En 2018, dans la loi Essoc, le Parlement avait demandé un rapport au gouvernement sur la question des sur-transpositions. Actuel-direction-juridique publie aujourd’hui ce document, communiqué au Parlement avec deux ans de retard. Dans ce court rapport, le gouvernement semble évacuer le problème : « ce phénomène, souvent dénoncé, est en réalité moins important que ce qui avait pu être envisagé et correspond dans la majorité des cas à un choix politique assumé ».
Written by William S. Dodge (Professor, University of California, Davis, School of Law)
Should courts in the United States refuse to recognize and enforcement Chinese court judgments on the ground that China does not provide impartial tribunals or procedures compatible with the requirements of due process of law? Last April, a New York trial court said yes in Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., relying on State Department Country Reports as conclusive evidence that Chinese courts lacked judicial independence and suffered from corruption. As Professor Wenliang Zhang and I pointed out on this blog, the implications of this decision were broad. Under the trial court’s reasoning, no Chinese judgment would ever be entitled to recognition in New York or any of the other U.S. states that have adopted Uniform Acts governing foreign judgments. Moreover, U.S. judgments would become unenforceable in China because China enforces foreign judgments based on reciprocity. But on March 10, just three weeks after oral argument, New York’s Appellate Division answered that question no, reversing the trial court’s decision.
As background, it is important to note that the recognition and enforcement of foreign country judgments in the United States is generally governed by state law. Twenty-eight states and the District of Columbia have enacted the 2005 Uniform Foreign-Country Money Judgments Recognition Act. In nine additional states, its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act, remains in effect. At the time of the trial court’s decision, the 1962 Uniform Act governed in New York, but it was superseded by the 2005 Uniform Act on June 11, 2021. Both Uniform Acts provide for the nonrecognition of a foreign judgment if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”
This systemic lack of due process ground for nonrecognition comes from the U.S. Supreme Court’s 1895 decision in Hilton v. Guyot, issued at a time when lawyers routinely distinguished between civilized and uncivilized nations. It was incorporated in the 1962 Uniform Act at the height of the Cold War, and included in the 2005 Uniform Act without discussion, apparently to maintain continuity with the 1962 Act. Despite its codification for nearly sixty years, fewer than five cases have refused recognition on this ground. The leading case is Bridgeway Corp. v. Citibank, involving a Liberian judgment issued during its civil war, when the judicial system had almost completely broken down.
Shanghai Yongrun involved a business dispute between two Chinese parties, which was submitted to a court in Beijing under a choice-of-forum clause in the parties’ agreement. The defendant was represented by counsel, presented its case, and appealed unsuccessfully. Nevertheless, the New York trial court held that the Chinese judgment was not enforceable because China lacks impartial tribunals and procedures compatible with due process. The court relied “conclusively” on China Country Reports prepared by the State Department identifying problems with judicial independence and corruption in China.
In a brief order, the Appellate Division reversed. It concluded that the trial court should not have dismissed the action based on the Country Reports. These Reports did not constitute “documentary evidence” under New York’s Civil Practice Law and Rules. But more fundamentally, reliance on the Country Reports was inappropriate because they “primarily discuss the lack of judicial independence in proceedings involving politically sensitive matters” and “do not utterly refute plaintiff’s allegation that the civil law system governing this breach of contract business dispute was fair.”
On this, the Appellate Division was clearly correct. The State Department prepares Country Reports to administer provisions of the Foreign Assistance Act denying assistance to countries that consistently engage in gross violations of human rights, not to evaluate judicial systems for other purposes. See 22 U.S.C. §§ 2151n & 2304. The Reports themselves warn that they “they do not state or reach legal conclusions with respect to domestic or international law.” Moreover, if these Reports were used to determine the enforceability of foreign judgments, China would not be the only country affected. An amicus brief that I wrote and fourteen other professors of transnational litigation joined noted that State Department Country Reports expressed similar concerns about judicial independence, corruption, or both with respect to 141 other countries, including Argentina, Brazil, Italy, Japan, Mexico, South Korea, and Spain.
