Agrégateur de flux

In a landmark decision in the case of Okpabi and others v Royal Dutch Shell Plc and Another, the United Kingdom Supreme Court (“UKSC”) ruled on a jurisdictional issue on whether the claimants/appellants have an arguable case that the defendants/respondents – Royal Dutch Shell (an English domiciled company) – owed them a common law duty of care so as properly to found jurisdiction against a foreign subsidiary company (Shell Petroleum Development Corporation Limited, domiciled in Nigeria) as a necessary and proper party to the proceedings. This jurisdictional aspect was concerned with whether there was a real issue to be tried against the anchor defendant – Royal Dutch Shell (an English domiciled company).

The facts of the case was that the claimants/appellants, who are Nigerian citizens alleged that as a result of the negligence of  Shell Petroleum Development Corporation Limited, numerous oil spills have occurred from oil pipelines and associated infrastructure operated in the vicinity of the claimants’/appellants’ communities. It is said that these oil spills have caused widespread environmental damage, including serious water and ground contamination, and have not been adequately cleaned up or remediated. It is also alleged that as a result of the spills, the natural water sources in the claimants’/appellants’ communities cannot safely be used for drinking, fishing, agricultural, washing or recreational purposes.

The High Court and Court of Appeal resolved this jurisdictional issue against the claimants/appellants, but the UKSC found merit in their appeal.

 

Brexit has dealt a major blow to judicial cooperation in Europe. With the end of the transition period, the Brussels I bis Regulation became inapplicable in the relation between the UK and the EU. Some authors, however, took the view that the Regulation’s predecessor, the Brussels Convention of 1968, would continue to apply (see e.g. here and here). The main argument was that the Brussels Convention is an international treaty and not an instrument of EU law. Moreover, and contrary to the Rome Convention on the law applicable to contractual obligations, the Brussels Convention had not been fully replaced by a regulation and continued to apply with regard to some overseas territories.

This debate seems now to come to a close. On 29 January 2021, the British government informed the European Council of its view that the Convention has ceased to apply to the UK and Gibraltar with the expiry of the transition period on 1 January 2021. The unofficial document was posted on Twitter by Steven (“Steve”) Peers from the University of Essex (thanks to Felix Krysa for sharing the tweet with me). It reads in relevant part:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the Brussels Convention 1968 and the 1971 Protocol, including subsequent amendments and accessions, ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom ceasing to be a Member State of the European Union and of the end of the Transition Period.

Does this finally close the argument? Not for sure. The communication merely reflects an opinion by the British government, which as such is of no legal consequence. The Vienna Convention on the Law of Treaties enumerates the cases in which an international convention is terminated. A unilateral denunciation is not among them. Absent an impossibility of performance, a fundamental change of circumstances or a breach by one party, an agreement by the parties is required to suspend the operation of a treaty.

Since the Brussels Convention bound the UK to no less than 14 EU Member States, it may take some time and effort to reach agreement that the Brussels Convention is all over. The mere information of the European Council by the British government is certainly not sufficient. Of course, the EU and the UK could also enter into a new treaty. The British government has lodged an application to join the Lugano Convention, but it is still awaiting an answer from the EU.

Astreinte

Fonds de garantie

Appel civil

Katoen Natie Bulk Terminals et General Services Antwerp
Liberté d'établissement
Une loi qui réserve le travail portuaire à des ouvriers reconnus comme tels peut être compatible avec le droit de l’Union si elle vise à garantir la sécurité dans les zones portuaires et la prévention des accidents du travail

The new issue of International & Comparative Law Quarterly (Volume 70, Issue 1) is out. Some of the articles relate to private international law. Their abstracts are provided below. The whole issue is available here.

Roy Goode, Creativity and Transnational Commercial Law: From Carchemish to Cap Town

This article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible solutions to typical problems regardless whether this disturbs established legal theory, which should always the servant of the law, not its master. Creativity applies not only to the formulation of an instrument but also to its interpretation. Those entrusted with preparing a commentary on the detail of such an instrument are likely to face difficult issues of interpretation which may take years to surface and may only be resolved by a willingness to risk error in order to provide the reader with clear guidance rather than sheltering behind the presentation of alternative interpretations, while at the same time resisting the temptation to ascribe to words in a convention the meaning they would have under one’s own national law.

