Agrégateur de flux

Juan J. Garcia-Blesa (Fern University) has posted Indeterminacy, Ideology and Legitimacy in International Investment Arbitration: Controlling International Private Networks of Legal Governance? on SSRN.

This article connects the insights of post-realist scholarship about radical indeterminacy and its consequences for the legitimacy of adjudication to the current legitimacy crisis of the international investment regime. In the past few years, numerous studies have exposed serious shortcomings in investment law and arbitration including procedural problems and the substantive asymmetry of the rights protected. These criticisms have prompted a broad consensus in favor of amending the international investment regime and multiple reform proposals have appeared that appeal to the rule of law ideal as an instrument for increasing the acceptability of the international investment system. This article argues that the reliance of such proposals on jurisprudential approaches that fail to adequately accommodate the post-realist indeterminacy critique and take seriously the role of ideology in adjudication renders reform efforts unable to solve the legitimacy problems of the investment regime. The conclusions suggest the need to abandon implausible claims to depoliticization and face the methodological challenges posed by the promise of ideologically balanced assessments advanced by some rule of law theorists. The article finally points at the urgency to reform traditional approaches to doctrinal work in order to increase awareness of critical challenges and open up doctrinal methods to alternative methodological avenues.

The paper is forthcoming in the International Journal for the Semiotics of Law.

The HCCH Permanent Bureau has released today the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, a joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH.

It “offers an overview of the principal legislative texts prepared by each organisation, such as the United Nations Convention on Contracts for the International Sale of Goods, the HCCH Principles on Choice of Law in International Commercial Contracts and the UNIDROIT Principles on International Commercial Contracts”.

It is attached to this post.

legal-guide-uniform-instruments-international-commercial-contractsDownload

Source: https://www.hcch.net/en/news-archive/details/?varevent=796

The Grand Chamber of the CJEU delivered today its judgment in case C‑896/19 (Repubblika v Il-Prim Ministru, intervening party: WY) on the Rule of Law. This important decision is available in all official languages of the European Union (except Irish) as well as in English. Here is the operative part:

“1. The second subparagraph of Article 19(1) TEU must be interpreted as meaning that it may be applied in a case in which a national court is seised of an action provided for by national law and seeking a ruling on the conformity with EU law of national provisions governing the procedure for the appointment of members of the judiciary of the Member State to which that court belongs. Article 47 of the Charter of Fundamental Rights of the European Union must be duly taken into consideration for the purposes of interpreting that provision.

2. The second subparagraph of Article 19(1) TEU must be interpreted as not precluding national provisions which confer on the Prime Minister of the Member State concerned a decisive power in the process for appointing members of the judiciary, while providing for the involvement, in that process, of an independent body responsible for, inter alia, assessing candidates for judicial office and giving an opinion to that Prime Minister”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=240084&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4269763

Repubblika
DFON
Les dispositions nationales d’un État membre qui confèrent au Premier ministre un pouvoir décisif dans la nomination des juges, tout en prévoyant l’intervention d’un organe indépendant chargé d’évaluer les candidats et de fournir un avis, ne sont pas contraires au droit de l’Union

Advocate General Kokott’s Opinion in Case C-490/20 V.M.A. v Stolichna Obshtina, Rayon ‘Pancharevo’ was published on 15 April 2021 (the issues raised by this case have been discussed earlier on this blog by Nadia Rusinova: see here). So far, the text of the Opinion is available only in Bulgarian and French.

This post provides a summary in English of the facts and the main reasoning supporting the proposal to the CJEU (NoA: the narrative relating to Article 2 TUE, present in paras. 116 to 132, has not direct reflection in the final proposal; I skip it too).

Facts and Questions

The dispute concerns a married couple consisting of two women, one of whom, V.M.A., is a Bulgarian national, while the other is a national of the United Kingdom. They got married in 2018 in Gibraltar, where same-sex marriage is possible since December 2016, and had a child in Spain. They reside in the same country. The birth was registered according to Spanish Law (Ley del Registro Civil: inscribable facts and acts that affect Spaniards, and those referring to foreigners which occurred in Spanish territory, are recorded in the Civil Registry)., and a birth certificate was issued by the Spanish authorities designating both women as ‘mother’ of the child.