The Appellate Division concluded that “[t]he allegations that defendants had an opportunity to be heard, were represented by counsel, and had a right to appeal in the underlying proceeding in the People’s Republic of China (PRC) sufficiently pleaded that the basic requisites of due process were met.” By focusing on the facts of the specific case, the Appellate Division appears to have taken a case-by-case, rather than a systemic, approach to due process. Such a case-by-case approach is expressly permitted under the 2005 Uniform Act, which adds as a new ground for nonrecognition that “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.” Such a case-specific approach avoids the overinclusiveness of denying recognition on systemic grounds when there are no defects in the judgment before the court.
The Appellate Division’s decision in Shanghai Youngrun continues the growing trend that Professor Zhang and I have noted of U.S. decisions recognizing and enforcing Chinese judgments. Just two months before this decision, in Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, a U.S. district court in Illinois recognized and enforced a Chinese judgment in another business dispute. The court expressly rejected the New York trial court’s holding in Shanghai Yongrun, noting “the multiple federal cases … where American courts enforced Chinese court judgments and/or acknowledged the adequacy of due process in the Chinese judicial system.” One hopes that this trend will continue.
On Tuesday, April 5, 2022, the Hamburg Max Planck Institute will host its 21th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Prof. em. Dr. Dr. h.c. mult. Erik Jayme (University of Heidelberg) will speak, in German, about the topic
International Art Law: Signs of Disintegration in Classical Private International Law
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
Mathilde Codazzi, who is a master student at the university Paris II Panthéon-Assas, contributed to this post.
In a judgment of 3 November 2021, the French Supreme Court for private and criminal matters (Cour de cassation) confirmed the evolution of the French law of Sovereign Immunities after a statutory intervention in 2016 and its alignment on the 2004 UN Convention on Jurisdictional Immunities.
BackgroundA Dutch judgment from 27 September 2000 ordered a public Iraqi company, Rasheed Bank, to pay various amounts to Citibank, an American company. On this ground, Citibank carried out a protective measure on Rasheed Bank’s accounts in France, which was later converted into an attachment procedure after the Dutch judgment was declared enforceable by French courts. The Iraqi company seized French courts to challenge the conversion.
IssuesThere were two main issues arising in this case:
Article 19(c) of the United Nations Convention on Jurisdictional Immunities of States and their Property (2004) provides that post-judgment measures of constraint may only be taken if and to the extent that (…) “it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed”.
Court of AppealIn a judgment of 17 October 2019, the Paris Court of Appeal upheld the conversion of the protective measure into an attachment procedure. After recalling the content of Article 19 of the UN Convention on Jurisdictional Immunities, the Court of Appeal ruled that there must be a connection between the assets attached, which must be linked to a private law transaction, and the entity against which the claim was brought. It then ruled that requiring a connection between the assets attached and the claim would be contrary to Article 6(1) of the ECHR and the right of access to justice, as it would disproportionately infringe the creditor’s right to enforce judgments, without pursuing a legitimate purpose.
The Court of Appeal also held that Article 19 of the UN Convention on Jurisdictional Immunities does not require the creditor to demonstrate the State’s will to allocate the attached assets to a commercial purpose. It recalled the principle of unattacheability of State assets and that the burden of proof lies on the creditor, before finding that in light of the circumstances, the assets deposited on the accounts were to be allocated to ends other than government non-commercial purposes: the cash-deposit account was opened at a time where Rasheed Bank presented itself as independent from the Iraqi State and frequently performed commercial transactions, a use that cannot have changed since due to the freezing of Iraqi assets in 1990.
Rasheed Bank challenged this judgment on several grounds.
