Agrégateur de flux

An e-mail has been sent to those who registered for the second EAPIL Virtual Seminar, on Digital Teaching and Private International Law, scheduled to take place on 27 January 2021 from 5 to 7 p.m. (MET), with the details to join the seminar, via Zoom.

If you have registered, and don’t see our e-mail in your inbox, please check the spam folder.

For further queries, please refer to Susanne Gössl at sgoessl@law.uni-kiel.de.

On Tuesday, February 2, 2021, the Hamburg Max Planck Institute will host its eight monthly virtual workshop in private international law at 11:00-12:30. Since January of this year, we are alternating between English and German language. Dagmar Coester-Waltjen will speak, in German, about the topic “Von der Staatsangehörigkeits-Anknüpfung zur Berufung der lex loci celebrationis im internationalen Eheschließungs- und Partnerschaftsrecht?” (“From Nationality to Lex Loci in Private International Law of Marriage and Civil Union?” The presentation will be followed by open discussion. All are welcome. More information and sign-up here. This is the eight such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, and Macjiej Szpunar in January. In February, we will again have an English language event – stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

For the first time since the entry into force of the 1968 Brussels Convention and the EU Regulations in the field of judicial cooperation in civil matters, the Greek Supreme Court was called recently to examine an application for recognition and enforcement of an English order awarding alimony to a wife, while at the same time regulating property issues between the spouses.

On 12 June 2020, the Supreme Court [Nr. 662/2020] ordered the reversal of the appellate judgment [Athens Court of Appeal 4789/2018, unreported], which in turn had rejected the husband’s appeal against the first instance decision granting the recognition and declaration of enforceability of the English order [Athens court of 1st Instance 420/2015, unreported].

The Ruling of the Supreme Court

The case at hand concerned an order of the Family Division of the High Court, which was issued upon the request of the wife in the course of divorce proceedings. In particular, the wife requested that she retain the ownership of the family house in London, and that she be granted the amount of ₤ 600.000 as a capitalised maintenance payment, plus 100% of the interests from a Merchant Investors assurance program, whereas the husband would retain the ownership of eight parcels of land in Greece.

The English court granted the request. The judge ruled as follows:

I consider that the wife’s need could be met by an even distribution of the assets listed in the KT list [i.e. the list prepared by the wife’s lawyer] and I therefore intend to issue a financial provision order in the form of a lump sum of 600,000 ₤ payable to the wife…  I am satisfied that the order I issue achieves the purpose of a fair distribution of assets between the parties.

The order to pay the lump sum raised an interesting issue of characterisation with far reaching consequences. It could either be regarded as a maintenance payment, or as distribution of the assets of the spouses, and thus related to their matrimonial property regime.

One of the consequences of the distinction is that separate legal regimes govern the enforcement of maintenance and matrimonial property judgments. Two different regulations apply: either the Maintenance Regulation, which provides for immediate enforcement (abolition of exequatur: Articles 17 et seq.), or the Matrimonial Property Regulation which has retained the ‘traditional’ requirement of a declaration of enforceability (Articles 36 et seq.). In this case, the application was filed prior to the entry into force of both regulations, but separate regimes already applied to each category. The Brussels I Regulation applied to maintenance, resulting in the simplified procedure of articles 38 et seq. Matrimonial property fell outside of the EU framework, and was thus governed by the common law of foreign judgments of the Member States (in Greece, Articles 323 & 905 of the Code of Civil Procedure), i.e. a more conservative regime, which, in addition to the international jurisdiction barrier (Article 323 No. 2), has a different starting point, as it is not bound by the famous principle of mutual trust and free movement of judicial decisions between EU Member States.

The Greek Supreme Court made the following characterisation:

The award of this lump sum does not have a supportive purpose; it does not seek to meet the basic needs of the applicant, so as to be considered a maintenance claim, but has a rather redistributive-compensatory purpose, leading to the distribution of assets between the spouses, as expressly stated in the reasoning of the foreign order.

In view of the above, the Supreme Court ruled that the dispute fell outside the scope of the Brussels I Regulation, pursuant to the exception under article 1 (2) (a) [rights in property arising out of a matrimonial relationship]. It allowed the appeal, and referred the case for retrial to the appellate court.