On the basis of the Spanish document V.M.A. applied to the competent Bulgarian authority to issue a birth certificate for her daughter. Such a certificate is, in turn, necessary for obtaining a Bulgarian identity document.

Bulgarian law does not allow marriage or any other form of union with legal effects between persons of the same sex. Parentage is determined by birth; the mother of the child is the woman who gave birth to it (also in the case of assisted reproduction). When the filiation of a child with regard to one of his parents is unknown, any parent can recognize the child. In the event of registration of a birth occurring abroad the information relating to the name of the child, the date and place of birth, the sex and the established filiation are entered in the birth certificate as they appear in the copy or in the Bulgarian translation of the foreign document produced. Should filiation concerning a parent (mother or father) not be established in the foreign document, the field intended for data relating to this parent in the birth certificate in the Republic of Bulgaria will not completed and shall be crossed out.

The municipality of Sofia (Bulgaria) requested V.M.A. to indicate which of the two spouses is the biological mother, stating that the model Bulgarian birth certificate provides only one box for the ‘mother’ and another for the ‘father’, and that each of those boxes may include only one name. Following V.M.A.’s refusal to supply the requested information, the authority rejected her application, arguing the absence of information concerning the biological mother and the fact that the registration of two female parents in a birth certificate is contrary to the public policy of Bulgaria.

V.M.A. brought an action against that decision before the Administrative Court of the City of Sofia, which referred to the CJEU the following questions:

Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the Bulgarian administrative authorities to which an application for a document certifying the birth of a child of Bulgarian nationality in another Member State of the EU was submitted, which had been certified by way of a Spanish birth certificate in which two persons of the female sex are registered as mothers without specifying whether one of them, and if so, which of them, is the child’s biological mother, are not permitted to refuse to issue a Bulgarian birth certificate on the grounds that the applicant refuses to state which of them is the child’s biological mother?

Must Article 4(2) TEU and Article 9 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that respect for the national identity and constitutional identity of the Member States of the European Union means that those Member States have a broad discretion as regards the rules for establishing parentage? Specifically:

–    Must Art. 4(2) TEU be interpreted as allowing Member State to request information on the biological parentage of the child?

–    Must Article 4(2) TEU in conjunction with Article 7 and Article 24(2) of the Charter be interpreted as meaning that it is essential to strike a balance of interests between, on the one hand, the national identity and constitutional identity of a Member State and, on the other hand, the best interests of the child, having regard to the fact that, at the present time, there is neither a consensus as regards values nor, in legal terms, a consensus about the possibility of registering as parents on a birth certificate persons of the same sex without providing further details of whether one of them, and if so, which of them, is the child’s biological parent? If this question is answered in the affirmative, how could that balance of interests be achieved in concrete terms?

Is the answer to Question 1 affected by the legal consequences of Brexit in that one of the mothers listed on the birth certificate issued in another Member State is a UK national whereas the other mother is a national of an EU Member State, having regard in particular to the fact that the refusal to issue a Bulgarian birth certificate for the child constitutes an obstacle to the issue of an identity document for the child by an EU Member State and, as a result, may impede the unlimited exercise of her rights as an EU citizen?

If the first question is answered in the affirmative: does EU law, in particular the principle of effectiveness, oblige the competent national authorities to derogate from the model birth certificate which forms part of the applicable national law?

Relevant EU law

In addition to the provisions mentioned in the request, Articles 2 and 4 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be taken into account:

Article 2, Definitions – For the purposes of this Directive: (1) “Union citizen” means any person having the nationality of a Member State; (2) “Family member” means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); […]

Article 4, Right of exit – 1. Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State. […] 3. Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality. […]

Analysis

Although the Opinion is presented in a very pedagogical way, to ease its understanding it should be explained that the reasoning is based: (a) on the different nature and effects of a certificate of birth of a child and a document stating his personal identity; (b) and on the premise that a person may be a parent (and a child born to a parent) or not, depending on whether such condition is considered for the purposes of family and successions law, or for the purposes of Union law.

