or want the child to go to a kindergarten. For children born in Poland (no matter if to Polish parents or foreigners) PESEL is issued in connection with the drafting of a birth certificate. If a Polish child is born abroad, the PESEL is issued in connection with the application for an ID card or a passport.

Hence, if a child does not have a Polish birth certificate or a foreign birth certificate which might be transcribed into Polish civil status registry (and additionally is not perceived as a Polish national), administrative authorities do not have an adequate legal basis for allocating a PESEL to the child and … everyday life might get complicated.

The judgments issued by the NSA are binding on the administrative authorities concerned and with respect to the particular cases at issue, but not on other authorities in other proceedings.

Hence, it remains to be seen whether a PESEL number and ID documents will be issued based on a foreign birth certificate as suggested by the NSA or whether another time-consuming proceeding will commence. As one can imagine the commented proceedings lasted for few years counting from the first application to the judgement of the NSA.

The information about the above two cases was published by Polish Ombudsman (Rzecznik Praw Obywatelskich) on its official website (see: here). The ombudsman joined both cases to support the applicant. Usually NSA’s judgements are published in the freely available official database once the justification part of the judgement is prepared (here). The justification is written after the judgement was issued. Hence, it is not yet available.

Tilman Imm has written a thesis on the mechanism of equivalence in Financial and Capital Markets Law (Der finanz- und kapitalmarktrechtliche Gleichwertigkeitsmechanismus – Zur Methode der Substitution in Theorie und Praxis).

The author has kindly provided the following summary:

The concept of equivalence or substituted compliance is of considerable importance in today’s financial and capital market law. This is a regulatory mechanism which, roughly speaking, works as follows: A rule provides for favourable legal consequences – such as the registration of a company for the provision of investment services – in the event that its object of regulation is already achieved in an equivalent manner by the regulations of another standard-setting body. Numerous implementations of this mechanism are to be found in the European Union’s regulations on third countries, which have recently gained considerable relevance against the backdrop of Brexit. So far, however, there has been a lack of clarity in practice and science about various aspects of equivalence.

This dissertation shows that the widespread equivalence rules are cases of legally provided substitution and demonstrates the practical consequences of this finding. For this purpose, first of all, the current state of knowledge in private international law regarding the instrument of substitution is examined. This includes the term, object and autonomy of substitution as well as its preconditions in order to define a conceptual understanding for the further course of the analysis. Especially the substitution requirement of equivalence is analysed more closely, which entails an examination of the criterion of functional equivalence and the occasional criticism of the requirement of equivalence.

The second part of the thesis turns to the equivalence mechanism in financial and capital market law. At the beginning, the so-called third country regime of European financial and capital market law is presented in an overview to illustrate to what extent and under which conditions third country companies can become active in this area of the internal market. This is followed by an analysis of the equivalence mechanism, which includes not only the history and functions of this regulatory technique, but also the determination of equivalence by the European Commission or national authorities. In this context, the main thesis of the treatise, namely that equivalence rules are cases of legally provided substitution, is reviewed and the widespread criticism of the mechanism is presented and acknowledged.

Finally, the third part of the dissertation features the exemption options for third-country companies within the framework of the German Securities Trading Act (Wertpapierhandelsgesetz – WpHG) to show how the equivalence mechanism works in practice and to what extent its potential can be limited by regulatory deficits, starting with an analysis of the equivalence of US law in terms of Section 46 WpHG. This is followed by an examination of Section 91 WpHG, which has recently been added to the WpHG, and includes a critical examination of the status quo with regard to the equivalence requirement of this provision.

The author of this post is Carlos Santaló Goris, research fellow at the MPI Luxembourg and PhD candidate at the University of Luxembourg.

On 3 August 2020, a Polish notary referred a request for a preliminary ruling to the Court of Justice of the European Union (“CJEU”).

The facts are simple: a Ukrainian citizen living in Poland asked a Polish notary to draft her will. She wanted Ukrainian law to apply to the succession. The notary refused, arguing that the law applicable to the succession cannot be chosen under the 1992 Ukrainian-Polish bilateral treaty on civil and criminal matters.

The applicant complained against the refusal; she claimed that the Succession Regulation, which allows the de cujus to choose the law of her nationality to rule the succession (Article 22), should apply instead. According to Polish law, the complaint procedure is to be brought before a notary.

