Agrégateur de flux

Bundesamt für Fremdenwesen und Asyl e.a. (Femmes afghanes)
Espace de liberté, sécurité et justice
Selon l’avocat général Jean Richard de la Tour, les mesures discriminatoires adoptées à l’égard des femmes afghanes par le régime des talibans constituent, en raison de leur effet cumulé, une persécution

Commission / Irlande e.a.
Aide d'État
Selon l’avocat général Pitruzzella, il y a lieu d’annuler l’arrêt du Tribunal sur les rulings fiscaux adoptés par l’Irlande en faveur d’Apple

Commission / Suède (Contrôle de l’acquisition et de la détention d’armes)
Rapprochement des législations
Manquement d’État : la Suède est condamnée à payer 8 500 000 euros pour transposition tardive de la directive modifiée sur les armes

Všeobecná úverová banka
Clause abusive d’un contrat de crédit à la consommation garanti par le logement familial : le juge doit apprécier la proportionnalité entre la faculté du professionnel d’exiger la totalité du prêt et la gravité de l’inexécution par le consommateur

Gesamtverband Autoteile-Handel (Accès aux informations sur les véhicules)
Rapprochement des législations
Les constructeurs automobiles doivent mettre les numéros d’identification des véhicules à la disposition des opérateurs indépendants

Google Ireland e.a.
Liberté d'établissement
Lutte contre les contenus illicites sur Internet : un État membre ne peut pas soumettre un fournisseur d’une plate-forme de communication établi dans un autre État membre à des obligations générales et abstraites

Ronald A. Brand, Michael S. Coffee and Paul Herrup are the authors of The 2019 Hague Judgments Convention, published by Oxford University Press, part of its Private International Law Series.

Declared a ‘game-changer’ by the Hague Conference Secretary General, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has introduced international obligations of unprecedented sweep and power. Now, this authoritative treatise provides the diplomatic background and the historical context for the Convention, discussing the law on judgments recognition in the absence of the Convention’s ratification. After recounting the twenty-seven-year history of the negotiations leading to the Convention’s conclusion, it offers an article-by-article discussion of each provision. It also considers paths not taken, advancing possible solutions to address future pressures and developments.

More information, including the table of contents, can be found here.

X v Y (yep, annoying and entirely without reason, an anonymous judgment) ECLI:NL:RBLIM:2023:4342 is an interesting illustration of Brussels Ia’s Article 7(1)(a’)s ‘looking over the fence’ aka the conflicts method for determining forum contractus.

The method implies that beyond the standard contractual categories for which Article 7(1)(b) locks in forum contractus as a European ius commune, the ‘place of performance of the obligation in question’ needs to be determined by provisionally identifying the lex contractus and then using that lex contractus to determine place of performance, leading to a conclusion whether the judge seized has jurisdiction or not. See CJEU 12/76 Tessili v Dunlop.

In the case at issue, the contract is a loan and the applicable law is determined with reference to CJEU Kareda. This is where the court veers off course (my first categorisation by Tweet of the judgment being an excellent example therefore needs to be corrected): In Kareda the CJEU held that the credit agreement at issue was to be considered an ‘agreement for the provision of services’ per A7(1)(b), locking in forum contractus “in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”. In such case, no more looking over the fence is required, let alone consideration of Article 4(3) Rome I etc.

Geert.

Students claxon
First instance Limburg, excellent example of 'looking over the fence' aka the conflicts method per CJEU Tessili v Dunlop to determine forum contractus per A7(1)a BIa, A4(2) Rome I (no A4(3) manifest closer connection
ECLI:NL:RBLIM:2023:4342https://t.co/g6EdSsEs2c

— Geert Van Calster (@GAVClaw) October 20, 2023

The UK Supreme Court has dismissed the appeal in Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP & Ors [2023] UKSC 40, confirming the Court of Appeal’s finding that the claim against the majority of the defendants may go ahead.

I reviewed the first instance judgment here and the Court of Appeal’s here and I shall not repeat all the issues. Readers should note that the issues discussed are of wider relevance to current developments in both public and private international law (business and human rights litigation, climate change litigation etc.).

[21] Lord Lloyd-Jones summarises the Dicey rules at play (and also notes the editors of the 16th d and those before them pointing out the inroads that in recent years have been made into the principle) and [22] he makes a delightfully concise reference to somewhat different US views on the rationale for the issue.

[39] after reviewing the authorities, it is held that

The Danish tax system undoubtedly provided the context and the opportunity for the alleged fraud and the operation of the fraud can be understood only by an examination of that system. It may well be that at the trial of this action it will be necessary to address that in detail. However, as we have seen [that’s a reference to Dicey as summarised above, GAVC], there is no objection to the recognition of foreign tax laws in that way. Because the present proceedings do not involve an unsatisfied claim to pay taxes due in Denmark, they fall outside the scope of the revenue rule.