AG Kokott carries out her analysis distinguishing two hypothesis: under the first one, the child is not a European citizen; her arguments revolve around the rights conferred to the Bulgarian mother by the legal order of the Union. Under the second hypothesis, the child is a EU citizen; the focus is on her rights. The reason for the separates approaches is that, according to the referring court, the child is a Bulgarian national; however, the assertion was contested by the Bulgarian Government during the hearing, given that Bulgarian nationality is acquired automatically by any person who has at least one Bulgarian parent, and in the present case the identity of the biological mother is not known.

i) The child is not a EU citizen

In the event that the child does not have Bulgarian nationality, she does not enjoy the rights deriving from Article 4 (3) of Directive 2004/38, and from Articles 20 and 21 TFEU, reserved for citizens of the Union. Consequently, the refusal by the Bulgarian authorities to issue a Bulgarian birth certificate designating, like the Spanish one, the applicant in the main proceedings and her wife as the mothers of the child, as well as the refusal to issue a Bulgarian identity document to this child, cannot infringe these rights.

On the contrary, the refusal to issue the requested birth certificate could constitute an obstacle to the right to free movement of the Bulgarian mother, who, according to AG Kokott (based on the information given by the Spanish government at the hearing), has legally acquired the status of mother of the child under Spanish law. If she is not included in this document, she will not be considered the mother of the child within the meaning of Bulgarian family law. In this regard, it should be recalled that according to the CJEU any national measure which is likely to hamper or make less attractive the exercise of the free movement by nationals of the Union may constitute an obstacle to this freedom.

The referring court asks the CJEU whether such obstacle could be justified on the protection of the national identity in the sense of Article 4 (2) TEU. To this AG Kokott answers in the affirmative: first, the Court has already implicitly recognized that the rules governing marriage are part of national identity within the meaning of Article 4 (2) TEU. Secondly, the national identity enshrined in Article 4 (2) TEU is not only one legitimate objective among others which may be taken into account when examining a possible justification for a restriction of the right to free circulation; on the contrary, it possesses a ‘vertical dimension’, that is to say, the Treaties give it a role in the delimitation of competences between the Union and the Member States. Hence, the Court can only exercise a limited control over measures adopted by a Member State for the purpose of safeguarding its national identity; conversely, it cannot apply a proportionality check like it does with ‘simple legitimate objectives’. Such as test will be applied, though, to measures adopted by the Bulgarian authorities in the field of family law provided ‘the fundamental expression of the concept that the Member State concerned intends to protect as part of its national identity’ is not in cause.

In the case at hand the precedent translates as follows:

.- Given that the determination of parentage within the meaning of family law is the sole competence of the Member States, AG Kokott considers that the Republic of Bulgaria is not required to recognize parentage as established in the Spanish birth certificate for the purposes of the application of Bulgarian family and inheritance law. In other words, the obligation to recognize parentage for the purpose of drawing up a birth certificate affects the fundamental expression of the national identity of the Republic of Bulgaria. (NoA: as the inclusion of the applicant in the main proceedings as a mother on the birth certificate necessarily implies recognition of the legal effects of the same-sex marriage for the purposes of determining parentage, one would have expected a clear assertion in the sense that Bulgaria is not obliged to issue such a certificate at all. This is not said in so many words, though, but hinted at a later stage in the Opinion, when the obligation of the Bulgarian to produce a document of identity allowing the child to travel with her mothers, and each of them to travel with the child pursuant to Article 4 of Directive 2004/38, is addressed).

.- By contrast, the Bulgarian authorities must accept the filiation bonds between the Bulgarian applicant and the child, as established in Spain, for the limited purposes of allowing the former to exercise the rights conferred by secondary Union law relating to the free movement of citizens. That is to say, to travel with the kid and to reside in the Member State of origin (Bulgaria), with the members of the family under normal conditions.

ii) The child is a citizen of the Union

Should the applicant acknowledge she is the biological mother of the child, or recognize the child as her own, the girl would automatically be a Bulgarian national, hence a citizen of the European Union. The refusal to deliver a birth certificate will indeed entail negative consequences for her. Would it be a solution to deliver the certificate only indicating the motherhood of the Bulgarian spouse?