The CJEU is asked to interpret the Succession Regulation, as follows:

1. Must Article 22 of [the Succession Regulation] also be interpreted as meaning that a person who is not a citizen of the Union is also entitled to choose his maternal law as the law applicable to the succession as a whole?
2. Is Article 75 in conjunction with Article 22 of [the Succession Regulation] to be interpreted as meaning that, where a bilateral convention binding a Member State to a non-member country does not govern the choice of law on succession but designates the law applicable in matters of succession, a national of that non-member country who resides in a Member State bound by that bilateral agreement may choose the law?
3. In particular: must a bilateral agreement with a non-member State expressly preclude the choice of a particular law, and not only the status of succession by means of objective criteria, in order for its provisions to prevail over Article 22 of [the Succession Regulation]? does the freedom to choose the succession law and to standardize the applicable law by choosing the law — at least to the extent defined by the EU legislature in Article 22 of [the Succession Regulation] — fall within the principles underlying judicial cooperation in civil and commercial matters within the European Union and cannot be affected even in the event of the application of bilateral conventions with third countries which prevail over Regulation No 650/2012?

In my view, the CJEU will not struggle to provide an answer to the first question of the request. The Succession Regulation applies to the wills drafted by authorities of the Member States; Article 20 declares its “universal application”; Article 22 does not make any difference between “States” and “Member State”; like EU nationals, third-State citizens can choose their national law.

The second question is trickier. It starts with the interpretation of the last sentence of Article 75(1) of the Regulation (“this Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation”). Since the bilateral convention has no provision on the choice of law in relation to successions, it could be argued that this particular aspect is not foreseen, hence the Succession Regulation applies.

However, the convention does rule on the law applicable to movable and immovable estate, just like the Regulation, and therefore it should prevail. Should this be the case, the second part of the question would come into play. The CJEU is asked here to produce a declaration on values, likely to end up with the need to strike a balance – or not, for there is no doubt the negotiators knew about the contents of the conventions Article 75 intends to preserve, and about the fact that choice of law is not a widely accepted rule in succession matters. Should the principle of choice of law always prevail, Article 75 would be deprived of much of its sense.

Rather than the actual questions of the preliminary reference, what is more intriguing is whether Polish notaries deciding on complaints against the refusal to carry out a notarial act can address themselves directly to the CJEU via the preliminary reference. According to Article 267 of the TFEU, only courts can make preliminary references. In C-658/17, W.B., the CJEU determined that Polish notaries issuing a certificate of succession are not “courts” for the purpose of the Succession Regulation. Nonetheless, whether a notary reviewing a decision taken by another notary fits with the Article 267 of the TFEU is something different.

With a view to provide an autonomous notion, the CJEU has elaborated a list of prerequisites a domestic authority needs to comply with to be considered a court under Article 267: the body under examination must have been established by law, be permanent, have compulsory jurisdiction, adjudicate in an inter partes procedure, apply the rules of law, and be independent (C-54/96, Dorsch Consult, para. 23).

The analysis of the admissibility of the preliminary reference, focused on whether a notary fulfils the conditions just mentioned, will surely be the first step of the CJEU in the case at hand. In this regard, it is worth mentioning that the Polish Supreme Court and the Polish Constitutional Court have already explored whether, under Polish law, notaries acting in complaint procedures like the one at stake have the status of courts, and concluded that they may be considered first instance courts, performing ancillary functions of the administration of justice.

At any rate, the CJEU is not bound by the determinations of the national courts. It will decide on the basis of its own findings. And it will do so at a moment when the whole Polish judicial system is under suspicion (see C 354/20 PPU, and soon, C-412/20 PPU,  both widely reported in the press), and the future of judicial cooperation, also in civil matters, is an issue of legitimate concern.

An online event titled Coordinating Brussels Ia with other Instruments of EU Law: A Roundtable on Theoretical and Practical Issues will take place on 24 September 2020, at 3 pm (CET).

The purpose of the event, organised by the Universities of Genoa, Nice, Valencia, and Tirana, is to present the first results of the investigation conducted under the EU co-funded research project En2Bria – Enhancing Enforcement under Brussels Ia, which aims to shed light on the terms whereby the relationship between the Brussels I bis Regulation and other EU law instruments is to be handled.