At least one of the instruments examined was conceptually flawed; it is mentioned to highlight the danger of over-ambition in delineating the sphere of application of the convention concerned. Undisciplined creativity comes at a cost. Another convention, and a highly successful one, is referred to only to demonstrate the value of creative ambiguity.

Enrico Partiti, Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights

Complex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes. The open-ended character of the UNGP generated the emergence of other soft instruments offering guidance to corporations in structuring HRDD. This contribution conceptualises the UNGP from the perspective of regulation as a principles-based exercise in polycentric governance reliant on regulatory intermediaries for interpretation. It then assesses the role of various sui generis normative instruments in providing interpretation to the UNGP and, how the presence of an additional layer of interpretative material contributes to the institutionalisation of responsible corporate conduct. The analysis of instruments drafted by international, non-governmental and business organisations reveals both a decentralising tension between different intermediaries due to disagreements and divergence concerning the precise extent of corporate human rights responsibilities, as well as attempts to centralise the interpretation of the UNGP. The article concludes by recommending some caution towards the employment of polycentric governance regimes and their lack of centralised interpretive authority in this domain of international law and suggests possible ways to formally establish centralised interpretation.

Vid Prislan, Judicial Expropriation in International Investment Law

This article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generisapproach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.

Mmiselo Freedom Qumba, Assessing African Regional Investment Instruments and Investor-State Dispute Settlement

This article examines the rejection of the International Investor–State dispute (ISDS) system across the African continent and its replacement with a range of domestic and regional alternatives. It assesses the advantages of the two principal options for African countries: retaining the current ISDS system, or using local courts and regional tribunals. To this end, the dispute resolution mechanisms proposed in the Pan-African Investment Code, the 2016 Southern African Development Community Finance and Investment Protocol, the SADC model BIT, the Common Market for Eastern and Southern Africa, Economic Community of West African States and East African Community investment agreements and domestic approaches are critically examined. The argument is then advanced that African countries should not abandon ISDS because replacing it with isolated domestic or regional mechanisms does not reduce any of the risks. In particular, for foreign investors, the risk associated with the adjudication of investment disputes in potentially biased, politically influenced domestic courts may prove too high. African host nations, in turn, risk sending out the wrong message concerning their commitment to the protection of foreign investments. Instead of veering off course, perhaps the time has come for African States to display the political will to remain within the ISDS system and contribute to its reform from within.

The issue also contains review, by Nahel Asfour, of Contract Law in Contemporary International Commerce: Considerations on the Complex Relationship between Legal Process and Market Process in the New Era of Globalisation by Gianluigi Passarelli, Nomos: Baden-Baden 2019. Other views on the book have been expressed by Chukwuma Okoli on the Conflictoflaws blog.

By Maria Hook (University of Otago, New Zealand) and Jack Wass (Stout Street Chambers, New Zealand)

When a couple divorce or separate, and the court is tasked with identifying what property is to be allocated between the parties, calculation of the net pool of assets usually takes into account certain debts. This includes matrimonial debts that that are in the sole name of one spouse, and even certain personal debts, ensuring that the debtor spouse receives credit for that liability in the division of matrimonial property.  However, where a spouse owes a liability that may not, in practice, be repaid, deduction of the debt from the pool of the couple’s property may result in the other spouse  receiving a lower share of the property than would be fair in the circumstances. For example, a spouse owes a debt to the Inland Revenue that is, in principle, deductible from the value of that spouse’s assets to be allocated between the parties. But the debtor spouse has no intention of repaying the debt and has rendered themselves judgment-proof. In such a case, deduction of the debt from the debtor spouse’s matrimonial property would leave the other spouse sharing the burden of a debt that will not be repaid.

This result is patently unfair, and courts have found a way to avoid it by concluding that, in order to be deductible, the debt must be one that is likely to be paid or recovered (see, eg, Livingstone v Livingstone (1980) 4 MPC 129 (NZHC)). This enquiry can give rise to conflict of laws issues: for example, there may be questions about the enforceability of a foreign judgment debt or the actionability of a foreign claim. Ultimately, the focus of the inquiry should be on the creditor’s practical chances of recovery.