The Supreme court cited in support of its decision three judgments of the European Court of Justice, C-143/78, De Cavel, C-25/81, C.H.W. and C- 220/95, van den Boogaard. In van den Boogaard, the ECJ ruled:

a decision rendered in divorce proceedings ordering payment of a lump sum and transfer of ownership in certain property by one party to his or her former spouse must be regarded as relating to maintenance and therefore as falling within the scope of the Brussels Convention if its purpose is to ensure the former spouse’s maintenance.

Courts and scholars in other Member States have already  pointed out that the van den Boogaard ruling did not resolve the issue entirely, granting a margin of discretion to national judges.

Comparative Overview

A search of similar situations and their treatment by national courts of other Member States leads us to a ruling of the German Supreme Court from 2009 [BGH 12.08.2009, NJW-RR 2010, pp. 1 f = IPRax 2011, pp. 187 f]. Confronted with similar facts, the Bundesgerichtshof opted for a solution akin to the Judgment of Solomon: departing from the characterization of the case, it accentuated the dual function of the provision [Doppelfunktionalität der Vorschrift], and granted the request for recognition and declaration of enforceability of the part demonstrating qualitative features of a maintenance claim. Respectively, for the remaining part of the order, it proceeded in the fashion chosen by the Greek Supreme Court.

On the other hand, English scholarship tends to include similar cases under the category of maintenance claims, drawing an additional argument from Annexes I-IV of Reg. 4/2009, while at the same time taking into account the case law of the CJEU, and the possibility of separation, as opted by the German Supreme Court.

In a recent decision, the Swiss Court of Cassation overturned a decision which ruled that the Lugano Convention did not apply to an English Financial Remedy Order, and referred the case to the Zurich Supreme Court for resolving the crucial issue of distinction between maintenance and matrimonial property disputes. A comment on the ruling is available here

The Impact of the Ruling

The withdrawal of the United Kingdom from the EU does not undermine the importance of the Greek Supreme Court ruling for the future. The intentions of the English legislator are not yet revealed. As  is already widely known, a primary indication does not exist, given that the field of judicial cooperation in civil and commercial matters has been left outside the Agreement. The expected accession of the UK to the Lugano Convention has been recorded ad calendas Graecas. However, a specific instrument will continue to govern the enforcement of maintenance judgments. The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance will substitute EU law in the relations between the UK and Greece. A change of course by the Greek Supreme Court is highly unlikely, however, and financial provision orders will be subject to domestic rules of recognition and enforcement.

It should also be underscored that the issue is not unique to the United Kingdom. Similar systems are to be found in the legislation of other Member States [e.g. the Republic of Ireland, and partly France]. Therefore, fresh applications are not to be ruled out. Prospective applicants are however advised to prepare the file more diligently: English orders are issued on the basis of a judgment. It is therefore considered necessary to produce a translated true copy of the foreign judgment, so that the judge is able to understand the peculiarities of the foreign system, and to decide upon having seen the whole picture in advance.

Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie
SOPO
La pratique d’un employeur consistant à verser un complément de salaire aux seuls travailleurs handicapés ayant remis une attestation de reconnaissance de handicap après une date qu’il a lui-même fixée est susceptible de constituer une discrimination directe ou indirecte fondée sur le handicap

Hessischer Rundfunk
Politique économique
Un État membre de la zone euro peut obliger son administration à accepter des paiements en espèces, mais peut aussi restreindre cette possibilité de paiement pour un motif d’intérêt public

The Universidad de Valencia is organizing a seminar entitled “nuevos desafíos y oportunidades de los derechos del menor en asuntos transfronterizos”, to be held on 28 January 2021 online (in Spanish / and Portuguese in one panel). The Conflictus Legum blog published information about this seminar here.

This seminar is held in the context of “Minor’s Right to Information in civil actions (MiRI) – Improving children’s right to information in cross-border civil cases”, a Project co-funded by the European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018, under Grant Agreement No 831608.