The conference will be chaired by Chiara E. Tuo (Univ. Genoa). Speakers include Jean-Sylvestre Bergé (Univ. Nice), Guillermo Palao Moreno (Univ. Valencia), Giulio Cesare Giorgini (Univ. Nice), Rosario Espinosa Calabuig (Univ. Valencia), Rosa Lapiedra Alcami (Univ. Valencia), Isabel Reig Fabado (Univ. Valencia), and Stefano Dominelli (Univ. Genoa).

See here for further information.

Those interested in attending the conference are invited to write an e-mail to Stefano Dominelli at stefano.dominelli@unige.it.

The author of this post is Omar Vanin. He earned a Phd in Private International Law from the University of Padova and is now in private practice.

On 7 August 2020, the Italian Supreme Court (Corte di Cassazione) ruled on the non-recognition of a judgment whereby a Palestinian religious court had acknowledged the severance of the matrimonial ties between a muslim couple, on the ground that the judgment offended the public policy of Italy (the ruling is numbered as follows: No 16804/20; the text has not yet been officially published by the Court, but it’s available here through the website Cassazione.net).

Proceedings were brought by a woman of Italian and Jordanian nationality against the recording in Italy of a judgment rendered, on an application by her husband, by the Sharia court of Western Nablus (West Bank). The husband had repudiated the woman in accordance with Islamic law, and the Sharia court, taking note of the repudiation (talaq), had certified that the couple had ceased to be bound by marriage.

The woman argued that the judgment was at odds with the public policy of Italy. She submitted, first, that Islamic law, as applied in the West Bank, failed to provide equal rights to the spouses in relation to divorce, and, secondly, that the she was not given an opportunity to present her case in the proceedings which resulted in the judicial declaration.

The man, for his part, claimed that talaq merely constituted a process of revocable separation, and that the judgment was passed after an unsuccessful attempt by the Sharia court to reconcile the couple.

Islamic law sees marriage as a contract. Talaq is one of the grounds on which marriage may be terminated.

The traditional view is that only the husband is entitled to have the marital ties severed by means of repudiation.

Developments have occurred in this area in several Islamic jurisdictions. In some of them, the wife may seek to have the marriage terminated through a declaration by the competent (religious) authority, based on a breach of the husband’s obligations towards her.

Concurrently, marriage termination is losing its ‘contractual’ features, and rather represents, in some jurisdictions, the outcome of a judicial procedure.

Against this backdrop, a case-by-case analysis may prove necessary to assess whether, in the circumstances, the authorities involved merely attested a unilateral termination prompted by the husband or rather declared such termination based on their own independent assessment.

The Cassazione held that, in the case at issue, the basic procedural rights of the wife had been violated. Indeed, the woman did not take part in the proceedings instituted by her husband before the Sharia court, in the framework of which he irrevocably repudiated his wife.

In fact, the woman was notified of the procedure after the judgment was given, and only to enable the court to ascertain that no reconciliation had occurred in the three months following the decision.

In addition, the Cassazione ruled that the judgment was also incompatible with the substantive public policy of Italy, since talaq could only be exercised by the male spouse, thus violating the principle of equality of rights between husband and wife enshrined both in the Italian Constitution and in various international instruments in force for Italy, such as Protocol No. 7 to the European Convention on Human Rights.

By the described ruling, the Cassazione took a stance on a topic that lower courts in Italy have been discussing for several years. Prior to this judgment, the Court itself had relatively few opportunities to address the matter, the latest of which dates back to 1983.

The conclusion reached by the Supreme Court, namely that traditional talaq is inconsistent with public policy, accords with the Court’s own precedents and with most lower courts’ judgments. In fact, the reasoning of the Cassazione echoes, to a large extent, the reasoning of several among such lower courts.

In various respects, the views expressed by the Cassazione are in line with those expressed, often in a more nuanced way, in other European countries.

In 2014, for instance, the French Cour de Cassation denied the recognition of an Algerian judgment acknowledging the unilateral repudiation of an Algerian wife by an Algerian husband on the ground that it contravened the principe whereby the spouses enjoy equal rights as regards the termination of marriage.