In the relatively recent Cook Islands case of Webb v Webb, the Privy Council ([2020] UKPC 22) considered the relevance of a New Zealand tax debt to matrimonial property proceedings in the Cook Islands. The Board adopted a surprisingly narrow approach to this task. It concluded that the term “debts” only included debts that were enforceable against matrimonial property (which in this case was located in the Cook Islands), and that the debts in question were not so enforceable because they would be barred by the “foreign tax principle”.  Lord Wilson dissented on both points.

Background

The parties – Mr and Mrs Webb – lived in the Cook Islands when they separated. Upon separation, Mr Webb returned to New Zealand. Mrs Webb commenced proceedings against Mr Webb in the Cook Islands under the Matrimonial Property Act 1976 (a New Zealand statute incorporated into Cook Islands law), claiming her share of the couple’s matrimonial property that was located in the Cook Islands.

Mr Webb, however, owed a judgment debt of NZ$ 26m to the New Zealand Inland Revenue. He argued that, under s 20(5) of the Act, this debt had to be deducted from any matrimonial property owned by him. Under s 20(5)(b), (unsecured) personal debts had to be deducted from “the value of the matrimonial property owned by” the debtor spouse to the extent that they “exceed the value of any separate property of that spouse”. Given the size of Mr Webb’s debt, the effect of s 20(5)(b) would have been to leave Mrs Webb with nothing.  She argued that the debt fell outside of s 20(5)(b) because it was not enforceable in the Cook Islands and Mr Webb was unlikely to pay it voluntarily.

Whether the debt had to be enforceable against the matrimonial property in the Cook Islands

Lord Kitchin, with whom the majority agreed, concluded that s 20(5)(b) only applied to debts that were either enforceable against the matrimonial assets or likely to be paid out of those assets. Debts that were not so enforceable were not to be taken into account when dividing the matrimonial assets (unless the debtor spouse intended to pay them by using those assets in his name). A different interpretation would lead to “manifest injustice”, because if the Inland Revenue “cannot enforce its judgment against those assets, Mr Webb can keep them all for himself” (at [41]). If the Inland Revenue could not execute its judgment against the assets, and Mr Webb did not pay the debt, the reason for applying s 20(5)(b) – which was to protect a debtor spouse’s unsecured creditors – disappeared.

Lord Kitchin considered that this conclusion found support in Government of India v Taylor, where Viscount Simonds (at 508) had explained that the meaning of “liabilities” in s 302 of the Companies Act 1948 excluded obligations that were not enforceable in the English courts. The result in that case was that a foreign government could not prove in the liquidation of an English company in respect of tax owed by that company (at [42]).

In Webb, the judgment debt in question was a personal debt incurred by Mr Webb. However, Lord Kitchin seemed to suggest that the outcome would have been no different if the debt had been a debt incurred in the course of the relationship under s 20(5)(a) (at [46]). The word “debts” had the same meaning in s 20(5)(a) and (b), as referring to debts which are enforceable against the matrimonial property or which the debtor spouse intends to pay.

Lord Wilson did not agree with the Board’s interpretation. He considered that it put a gloss on the word “debts” (at [118]), and that it had “the curious and inconvenient consequence of requiring a court … to determine … whether the debt is enforceable against specified assets” (at [120]). Rather, a debt was a liability that was “likely to be satisfied by the debtor-spouse” or that was “actionable with a real prospect of recovery on the part of the creditor” (citing Fisher on Matrimonial Property (2nd ed, 1984) at para 15.6) – regardless of whether recovery would be against matrimonial or other assets (at [123]).

Applying this interpretation to the tax liability in question, Lord Wilson concluded that the liability was clearly actionable (because it had already been the subject of proceedings) and that the Inland Revenue did have a real prospect of recovery in New Zealand (at [126]-[127]). Mr Webb was living in New Zealand and was presumably generating income there, and the Commissioner had applied for the appointment of receivers of his property. This was sufficient to conclude that the debt was enforceable in New Zealand, “including on a practical level” (at [131]).  The facts were different from the case of Livingstone v Livingstone (1980) 4 MPC 129, where the New Zealand Court had concluded that a Canadian tax debt could “for practical purposes” be disregarded because the debtor had already left the country at the time the demand was issued, he had no intention of returning and he had removed his assets from the jurisdiction. In such a case, if the debtor spouse were permitted to deduct the foreign tax debt without ever actually repaying it, they could take the benefit of the entire pool of matrimonial assets and thus undermine the policy and operation of the whole regime.

