Agrégateur de flux

Neves 77 Solutions
Relations extérieures
Avocate générale Ćapeta : la Cour n’est pas compétente pour interpréter des dispositions générales d’une mesure de l’Union en matière de politique étrangère et de sécurité commune dans le seul but d’en préciser le sens

KS et KD / Conseil e. a.
Relations extérieures
Avocate générale Ćapeta : les particuliers peuvent introduire un recours en indemnité contre l’Union devant les juridictions de l’Union en invoquant de prétendues violations des droits fondamentaux du fait de mesures adoptées par l’Union en matière de politique étrangère et de sécurité commune

Weingut A
Agriculture
Vinification et étiquetage de vins : un viticulteur peut indiquer sa propre exploitation viticole même si le pressurage a lieu dans les locaux d’un autre viticulteur

Provident Polska
Environnement et consommateurs
Protection des consommateurs : obliger le consommateur à payer des coûts du crédit hors intérêts excessifs peut constituer une clause abusive

Ryanair / Commission
Aide d'État
Aides d’État pendant la pandémie de Covid-19 : la Cour rejette définitivement les recours de Ryanair concernant les mesures de soutien mises en place par la France et la Suède au printemps 2020

A Russian father, who was long since separated from the mother of his children in Russia, came to Finland with his two sons in September 2022 and applied for asylum. The mother in Russia pleaded in Finnish courts that the children should be returned to Russia in line with the 1980 Hague Convention on the Civil Aspects of Child Abduction (1980 Hague Convention), which the two countries are signatories to. The father stated that a return to Russia would not be in the best interest of the children and would constitute a breach of Finland’s international obligations to protect fundamental human rights.

Judgment

In its judgment of 27 September 2023, the Finnish Supreme Court initially held that the prerequisites for return of the children were met as it was uncontested that the removal was wrongful. The issue for the court was whether a return to Russia could be refused despite this. Article 13.1.b of the 1980 Hague Convention allows for refusal if “there is a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” With reference to the Hague Conference on Private International Law’s Guide to Good Practice from 2020, the Finnish Supreme Court held that the ground for refusal should be interpreted narrowly.

As regards refusal on the grounds of Article 13.1.b, the Court emphasized that an assessment cannot be based on a  comparison of different general living conditions in the requested state and the state of potential return. Living conditions in another country can only be taken into consideration under Article 13.1.b if the fundamental needs of the children will not be met. Holding that it was not proven that the children would lack fundamental needs like food, rest, hygiene, or child-like activities in Russia, the Court found that there was no ground for refusal under Article 13.1.b. Nor was it claimed in the case that the children risked being involved in the Russian war on Ukraine. However, the father argued that the children’s learning of military skills in school was harmful. In this regard, the Supreme Court concluded that there are ideological and practical differences between the Russian and the Finnish school systems. This difference was not considered to reach the threshold for refusing the return of the children.

The Finnish Supreme Court also noted that Article 20 of the 1980 Hague Convention allows a state requested to return a child to refuse to do so if it is not permitted by its fundamental principles relating to the protection of human rights and fundamental freedoms. Here, the court argued that Finnish law has not implemented Article 20 of the Hague Convention and that it therefore could not be applied. Nonetheless, the Court added that a return of children to another country may be refused if it is in conflict with Section 9 of Finland’s Constitution which grants foreigners the right not to be sent to countries where they risk death penalty, torture or other treatment that violates their human dignity.

Lastly, the court also assessed the views of the children themselves. Under Article 13.2, the own views of the child can be taken into consideration if the child has attained such an age and degree of maturity that this is appropriate. Both children had a strong and genuine view that they wanted to stay with the father in Finland. However, the court held that it was only the older of the two children who had attained such an age and maturity that his views could be taken into account. Thus, the Finnish Supreme Court held that “the best interest of the child” as a whole prevailed over the older child’s own view of wanting to stay with the father in Finland.

Comment

Even if the judgment truly illustrates the strong principle of returning the child after a wrongful removal under the 1980 Hague Convention, I think that the Court’s non-application of Article 20 in the Hague Convention deserves some discussion. First, it is worth noting that Article 20 of the 1980 Hague Convention is not formulated as a traditional public policy exception. According to the explanatory report to the 1980 Hague Convention, Article 20 is a compromise of opposing views (see in particular paragraphs 31-34 of the explanatory report). On the one hand, the convention would risk being a “dead letter” if the requested state too easily could apply an exception. On the other hand, the most fundamental human rights must be protected by a requested state in all circumstances. To that extent, Article 20 serves as a public policy exception in practice. Even if the legal value of human rights has increased in Europe since the 1980 Hague Convention was adopted, one must also remember that every in casu-exception of the strong principle rule that abducted children must always be returned risk leading to a collapse of the system. This is especially true for two neighbouring countries with so fundamentally different ideological and political systems as Finland and Russia.

Written by Bill Dodge, the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law.

China has been critical of U.S. extraterritorial jurisdiction. In February, China’s Ministry of Foreign Affairs issued a report entitled “The U.S. Willful Practice of Long-arm Jurisdiction and its Perils.” In the report, the Ministry complained about U.S. secondary sanctions, the discovery of evidence abroad, the Helms-Burton Act, the Foreign Corrupt Practices Act, the Global Magnitsky Human Rights Accountability Act, and the use of extraterritorial jurisdiction in criminal cases. The report claimed that U.S. extraterritorial jurisdiction has caused “severe harm … to the international political and economic order and the international rule of law.”