The Cour de Cassation had previously granted effect to judgments rendered as a result of talaq, through the doctrine of ‘mitigated’ public policy. The latter doctrine posits that, in appropriate circumstances, foreign judgments offending as such public policy may nevertheless be granted recognition to the extent to which their authority is merely invoked as a basis for a different claim, one that is not, per se, inconsistent with public policy (e.g., a claim for spousal support based on the termination of marriage through talaq).

Eventually, the Cour de Cassation abandoned this line of thought in 2004, stressing the radical incompatibility of talaq with a paramount principle of the French legal system such as gender equality.

The question remains debated in France, among scholars, of whether a milder solution ought to be adopted where to deny recognitin would preclude the wife from enjoying some important benefits (see in general, among recent contributions available on the web, this paper by Yann Heyraud).

Note, incidentally, that the concept of ordre public atténué is not necessarily followed everywhere. The Italian Supreme Court, for example, has never explicitly endorsed the doctrine of attenuated effects in respect of talaq or other legal institutions.

Greek courts, for their part, have expressed the view that talaq judgments ought to be denied recognition on grounds of public policy. Recently, however, lower courts admitted the recognition of of such judgments in cases where an application to that effect was lodged by the wife herself (see further the chronicle and remarks by Apostolos Anthimos here).

The position taken by the Italian Supreme could hardly be criticised in itself. The Court’s reasoning, however, is unpersuasive in at least two passages.

To begin with, the Cassazione failed to take a clear stance on the nature of talaq in a situation where a foreign judicial authority is involved in the process. Arguably, the issue has repercussions on the methods through which the severance of matrimonial ties may be given effect in Italy. If the severance of those is understood to be produced by a judicial decision (i.e., one based on an assessment by the authority in question, following the husband’s declaration), its effectiveness in Italy depends on whether the conditions for the recognition of such a foreign decision are met in the circumstances. Instead, if talaq is labelled as a contractual act (i.e., as a declaration of the husband that the competent judicial authority is merely required to attest, e.g., for publicity reasons), then its effects in Italy would depend on whether the act in question was performed in accordance with the law specified under the pertinent Italian conflict-of-laws rules. Of course, public policy may prevent a talaq from producing effects in Italy in both scenarios, but the question remains of whether the issue of its should be addressed against the background of the rules on the recognition of judgments rather than those on the conflicts of laws. In some cases, the conditions required under the applicable rules may not be fulfilled, which would make any inquire into public policy useless.

In the case at issue, the Cassazione observed that the Sharia court of Western Nablus simply took note of the repudiation, without carrying out, properly speaking, any assessment. The Court, however, failed to elaborate on the implications of such a characterisation for the identification of the relevant methods and rules of private international law, and in fact contented itself with noting that the decision ought to be denied recognition on grounds of public policy.

The second questionable passage in the Supreme Court’s ruling is a general remark whereby a foreign judgment declaring the severance of matrimonial ties ought to be denied recognition on grounds of public policy unless such a judgment is based on, or at least implies, a finding that the bond of affection between the spouses has irretrievably come to an end.

Doubts may be raised as to the pertinence of the latter requirement. As a matter of fact, even Italian courts do not inquire into the reasons why the spouses may be seeking divorce, when pronouncing the dissolution of marriage under Italian law.

Ioannis Revolidis, a lecturer at the University of Malta and a visiting lecturer at the Frederick University Cyprus, has recently published a book in Greek, based on his PhD thesis, on jurisdiction and the Internet.

The author has provided the following summary:

This monograph, which is the first of its kind to appear in Greek literature, examines the problem of allocation of jurisdiction in case of Internet-related disputes under the Brussels Ia Regulation. After an introduction into the meaning and practical ramifications of the phenomenon of international jurisdiction, it tries to identify the dogmatic depth of the Brussels Ia Regulation in order to form arguments on how Internet-related disputes can optimally be tackled in terms of international jurisdiction. In order to create an appropriate dogmatic background, the book also examines the particularities of the Internet culture.

In a more specific part, it examines the rules of international jurisdiction related to digital consumer disputes, digital contractual disputes, and digital non-contractual disputes (personality rights and intellectual property rights) under the Brussels Ia Regulation, coming to the conclusion that the existing rules can appropriately be applied within the Internet context, provided that they will be dogmatically adapted to the particular needs that are created through The Internet culture.