Among the speakers are: Cristina González Beilfuss, Andrés Rodríguez Benot, Mónica Herranz Ballesteros, Isabel Reig Fabado, Elena Rodríguez Pineau, Mercedes Soto Moya, María Carmen Chéliz Inglés, Idoia Otaegi Aizpurua, David Carrizo Aguado, etc.

The Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (Regulation Brussels II ter) will be discussed throughout the day (but particularly in panel #1).

Participation is free of charge (and there is no need to register). The link to the seminar is here.

In Top Optimized Technologies SL (A Company Incorporated Under the Laws of Spain) & Anor v Vodafone Group Services Ltd & Ors [2021] EWHC 46 (Pat) Smith J is asked to stay proceedings on the basis of Article 30 Brussels Ia’s related actions rule.

Three sets of proceedings are pending: one in Madrid; two in the UK. Parties, even some of them are of similar corporate blood, are not the same. Hence an Article 29 lis alibi pendens application is not possible. Arguments advanced at 39 ff in favour of a stay, are in the main, the same facts and matters being traversed (with an immediate indication of Smith J that the applicable law being different counts against, there being a ‘danger in overstating the overlap’); the danger of relitigating earlier proceedings elsewhere, and of consequential double recovery.

Smith J at 40 ff is in favour of what he calls the ‘wide approach’ to A30 (unlike a more narrow approach under A29 and incidentally under A45), to which I can subscribe. At 45 he sums up his reasons for declining the stay which of course are largely discretionary. However, among them is one oddity: at 45(4):

Moreover, this is a case where Vodafone has avoided – entirely properly – the jurisdiction of the Spanish courts by invoking the exclusive jurisdiction clauses in favour of England and Wales. Vodafone could have submitted to the jurisdiction of the Spanish courts under Article 26, but instead elected to invoke Article 25. As a result, proceedings involving all relevant parties (Vodafone and Huawei) and so eliminating any risk of irreconcilable judgments have not been possible. No criticism can be made of Vodafone in this: but, conversely, it seems to me perverse now to prevent the progression of the Second UK Proceedings in circumstances where the fragmentation of the originally constituted Madrid Proceedings against Huawei and Vodafone has occurred at Vodafone’s insistence. (emphasis in the original)

This echoes the findings of Lord Briggs in Vedanta, that the potential for submission carries a lot of weight in ultimate jurisdictional decisions. I am not convinced Brussels Ia supports this.

Geert.

European Private International Law, 3rd ed. 2021, Heading 2.2.15.2 (para 2.521 ff)

 

Application for a stay under A30 BIa dismissed, with oddly reference ia to the fact that Vodafone could have avoided the risk of irreconcilable judgments had it foregone its choice of court privilege and seized the Spanish courts for its own proceedings. https://t.co/T4XSzTk14J

— Geert Van Calster (@GAVClaw) January 14, 2021

Private International Law in Poland has been recently released by Wolters Kluwer. The monograph is written by Ewa Kamarad and Anna Wysocka-Bar (one of this blog’s editors), both affiliated with Jagiellonian University (Poland).

The e-version of the monograph forms part of the International Encyclopaedia of Laws, the volume on Private International Law edited by Bea Verschraegen, available online (for subscribers, for example via Peace Palace Library e-resources).

Private international law rules in Poland are unified at the EU level to a great extent. However, this unification leaves certain areas to domestic PIL or international agreements, including numerous bilateral ones in force in Poland (for example, law applicable to rights in rem or recognition and enforcement of judgements coming from outside the EU). Additionally, certain areas are unified in the EU within the enhanced cooperation mechanism which means that not all EU Member States apply them (for example, law applicable to divorce, jurisdiction, applicable law, as well as recognition and enforcement of EU judgements in matrimonial property matters). Poland is an example of a Member State, which is not participating in this cooperation and continues to apply its own rules. Due to the above the book might be of interest to international public, academics and practitioners, as it constitutes a general sketch of the whole system of PIL in Poland.

A succinct post on yesterday’s reports that the French courts are now properly engaging with the action brought in France by more than a dozen US-based corporations (and one local, French defendant) on the continuing impact of the use of Agent Orange by the US Army in Vietnam. Thank you Taco van der Valk for pointing me to an earlier interlocutory judgment which identifies defendants.