First, it argued that although Article 19 of the UN Convention on Jurisdictional Immunities does not require a connection between the attached assets and the creditor’s claim to allow the seizure, it does not prohibit it either. According to the Iraqi public company, the Court of Appeal failed to give adequate reasons by ruling that requiring a link between the attached assets and the claim was contrary to Article 6(1) of the ECHR. Rasheed Bank claimed that since the UN Convention of Jurisdictional Immunities reflects customary international law, the Court of Appeal could not rule the requirement of a connection between the attached assets and the claim contrary to Article 6(1) of the ECHR without first verifying whether requiring this connection would be contrary to customary international law. It also sustained that the right to have access to justice of Article 6(1) ECHR may be restricted by a limitation whose purpose is legitimate and which is proportionate to this purpose; according to Rasheed Bank, the Court of Appeal’s reasoning lacks a legal basis as it failed to indicate how requiring a connection between the attached assets and the claim would infringe the creditor’s right to enforce judgments without pursuing a legitimate purpose.
Second, Rasheed Bank argued that by virtue of customary international law, in order to attach specifically used assets or assets used for other than government non-commercial purposes, the creditor must demonstrate the will of the State or of its emanation to allocate the attached assets to a commercial purpose.
Supreme CourtThe Supreme Court upheld entirely the judgment of the Court of Appeal.
It ruled that customary international law, as codified by Article 19 of the UN Convention on Jurisdictional Immunities, provides that apart from the situations where the State has expressly consented to post-judgment measures of constraint or allocated or earmarked property for the satisfaction of the claim, his property or that of its emanations located on the territory of the forum may only be seized, pursuant to a judgment or an arbitral award, if it is “specifically in use or intended for use by the State for other than government non-commercial purposes” and have “a connection with the entity against which the proceeding was directed”. Hence the Supreme Court found that the Court of Appeal had rightly ruled that the taking of post-judgment enforcement measures does not require a connection between the attached assets and the claim: they must only be connected to the entity against which the measures are carried out.
The Supreme Court also ruled that the Court of Appeal rightly inferred from the circumstances that the assets were not destined to a government non-commercial use, without shifting the burden of proof. It held that the account seized, because it was opened in the course of commercial transactions, was by nature intended to serve ends other than non-commercial purposes.
AssessmentThe judgment must be viewed in the light of the recent reform of the French law of sovereign immunities.
Until 2016, the French law of immunities was entirely judge made. The leading case was Eurodif, where the Cour de cassation had ruled in 1984 that the scope of the immunity of enforcement of foreign states extended to all assets which did not have a connection with the commercial activity which gave rise to the claim. In other words, a claim arising from the trade of grain by a state could not be satisfied on assets affected to the oil activities of a state.
In 2016, the French Parliament adopted statutory provisions replicating Article 19 of the UN Convention on Jurisdictional Immunities. These provisions are found in the French Code of civil enforcement proceedings (Code des procédures civiles d’exécution), in particular in Art. L. 111-1-2.
This case, however, did not fall within the temporal scope of these statutory provisions. This likely explains why the Court did not simply refer to them (as the Court of Appeal had), but rather applied directly Article 19 as customary international law. While many provisions of the Convention certainly reflect customary international law, whether Article 19 actually does is unclear, but the Cour de cassation has long shown that it has no intention of embarking into any nuanced analysis in this respect.
They key question arising in this case was whether Article 19 necessarily excludes the rule in Eurodif. The argument of the appeal was that Article 19 was silent, and thus neutral in this respect, and that the Court could have kept this long standing requirement. The argument is rejected, and the court rules that the old requirement of a connection between the attached assets and the claim is obsolete.
Le Conseil d’État précise les conséquences de l’absence d’enregistrement sonore de l’entretien personnel du demandeur d’asile ou de l’impossibilité pour celui-ci de présenter des observations sur sa transcription.
The Institute for Private International and Comparative Law of the University of Cologne, directed by Heinz-Peter Mansel, is looking to appoint one to two Research Assistant(s) (Wissenschaftliche/r Mitarbeiter/in) on fixed-term contracts for two years, with contract extension possible, based in Cologne. The successful candidate(s) can be appointed full time (39.83 hrs/week) or part-time (19.92 hrs/week), with the latter option allowing for the completion of a PhD thesis. A German State Exam in law with above-average marks is required. Proficiency in Dutch, Italian, Spanish or French an advantage.