The publication is part of an ambitious project launched by Paris Arvanitakis (Aristotle University, Thessaloniki), and Dimitrios Kranis (former General Director at the Hellenic School of Judges) to cover a gap in domestic bibliography, by initiating a special series of studies in European Private / Procedural Law.

This post has been written by Vincent Richard, Senior Research Fellow at the MPI Luxembourg, Department of European and Comparative Procedural Law.

On 14 August 2020, the Luxembourg government introduced a bill before the Parliament aiming to introduce a collective redress procedure (file 7650) into Luxembourg Law.

This objective was set out in the coalition agreement of 2018 where the Democratic Party, the Luxembourg Socialist Workers’ Party and The Greens defined the policy outline for the  following five years.

The government’s intention is firstly to set up a collective redress mechanism for violations of consumer law and secondly to extend it afterwards to other areas such as environmental law, unlawful discriminations, abuse of dominant position and unfair competition.

While inspired by the proposal for a European directive on representative actions for the protection of the collective interests of consumers, the bill had been finalised before an agreement was reached by the European Parliament and Council negotiators (reported here). The text of the bill may therefore evolve to reflect the latest progress of the EU negotiations.

The collective redress scheme proposed so far is heavily inspired by the corresponding mechanisms adopted in France and Belgium. The procedure is divided into three phases with a first judgment on admissibility, a second one assessing the professional’s liability and an enforcement phase to allocate compensation.

The whole procedure takes place before the district court of Luxembourg and it can be initiated by a single consumer or a qualified entity. The first interesting aspect of the proposal is that qualified entities are not only Luxembourg and European consumer organisations but also non-profit organisations or a sectorial regulatory authority such as the banking sector regulator or the Data Protection Commission. For the action to be declared admissible, individual consumers and qualified entities must show that they have legal expertise and sufficient financial and human resources to adequately represent several consumers. They will also need to prove that a collective redress is more efficient than a typical individual action. Time will tell how much of an obstacle these thresholds will constitute. If the action is financed by a third party, the court has to verify that this third party is not a competitor of the professional and that it may not influence decisions taken by the representative. If the claim is declared admissible, the court rules on the publicity of the judgment and the procedure enters its second phase.

The second phase starts with a mandatory meeting between the representative and the professional where parties must decide if they want to resort to mediation. The bill is quite detailed on this mediation process which may be conducted by specially approved mediators. Mediation last six months and parties may ask the court to extend this delay by another six months. If an agreement is reached, it has to be approved by the court. If there is no agreement, the procedure continues before the court for a ruling on the professional’s liability.

This judgment on liability is a two parties’ procedure between the professional and the representative where the latter may ask for injunctive and compensatory relief. The court rules on the liability of the professional and on the criteria for the constitution of the group of consumers. As is the case in Belgium, the group may be constituted via an opt-in or an opt-out procedure. The opt-out procedure may not be used to compensate bodily harm or moral damages. Opt-out is also excluded if the group involves consumers located outside of Luxembourg which may be a significant limitation in practice. In the judgment on liability, the court also rules on the publication of the judgment, on the time limit given to consumers to opt-in or out and on the time limit given to the professional to compensate the group. Finally, the court decides whether it is necessary to appoint an administrator to handle the enforcement of the judgment.

If enforcement is not handled directly by the professional, it is conducted under the supervision of an administrator who is paid by the professional. A supervising judge is appointed to handle procedural issues related to enforcement. At the end of the enforcement process, the administrator submits a report to the supervising judge who must approve it to bring the proceedings to an end. If a consumer belonging to the group has not been compensated, the supervising judge refers their individual claims to the court.

As it stands now, the bill is rather well drafted and it could have a real impact on the Luxembourg legal landscape. Although it is hard to be very optimistic when considering the relative failure of collective redress in France, Belgium and more generally in Europe, Luxembourg may have some encouraging distinctive features. The country hosts the seats of some of the biggest companies in Europe and it features a dense network of highly creative lawyers. Besides, if full contingency fees are forbidden under the ethical rules of the Luxembourg Bar Association, success fees whereby a limited part of the lawyers’ fees depends upon the result of the litigation are possible. Third party litigation funding is also allowed in Luxembourg and expressly taken into account in the collective redress bill. The main areas of concern are, on one hand, the potential length of the procedure considering that each phase gives rise to a judgment that could be appealed and, on the other hand, the overall cost of such actions.