Claimant is a dual French-Vietnamese citisen. Jurisdiction is based on Article 4 BIa against the one French defendant. Anchor jurisdiction with that defendant in play, reinforces the jurisdiction based on claimant’s French nationality (the infamous, often labelled ‘exorbitant’ jurisdictional rule of Article 14 of the Code Civil; on which see here). Claimant’s domicile in France presumably is an additional reinforcing factor.

Geert.

European Private International Law, 3rd ed. 2021, para 2.139.

Universidade Portucalense (in Porto, Portugal), and its Research Center – Instituto Jurídico Portucalense and IJP IPLeiria, in collaboration with the University of Vigo, the University of Malaga, the University of Salamanca, the University of Granada and the Federal University of Rio de Janeiro, organize the I International Congress on Civil Procedural Law – The Challenges of Sustainable Global and Digital Development, to be held on 20 and 21 May 2021, in virtual format.

One of the Thematic Lines will be of interest to readers of this blog, namely “Transnational and European Civil Procedure. Global development process and challenges”.

More information here.

The American Journal of International Law’s online publication, AJIL Unbound, has recently published a symposium on the changing face of international commercial dispute resolution around the world.  The symposium, entitled Global Labs of International Commercial Dispute Resolution, includes works by scholars from China, Hong Kong, Europe, UK, US, and Australia.

The contributions consider the emergence of new legal hubs, international commercial courts, and arbitral courts around the world, and their implications for global commercial dispute resolution.

The contributions include:

Introduction by Anthea Roberts

Experimenting with International Commercial Dispute Resolution by Pamela K. Bookman and Matthew S. Erie

The Resolution of International Commercial Disputes – What Role (if any) for Continental Europe? by Giesela Rühl

 

 

Conservative Innovation: The Ambiguities of the China International Commercial Court by Julien Chaisse and Xu Qian

 

The International Commercial Dispute Prevention and Settlement Organization: A Global Laboratory of Dispute Resolution with an Asian Flavor by Guiguo Wang andRajesh Sharma

 

International Commercial Courts in the United States and Australia: Possible, Probable, Preferable? by S.I. Strong

 

Global Laboratories of Third-Party Funding Regulation by Victoria Shannon Sahani

Galapagos Bidco SARL v Kebekus & ors [2021] EWHC 68 (Ch) is yet again a fairly extensive first instance judgment merely on the issue of jurisdiction, entertaining Article 8(1) Brussel Ia’s anchor defendant mechanism as well as Article 25 choice of court.

On A8(1), focus of the discussion was the extent of a merits review under A8(1), which I also discuss  in Sabbagh v Khoury and Senior Taxi v Agusta Westland (both referred to here by Zacaroli J at 44 ff.; as was nb PIS v Al Rajaan). The issue was raised in CJEU C-98/06 Freeport but not answered. The judge here uses the notion of ‘sustainable claim’ to ensure absence of abuse of the anchor mechanism, concluding at 132 after fairly serious if arguably not excessive engagement with the merits, that the conditions of A8(1) are fulfilled.

Article 25 choice of court is discussed obiter at 138 ff., leading to some discussion on the timing of the binding character of the clause upon various parties (and a minor side-issue re Brexit).

A case-management stay was also applied for, with the judge justifiably adopting the strict approach at 160 that such a stay must not be used to circumvent the inapplicability of an Article 34 BIa challenge (the A34 route was dropped; in the light of A25 jurisdiction being established, it would be unavailable at any rate): case-management stay in such circumstances is in essence an application for forum non conveniens which is not permitted under BIa.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1 (in particular 2.496); Heading 2.2.15.3.2.

In yet another very extensive jurisdictional ruling, jurisdiction in E&W accepted on the basis of A8(1) BIa anchor jurisdiction and A25 choice of court against another defendant. https://t.co/ppPZZqtxNy

— Geert Van Calster (@GAVClaw) January 19, 2021

Guest post by Bronwen Manby

In 2014, UNHCR launched a ten-year campaign to end statelessness by 2024. A ten-point global action plan called, among other things, for universal birth registration.  One year later, in September 2015, the UN General Assembly adopted the Sustainable Development Goals (SDGs), an ambitious set of objectives for international development to replace and expand upon the 15-year-old Millennium Development Goals.  Target 16.9 under Goal 16 requires that states shall, by 2030, ‘provide legal identity for all, including birth registration’. The SDG target reflects a recently consolidated consensus among development professionals on the importance of robust government identification systems.