Interested candidates are invited to send their application by 25 March 2022.
See here for further information.
On 15 March 2022, Marta Requejo (Référendaire at the CJEU; Professor of Private International Law at the University of La Laguna) will give a conference on the Brussels I bis Regulation at the Research Center for Private International and International Business Law in Paris (‘salle 102’).
The conference will be given in French (Le règlement Bruxelles I bis sous la loupe) at 6 pm online.
Participation is free. Details can be obtained from laurence.tacquard@u-paris2.fr.
The Center regularly holds conference from doctoral students who recently defended their doctorate at Paris I or Paris II University. It also occasionally holds conference from visiting professors at both universities. Podcasts of the latest conferences can be found here.
Le Conseil d’État précise dans quels cas une demande d’asile peut être regardée comme une demande de réexamen.
Eu égard à la marge d’appréciation des États, et à supposer même que l’article 10 de la Convention trouve à s’appliquer, l’ingérence dans l’exercice, par le requérant, de son droit à la liberté d’expression, était nécessaire dans une société démocratique.
Deadline extended: Funding opportunities under the justice programme in the area of judicial cooperation in civil and criminal matters (JUST-2022-JCOO).
The deadline for proposal submission to the call for proposals for action grants to promote judicial cooperation in civil and criminal matters has been extended.
The new deadline for submission is the 30 March 2022 – 17:00:00 CET, Brussel’s time.
The total budget available for the call is EUR 5.500.000. The co-financing rate is 90%.
The key priorities for 2022 under this call are to contribute to the effective and coherent application of the EU acquis relating to judicial cooperation in civil and criminal matters, thus strengthening mutual trust.
In particular, the call aims to
The call-related documents, guidance and other instructions are available in the call page within the funding & tender opportunities portal (F&T).
Project activities under this call would in principle include:
Any further request for information can be addressed to EC-JUSTICE-CALLS@ec.europa.eu
The Court of Justice delivered yesterday its judgment in case C‑498/20 (BMA), which is about Brussels I bis and Rome II. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version) :
« 1) L’article 7, point 2 [Bruxelles I bis] doit être interprété en ce sens que la juridiction du lieu d’établissement d’une société dont les dettes sont devenues irrécouvrables, parce que la société « grand-mère » de cette société a méconnu son devoir de diligence à l’égard des créanciers de celle-ci, est compétente pour connaître d’une action collective en dommages et intérêts relevant de la matière délictuelle ou quasi délictuelle, que le curateur à la faillite de cette société a introduite, dans le cadre de sa mission légale de liquidation de la masse, pour le compte, mais non pas au nom, de l’ensemble des créanciers.
2) La réponse à la première question posée à titre préjudiciel n’est pas différente s’il est tenu compte du fait que, dans l’affaire au principal, une fondation agit pour défendre les intérêts collectifs des créanciers et que l’action introduite à cette fin ne tient pas compte des circonstances individuelles des créanciers.
3) L’article 8, point 2, du règlement no 1215/2012 doit être interprété en ce sens que, si la juridiction saisie de la demande originaire revient sur sa décision de se déclarer compétente pour connaître de cette demande, elle perd, de ce fait, de plein droit, également sa compétence pour connaître des demandes introduites par la partie intervenante.
4) L’article 4 [Rome II] doit être interprété en ce sens que la loi applicable à une obligation de réparation au titre du devoir de diligence de la société « grand-mère » d’une société déclarée en faillite est, en principe, celle du pays où est établie cette dernière, bien que la préexistence d’une convention de financement entre ces deux sociétés, assortie d’une clause d’élection de for, soit une circonstance pouvant établir des liens manifestement plus étroits avec un autre pays, au sens du paragraphe 3 de cet article ».