There are better and worse ways to criticize U.S. extraterritorial jurisdiction. The Ministry of Foreign Affairs report pursues some of the worse ways and neglects some better ones. In this post, I discuss a few of the report’s shortcoming. In a second post, I discuss stronger arguments that one could make against U.S. extraterritorial jurisdiction.

Confusing Extraterritorial Jurisdiction with Personal Jurisdiction

One problem with the report is terminology. The report repeatedly uses the phrase “long-arm jurisdiction” to refer to the extraterritorial application of U.S. law. The United States, the report says, has “expand[ed] the scope of its long-arm jurisdiction to exert disproportionate and unwarranted jurisdiction over extraterritorial persons or entities, enforcing U.S. domestic laws on extraterritorial non-US persons or entities, and wantonly penalizing or threatening foreign companies by exploiting their reliance on dollar-denominated businesses, the U.S. market or U.S. technologies.”

In the United States, however, “long-arm jurisdiction” refers to the exercise of personal jurisdiction over non-resident defendants based on contacts with the forum state. The report seems to recognize this, referring in its second paragraph to the U.S. Supreme Court’s decision in International Shoe Co. v. Washington (1945) and the requirement of “minimum contacts.” But the report goes on use “long-arm jurisdiction” to refer the extraterritorial application of U.S. law. This is more than an academic quibble. Jurisdiction to prescribe (the authority to make law) and jurisdiction to adjudicate (the authority to apply law) are very different things and are governed by different rules of domestic and international law.

The report’s confusion on this score runs deeper than terminology. The Ministry of Foreign Affairs seems to think that the United States uses the concept of “minimum contacts” to expand the extraterritorial application of U.S. law. The United States “exercises long-arm jurisdiction on the basis of the ‘minimum contacts’ rule, constantly lowering the threshold for application,” the report states. “Even the flimsiest connection with the United States, such as having a branch in the United States, using [the] U.S. dollar for clearing or other financial services, or using the U.S. mail system, constitutes ‘minimum contacts.’”

In fact, the requirement of “minimum contacts” for personal jurisdiction is quite stringent. Moreover, as I have recently noted, this requirement serves to limit the extraterritorial application of U.S. law rather than expand it. When foreign defendants lack minimum contacts with the United States, U.S. courts cannot exercise personal jurisdiction and thus cannot apply U.S. laws extraterritorially even when Congress wants them to. The Helms-Burton Act (one of the laws about which China’s Ministry of Foreign Affairs complains) is an example of this. Congress clearly intended its cause of action for trafficking in confiscated property to discourage non-U.S. companies from investing in Cuba. But U.S. courts have been unable to apply the law to foreign companies because they have concluded that those companies lack “minimum contacts” with the United States.

China’s complaint is not against U.S. rules of personal jurisdiction or the requirement of “minimum contacts.” It is rather with the extraterritorial application of U.S. law. Using the phrase “long-arm jurisdiction” confuses the two issues.

Criticizing Extraterritorial Jurisdiction that China Exercises Too

The report also criticizes the United States for applying its law extraterritorially based on effects: “the United States has further developed the ‘effects doctrine,’ meaning that jurisdiction may be exercised whenever an act occurring abroad produces ‘effects’ in the United States, regardless of whether the actor has U.S. citizenship or residency, and regardless of whether the act complies with the law of the place where it occurred.” This is true. For example, the U.S. Supreme Court has held that U.S. antitrust law “applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.”

But China also applies its law extraterritorially based on effects. China’s Anti-Monopoly Law provides in Article 2 that it applies not only to monopolistic practices in the mainland territory of the People’s Republic of China but also “to monopolistic practices outside the mainland territory of the People’s Republic of China that eliminate or restrict competition in China’s domestic market.” In 2014, China blocked an alliance of three European shipping company because of possible effects on Chinese markets.

China regulates extraterritorially on other bases too. Although the Ministry of Foreign Affairs characterizes the extraterritorial application of U.S. criminal law as “an extreme abuse,” China applies its criminal law extraterritorially on all the bases that the United States employs. The Criminal Law of the People’s Republic of China asserts jurisdiction based not just on territory (Article 6), but also on effects (Article 6), nationality (Article 7), passive personality (Article 8), the protective principle (Article 8), and universal jurisdiction (Article 9). Each of these bases for jurisdiction to prescribe is consistent with customary international law, and China has the right to extend its criminal law extraterritorially like this. But so does the United States.

In their excellent article Extraterritoriality of Chinese Law: Myths, Realities and the Future, Zhengxin Huo and Man Yip provide a detailed discussion of the extraterritorial application of Chinese law. “China’s messaging to the international community is,” they note, “somewhat confusing: it opposes the US practice of ‘long-arm jurisdiction,’ yet it has decided to build its own legal system of extraterritoriality.” By criticizing the United States for exercising jurisdiction on the same bases that China itself uses, China opens itself to charges of hypocrisy.

Ignoring Constraints on U.S. Extraterritoriality

The Ministry of Foreign Affairs report also ignores important constraints on the extraterritorial application of U.S. law. It says the United States has “developed a massive, mutually reinforcing and interlocking legal system for long-arm jurisdiction” and has “put in place a whole-of-government system to practice long-arm jurisdiction.”