The bill still needs to receive opinions from the Conseil d’État, professional associations and the main consumer organisation before public debate takes place in Parliament. Readers of this blog will be informed in due course of the content of the law once it becomes final.

A series of webinars devoted to the Conventions of the Hague Conference on Private International Law will be offered from 16 to 18 September by the the Supreme Court of the Philippines, the Philippine Judicial Academy and the Department of Foreign Affairs of the Philippines.

Speakers include Christophe Bernasconi, Secretary General of the Hague Conference, Philippe Lortie, First Secretary of the Conference, and Ning Zhao, Senior Legal Officer at the Conference’s Permanent Bureau.

See here for more information available.

The editorial team in charge of the EAPIL blog is delighted to announce that a new editor has joined the team.

Her name is Anna Wysocka-Bar, and she teaches Private International Law at the Jagiellonian University in Kraków.

Her first post has just been published.

Welcome on board, Anna!

The Polish periodical Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego (Review of International, European and Comparative Law – PWPM) launched an international competition for original papers in the field of international law, European law or comparative law, written in English by scholars aged 35 or less.

The deadline for submissions is 15 November 2020.

The winning papers will be published on the journal  and the authors of the two best articles will receive cash prizes of 500 and 300 Euros, respectively. 

On a more general note, the journal is currently calling for paper from any scholars to be published in  volume XVIII (2020), which will be out in Spring 2021. Here, again, the deadline is 15 November 2020. 

PWPM is one of the leading legal periodicals in Poland. It is a peer-reviewed, open-access academic journal based at the Institute of European Studies of the Jagiellonian University in Kraków. While focuses on international, European and comparative law, the journal also covers other areas of law, including private international law.

More details on the competition and the journal are available here.

The Faculty of Law of the University of Zagreb will hold a conference on Applicable Law in Cross-Border Insolvency Proceedings on 18 and 19 September 2020. Those interested in attending the conference may do so either in person or online.

Speakers include Paul Omar (INSOL Europe), Ignacio Tirado (Secretary-General UNIDROIT), Miha Žebre (European Commission), Andreas Piekenbrock (University of Heidelberg), Jasnica Garašić (University ofZagreb), Francisco Garcimartín (Autonomous University of Madrid), Edward Janger (Brooklyn Law School), John Pottow (University of Michigan), Bartosz Groele (Tomasik & Pakostewicz & Groele), Zoltan Fabok (DLA Piper Posztl, Nemescsói, Györfi-Tóth & Partners), Miodrag Đorđević (Supreme Court of the Republic of Slovenia), Leif M. Clark (former US Bankruptcy Judge), Simeon Gilchrist (Edwin Coe LLP), Renato Mangano (University of Palermo), Rodrigo Rodriguez (University of Lucerne) and Gerry McCormack (University of Leeds).

In the context of the 2020 Annual Conference of the European Law Institute, the feasibility study on EU Conflict of Laws for Companies: The Acquis and Beyond will be presented by Chris Thomale (proposer), Luca Enriques, Jessica Schmidt and Georg Kodek (Chair) today, 11 September 2020, from 15:15 until 16:15 CET.

International company mobility as well as regulatory competition of company laws depend on clearly cut out rules designating the applicable substantive company law. It would thus seem an integral part of a functioning internal market to provide such conflict of laws rules. Regrettably, however, a ‘Rome IV’ Regulation, ie an EU conflict of laws code for companies, despite manifold initiatives, has not been adopted yet. Instead, the stage has been left to the Court of Justice of the European Union (CJEU), which in well-rehearsed case law from the Daily Mail (C-81/87) until the Polbud (C-106/16) decisions has developed a certain framework for corporate mobility, culminating, of late, in Directive 2019/2121 on cross-border conversions, mergers and divisions. One big shortcoming of the European status quo is that the piecemeal harmonisation acquired through these developments still leaves a fundamental question unanswered: which company law regime by default is applicable to a given company?