In our view, Lord Wilson’s interpretation is to be preferred. The relevant question should be whether the debt is one that will be practically recoverable (whether in the forum or overseas). A debt may still be practically recoverable even if it is not enforceable against the matrimonial assets and is unlikely to be paid out of those assets. It is true that, in many cases under s 25(1)(b), the chances of recovery would be slim if the matrimonial assets are out of reach and the debtor spouse has no intention of paying the debt voluntarily (which seemed to be the case for Mr Webb: at [62]). By definition, personal debts are only relevant “to the extent that they exceed the value of any separate property of that spouse”, so in practice their recoverability would depend on future or matrimonial assets. Lord Wilson’s assessment of the evidence – as allowing a finding that there was a real likelihood that Mr Webb would have to repay the debt in New Zealand – is open to question on that basis. But that doesn’t mean that the debts must be enforceable against the matrimonial assets. While this interpretation would lead to fairer outcomes under s 25(1)(b) – because it avoids the situation of the debtor spouse not having to share their matrimonial assets even though the debt is recoverable elsewhere – it could lead to strange results under s 25(1)(a), which provides for the deduction of matrimonial debts that are owed by a spouse individually. It would be unfair, under s 25(1)(a), if such debts were not deductible from the value of matrimonial property owned by the spouse by virtue of being unenforceable against that property, in circumstances where the debts are enforceable against the spouse’s personal property.

The Board’s reliance on Government of India v Taylor [1955] AC 491 (HL) in this context is unhelpful. The question before the House of Lords was whether a creditor could claim in a liquidation for a debt that would not be enforceable in the English courts (regardless of whether the debt would be enforceable over certain – or any – assets). Under the Matrimonial Property Act, on the other hand, the court is not directly engaged in satisfying the claims of creditors, so the debt need not be an obligation enforceable in the forum court.  Neither need it be an obligation enforceable against matrimonial property, wherever located. It simply needs to be practically recoverable.

Whether the debt was enforceable against the matrimonial property in the Cook Islands

As we have noted, Lord Wilson argued that there was a real prospect of the debt being paid – the implication being that this was not a case about a foreign tax debt at all. Mr and Mrs Webb were New Zealanders, and Mr Webb had relocated to New Zealand before the proceedings were commenced in 2016 and had stayed there. The practical reality was that unless he found a way to meet his revenue obligations he would be bankrupted again. Lord Kitchin noted Mr Webb’s apparent determination to avoid satisfying his liabilities to the IRD. Nevertheless, there was no suggestion that Mr Webb would leave New Zealand permanently to live in the Cook Islands and there enjoy the benefits of the matrimonial property.

Nevertheless, the majority’s analytical framework required it to consider whether the tax debt was enforceable against the matrimonial property in the Cook Islands. The majority found that for the purpose of the foreign tax principle, the Cook Islands should be treated relative to New Zealand as a foreign sovereign state, despite their close historical and constitutional ties (and found that the statutory mechanism for the enforcement of judgments by lodging a memorial, cognate to the historical mechanism for the enforcement of Commonwealth judgments, did not exclude the foreign tax principle).

It was obvious that bankruptcy was a serious prospect, the IRD having appointed a receiver over Mr Webb’s assets shortly before the hearing before the Board. That begged the question whether the IRD could have recourse to the Cook Islands assets, but on this point the case proceeded in a peculiar way. The Board observed that it had been given no details of the steps that a receiver or the Official Assignee might be able to take to collect Cook Islands assets, going so far as to doubt whether the Official Assignee would even be recognized in the Cook Islands “for the Board was informed that there was no personal bankruptcy in the Cook Islands and the position of Official Assignee does not exist in that jurisdiction.” Section 655(1) of the Cook Islands Act 1915 states that “Bankruptcy in New Zealand shall have the same effect in respect to property situated in the Cook Islands as if that property was situated in New Zealand”, but the Board was not prepared to take any account of it, the provision having been introduced for the first time at the final appeal and there being some doubt about whether it was even in force.