In principle, in the light of the potential consequences on the right to free movement, the possibility just mentioned does not convince AG Kokott: equivalent documents concerning the child, but issued in different States, would contain divergent information on her; she would not be able to travel with each of her parents. To the question whether such obstacles could nevertheless be justified, Ag Kokott answers, first, that the refusal to recognize parentage with regard to the British mother, for the purposes of establishing a Bulgarian birth certificate, could indeed be based on the Bulgarian ‘national identity’ within the meaning of Article 4 (2) TEU.  On the contrary, considering that an identity document has no probative function with regard to the filiation of a person (so the AG), the refusal to recognize parentage for the purpose of issuing an identity document in accordance with Article 4 (3) of Directive 2004/38 is not acceptable.

Some Hints to the Bulgarian Authorities

By its fourth question, the referring court asks whether it should reject the model birth certificate under the national legislation in force, and replace it with a model allowing two mothers to be mentioned under the heading ‘parents’. Indeed, the referring court must – in the event that the child has the Bulgarian nationality – solve the practical problem that the establishment of a Bulgarian birth certificate is the prerequisite for issuing an identity document.

Given that, according to the explanations of the Bulgarian government at the hearing, a Bulgarian identity document does not mention the names of the parents, AG Kokott suggests that said document is issued based on a Bulgarian birth certificated designating as ‘mother’ only one of the spouses, provided it is accompanied by a travel document delivered for the purpose of identifying the parents of the child, where both women are mentioned.

And Further

Case C-490/20 raises questions is very similar to those addressed to the CJEU by a Polish court in Case C-2/21, Rzecznik Praw Obywatelskich. The latter case concerns the child of a Polish national, married to an Irish woman, who reside together in Spain. Again, the Spanish authorities issued a birth certificate designating the two women as the mother of the child. The referring court asks the Court whether the Polish administrative authorities can refuse to transcribe this birth certificate – the transcription being necessary to enable the child to obtain a Polish identity document- on the grounds that Polish law does not accept the parenthood of same-sex couples, and that the said birth certificate designates persons of the same sex as parents.

The New Zealand Yearbook of International Law (Brill) is an annual, internationally refereed publication. The Editors call for both short notes and commentaries, and longer in-depth articles, for publication in Volume 18 of the Yearbook (2020), which will be published in early 2022.

Notes and commentaries should be between 3,000 to 7,000 words. Articles may be from 8,000 to 15,000 words.

The Editors seek contributions on any current topic in public or private international law. The Editors particularly encourage submissions that are relevant to the Pacific, the Southern Ocean and Antarctica, and New Zealand.

Submissions will be considered on a rolling basis. However, the closing date for submissions for Volume 18 is 15 July 2021.

Contributions must be original unpublished works and submission of contributions will be held to imply this. Manuscripts must be word-processed and in compliance with the fourth edition of the Australian Guide to Legal Citation. The Guide is available online at: http://law.unimelb.edu.au/mulr/aglc/about.

Submissions should be provided in English, using MS Word-compatible word processing software, and delivered by email to the General Editor at james.mehigan@canterbury.ac.nz.

Uber - Working contract

Daniel Girsberger, Thomas Kadner Graziano and Jan L. Neels are the editors of Choice of Law in International Commercial Contracts, which has been published by Oxford University Press in the Oxford Private International Law Series.

The blurb reads as follows.

Although the possibility of making a choice of law in respect of international commercial contracts has become widely accepted, national law still diverges in many respects with regard to the scope and relevance of, and the limitations on, party autonomy, leading to uncertainty in international commercial relations. This book compares the Hague Principles on Choice of Law in International Commercial Contracts (2015) with national, regional, supranational, and international rules on choice of law around the world in order to chronicle the divergent approaches which exist today.

The work is introduced by a comprehensive comparative report which sets out the similarities and differences between the featured national, regional, supranational, and international rules, comparing such rules with those of the Hague Principles, thereby initiating a discussion on further harmonization in the field. Another report focuses on the application of the Hague Principles in the context of international commercial arbitration. Dedicated chapters analyse the Hague Principles from a historical, theoretical, and international organizational point of view. Finally, examining each jurisdiction in detail, the book presents sixty national and regional article-by-article commentaries on the Hague Principles written by experts from all parts of the world. This dedicated and in-depth global comparative study of national, regional, supranational, and international rules provides a definitive reference guide to the key principles in respect of choice of law for international commercial contracts.