This feasibility study will aim at laying the foundations for a prospective project that fully restates EU law on the matter implicit in conflict of laws legislation on adjacent topics like contract, tort, successions, insolvency and capital markets. Further, it will aim at foundations that go beyond CJEU case law and include national adjudicative practice and academic research into the picture. Based upon this acquis communautaire, the project of a future Rome IV Regulation can be investigated, notably putting to use techniques of private international law in order to address Member State reticence towards such an instrument as expressed hitherto.

To register for the webinars free of charge, please contact the ELI Secretariat at secretariat@europeanlawinstitute.eu.

A new monograph written in German deals with cross-border insurance brokerage in the Single Market (Christian Rüsing, Grenzüberschreitende Versicherungsvermittlung im Binnenmarkt, 2020). The monograph is aimed at practitioners, national and European supervisory authorities as well as academics dealing with private international law, its relationship to international supervisory law and insurance law.

This book complements studies on the single market in insurance, which the EU has strived to establish for decades. EU institutions have primarily facilitated cross-border business of insurers by implementing rules on international supervisory law in the Solvency II Directive and on private international law for insurance contracts in Article 7 of the Rome I Regulation. The study focuses on intermediaries, such as insurance brokers and agents.

While intermediaries play a vital role in the cross-border distribution of insurance products, clear conflict-of-law rules for insurance intermediation are missing. The Insurance Distribution Directive (IDD), which intends to promote cross-border activities of intermediaries, focuses on the harmonisation of the substantive law on insurance intermediation, apart from provisions on international administrative cooperation. Furthermore, it has not fully harmonised national laws. Insurance intermediaries providing services in other countries are therefore still required to be aware of the relevant national regulatory requirements and private laws they have to comply with.

With regard to international supervisory law, the author analyses where intermediaries have to be registered and which regulatory requirements they have to meet when exercising activities in another member state by using freedom to provide services or the freedom of establishment. One of the key findings is that although the IDD is partly based on the country of origin principle, intermediaries must comply with stricter national provisions protecting general interests of the host member state, irrespective of whether they serve consumers or professionals as policyholders.

Concerning private international law, the author analyses the intermediaries’ relationships with customers and insurers. A comparative legal analysis reveals that these relationships are based on contract in some member states and on tort in others. Therefore, it is even unclear whether the Rome I or the Rome II Regulation has to be applied. The author calls for an autonomous interpretation of the regulations’ scope of application, which also solves the problem of concurring claims. He suggests that the Rome I Regulation must be applied irrespective of whether the intermediary is an agent or a broker.

Applying the Rome I Regulation to the relationship between intermediaries and customers leads to further difficulties. On the one hand, it is unclear whether the conflicts rule for insurance contracts in Article 7 of the Rome I Regulation can be applied to intermediation services. On the other hand, it is also uncertain whether Articles 3, 4 and 6 of the Rome I Regulation are applicable without modification given that the IDD uses different connecting factors with regard to international supervisory law rules. The author argues that certain IDD “flexibility clauses” constitute special conflict-of-law rules in the sense of Article 23 of the Rome I Regulation and therefore partially supersede Articles 3, 4 and 6 of the same Regulation.

With regard to the relationship between intermediaries and insurers, the author analyses whether Article 4(3) of the Rome I Regulation can be used to apply the law governing the insurance contract or the relationship between intermediaries and customers. He stresses that the parties must be aware of the customs they have to comply with and of certain mechanisms protecting insurance agents, which might include mandatory provisions.

This is a complex area, and the author has to be complemented for having taken a broad perspective, which combines international supervisory law and private international law. The study concludes with an assessment of the extent to which the current state of the law promotes cross-border activities of intermediaries. Particular attention is paid to the importance and legal framework of digital insurance intermediaries, which are also dealt with separately in each chapter.

The new issue of the Revue Critique de Droit International Privé (2/2020) is out. It contains three articles and numerous case notes.