In fact, U.S. courts limit the extraterritorial application of U.S. law in significant ways. First, as noted above, U.S. rules on personal jurisdiction (including “minimum contacts”) limit the practical ability of the United States to apply its laws abroad. As I have written before, “Congress cannot effectively extend its laws extraterritorially if courts lack personal jurisdiction to apply those laws.”

Second, U.S. courts apply a presumption against extraterritoriality to limit the reach of federal statutes. Most recently, in Abitron Austria GmbH v. Hectronic International, Inc. (2023), the Supreme Court held that federal statutes should be presumed to apply only to conduct in the United States unless those statutes clearly indicate that they apply extraterritorially. At issue in Abitron was the federal trademark statute, which prohibits use of a U.S. trademark that is likely to cause confusion in the United States. The defendants put U.S. trademarks on products in Europe, some of which were ultimately sold to the United States. The dissent argued that the statute should apply to foreign conduct as long as the focus of Congress’s concern—consumer confusion—occurred in the United States. But the majority disagreed, holding that there must also be conduct in the United States. As I have noted previously, this version of the presumption has the potential to frustrate congressional intent when Congress focuses on something other than conduct.

Third, some lower courts in the United States impose additional limits on the extraterritorial application of U.S. law when foreign conduct is compelled by foreign law. In 2005, U.S. buyers sued Chinese sellers of vitamin C for fixing the prices of vitamins sold to the United States. The U.S. court found the Chinese sellers liable for violating U.S. antitrust law and awarded $147 million in damages. Although the anticompetitive conduct occurred in China, it had effects in the United States because vitamins were sold at higher than market prices in the United States.

The Chinese companies appealed, arguing that they were required by Chinese law to agree on export prices. The case went all the way to the U.S. Supreme Court on the question of how much deference to give the Chinese government’s interpretation of its own law. Ultimately, in 2021, the Second Circuit Court of Appeals held that Chinese law did indeed require the anticompetitive conduct and that the case should therefore be dismissed on grounds of international comity because China had a stronger interest in applying its law than the United States did. This is a remarkable decision. Although Congress clearly intended U.S. antitrust law to apply to foreign conduct that causes anticompetitive effects in the United States, and although applying U.S. law based on effects would not violate international law, the U.S. court held that the case should be dismissed in deference to Chinese law.

To be clear, I disagree with these constraints on the extraterritorial application of U.S. laws. I think Congress should have more authority to define rules of personal jurisdiction, particularly when it wants its laws to apply outside the United States. I disagree with Abitron’s conduct-based version of the presumption against extraterritoriality. And I filed two separate amicus briefs (with Paul Stephan) urging the Supreme Court to take up the international comity question and make clear that lower courts have no authority to dismiss claims like those in Vitamin C that fall within the scope of U.S. antitrust law. But whether these constraints are wise or not, ignoring them provides a distorted picture of U.S. extraterritorial jurisdiction.

Weak Examples

The Ministry of Foreign Affairs also weakens its case by relying on examples that do not support its arguments. The report singles out the indictment of French executive Frédéric Pierucci for violating the U.S. Foreign Corrupt Practices Act (FCPA), a story he recounts in his 2019 book The American Trap. Here is how the report describes what happened:

In 2013, in order to beat Alstom in their business competition, the United States applied the Foreign Corrupt Practices Act to arrest and detain Frédéric Pierucci on charges of bribing foreign officials. He was further induced to sign a plea deal and provide more evidence and information against his company, leaving Alstom no choice but to accept General Electric’s acquisition, vanishing ever since from the Fortune 500 list. The U.S. long-arm jurisdiction has become a tool for its public power to suppress competitors and meddle in normal international business activities, announcing the United States’ complete departure from its long-standing self-proclaimed champion of liberal market economy.

I have read Pierucci’s book, and his story is harrowing. But the book does not show what the report claims.

First, and perhaps most significantly, application of the FCPA in this case was not extraterritorial. Pierucci was indicted for approving bribes paid to Indonesian officials to secure a contract for Alstrom from his office in Windsor, Connecticut (p. 65). He seems to acknowledge that the bribes violated the FCPA but counters that the statute was “very poorly enforced” at the time (p. 67) and that he “received no personal gain whatsoever” (p. 71). These are not valid defenses under U.S. law.

Second, Pierucci was not arrested to facilitate GE’s acquisition of Alstom. The U.S. Department of Justice (DOJ) began investigating Alstom’s payment of bribes in late 2009 (p. 54), and Pierucci was arrested in April 2013 (p. 1). Alstom’s takeover discussions with GE began during the summer of 2013 (p. 162), and the deal was made public in April 2014 (p. 155). Pierucci plausibly claims that GE took advantage of Alstom’s weakened position, noting that “Alstom is the fifth company to be swallowed up by GE after being accused of corruption by the DOJ” (p. 164). But I saw no claim in the book that DOJ’s investigation of Alstom was intended to bring about its acquisition by a U.S. competitor.

Finally, it is hard to credit the report’s assertion that prosecuting bribery constitutes “meddl[ing] in normal international business activities.” China has joined the U.N. Convention Against Corruption. In 2014, China fined British company GlaxoSmithKline 3 billion yuan (U.S.$489 million) for bribing Chinese doctors. Earlier this year, China launched an unprecedented campaign against corruption in its health care industry. And, of course, fighting corruption remains a top priority of President Xi Jinping.