A webinar will take place on 4 May 2021 at 2 pm CEST to launch the book. Prior registration (here) is required.

See here for more information on the book.

With a comprehensive and informative manuscript, in International Commercial Arbitration in the European Union – Brussels I, Brexit and Beyond (Edward Elgar, 2020, 320 pp.: see here a previous announcement of the publication) Chukwudi Ojiegbe provides a wide-ranging overview of the status quo of international commercial arbitration in the European Union, also duly taking into account the effects arising, in this specific area of the law, from the withdrawal of the United Kingdom from the European Union.

By means of a detailed historical and policy-oriented reconstruction, the Author assesses the history of the Brussels I Recast as it pertains to the provision on the arbitration exclusion. With careful analysis, he considers the implications of the nuanced and debated interface between arbitration and litigation in accordance with the Brussels I Regime as well as the consequences of such interface for the EU exclusive external competence in aspects of international commercial arbitration. Against this background, and further contributing to this complex area of the law, he sets out the findings on the impact of the United Kingdom’s withdrawal from the European Union.

In anticipation of a possible future recast of the Brussels I Regime, the Author argues in favour of the inclusion of specific rules that will allow the Member State court with jurisdiction under the Brussels I Regime the possibility of staying the litigation in favour of the arbitral tribunal. As he observes, the coordination between the jurisdiction of the courts of the Member States and arbitral tribunals would increase legal certainty, alleviating the problem of parallel court/arbitration proceedings and the risk of conflicting decisions.

Overall, this volume contributes clarity and advances the academic debate on the EU arbitration/litigation interface. By offering clear historical reconstructions and putting forth solutions to this longstanding problem, it will undoubtedly prove to be of interest to scholars and practitioners but it will also be a useful source for students who wish to deepen their understanding of this area of the law.

Under the coordination of Gustavo Ferraz de Campos Monaco, the Faculty of Law of the University of São Paulo is hosting its 1st Conference on Private International Law.

For all those interested in submitting papers or attending the conference, further information in English is available here.

Another treat for German-reading friends and colleagues of CoL: On the occasion of Erik Jayme’s 85th birthday on 7th June 2019, Martin Gebauer and Stefan Huber, both at the University of Tübingen (one of the few „Universities of Excellence“ in Germany), convened the symposium “Politisches Kollisionsrecht: Sachnormzwecke, Hoheitsinteressen, Kultur”. Friends and colleagues, many of them originating academically from the University of Heidelberg (another one of the few „Universities of Excellence“) and its Institute for Comparative Law, Conflict of Laws and International Business Law, or with close ties to this place, gathered. The book that emerged from this inspiring event collects the prints of the presentations and includes fascinating contributions. Martin Gebauer, for example, deconstructs the myth of “classical” private international law in an eye-opening historical analysis, and Stefan Huber deals with the interplay, and symptomatic antinomies, of substantive law objectives and notions of procedural justice in relation to heads of jurisdiction for the protection of weaker parties under the Brussels regime. The volume is wrapped up by an introduction rich of insights and thoughts by Gebauer and Huber on “Politisches Kollisionsrecht” and by wonderful “news from the academic world” by Erik Jayme in which he shares memories and anecdotes from his rich life as one of the most renowned scholars of private international law worldwide. Highly recommended!

The Spanish online journal Cuadernos de Derecho Transnacional, edited by the University Carlos III of Madrid under the directorship of Professors Calvo Caravaca and Castellanos Ruiz, and bearing the quality seal of the Spanish Foundation for Science and Technology (FECyT), has just released the first issue of 2021 (volume 13).

As usual, the journal is composed of four sections: Estudios (in-depth scientific analysis of topics related to Private International law, Uniform law and Comparative law); Varia (comprising shorter studies and notes on case law); Congresos; and Reseñas (book reviews). The whole content is open-access.  Most of the contributions of this issue are written in Spanish, all of them with a summary in English.

Under the heading Estudios the current issue comprises 27 articles. Among the many topics addressed are the following: Brexit and its impact for cross-border litigation in contractual and insolvency matters; family law, in particular in relation to child abduction (but not only); the protection of personality rights in cross-border settings; Covid-19 and its legal consequences on international contracts; competition law (commercial practices based on big data and algorithms, but also the liability of subsidiaries for antitrust infringements of the parent company); legal and bioethical implications of artificial intelligence; smart contracts and lex cryptographia.