In the first article, Sabine Corneloup (University of Paris II Panthéon-Assas) and Thalia Kruger (University of Antwerp) give a comprehensive overview of the new Brussels II ter Regulation (Le règlement 2019/1111, Bruxelles II : la protection des enfants gagne du ter(rain))

After a long legislative process, Regulation 2019/1111 or “Brussels II ter” has replaced the Brussels II bis Regulation (n° 2201/2003). The new Regulation will only become fully applicable on 1 August 2022. This article gives an overview of the most important changes even though it is impossible to discuss all of them. In the domain of parental responsibility Brussels II ter brings more clarity on choice of forum and lis pendens. It insertsa general obligation to respect the child’s right to be heard. For child abduction cases, the second chance procedure is retained but its scope is limited. The legislator places emphasis on mediation. The Regulation brings a general abolition of exequatur, similar to that of the Brussels I Regulation (n° 1215/2012). However, decisions concerning visitation and the second chance procedure (for which Brussels II bis already abolished exequatur) retain their privileged character and slightly different rules apply. Brussels II ter moreover harmonises certain aspects of the actual enforcement procedure. A final important change, especially for France, is a new set of rules on the recognition and enforcement of authentic instruments and agreements, such as private divorces. The legislator did not tackle the bases for jurisdiction for divorce, which is a pity. The authors conclude that, even though it is not perfect and certain issues still need the legislator’s attention, Brussels II ter has brought many welcome improvements, particularly in protecting the rights of children involved in cross-border family disputes.

In the second article, Christine Bidaud (University of Lyon 3) addresses the issue of the international circulation of public documents under French law from a critical perspective (La transcription des actes de l’état civil étrangers sur les registres français. Cesser de déformer et enfin réformer…)

Although the transcription of foreign civil-status records in french registers has long been qualified as a publicity operation, distortions of this notion has been made by the legislator and the case law. A reform in this field is imperative in order to guarantee the coherence of the system of reception in France of foreign civil-status records and, beyond that, of the international circulation of personal status.

Finally, the third article explore the theme of international circulation of personal status from a different perspective. Sylvain Bollée (University of Paris 1 Panthéon-Sorbonne) and Bernard Haftel (University of Sorbonne Paris Nord) discuss the sensitive topic of international surrogacy under the light of the recent case law of the French Supreme Court in civil and criminal matters.

In two judgments handed down by its First Civil Chamber on 18 December 2019, the Court of Cassation seems to have concluded a particularly spectacular case law saga relating to the reception in France of surrogate motherhood processes occurred abroad. Its position has evolved from a position of extreme closure to one that is diametrically opposed, now accepting full and almost unconditional recognition, out of step not only with its recent case-law, but also with domestic law that maintains a firm opposition to any surrogate motherhood process. This evolution is to be considered from the perspective of concrete solutions and, more fundamentally, of the place that the Court of Cassation intends to give in this area to its own case-law within the sources of law.

The full table of contents is available here.

Albert Henke (University of Milan) has been awarded the EU-funded Jean Monnet Module on ‘Multilevel, Mutiparty and Multisector Cross-Border Litigation in Europe’. The three-year teaching and research project will run from 2021 to 2023 and will focus on three main areas: relations and conflicts between national courts, European courts and international tribunals; cross-border collective redress; procedural issues arising out of litigating cross-border commercial, financial, competition, IP, labour, consumers and family law disputes.

Civil litigation in a cross-border dimension presents greater complexity than domestic litigation, due to differences in legal traditions and regimes, as well as in cultural and social values among jurisdictions. A recent EU Study (JUST/2014/RCON/PR/CIVI/0082) shows that EU Member States’ procedural law regimes are still far from being harmonized, what negatively impacts on free circulation of judgments, equivalence and effectiveness of procedural protection and the functioning of the internal market.

The module is proposed to Italian and foreign under- and postgraduate students, as well as to practitioners. It will identify the main procedural issues deriving from a lack of harmonization among EU jurisdictions, contribute to the academic debate at national and European level, produce a series of academic outputs and set the basis for future academic cooperation, also in view of international joint research projects.

The teaching staff includes Alan Uzelac (University of Zagreb), Diego P. Fernández Arroyo (Sciences Po, Paris), Gilles Cuniberti (University of Luxembourg), Fernando Gascón-Inchausti (Complutense University of Madrid), Maria Teresa Carinci (University of Milan), Francesco Rossi dal Pozzo (University of Milan), Stefaan Voet (Katholieke Universiteit, Leuven), Francesca Marinelli (University of Milan), Pietro Ortolani (Radboud University, Njimegen) and Apostolos Anthimos (European University, Cyprus).

For information, please contact Prof. Albert Henke at albert.henke@unimi.it.