AG Pikamae delivered yesterday his opinion in case C‑7/21 (Lkw Walter Internationale Transportorganisation AG), which is on the Service Regulation and Brussels I bis (Slovenian decision delivered in the absence of the defendant and notified in Austria in Slovenian only and with only 8 days to oppose). The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version) :
« 1) L’article 8, paragraphes 1 et 3, du règlement (CE) nº 1393/2007 […] lu conjointement avec l’article 47 de la charte des droits fondamentaux de l’Union européenne, doit être interprété en ce sens qu’il ne s’oppose pas à une réglementation nationale du droit de l’État de condamnation selon laquelle le délai pour exercer un recours contre une décision matérialisée par un acte judiciaire signifié ou notifié conformément au règlement nº 1393/2007 commence à courir dès la signification ou la notification de l’acte en question et non uniquement lorsque le délai d’une semaine prévu au paragraphe 1 dudit article pour refuser de recevoir cet acte a expiré.
2) L’article 45, paragraphe 1, sous b), et l’article 46 du règlement (UE) nº 1215/2012 […] lus conjointement avec l’article 47 de la charte des droits fondamentaux, doivent être interprétés en ce sens qu’il y a lieu de refuser la reconnaissance et l’exécution d’une décision qui n’a pas été rendue dans le cadre d’une procédure contradictoire lorsqu’un recours contre la décision doit être exercé dans une langue autre que la langue officielle de l’État membre dans lequel le défendeur réside ou, s’il existe plusieurs langues officielles dans cet État membre, autre que la langue officielle ou l’une des langues officielles du lieu où il réside, et que, selon le droit de l’État membre dans lequel la décision a été rendue, le délai non renouvelable pour exercer le recours n’est que de huit jours civils.
3) L’article 18 TFUE doit être interprété en ce sens qu’il ne s’applique pas à une situation dans laquelle le destinataire d’un acte judiciaire a renoncé à exercer son droit de refuser la notification ou la signification dudit acte conformément à l’article 8, paragraphe 1, du règlement no 1393/2007 ».
The Court of Justice delivered earlier this month (3 March 2022) its judgment in case C‑421/20 (Acacia Srl v BMW AG), which is about Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs and Rome II:
« Article 88(2) and Article 89(1)(d) of [Regulation (EC) No 6/2002] and Article 8(2) [Rome II] must be interpreted as meaning that the Community design courts before which an action for infringement pursuant to Article 82(5) of Regulation No 6/2002 is brought concerning acts of infringement committed or threatened within a single Member State must examine the claims supplementary to that action, seeking the award of damages, the submission of information, documents and accounts and the handing over of the infringing products with a view to their being destroyed, on the basis of the law of the Member State in which the acts allegedly infringing the Community design relied upon are committed or are threatened, which is the same, in the circumstances of an action brought pursuant to that Article 82(5), as the law of the Member State in which those courts are situated ».
The Court of Justice (Grand Chamber) delivered on 22 February 2022 its judgment in case C‑430/21 (RS), which is about the Rule of Law, the principle of primacy of EU law and the protection of judges from disciplinary proceedings in their application of EU Law:
« The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which the ordinary courts of a Member State have no jurisdiction to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law.
2. The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law ».
Kadir Has University Climate Change and Law Laboratory (CCLLAB), continues its series of events on legal aspects of Climate Change. At the sixth session of Climate Change and Law Seminars, Kadir Has University Climate Change and Law Laboratory (CCLLAB) will be honored by the lecture of Prof. Dr. Sam Fankhauser on Trends in Climate Legislation. Event is open to public via Zoom. No formal registration required; we would appreciate however if you confirm your participation by sending an e-mail to ccllab@khas.edu.tr. To find out more about our lab, please visit https://ccllab.khas.edu.tr/
Sam Fankhauser is Professor of Climate Economics and Policy at the University of Oxford, where he is affiliated with the Smith School of Enterprise and the Environment and the School of Geography and the Environment. He is also Research Director of Oxford Net Zero. Before moving to Oxford, Sam was Director of the Grantham Research Institute on Climate Change and the Environment at the London School of Economics, where he remains a Visiting Professor. He has also worked at the European Bank for Reconstruction and Development (EBRD), the World Bank and the Global Environment Facility.