Under Varia, this issue of CDT compiles notes to all recent decisions of the CJEU on PIL – maintenance, successions, contract and tort-, together with annotations to Spanish decisions on appeal or second appeal addressing PIL issues.

The second issue will be published in October; contributions should follow the guidelines for authors and are accepted until June. All submissions are peer reviewed.

For German-speaking conflict of law friends, especially those with a strong interest in its procedural perspective (and this seems to apply to almost all of them by now, I guess), the year 2021 has begun beautifully, as far as academic publications are concerned. Two fantastic textbooks were released, one on European civil procedural law, and one on international civil procedural law:

After more than ten years the second edition of Burkhard Hess’s 2nd edition of  his textbook on „Europäisches Zivilprozessrecht“ is now on the table, 1026 pages, a plus of nearly 300 pages and now part of the renowned series „Ius Communitatis“ by DeGruyter. It is a fascinating account of the foundations („Grundlegung“, Part 1, pp. 3 – 311) of European civil procedure as well as a sharp analysis of the instruments of EU law („Europäisches internationales Zivilprozessrecht“, Part 2, pp. 313 – 782). Part 3 focuses on the interplay between autonomous and European procedural law (pp. 783 – 976). Extensive tables of the cases by the ECJ and the ECtHR as well as a large subject index help to access directly the points in question. The foreword rightly points out that European civil procedural law has reached a new phase. Whereas 10 years ago, the execution of the agenda under the then still new competency in (now) Article 81 TFEU was at issue, today enthusiasm and speed have diminished. Indeed, the ECJ had to, and still has to, defend „the fundamental principles of EU law, namely mutual trust and mutual recognition, against populist attacks and growing breaks of taboos by right-wing populist governments in several Member States“ (Foreword, p. 1, translation here and all following ones by myself; see also pp. 93 et seq. on the struggle for securing independence of the national judge in Hungary and Poland as a matter of the EU‘s fundamental values, Article 2 TEU). At the same time, the EU legislator and the ECJ had shown tendencies towards overstreching the legitimatory potential of the principle of mutual trust before the EU returned to „recognition with open eyes“ (as is further spelled out at para. 3.34, at p. 119), as opposed to blind trust – tendencies that worried many observers in the interest of the rule of law and a convincing balancing of the freedom of movement for judgments and other juridical acts. The overall positive view by Hess on the EU’s dynamic patterns of judicial cooperation in civil matters, combined with the admirable clarity and comprehensiveness of his textbook, will certainly contribute considerably to address these challenges.

Equally admirable for its clarity and comprehensiveness is Haimo Schack’s 8th edition of his textbook on „Internationales Zivilverfahrensrecht“, including international insolvency and international arbitration, 646 pp., now elevated from the „short textbook series“ to the „large textbook series“ at C.H.Beck. The first part addresses foundations of the subject (pp. 1 – 68), the second part describes the limits of adjudicatory authority under public international law (pp. 69 – 90), the third part analyses all international aspects of the main proceedings (pp. 91 – 334), the fourth part recognition and enforcement (pp. 335 – 427), the fifth and sixth part deal with insolvency (pp. 428 – 472) and arbitration (pp. 473 – 544). Again, an extensive table of cases and a subject index are offered as valuable help to the user. Schack is known for rather sceptical positions when it comes to the narrative of mutual trust. In his sharp analysis of the foundations of international procedural law, he very aptly states that the principle of equality („Gleichheit“) is of fundamental relevance, including the assumption of a principal equivalence of the adminstrations of justice by foreign states, which allows trust in and integration of foreign judicial acts and foreign laws into one’s own administration of justice: „Auf die Anwendung eigenen Rechts und die Durchführung eines Verfahrens im Inland kann man verzichten, weil und soweit man darauf vertraut, dass das ausländische Recht bzw. Verfahren dem inländischen äquivalent ist“ (We may waive the application of our own law and domestic proceedings because and as far as we trust in the foreign law and the foreign proceedings are equivalent to one’s own, para. 39, at p. 12) – a fundamental insight based, inter alia, on conceptual thinking by Alois Mittermaier in the earlier parts of the 19th century (AcP 14 [1831], pp. 84 et seq., at pp. 95, justifying recognition of foreign judgments by the assumption that the foreign judge should, in principle, be considered „as honest and learned as one’s own“), but of course also on Friedrich Carl v. Sagigny, which I allowed myself to further substantiate and transcend elsewhere to the finding: to trust or not to trust – that is the question of private international law (M. Weller, RdC, forthcoming). In Schack’s view, „the ambitious and radical projects“ of the EU in this respect „fail to meet with reality“ (para. 126, at p. 50). Equally sceptical are his views on the HCCH 2019 Judgments Convention („Blütenträume“, para. 141, at p. 57, in translation something like „daydreams“).