Birth registration, the protection of identity, and the right to a nationality are already firmly established as rights in international human rights law – with most universal effect by the 1989 Convention on the Rights of the Child, to which every state in the world apart from the USA is a party. Universal birth registration, ‘the continuous, permanent, compulsory and universal recording within the civil registry of the occurrence and characteristics of birth, in accordance with the national legal requirements’, is already a long-standing objective of UNICEF and other agencies concerned with child welfare. There is extensive international guidance on the implementation of birth registration, within a broader framework of civil registration.

In a recent article published in the Statelessness and Citizenship Review I explore the potential impact of SDG ‘legal identity’ target on the resolution of statelessness. Like the UNHCR global action plan to end statelessness, the paper emphasises the important contribution that universal birth registration would make to ensuring respect for the right to a nationality. Although birth registration does not (usually) record nationality or legal status in a country, it is the most authoritative record of the information on the basis of which nationality, and many other rights based on family connections, may be claimed.

The paper also agrees with UNHCR that universal birth registration will not end statelessness without the minimum legal reforms to provide a right to nationality based on place of birth or descent. These will not be effective, however, unless there are simultaneous efforts to address the conflicts of law affecting recognition of civil status and nationality more generally. UNHCR and its allies in the global campaign must also master private international law.

In most legal systems, birth registration must be accompanied by registration of other life events – adoption, marriage, divorce, changes of name, death – for a person to be able to claim rights based on family connections, including nationality. This is the case in principle even in countries where birth registration reaches less than half of all births, and registration of marriages or deaths a small fraction of that number. Fulfilling these obligations for paperwork can be difficult enough even if they all take place in one country, and is fanciful in many states of the global South; but the difficulties are multiplied many times once these civil status events have to be recognised across borders.

Depending on the country, an assortment of official copies of parental birth, death or marriage certificates may be required to register a child’s birth. If the child’s birth is in a different country from the one where these documents were issued, the official copies must be obtained from the country of origin, presented in a form accepted by the host country and usually transcribed into its national records. Non-recognition of a foreign-registered civil status event means that it lacks legal effect, leaving (for example) marriages invalid in one country or the other, or still in place despite a registered divorce. If a person’s civil status documents are not recognised in another jurisdiction, the rights that depend on these documents may also be unrecognised: the same child may therefore be born in wedlock for the authorities of one country and out-of-wedlock for another. On top of these challenges related to registration in the country of birth, consular registration and/or transcription into the records of the state of origin is in many cases necessary if the child’s right to the nationality of one or both parents is to be recognised. It is also likely that the parents will need a valid identity document, and if neither is a national of the country where their child is born, a passport with visa showing legal presence in the country. A finding of an error at any stage in these processes can sometimes result in the retroactive loss of nationality apparently held legitimately over many years.  Already exhausting for legal migrants in the formal sector, for refugees and irregular migrants of few resources (financial or social) these games of paperchase make the recognition of legal identity and nationality ever more fragile.

These challenges of conflicts of law are greatest for refugees and irregular migrants, but have proved difficult to resolve even within the European Union, with the presumption of legal residence that follows from citizenship of another member state. The Hague Conference on Private International Law has a project to consider transnational recognition of parentage (filiation), especially in the context of surrogacy arrangements, but has hardly engaged with the broader issues.

The paper urges greater urgency in seeking harmonisation of civil registration practices, not only by The Hague Conference, but also by the UN as it develops its newly adopted ‘Legal Identity Agenda’, and by the UN human rights machinery. Finally, the paper highlights the danger that the SDG target will rather encourage short cuts that seek to bypass the often politically sensitive task of determining the nationality of those whose legal status is currently in doubt: new biometric technologies provide a powerful draw to the language of technological fix, as well as the strengthening of surveillance and control rather than empowerment and rights.  These risks – and their mitigation – are further explored in a twinned article in World Development.