The unfortunate consequence was that the Board gave no detailed consideration to the question of how the foreign tax principle operates in the context of cross-border insolvency, a point of considerable interest and practical significance.

The common law courts have been prepared to recognise (and in appropriate cases, defer to) foreign insolvency procedures for over 250 years, since at least the time of Solomons v Ross (1764) 1 H Bl 131, 126 ER 79 where the Court of Chancery allowed funds to be paid over to the curators of a debtor who had been adjudicated bankrupt in the Netherlands. But the relationship between this principle and the foreign tax principle has never been clear.

The UNCITRAL Model Law on Cross-Border Insolvency 1997 preserves states’ ability to exclude foreign tax claims from an insolvency proceeding. As to the common law, the New Zealand Law Commission (expressing what may be the best guide to the content of Cook Islands law) observed in 1999 that the policy justification for refusing enforcement of foreign tax judgments may not apply in the same way in the context of cross-border insolvency where the collective interests of debtors are concerned. It noted that a number of countries (including Australia, the Isle of Man and South Africa) had moved past an absolute forbidding of foreign tax claims where such claims form part of the debts of an insolvent debtor subject to an insolvency regime. It thus concluded that “foreign taxation claims may sometimes be admitted to proof in a New Zealand bankruptcy or liquidation.” While the Privy Council had a number of difficult issues to confront, it is perhaps unfortunate that they did not take the opportunity to bring clarity to this important issue.

 

 

 

Détention provisoire

Représentation des salariés

Statut collectif du travail

The first issue of Lloyd’s Maritime and Commercial Law Quarterly for 2021 features the following private international law articles:

Adrian Briggs, “A Conflict of Comity in the Enforcement of Judgments”

Patrick Dunn-Walsh “Insurance Litigation under the Recast Brussels Regulation”

Anthony Kennedy “A Place to Start”

Myron Phua and Serena Seo Yeon Lee “Taxonomising “Quasi-Contractual” Anti-suit Injunctions” 

Steve Peers (University of Essex) has just published a series of Brexit-related documents on Twitter, two of which appear to confirm that by leaving the European Union, the UK also (believes to have) ceased to be a party to the 1968 Brussels Convention and the 1980 Rome Convention – which many have argued might revive between the UK and those EU Member States who are parties to them.

The two letters, sent by the UK Government to the Council of the EU, both contain the following paragraph:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the [Brussels Convention] / [Rome Convention] ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom to be a Member State of the European Union and of the end of the Transition Period.

 

Gustavo Cerqueira, Nicolas Nord (dir.), La connaissance du droit étranger: À la recherche d’instruments de coopération adaptés. Études de droit international privé comparé, Préface : Hélène Gaudemet-Tallon, Paris : Société de législation comparée, coll. “Colloques”, vol. 46, 2020, 268 p. Click here.

The authors’ foreword reads as follows (English translation):

“On November 28, 2019, jurists from various backgrounds met at the french Cour de cassation in Paris to reflect on suitable instruments for international cooperation in establishing the content of foreign law.

This conference is in line with the work previously carried out within the Société de législation comparée on the subject of foreign law. In particular, it continues the reflections started at the conference concerning the controls on constitutionality and conventionality of foreign law, which was held on September 23, 2016 at the Cour de cassation. This event brought together academics and practitioners from several European, North and South American countries and resulted in the publication of a book in 2017 by the Society.

This approach is also part of the continuity of research carried out in other learned societies at the global or regional level.

The conference of November 28, 2019 confirmed the need for such reflection. On the one hand, all of the contributors affirmed the important place now given to foreign law in the settlement of disputes. This is due, among other things, to the growth of international family and business relationships, the growing demand for recognition of situations established abroad and the possibilities for those concerned to choose the applicable law. On the other hand, the participants attested to the increased role of different legal professions in the application of foreign law. While judges and civil registrars were more traditionally exposed to such a burden, notaries and lawyers in their dual mission of advice and drafting of acts are currently called upon to take into account or implement foreign law.

In this context, while it appears that European Union law is often at the origin of the involvement of these different actors in the application of foreign law, another, more recent phenomenon seems to increase occurrences of dealing with such a law: the extensive jurisdictional competition to which the European States are engaged because of Brexit. Indeed, Paris, Amsterdam, Brussels and other capitals are establishing courts and chambers specialized in international litigation and in the application of foreign law. This phenomenon is also spreading to major cities, either international, such as Frankfurt am Main or Hamburg, or regional, such as Saarbrücken, in Germany.