[41] applies fraus and nemo auditur in dismissing appellants’ attempt to present themselves as taxpayers

The appellants seek to circumvent this difficulty by nevertheless portraying the refund applicants as taxpayers. It is said that by making applications for withholding tax refund applications the applicants brought themselves within the Danish tax system and became Danish taxpayers. It is also said that the respondent by paying “refunds” accepted them into the Danish tax system. It is further said that in rescinding the “refunds” the respondent was acting in the capacity of a taxing authority. The appellants therefore maintain that, in all the circumstances, the recipients of “refunds” and the respondent were in the relationship of taxpayer and taxing authority. As the Court of Appeal pointed out (at para 136) this submission is misconceived. The applications for “refunds” were all based on the lie that the applicants had paid tax in the first place which, on the respondent’s pleaded case, they had not. This attempt to portray the applicants as taxpayers cannot bind the respondent as the victim of their fraud and the applicants cannot take advantage of their own wrongdoing in order to bring themselves within the revenue rule.

[44] ff discusses the impact of (commentary on) CJEU C-49/12 Sunico, which was also discussed by the  first instance judge in current case and by Szpunar AG and the CJEU in Movic.

[53] ff then discusses the sovereign authority rule, essentially considering whether the claim is a simple money claim like thirteen to the dozen, and with reference (via Dr Mann) to Grotius’ ‘actus qui a rege sed ut a quovis alio fiant’.

[58] again substance is distinguished from context

appellants are undoubtedly able to point to prior exercises of sovereign power by Denmark in creating its laws relating to the taxation of dividends and in operating the tax system. This, however, merely provides the context for the present claims. The substance of the claims, as we have seen, does not involve any act of a sovereign character, any exercise or enforcement of a sovereign right, or any vindication of sovereign power. On the contrary, the respondent is simply bringing restitutionary claims to recover monies of which it has been defrauded, a course open to any private citizen who had been similarly defrauded.

Unlike in first instance, neither Lugano nor Brussels Ia feature substantially at the Court of Appeal or Supreme Court. That is a pity for how the Dicey rules and similar ones in the current EU Member States relate to Lugano and Brussels, is not clear-cut.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.28 ff. (4th edition forthcoming January 2024).

For background see https://t.co/B5DeTbT5g4
More on the blog soon.

via @bwmlindsay https://t.co/3tVcUeFyL7

— Geert Van Calster (@GAVClaw) November 8, 2023

L’application du principe ne bis in idem exige de prendre en considération les faits mentionnés dans les motifs du jugement antérieur et ceux sur lesquels a porté la procédure d’instruction mais qui n’ont pas été repris dans l’acte d’accusation ainsi que toutes informations pertinentes concernant les faits matériels visés par une procédure pénale antérieure menée dans cet autre État membre et clôturée par une décision définitive.

en lire plus

Une patiente sollicite son dentiste pour obtenir l’accès à son dossier médical dans le but d’intenter une action en responsabilité contre lui pour divers manquements dans le traitement prescrit. Or la loi allemande prévoit que l’accès à une copie du dossier médical est payant. La patiente saisit les tribunaux contre le dentiste, considérant que le caractère payant est contraire au règlement général sur la protection des données (RGPD). La Cour de justice de l’Union européenne (CJUE) répond dans un arrêt précis qui décline, au domaine médical, le haut niveau de protection des données personnelles au sein de l’Union.

en lire plus

Un vélo à assistance électrique ne relève pas de l’obligation d’assurance des véhicules automoteurs car il n’est pas actionné exclusivement par une force mécanique.

en lire plus

The Pax Moot case for 2024 is out! This year’s round is called Petar Šarcevic, and the competition will take place in Ljubljana from 24 to 26 April 2024.

Read all about MyStream and kidfluencer Giulia here: https://www.paxmoot.eu/case.

Further information and the time line is available on the Paxmoot website.

 

Written by Birgit van Houtert, Assistant Professor of Private International Law at Maastricht University

On 1 September 2023, the 2019 Hague Judgments Convention (HJC) entered into force. Currently, this Convention only applies in the relationship between EU-Member States and Ukraine. Uruguay has also ratified the HJC on 1 September 2023 (see status table). The value of the HJC has been criticised by Haimo Schack inter alia, for its limited scope of application. However, the HJC can be valuable even beyond its scope as this blog will illustrate by the ruling of the Dutch Supreme Court on 29 September 2023, ECLI:NL:HR:2023:1265.

Facts

In 2019, a couple with Moroccan and Dutch nationality living in the Netherlands separated. They have two children over whom they have joint custody. On 5 June 2020, the wife filed for divorce and ancillary relief, inter alia division of the matrimonial property, with the Dutch court. On 29 December 2020, the husband requested this court to also determine the contribution for child maintenance to be paid by the wife. However, the wife raised the objection of lis pendens with reference to Article 12 Dutch Civil Code of Procedure (DCCP), arguing that the Dutch court does not have jurisdiction regarding child maintenance, since she filed a similar application with the Moroccan court on 9 December 2020, and the judgment to be rendered by the latter court could be recognised in the Netherlands.