Perhaps, the truth lies somewhere in the middle, namely in a solid „trust management“, as I tried to unfold elsewhere.

The public policy exception is used as a shield to protect fundamental domestic values in case of a contradiction between the applicable foreign law and fundamental principles of justice of the forum. Alongside the public policy exception, the instrument of “overriding mandatory provisions” – or “public policy rules” – was established in the middle of the 20th century and is today codified in many acts of European Private International Law (see e.g. Article 9 of the Rome I Regulation). Overriding mandatory provisions are rules of outstanding importance for public order, which the legislator intends to be respected even where a case is governed by foreign law under ordinary conflict-of-laws rules.

The Book

In his PhD thesis Die Methodik der ‘Eingriffsnorm im modernen Kollisionsrecht, published in German and recently honoured with the prestigious Gerhard Kegel Prize, Adrian Hemler describes the problem of applying of overriding mandatory provisions as a symptom of numerous fundamental uncertainties in the doctrines of PIL. In his view, the theory of overriding mandatory provisions obscures the fact that PIL needs further differentiation through conflicts-of-laws rules yet to be developed. Based on this, he sees the function of the public policy exception as a safeguard of the supremacy of constitutional law. In sum, he traces overriding mandatory provisions back to the well-known principle lex specialis derogat legi generali, while also basing the public policy exception on the principle lex superior derogat legi inferiori.

Flash Back

The thesis opens with an in-depth historical analysis. Hemler points out that the distinction between the “positive” enforcement of individual rules through overriding mandatory rules on the one hand and the “negative” protection of fundamental principles through the public policy exception on the other hand has not been made until the second half of the 20th century. In addition, he shows how overriding mandatory provisions have been gradually isolated as rules that seemingly do not fit into the ordinary system of “neutral” conflicts-of-laws rules.

Overriding Mandatory Rules and Public Law

Hemler demonstrates that the isolation of overriding mandatory provisions arises from the tendency to implicitly identify these rules with national public law. He shows how this equation leads to the application of principles (seemingly) governing conflicts of public law rules. Up to now, it was widely assumed that the application of foreign public law would impossible, as it would amount to allowing a foreign state to exercise power on the national territory of another. Hemler criticises this assumption by explaining the general methodology of conflicts-of-laws rules. Following a theory developed by Boris Schinkels, he divides each legal rule analytically into a “rational” and an “imperative” element. The rational element describes a universal idea needed for the proper resolution of a legal conflict. An example of the rational element is the written form requirement for certain contracts, e.g. those concerning the transfer of land. The imperative element, in contrast, describes the state’s order to apply the rule. In the example of the written form requirement, the imperative element would be the legislator’s intent relating to the enforcement of the requirement to all land situated on its country’s territory.

Within this structure of legal provisions, Hemler views the position of autonomous conflicts-of-laws rules as follows: Since citizens have a right to decide for themselves which rules are to be applied in their country, its courts cannot just bow to the will of another state. On the other hand, it would go too far to exclude the application of foreign law altogether. Rather, the forum issues its own imperative command regarding any rules of foreign law, which leads to the exclusive applicability of the foreign rule’s rational element. The disregard of the foreign imperative is a direct consequence of the modern, autonomous structure of conflicts of laws. Hence, courts only transpose the foreign “idea of what ought to be” without any elements of foreign sovereignty. This isolated application of the foreign rational element and its combination with a domestic imperative element leads to the creation of a domestic legal norm with a foreign ratio (a “synthesised” legal norm, so to speak).