Conclusion

Perhaps it seems unfair to criticize a report from a foreign ministry for making mistakes about law. Perhaps the report should be seen merely as a political document. But the report itself discusses legal matters in detail and charges the United States with “violat[ing] international law.” Whether the report is a political document or not, the shortcomings that I have discussed here weaken its credibility and undermine its arguments.

There are better ways to criticize U.S. extraterritorial jurisdiction. In Part II of this post, I will offer some examples.

 

[This post also appears at Transnational Litigation Blog (TLB)]

 

 

The event organized to celebrate the launch of the book Blockchain & Private International Law, originally scheduled for 5 October, will now take place on 20 December 2023 at 18.15, both physically at the Université de Lausanne (AULA, IDHEAP Building) and online (Zoom link).

On 4 December 2023, at 6 p.m. CET, a free webinar will take place in preparation of the 2024 inaugural edition of the EAPIL Winter School on Personal Status and Family Relationships, which will be held on-site in Como between 12 and 16 February 2024 (a detailed brochure is available here).

The webinar will give a glimpse of what the Winter School will be about. Specifically, it will focus on selection of hot topics, such as the cross-border recognition of sex reassignment and the enjoyment of the right to name abroad.

The speakers are some of those who will be lecturing at the Winter School, namely Laura Carpaneto (University of Genova), Ester di Napoli (University of Ferrara), Cristina González Beilfuss (Unversity of Barcelona), Satu Heikkilä (LL.D., Administrative Law Judge), Silvia Marino (University of Isnubria), Nadia Rusinova (Hague University), Michael Wildespin (Legal Advisor to the European Commission), Anna Wysocka-Bar (Jagiellonian University), and Mirela Župan (University of Osijek).

The webinar will also offer an opportunity to provide information about the EAPIL Winter School.

Join the free seminar to discover what awaits you during the Winter School week, and…if you want to know more, enrol and come to Como in February!

Those interested in attending the webinar may do so directly through this link. No prior registration is required.

More information on the Winter School is found here. To enrol in the Winter School, please fill in this form.

Del Valle Ruíz e.a. / CRU
Politique économique
Résolution de Banco Popular : les actionnaires et créanciers affectés n’avaient pas droit à un dédommagement du Fonds de résolution unique

In the summer of 2023 Tine Van Hof defended her PhD on this topic at the University of Antwerp.  The thesis will be published by Hart Publishing in the Studies in Private International Law series (expected in 2025). She has provided this short summary of her research.

When a child is abducted by one of their parents, the courts dealing with a return application must consider several legal instruments. First, they must take into account private international law instruments, specifically, the Hague Child Abduction Convention (1980) and the Brussels IIb Regulation (2019/1111). Second, they have to take into account children’s rights law instruments, including mainly the UN Convention on the Rights of the Child.

Because these instruments have different approaches regarding the concept of the best interests of the child, they can lead to conflicting outcomes. Strict adherence to private international law instruments by the return court could mean sending a child back to the country where they lived before the abduction. Indeed, the Hague Child Abduction Convention and Brussels IIb presume that it is generally best for children to return to the State of habitual residence and therefore require ¾ in principle ¾ a speedy return. The children’s rights law instruments, on the other hand, require that the best interests of the individual child be taken into account as a primary consideration. If the court follows these instruments strictly, it could for example rule in a particular case that it is better for a child with medical problems to stay in country of refuge because of better health care.

The question thus arises how to address these conflicts between private international law and children’s rights law in international child abduction cases. To answer this question, public international law can give some inspiration, as it offers a number of techniques for addressing conflicts between fields of law. In particular, the techniques of formal dialogue and systemic treaty interpretation can provide relief.

Formal dialogue, in which the actors of one field of law visibly engage with the instruments or case law of the other field of law, can be used by the Hague Conference, the EU and the Court of Justice of the European Union (CJEU) as private international law actors, and the Committee on the Rights of the Child and the European Court of Human Rights (ECtHR) as children’s rights law actors. By paying attention to the substantive, institutional and methodological characteristics of the other field of law, these actors can promote reconciliation between the two fields and prevent the emergence of actual conflict. However, a prerequisite for this is that the actors are aware of the relevance of the other field of law and are willing to engage in such a dialogue. This awareness and willingness can be generated through informal dialogue. The CJEU and the ECtHR, for example, conduct such informal dialogue in the form of their biennial bilateral meeting.

In addition, supranational, international and domestic courts can apply the technique of systemic treaty interpretation by interpreting a particular instrument (e.g., the Hague Child Abduction Convention) in light of other relevant rules applicable in the relationship between the parties (e.g., the UN Convention on the Rights of the Child). This allows actual conflicts between the two fields of law to be avoided. This technique was used, for example, by the ECtHR in X v. Latvia. To apply this technique, it is also important that courts are aware of the applicability of the other field of law and are willing to take into account its relevant rules. Again, courts have established initiatives that promote this awareness and willingness, such as the International Hague Network of Judges.

The expectation is that by applying these techniques, the potential conflict between private international law and children’s rights law in the context of international child abduction will no longer manifest itself as an actual conflict. Further, applying these techniques will make it possible for national courts to adequately apply all instruments and make a balanced decision on the return of children. In addition to these two techniques, other techniques, such as coordination ex ante, are considered appropriate to better align private international law and children’s rights law when dealing with other issues, such as for example international surrogacy.