The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain M/T “PRESTIGE” (No. 5) [2022] EWCA Civ 238 is an appeal against The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain [2020] EWHC 1920 which I reported on here.
The issue on this appeal (tag ‘Prestige’ on this blog and ‘Prestige(@GAVClaw)’ on Twitter search will give you plenty of returns) is the very reference of the judge to the CJEU. At Kirchberg the case is known under reference C-700/20 and the hearing was held a few weeks back.
At issue is essentially whether the judge should have made reference to the CJEU at all, hence querying the ‘necessity’ of a reference to the CJEU including in this particular context of Brexit (with the Court of Appeal now longer being able to refer to Luxembourg by the time the case would have reached it).
Phillips LJ holds [47] that the reference was not necessary in light of CJEU authority on that element of necessity and that the judge should not have made it. Yet under the EU rule of law, a Court of Appeal cannot set aside the reference: [56] all the CA can do is ask the judge to reconsider, with [60] a call for fast-tracking in the event the CJEU might rule before the judge withdraws the reference: if that latter is what he would be minded to do.
An interesting EU institutional law issue.
Geert.
1/2 EU rule of law
LDN Steam-Ship Owners' Mutual Insurance v Spain re Prestige [2022] EWCA Civ 238
Held CJEU referral should not have been made and judge must reconsider his reference to Luxembourghttps://t.co/tIAj7hmU8o
For judgment appealed see https://t.co/LgOFOXsRmo
— Geert Van Calster (@GAVClaw) March 4, 2022
You are kindly invited to the online conference on “Cross-border portability of refugees’ personal and family status – a plea for better interplay between private international law and migration law” by Prof. Dr. Jinske Verhellen on March 16, 2022, Wednesday between 12.30-13.30 (GMT+3). The conference is organized by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge. Please contact us (Jmmigration@bilkent.edu.tr) for participation.
Biography:
Jinske Verhellen is a Professor of Private International Law and Head of the Institute for Private International Law at the Faculty of Law and Criminology of Ghent University (Belgium). She is a member of the Ghent University Interfaculty Research Group CESSMIR (Centre for the Social Study of Migration and Refugees) and of the Ghent University Human Rights Research Network. She has published on various aspects of private international law, international family law, migration law, and nationality law.
Abstract:
The lecture will address several legal problems encountered by refugees with regard to their personal and family status acquired in one country and transferred to another country (such as the absence of documentary evidence, the issue of limping legal relationships). It will focus on the interactions between international refugee law (relating to the rights and obligations of States regarding the protection of refugees) and private international law (dealing with private relationships in a cross-border context). These two sets of rules still operate in very different and even separated universes. The following issues will be covered: specific private international law hurdles that refugees have to take, the concept of personal status (age, parental status, marital status) in international refugee law, and the role of private international law conventions in the international protection of refugees.
On 1 January 2021, the divorce between the United Kingdom and the European Union became effective. Where do we stand one year later?
The Spanish journal La Ley-Unión Europea chose this topic to celebrate its number 100 issue, published last February. Under the title “La Unión Europea tras el primer año del brexit” (The European Union one year after Brexit), this monograph gathers the analysis of almost 40 reputed Spanish law professors and professionals.
It is therefore marked by the wide range of subjects covered, all pertaining to legal areas affected by the withdrawal: transport, the world of business, international cooperation against tax fraud, VAT, social security of temporarily posted workers, environmental policies, intellectual property or cybersecurity…, and, of course, cross-border civil and commercial matters.
A timely topic, well chosen for a well-deserved celebration; and a widely shared conclusion to my question above. In a nutshell: first, although Brexit has by no means gone unnoticed (my experience: buy now a scientific book, have it shipped from the UK, and look at the custom fees), in many respects its consequences are still far from being ascertainable. Second, as regards legal production in areas not regulated by the Withdrawal Agreement, there is not much to report.