The stakes are crucial. The search for suitable instruments for a good knowledge of foreign law is essential for national laws in full legislative and jurisprudential evolution. Indeed, these changes specific to each system reinforce the need for access to reliable content of foreign law in order to guarantee the legal certainty of litigants, as well as to avoid civil liability of legal service providers or even fraud in manipulation of foreign solutions.

The research envisaged in this colloquium is unfolding, of course, in an environment in which there are formal and informal cooperation mechanisms, the effectiveness of which is only partial in the face of the complexity of the phenomena that cover the application of foreign law. Indeed, they were conceived to deal with a foreign law that supposed to be stable and simple and not shifting and plural in its sources. These mechanisms, not very visible, are also unknown to the practitioners themselves. Current discussions at European (EU) and international (Hague Conference) level attest to the urgency of thinking about responses in this area, using one or more relevant and effective instruments.

This is what the conference on knowledge of foreign law: in search of suitable cooperation instruments meant to answer. To this end, based on an indicative and non-exhaustive questionnaire, the issue of establishing an inventory was first raised, and then discussions ensued on the solutions adapted to the various requirements revealed both by the type of situation to be treated and by the category of professional involved. In this last respect, the needs of the judge and the notary were different, as were those of the registrar and the lawyer.

The adaptation was also considered in the light of the various questions specific to the original system. While the objective may a priori be to achieve the adoption of a general instrument with the widest possible geographical scope, it quickly appeared vain to try to favor such an approach at present. On the one hand, each profession has different needs, on the other hand, the level of development of the different systems compared is not the same. While some countries lag behind and struggle to adopt satisfactory rules in this area, others are at the forefront and therefore are not really in demand for a cooperation instrument whose usefulness does not seem obvious to them.

In this perspective, different paths for reflection have been explored. They range from the revitalization of old instruments to the creation of specialized institutions at internal, international or European level, including the establishment of specific mechanisms or the use of artificial intelligence. Such abundance shows the crucial nature of the issue and the vitality of the reflections carried out, but also the relevance of having debated it and the need to continue doing so.

In this sense, the next stage of this debate could be that of the opportunity of adopting a European regulation on the matter. In addition to the interest of such an instrument at the European level, it could serve as an impetus for other regional groups, such as Mercosur.” (our emphasis)

 

Prefaced by Professor emeritus Hélène Gaudemet-Tallon (Paris II Panthéon Assas), the book contains the following contributions (most of them in French).

Préface

Hélène GAUDEMET-TALLON

Avant-propos

Gustavo CERQUEIRA and Nicolas NORD

Introduction

Cyril NOURISSAT, Connaissance du droit étranger et coopération internationale : entre nécessité impérieuse et difficultés à surmonter

 

 I. État des lieux

En France

La magistrature

François ANCEL, La connaissance du droit étranger. État des lieux – La magistrature

Cyril ROTH, Le droit étranger, irréductiblement inconnaissable : leçons tirées de la création d’une collection de lois exotiques

L’avocature

Dominique FOUSSARD, Le point de vue d’un avocat au Conseil d’État et à la Cour de cassation

Olivier BERG, L’avocat et le droit étranger : entre connaissance et représentation

L’état civil

Nicolas NORD, Le droit étranger devant l’officier de l’état civil. État des lieux

Dans le voisinage

Jochen BAUERREIS, La connaissance du droit étranger en Allemagne

Guillermo PALAO MORENO, La connaissance du droit étranger en Espagne

Pietro FRANZINA, La connaissance du droit étranger : cadre juridique et moyens disponibles en Italie

Lukas HECKENDORN URSCHELER, La connaissance du droit étranger en Suisse. Une multitude de moyens

En Amérique Latine

Gustavo Ferraz DE CAMPOS MONACO, La connaissance du droit étranger en Amérique

 

 II. Solutions envisageables

Du point de vue des universitaires

Patrick KINSCH, La preuve de la loi étrangère par renvoi préjudiciel

Gustavo CERQUEIRA, Fondamentalisation du droit et justice prédictive. Deux phénomènes à prendre en compte pour la connaissance du droit étranger