A seminar series on the recast of Brussels I bis Regulation, organized by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation), will take place during the 2023-2024 academic year, both in Paris and online (in French).

According to the scientific coordinators of the seminar series, Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne), the seminar series aims to provide a forum for French legal experts – academics and practitioners – to discuss the future reform of Brussels I bis Regulation and to propose key improvements to the text.

The first seminar will take place on 30 November 2023 (9.00 – 12.30 am, UTC+1). The objective will be to present the prospect of a recast, from a political and technical perspective, and to discuss different issues relating to the scope of a future “Brussels I ter Regulation”.

The list of speakers includes Pascal de Vareilles-Sommières, Tania Jewczuk, Marie-Elodie Ancel, François Ancel, Malik Laazouzi and Etienne Pataut.

The programme, as well as registration and access details can be found here. The conference series will take place at the Cour de cassation (Paris, France) and will also be broadcast live (see here).

The other seminars will take place in 2024 from 16.00 to 18.00 (UTC+1) on 18 January, 26 February, 18 March, 22 April, 30 May and 24 June.

Par un arrêt du 2 novembre 2023, la Cour européenne des droits de l’homme (CEDH) se prononce sur le chiffrage du préjudice subi par des parents du fait de la naissance, avant l’entrée en vigueur de la loi du 4 mars 2002 relative aux droits des malades, de leur enfant dont le handicap n’avait pas été décelé par suite d’une erreur fautive de diagnostic prénatal.

en lire plus

A post published a few days ago on this blog presented, and briefly discussed, the private international law issues raised by the case of Indi Gregory, the critically ill eight-month-old child that parents wanted to transfer to Italy, to avoid the withdrawal of the life-sustaining treatment she was receiving at a hospital in England.

In fact, the child’s doctors at Queen’s Medical Centre in Nottingham had assessed that withdrawing the life-sustaining treatment would be in Indi’s best interests, having regard to the pain she was enduring because of the treatment itself and the lack of prospects of improvement. The parents disagreed, and sought to have the treatment extended for as long as possible.

As explained in more detail in the post mentioned above, the English High Court ruled in favour of the hospital trust in October 2023, and authorized the withdrawal of the treatment. A request for permission to appeal against the ruling was dismissed, and so was a subsequent application to the High Court whereby Indi’s parents sought to have the initial ruling reconsidered in light of new circumstances, including the fact that a hospital in Rome had expressed its availability to provide Indi with the extended treatment that parents were seeking.

Several readers will likely be aware by now of the dramatic developments of the case, as these were largely reported in the media throughout Europe and elsewhere. Indi was eventually transferred to a hospice in England, where she died on 13 November 2023, soon after the first steps for the court-approved withdrawal plan were put in place.

Before this tragic epilogue occurred, Indi’s parents had sought permission to appeal against an additional order given by Peel J for the High Court. Specifically, the parents had challenged the decision whereby the removal of invasive mechanical ventilation, i.e., extubation, that Peel J had previously authorised, should take place at a hospice. Their case was that Indi should be rather extubated at home.

On 10 November 2023, the Court of Appeal of England and Wales dismissed the application, assessing that no grounds appeared to exist to reconsider the order. The Court held, in particular that, contrary to the parents’ submission, they had not suffered from any unfairness in the proceedings before the High Court (Indi’s father claimed, inter alia, that he did not know that he had the opportunity to get his own evidence about the issue of the location of extubation at the hearing held before Peel J), and that the conditions for reopening a court’s earlier determination of a child’s best interests were not met in the circumstances.

The Court of Appeal had not been asked to deal with issues of private international law for the purposes of fiving the ruling of 10 November. In a significant obiter, however, the Court did address such issues.

It is worth recalling that on 6 November 2023 the Italian Government decided to grant Italian citizenship to Indi Gregory, and that, shortly afterwards, the Italian Consul in Manchester, acting as a “guardianship judge” pursuant to Italian legislation, took two measures. First, as reported by the Court of Appeal, the Consul issued a decree – arguably, one taken as a matter of urgency – whereby he appointed a guardian for Indi and authorised her removal to Italy for treatment. Secondly, the Consul wrote to the High Court requesting that that he be authorised to exercise jurisdiction over the case in accordance with Article 9(1) of the Hague Convention of 19 October 1996 on the Protection of Children, which permits such a request where the requesting authority considers that they are better able to assess the child’s best interests. compared with the authorities in the State where the child is habitually resident.

The Court of Appeal, in the words of Peter Jackson, criticised the latter moves in unusually strong terms. Having noted that the “only basis upon which such a request could even theoretically be made in Indi’s case is that she was granted Italian citizenship”, the Court observed that in hearings before the High Court and before the Court of Appeal itself, Indi’s father had “accepted that decisions about Indi’s welfare are to be made by [English] courts”, adding that

in any case, the argument that the Italian authorities are better able than the English court to determine Indi’s best interests is in our view wholly misconceived and a request of this nature is clearly contrary to the spirit of this important international convention.

The Court did not elaborate on the denounced misconception nor on the spirit of the Convention.

Arguably, the obiter reflects an understanding of the Hague Convention on the Protection of Children that could be summarised as follows.