International cooperation in civil and commercial matters has undergone a substantial transformation since the UK left the European Union. Nonetheless, as Sixto Sánchez Lorenzo points out, to this day the practical impact of Brexit in cross-border relationships looks rather limited. At the same time, the lack, in the negotiating process, of a serious treatment of the issues raised by the breaking off of judicial cooperation in civil matters foretells a future scenario of “conventional patches and legal poultices” (my translation of the, most probably, non-translatable expression of the author: “remiendos convencionales y cataplasmas jurídicas”). The Supreme Court’s magistrate Juan María Díaz Fraile confirms, listing in detail EU instruments no longer applicable in the relations UK/EU, together with their replacements: international conventions or national law, as the case may be.
Further contributions provide illustrations in line with Professor Lorenzo’s views, mapping the muddled legal landscape academics have described and deplored since June 2016. No one can claim lack of knowledge of the risks, for cross-border commercial and personal relationships, of a Brexit without some kind of cooperation agreement. To no avail. Nothing has happened during 2021 to put a remedy, though it would be wrong to pretend nothing has happened: as we know, the “Lugano” way is over.
In terms of legal certainty, and for obvious reasons, the status quo post-Brexit appear at first sight less desperate where an already existing multilateral convention fills the gap. That is why Ángel Espiniella Menéndez describes post-Brexit cross-border insolvency as a “leap in the dark”, and regrets the absence of an international convention to make up for the loss of the European Insolvency Regulation.
But, in fact, the existence of conventions is unlikely to suffice. In relation to choice of court agreements, Pedro de Miguel Asensio recalls that the 2005 Hague Convention is binding on the EU and the UK. Nonetheless, he immediately notices the shortcomings of the instrument when compared to the Brussels Regulations. Similarly, Pilar Jiménez Blanco states: “Brexit has weakened the effectiveness of the choice of the British courts. Whether the practical evolution of the 2005 Hague Convention will compensate for this weakening is uncertain but doubtful, due to the very limitations of the convention” (my translation). In the field of family law, Santiago Álvarez says, referring to Regulation 2201/2003: “Its void can hardly be filled by the 1980 Hague Convention on International Child Abduction and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which also bind all EU Member States. This change, despite some peculiar, very peculiar, opinions (…), is a step backwards, especially with regard to the illicit transfer or retention of a minor. The system of the Regulation is simply better than the one of the Convention” (my translation). Only in relation to the law applicable to contractual and non-contractual obligations is the impact of Brexit less harsh, according to Manuel Penadés Fons: conflict of law rules can operate unilaterally and universally; the Rome I and Rome II Regulations have “remained” in the UK through the European Union (Withdrawal) Act and the (EU Exit) Regulations 2019 No. 834.
While the outcome of the analysis conducted and published may deceive, the effort made by the authors is by no means worthless. The threat of Brexit kept all us busy; so did the Withdrawal Agreement. Now we are “there”; the challenge is following up, looking in as much as possible at the reactions of all sides (EU, the UK – England and Wales or Scotland-, the single Member States) .
The special issue of La Ley-Unión Europea is preceded by an editorial by Professor Fernández Rozas, editor-in chief almost from the foundation. To all those who can read Spanish, I recommend joining him in his journey along the thirty-seven years of the journal: the same period Spain has been a EU Member State. With his distinctive style, Professor Rozas presents the history and evolution of the periodical in parallel to the most relevant developments of the European Communities, later the Union. To my mind, a piece of specific interest, in particular, to the younger generations of Spanish academics.
La Ley-Unión Europea is nowadays a well-established journal, characterized by a rare combination: a quickness of reaction to the legal developments in the European Union (something that only monthly monthlies can achieve), which is not detrimental to the quality of the contributions. Congratulations, Professor Rozas; go for the next hundred issues.
La France préside le Conseil de l’Union européenne pour six mois. À cette occasion, la Délégation des Barreaux de France et Lefebvre Dalloz s’associent pour vous proposer ce podcast dont la vocation est de sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.
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