Guillermo PALAO MORENO, La connaissance du droit étranger : évaluation de la situation en Espagne et propositions dans une perspective européenne

Maria Rosa LOULA, The challenges in accessing applicable foreign law and international cooperation in Brazil

 

Du point de vue des praticiens

Le magistrat

Jean-Noël ACQUAVIVA, Connaissance du droit étranger et coopération internationale. Solutions prospectives : l’opinion d’un juge

Le notaire

Jean-Louis VAN BOXSTAEL, La connaissance du droit étranger. Le point de vue d’un notaire

 

Du point de vue des institutions

Marie VAUTRAVERS, Le point de vue du Bureau du droit de l’Union, du droit international privé et de l’entraide civile, direction des affaires civiles et du Sceau, France

Rodrigo RODRIGUEZ, Knowledge of Foreign Law and the London Convention of 1968 – Council of Europe’s CDCJ

Wolfgang ROSCH, La connaissance du droit étranger et la Cour de justice de l’Union européenne

Nicolas NORD, La Commission Internationale de l’État Civil

 

Propos conclusifs

Françoise Monéger

 

Annexes

Questionnaire envoyé aux contributeurs

Programme du Colloque

Liste des contributeurs (auteurs, orateurs, et présidents des séances)

 

The full table of contents, the preface and the forewords are available here (in French).

More information: https://legiscompare.fr/ecommerce/fr/197-la-connaissance-du-droit-etranger-a-la-recherche-d-instruments-de-cooperation-adaptes

 

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

On 30 September 2020, the French Supreme Court for civil and criminal matters ruled on the respective scopes of the Brussels II bis Regulation 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 in a parental conflict between France and Switzerland (Cass. 1st Civil Chamber, 30 Sept. 2020, no. 19-14.761). The difficulty arose following a change in the habitual residence of the child while proceedings concerning his custody were pending before French courts.

Facts and Legal Issues 

The dispute concerned the divorce proceedings of a multinational couple: the husband was of French-Swiss national while the wife was of Swiss, Irish and Danish national. They lived in Switzerland before separating and setting up a cross-border alternating residence between Switzerland and France for their children. It was at that time that a petition for divorce was filed in France. However, after the father’s imprisonment, and with his agreement, the children’s residence was transferred exclusively to the mother’s home in Switzerland. This created an issue with respect to the international jurisdiction of French court.

Judgment of the French Supreme Court

French lower courts had concluded that they had jurisdiction on the basis of the Brussels II bis Regulation. But, before the Supreme Court, the mother invoked the jurisdiction of the Swiss authorities on the basis of the 1996 Hague Convention applicable in both Switzerland and France. In accordance with Article 5 of the 1996 Hague Convention and Article 61 of the Brussels II bis Regulation, the Supreme Court set aside the decision of the Court of Appeal which had retained jurisdiction on the basis of the Brussels II bis Regulation. According to the Supreme Court, since habitual residence had been lawfully transferred to a third State of the European Union but a Contracting State to the 1996 Convention, only that Convention was applicable and French courts therefore had no jurisdiction.

Assessment

How can this conflict between the Brussels II bis Regulation and the 1996 Hague Convention be resolved?

The 1996 Hague Convention has been in force in France since 1 February 2011. The Brussels II bis Regulation has been applicable since 1 March 2005. The two competing instruments have a common material scope of application since they both deal with conflicts of jurisdiction in matters of parental responsibility and child protection. Since both are applicable in France, it is necessary to find out which one should be preferred over the other: a rule of compatibility is therefore necessary.

Article 61 of the Brussels II bis Regulation provides a specific rule on the respective scopes of the Regulation and the 1996 Hague Convention. The Regulation provides that it prevails over the Convention “where the child concerned has his or her habitual residence on the territory of a Member State”.

In this case, the whole question was therefore where the children resided and then to determine the applicable instrument. If the habitual residence was in Switzerland – a third State to the European Union but a party to the Hague Convention –, the 1996 Hague Convention applied; if it were in France, however, the Brussels II bis Regulation applied.