1. The Convention, as stated in the preamble, aims to “improve the protection of children in international situations”. It does so by avoiding (or managing) conflicts between their Contracting States’ legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children.

2. Contracting States share the view that, as stated in the United Nations Convention on the Rights of the Child and recalled in the Hague Convention’s own preamble, “the best interests of the child are to be a primary consideration”. The Convention, based as it is on the assumption that the protection of children is best ensured in a cross-border cases through international cooperation, builds on mutual trust among Contracting States. It is in fact mutual trust, combined with the primary consideration owed to the best interests of the child, that suggests that the authorities of a State other than the State of habitual residence of the child should refrain, in principle, from exercising their jurisdiction over the child, let alone disregarding the measures taken by the authorities of the State of habitual residence.

3. The substantive and procedural rules applied in one Contracting State may differ from those in force in another, but such differences do not mean that Contracting States may, as a matter of principle, step out from the framework of cooperation established by the Convention, and depart from its rules (engaging with differences is precisely the purpose of private international law, generally). Put in another way, it may be that the (political) institutions of a Contracting State disagree with the way in which a particular case is handled by the (judicial) authorities of another (including because of the rules and standards applied by such authorities to decide the case differ from the rules and standard that the former institutions would follow in the circumstances), but the Convention does not permit the former State to interfere, on this ground, with the work carried out by the authorities of the latter State, notably by issuing competing orders.

4. Habitual residence is the key connecting factor under the Convention for the purposes of allocating jurisdiction. It was chosen on the assumption that, generally, the authorities of the State where the centre of the child’s interests are located, regardless of the child’s nationality, are best placed to assess his or her interests. Nationality, too, may play a role, but only insofar as the circumstances indicate that the authorities of the State of nationality would be better place to assess the child’s interests in the particular case concerned, provided, in any case, that the authorities of the State of habitual residence agree with this finding. The mere fact that a child possesses the nationality of a Contracting State does not confer as such on the authorities of the State of nationality the power to rule on the child.

A loose-leaf publication tends to stay as current as the most recent set of insert pages, and so identifying it either by its initial year of publication or its edition number can be misleading. For many years the leading Canadian work on private international law has been the 6th edition of Castel & Walker Canadian Conflict of Laws, with that edition first appearing in 2005. For nearly two decades, then, it has had the same year of publication and edition number, but as a loose-leaf (and as available through an electronic subscription) it has been kept quite up-to-date on a frequent basis. Now comes a new edition, the 7th, published in 2023 and with a revised title. The text is now called simply Canadian Conflict of Laws and its sole author, as was the case for the 6th edition, is Professor Janet Walker of Osgoode Hall Law School. The change in the title reflects the completion of a long process of transition from the original edition (1975) as written by Professor Jean-Gabriel Castel through some editions that were co-written by Professors Castel and Walker.  Detailed information about the new edition is available here. It remains an indispensable resource in the Canadian context and beyond.

Dear readers, dear EAPIL Members,

You might have received the email below, from gilles.cuniberti@gmx.de.

This is a fraud, please do not answer.

GC

 

 

Dear xx,

How are you doing today?.

Please, I need your assistance for the EAPL.

Get back to me by email so I can explain further.

 

Best regards

Gilles Cuniberti

—
Gilles Cuniberti
President of European Association of Private International Law (EAPL)
Professor of Comparative and Private International Law
Université du Luxembourg
4, rue Alphonse Weicker
L-2721 Luxembourg

Posted by Marlene Wethmar-Lemmer

This booklet contains the first draft of the envisaged African Principles on the Law Applicable to International Commercial Contracts. The proposal could be used by national legislators on the continent and African economic integration organisations, particularly the African Union, in, respectively, domestic legislation and regional or supranational laws of a soft or binding nature. The existence of a reliable transnational legal infrastructure in respect of international commercial law, including commercial private international law, is a prerequisite for investor confidence, inclusive economic growth, sustainable development, and the ultimate alleviation of poverty on the African continent. The instrument may contribute to sustainable growth on a long-term basis. The regulation of private international law of contract is essential to the further development of the African Continental Free Trade Area.

Jan L Neels is professor of private international law and director of the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg.

ISBNs
978-1-7764474-0-4 (Paperback)
978-1-7764474-1-1 (PDF)
978-1-7764474-2-8 (EPUB)
978-1-7764474-3-5 (XML)
DOI:  https://doi.org/10.36615/9781776447411
PRICE:  R125 (print), OA (ebook)

This is the second of a series of posts which will present how the issue of the applicable law to the time limit to enforce or recognise foreign judgments is addressed in comparative private international law. The first post presented the view of the Swiss federal tribunal.

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) confirmed its traditional position by ruling that the French 10 year time limit applies to the enforcement of foreign judgments in France and that foreign time limits may indirectly be taken into consideration by denying standing to the party seeking a declaration of enforceability.

Time Limit to Enforce Foreign Judgments

For more than 30 years, the Cour de cassation has ruled that the enforcement of foreign judgments in France is governed by the applicable French time limit. For years, there was no specific time limit applicable to the enforcement of judgments, and French courts would thus apply the general time limit of 30 years. Since 2008, a specific rule was included in article L 111-4 of the Code of Civil Enforcement Proceedings providing for a time limit of 10 years.