Since the applied foreign rational element is stripped of any element of the exercise of foreign sovereignty, Hemler argues that the application of foreign law does not conflict with the sovereignty of the court’s country or that of a third country whose law is applicable under ordinary rules of private international law. Hence his conclusion that courts may apply foreign public law without any restrictions, especially without the need of the foreign law being “neutral” or “pre-state”.

No Need for Special Conflicts Rules Regarding Overriding Mandatory Provisions

Going further, Hemler shows that there are no convincing reasons to treat overriding mandatory provisions differently from other norms. In particular, he opines that these provisions do not call for a separate system of conflicts-of-laws rules. Hemler shows that the whole category of overriding mandatory provisions can be dispensed with and that one should instead focus on the development of a more differentiated set of conflicts-of-laws rules. He explains in detail how such special conflicts-of laws-rules are to be developed.

A New Understanding of the Public Policy Exception

His findings allow Hemler to shed also some light on the public policy exception. Given that every application of foreign law leads to a synthesised legal norm of the forum, he concludes that the public policy exception can actually be understood as a constitutional control device regarding “synthesised” law. In Hemler’s view, such an understanding facilitates the inclusion of numerous new phenomena into the methodology of private international law.

Conclusion

As this short overview demonstrates, this is a though-provoking book. Overriding mandatory provisions have so far played the role of a black box in private international law. After many failed attempts to “domesticise” these rules, this is the most serious theory to integrate these rules into the edifice of conflict-of-laws theory. Particularly striking is the breadth of the author’s perspective, which is not limited to overriding mandatory rules, but also includes the role of constitutional law, public law in general as well as the public policy exception. For the interested reader, this book is a good reason to brush up their German or start to learn it!

The Court of Justice delivered today its judgment in Case C‑729/19 (TKF v Department of Justice for Northern Ireland), which is about the Maintenance Regulation:

“1. Article 75(2)(a) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations must be interpreted as applying only to decisions given by national courts in States which were already members of the European Union on the date of adoption of those decisions.

2. Regulation No 4/2009 must be interpreted as meaning that no provision of that regulation enables decisions in matters relating to maintenance obligations, given in a State before its accession to the European Union and before the date of application of that regulation, to be recognised and enforced, after that State’s accession to the European Union, in another Member State”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=239895&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8777055

Advocate General Tanchev delivered today his opinion in case C‑508/19 (M.F. v J.M., joined parties: Prokurator Generalny, Rzecznik Praw Obywatelskich), which is about the Rule of Law:

“The right to a tribunal established by law, affirmed by the second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that, in circumstances such as those of the main proceedings, a person appointed to the position of judge of the Sąd Najwyższy (Supreme Court), Disciplinary Chamber, does not comply with that requirement if his act of appointment was delivered in flagrant breach of national rules governing the procedure for the appointment of judges of the Supreme Court, which is a matter for the referring court to establish. In the context of that assessment, the referring court must appraise the manifest and intentional character as well as the gravity of the breaches in question.

The second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter must be interpreted as meaning that a court chamber does not constitute an independent and impartial tribunal, within the meaning of those provisions, when the objective conditions in which it was created, its characteristics as well as the manner of appointment of its members are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that chamber to external factors, and, in particular, to the direct or indirect influence of the legislature and the executive, and as to its neutrality with respect to the interests before it and, thus, whether they may lead to that chamber not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court).

In such a situation, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply national law provisions which reserve jurisdiction to rule on actions, such as the one in the main proceedings, to such a chamber, so that those actions may be examined by a court which fulfils the requirements of independence and impartiality referred to above and which would have jurisdiction were it not for those provisions”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=239898&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=3157544

Rendez-vous lundi 26 avril.

en lire plus

Une personne détenue en vue de l’exécution d’un mandat d’arrêt européen relève de l’article 5, § 1, f) de la Convention européenne des droits de l’homme, de sorte que la chambre de l’instruction, saisie du contentieux de l’exécution d’un tel mandat aux fins de poursuites, n’a pas à s’assurer de l’existence d’indices graves ou concordants à l’encontre de la personne recherchée.

en lire plus