However, the determination of the children’s habitual residence in this case was complicated by the change of habitual residence during the proceedings. At the time of the divorce petition filed in France in January 2016, the habitual residence was a cross-border alternating residence between Switzerland and France. But, when the French Court of Appeal ruled, the habitual residence had been exclusively and lawfully transferred to Switzerland. This new residence was not under discussion. The discussion in this case is therefore not about the location of the children’s habitual residence (initially alternating between France and Switzerland and then transferred exclusively to Switzerland), but about the time at which it should be assessed.

Thus, while the distributive criterion used in Article 61 of the Regulation is perfectly clear – habitual residence in or outside a Member State of the European Union – it does not offer any temporal rule, which would have been eminently useful in this case.

The only area where temporal details can be found is that of the rules of jurisdiction. The latter, based in both texts on the criterion of the child’s habitual residence, resolve the change in the connecting factor.  In this respect, two situations must be distinguished, depending on whether the change of habitual residence occurs outside any pending proceedings or, conversely during the proceedings.

In the event of a “classic” change of habitual residence, outside of any pending proceedings, the two texts resolve the difficulty in favour of the child’s new habitual residence (explicit solution in the Hague Convention ; resulting from a combined reading of Articles 8, 9 and 10 of the Regulation).

If, on the other hand, there is a change of habitual residence in the course of proceedings, the solution is not identical. While the Regulation states that the habitual residence must be assessed “at the time the court is seised” (Article 8(1)), the 1996 Hague Convention provides for the jurisdiction of the authorities of the “new habitual residence”. The difference in wording means that under the Brussels II bis Regulation, once seised, the court retains jurisdiction, even if the child is subsequently lawfully moved to another Member State, whereas under the 1996 Hague Convention, a change of habitual residence during the course of proceedings entails an immediate transfer of jurisdiction to the authorities of the new habitual residence.

The temptation might have been great, in order to resolve the question of the location of the habitual residence in the context of Article 61, i.e. for the purposes of determining the applicable instrument, to use the temporal criterion contained in the rules of jurisdiction. This seems to have been the reasoning of the Court of Appeal, which ruled that although the children’s habitual residence has since been transferred to Switzerland, the habitual residence was in France at the time the first court was seised, thus maintaining the jurisdiction of French courts on the basis of the Brussels II bis Regulation. However, while the reasoning is strictly correct from the point of view of jurisdiction based on the Brussels II bis Regulation, it is not correct from the point of view of the implementation of Article 61.

The Supreme Court does not go down this road. The solution it favours can be summarised as follows: admittedly, under the Brussels II bis Regulation, the French court had jurisdiction, since the children’s habitual residence was in France at the time the French court was seised. However, at the time when the court ruled, the Brussels II bis Regulation was no longer applicable under Article 61 of the Regulation, since the children’s habitual residence was in Switzerland, a third State of the European Union but a Contracting State of the Hague Convention. Under that Convention, and on the basis of Article 5 thereof, French courts therefore no longer had jurisdiction; Swiss courts did.

At last, in order for the change of habitual residence to be effective, both in terms of the relationship between the Regulation and the Convention and in terms of jurisdiction, the judgment suggests that there are two conditions.

Firstly, the new habitual residence must of course be in a Contracting State to the Hague Convention, which is the case of Switzerland. If not, it is not certain that the Brussels II bis Regulation would have ‘lost’ its applicability, but the situation would certainly have led to a conflict of proceedings. The solution provided by the French Supreme Court thus illustrates one of the benefits of judicial cooperation between states.

Secondly, the change of habitual residence must be lawful. In the event of a wrongful change of habitual residence to Switzerland, the Brussels II bis Regulation would have remained applicable and thus led to the French authorities retaining jurisdiction (Article 10). If the abductor brought the case before a Swiss court, the Swiss court could have adopted the same solution and declined jurisdiction on the basis of Article 7 of the 1996 Hague Convention.

Finally, it may be objected that, by reasoning in this way, the Court added criteria to Article 61, which does not contain any: a temporal criterion and a criterion of lawfulness of the change of habitual residence. The solution must, however, be approved, as it is both the most pragmatic and the most consistent with the spirit of the compatibility clause contained in Article 61 of the Regulation. It avoids the – undesirable – diversion through the rules of jurisdiction and allows account to be taken of the reality of the children’s actual situation, to which the criterion of habitual residence adopted by all the texts, undoubtedly aspires.