In order to justify the application of French law to the issue, the Cour de cassation has consistently held that the subject matter of the time limit was the enforcement of a judgment. In other words, the issue was identified as concerned with a particular effect of the judgment, namely enforcement.

In a judgment of 4 November 2015, the court clarified that the starting point of the time limit was the date of the French order declaring the foreign judgment enforceable in France. This has been convincingly interpreted by French scholars as meaning that the subject matter of the time limit was, in an international context, the enforcement of a French judgment rather than a foreign one, i.e. the exequatur order. A possible rationale for such a proposition is that, under the French common law of judgments, a foreign judgement cannot, strictly speaking, be enforced. Only a French exequatur order can. In other words, the enforcement of foreign judgments in France is not, strictly speaking, a problem of private international law. It is a matter a domestic enforcement (of a French exequatur judgment).

This approach works fine under the French common law of judgments. But it is unclear whether it works as under the European law of judgments. In the 2023 judgment, the Cour de cassation repeated the traditional rule in the context of the Lugano Convention. Under the Lugano Convention, foreign judgments can only be enforced on the basis of a declaration of enforceability. Is it exactly the same as an exequatur order under the common law of judgments of the Member States? It seems that the Cour de cassation thought so.

All this begs the question of the time limit applicable to the enforcement of a judgment under the Brussels I bis Regulation. In the absence of any declaration of enforceability, it is hard to consider that the foreign judgment is not enforced as such.

Standing

The judgment of 11 January 2023 also confirms that the Cour de cassation would still take into account the time limit of the country of origin of the judgment to assess whether the judgment creditor would have standing to seek enforcement of the judgment in France.

The reasoning of the Cour de cassation starts from the premice that the foreign judgment may only be declared enforceable in France if it is enforceable in its country of origin. As a result, a judgment creditor of a foreign judgment time barred in its country of origin would lack standing to seek a declaration of enforceability in France, as the foreign judgment would not be enforceable in its country of origin.

The consequence of this rule is that, at least until the foreign judgment has been declared enforceable in France, it is, in effect, also subject to the time limit of its country of origin, to the extent to such time limit would affect its enforceability.

The case leading to the judgment of 11 January 2023 was concerned with the enforcement in France of a Swiss judgment. The Lugano Convention applied. The Cour de cassation does not underscore that peculiarity, which does not seem to be relevant for the court. The issue arises, however, whether the proposition that an action seeking a declaration of enforceability under the Lugano Convention might be found inadmissible comports with the rule that the only grounds for denying such declaration are the limited grounds found in Art 34 of the Convention (Case C-139/10, Prism Investments). True, the Cour de cassation does not rule that it would dismiss the application on the merits, but rather that it would find it inadmissible. Is the issue of admissibility governed by the law of the Member States?

Or should the issue of lack of enforceability of the foreign judgment be addressed at the stage of enforcement of the declaration of enforceability (and the foreign judgment)? This is what the Swiss federal Tribunal ruled in its judgment of 2 August 2022.

Co-edited by Rishi Gulati, Thomas John and Ben Koehler, the Elgar Companion to UNCITRAL is now out. This is the second in the trilogy of books on the three key international institutions mandated to work on private international and international private law. The Elgar Companion to the HCCH has already been published in 2020, with the Elgar Companion to UNIDROIT out in 2024.

The Elgar Companion to UNCITRAL brings together a diverse selection of contributors from a variety of legal backgrounds to present the past, present and future prospects of UNCITRAL instruments. Split into four key thematic sections, this book starts by providing an institutional background to UNCITRAL, before moving on to discuss the topic of dispute resolution, including contributions on international arbitration, mediation, and online dispute resolution. Further chapters then explore key topics in international contract law, especially relating to the United Nations Convention on Contracts for the International Sale of Goods. The final section of the Companion consists of chapters on a variety of matters considered at UNCITRAL, namely, micro, small and medium-sized businesses; insolvency; secured transactions; negotiable instruments; public procurement; electronic commerce and transport law.

The book will be virtually launched by the Secretary of UNCITRAL, Ms Anna Joubin-Bret, on 14 December 2024 at 13:00 CET. The launch event will also include a highly informative panel discussion. To register, please click at the link below:

https://events.mpipriv.de/book_launch_elgar_companion_to_uncitral

The recently published study titled ‘European Commercial Contract Law’, authored by Andrea Bertolini, addresses the theme of regulatory competition. It offers new policy recommendations to improve EU legal systems’ chances of being chosen as the law governing commercial contracts.

 

The Study’s main question

The European Parliament’s Committee on Legal Affairs has published a new study authored by Andrea Bertolini, titled ‘European Commercial Contract Law’ (the ‘Study’). The Study formulates the main question as follows: ‘why the law chosen in commercial contracts is largely non-European and non-member state law’. The expression ‘non-European and non-member state’ law is specified as denoting the legal systems of England and Wales, the United States, and Singapore, and more generally, common law legal systems. The Study states:

It is easily observed how most often international contracts are governed by non-European law. The reasons why this occurs are up to debate and could be quite varied both in nature and relevance. Indeed, a recent study by Singapore Academy of Law (SAL) found that 43 per cent of commercial practitioners and in-house counsel preferred English law as the governing law of the contracts.

Although the SAL’s findings are immediately relativised, the Study is underpinned by the assumption (derived from the SAL’s findings) that commercial parties frequently opt for common law. The trend of choosing non-European and non-member state law, the Study submits, is the main reason for enquiring into measures that can be taken to improve the chances of EU Member States’ legal systems being chosen as the law governing commercial contracts:

While the validity of such a study may be questioned, the prevalence of common law in international business transactions, emerging also from other reports and studies (see for a detailed discussion §§2.2 ff.), is one of the very reasons that led to need of performing the current analysis, and should be taken into account, so as to identify those elements that may be improved in the European and MS’s regulatory framework for commercial contracts entered into by sophisticated parties.

The endeavour to identify the points of improvement in the EU and Member States’ regulatory frameworks for international contracts merits appreciation and is relevant to businesses and policymakers. Meanwhile, this endeavour implies a complex task. This task can be approached from different perspectives.

The parties’ perspective

The question of what drives private parties to choose one legal system over another as the law governing their contract is an empirical question. It implies the need to conduct an empirical study, including surveys, interviews, or to use another quantitative or qualitative social science methods. This method has been used in several empirical studies, which have provided various insights into the parties’ attitudes to the choice of law in commercial contracts. To name a few important studies, these include the research by Stefan Vogenauer on regulatory competition through the choice of contract law in Europe, the research by Gilles Cuniberti on international market for contracts and the most attractive contract laws, and an empirical study of parties’ preferences in international sales contracts conducted by Luiz Gustavo Meira Moser. Vogenauer’s research focused on Europe (which included the United Kingdom at that time), while the studies by Cuniberti and Meira Moser had a broader ambit.

Despite the possibly empirical nature of the Study’s main question, the Study neither uses empirical methods nor focuses on the parties’ perspectives. Instead, it takes the policymakers’ perspective.

The policymakers’ perspective

The Study aims to ‘identify possible policies to be implemented to overcome’ the trend that ‘the law chosen in commercial contracts is largely non-European and non-member state’. The findings are formulated as recommendations for policymakers who attempt to make their own legal systems attractive to parties involved in international transactions. The recommendations address both substantive contract law and civil procedure (see inter alia point 2.1 on page 42). Within civil procedure, the Study leaves outside the scope conflict-of-law questions of the extent to which the courts upheld choice-of-law agreements or how various legal systems applicable to contract interpretation deal with the application of foreign law. By contrast, specific attention is paid to the efficiency of the national judiciaries.

Along with the discussion of substantive law, civil procedure and national judiciaries’ efficiency, the Study looks for the reasons for (what it assumes to be) the low success rate of EU Member States’ contract law in the pitfalls of the projects to harmonise contract law that have been undertaken over the last decades. The Study states from the outset:

Indeed, absent an autonomous European contract law, business parties often elect other, non-European jurisdictions (often common law ones), to govern their contractual agreements.

It goes on to identify ‘the fate’ of various attempts to harmonise contract law, such as soft law instruments (including the Principles of European Contract Law (PECL), the UNIDROIT Principles of International Commercial Contracts (UPICC), the Acquis Principles, the Draft Common Frame of Reference (DCFR), and the Common European Sales Law project). These are addressed in the first part of the Study, after which the contract laws of various legal systems are compared and coupled with a comparison of the functioning of the court systems. The method on which the Study bases its conclusions and recommendations is outlined as follows:

To do so, it first provides an overview of the relevant academic and policy efforts underwent to formulate a European contract law (Chapter 1). Then it moves on to touch upon a broad spectrum of matters emerging both from international reports on the adjudication and the functioning of the courts systems, as well as from academic literature on matters that span from contract qualification, interpretation, integration, and some fundamental aspects of remedies (Chapter 2). It then provides a series of policy options (Chapter 3), European institutions could consider when attempting to alter this trend and ensure EU regulation a global role in commercial contracts too.

Regulatory competition, soft law, or de facto harmonisation?

Placing harmonisation of contract law at the core of the discussion of regulatory competition is a fresh look at the (soft law) instruments harmonising contract law. However, it is a somewhat unexpected take on these instruments, because participation in regulatory competition, whereby a EU instrument would compete with third states’ laws, does not appear to be the goal of any contract law harmonisation project. For instance, the UNIDROIT principles have harmonised commercial contract law worldwide. The instrument contains a number of rules rooted in the legal system of the United States (Uniform Commercial Code and States’ case law) and has been endorsed by the UNCITRAL. The PECL and DCFR limit their scope to the EU, but at the time of these instruments’ drafting, the United Kingdom was an EU Member State. Furthermore, PECL and DCFR are not confined to commercial contract law; they address contract law more broadly.

In contrast to these harmonisation projects, the Study appears to promote (without explicitly stating this) the de facto harmonisation by contract clauses and the need to foster party autonomy in the interpretation of contracts. If this is correct, this would be a very welcome recommendation, albeit not entirely new. The Study states:

Overall, the analysis is then used to lay out some policy recommendations that may only be broad in scope and point at one direction more than providing detailed solutions.

All efforts should aim at pursuing the efficiency of the judiciary on the one hand, and the creation of a set of minimalist and – possibly – self-sufficient norms dedicated to the regulation of business contracts that prioritize legal certainty, foreseeability of the outcome, preservation of the parties will.

This and other recommendations are summarised on page 9 and provided on pages 76 ff, and are certainly worth reading.