Lis pendens

On 26 March 2021, the Dutch district court pronounced the divorce and ruled that the wife must pay child maintenance. This court rejected the objection of lis pendens because the Moroccan and Dutch proceedings did not concern the same subject matter as in Morocco a husband cannot request child support to be paid by the wife. Furthermore, there has been no Convention to enforce the Moroccan judgment in the Netherlands, as required by Article 12 DCCP. However, the Court of Appeal held that the district court should have declined jurisdiction regarding child maintenance, because both proceedings concerned the same subject matter, i.e. the determination of child maintenance. Subsequently, the Court of Appeal declined jurisdiction over this matter by pointing out that the Moroccan judgment, which in the meantime had been rendered, could – in the absence of a Convention – be recognised in accordance with the Dutch requirements for recognition of non-EU judgments, the Gazprombank-requirements (see Hoge Raad 26 September 2014, ECLI:NL:HR:2014:2838, 3.6.4).

The case brought before the Supreme Court initially concerned the interpretation of lis pendens under Article 12 DCCP. In accordance with this provision, the Supreme Court states that the civil action should be brought to a foreign court first, and subsequently the Dutch court to consider the same cause of action between the same parties. If it is expected that the foreign proceedings will result in a judgement that can be recognised, and if necessary enforced, in the Netherlands either on the basis of a Convention or Gazprombank-requirements (see Hoge Raad 29 September 2023, ECLI:NL:HR:2023:1266, 3.2.3), the Dutch court may stay its proceedings but is not obliged to do so. The court may, for example, decide not to stay the case because it is expected to take too long for the foreign court to render the final judgment (3.3.5). However, the court must declare itself incompetent if the foreign judgment has become final and this judgment could be recognised and, if necessary enforced, in the Netherlands. To define the concept of finality of the foreign judgement, the Supreme Court drew inspiration from the HJC and the Explanatory Report by Garcimartín and Saumier (paras. 127–132) by applying the definition in Article 4(4) HJC by analogy; i.e the judgment is not the subject to review in the State of origin and the time limit for seeking ordinary review has been expired. According to the Supreme Court, this prevents that the dispute cannot be settled anywhere in court (3.3.6).

In the case at hand, the Dutch district court did thus not have to decline jurisdiction as the Moroccan judgment had not been final yet. The Supreme Court has also specified the conditions under which the court at first instance’s decision on the application of Article 12 DCCP can be challenged on appeal (3.4.2-3.4.6), which is outside the scope of this blog.

Finality of the foreign judgment in the context of recognition

Moreover, the Supreme Court clarifies that in proceedings involving lis pendens, an action may be brought for recognition of the foreign decision, including a claim to rule in accordance with the condemnation in the foreign decision (on the basis of Article 431(2) DCCP) (3.5.1). After reiterating the known Gazprombank-requirements for recognition, the Supreme Court addresses for the first time the issue whether the foreign judgment should be final (which has frequently been debated by scholars). According to the Supreme Court, the court may, postpone or refuse the recognition on the basis of the Gazprombank-requirements if the foreign judgement is not final, i.e. the judgment is the subject of review in the State of origin or the time limit for seeking ordinary review has not expired (3.6.2). The Supreme Court therefore copies Article 4(4) HJC, and refers to the Explanatory Report by Garcimartín and Saumier (paras. 127–132). Similar to the latter provision, a refusal on this ground does not prevent a renewed application for recognition of the judgment. Furthermore, the court may, on application or of its own motion, impose the condition that the party seeking recognition of a non-final foreign judgment provides security for damages for which she could be ordered to pay in case the judgement is eventually annulled or amended. The Supreme Court therefore follows the suggestion in the Explanatory Report by Garcimartín and Saumier (para. 133).

Comment

The application by analogy of the autonomous definition of finality in Article 4(4) HJC yields legal certainty in the Netherlands regarding both the lis pendens-conditions under Article 12 DCCP, and the recognition of non-EU judgments in civil matters to which no Convention applies. Because of the generally uncodified nature of Dutch law for recognition of latter judgements, legal certainty has been advocated. In this regard, the Dutch Government Committee on Private International Law submitted its advice in February 2023 to revise Article 431 DCCP which inter alia includes the application by analogy of the jurisdictional filters in Article 5(1) HJC (see advice, p. 6). Thus, despite its limited scope of application, the HJC has value because of its possible application by analogy by courts and legislators (see also B. van Houtert, ‘Het 2019 Haags Vonnissenverdrag: een gamechanger in Nederland? Een rechtsvergelijkende analyse tussen het verdrag en het Nederlandse commune IPR’, forthcoming Nederlands Internationaal Privaatrecht 4, 2023). Furthermore, the Dutch Supreme Court’s application by analogy of Article 4(4) HJC contributes to the Hague Conference on Private International Law’s aim to unify Private International Law.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will hold its annual XLVI Seminar entitled “Private International Law and the National Code of Civil Procedure. A critical analysis” (el Derecho Internacional Privado y el Código Nacional de Procedimientos Civiles. Un análisis crítico) from 8 to 10 November 2023. See our previous post here.

The program is available here.

Today there will be a book presentation entitled:

“Comentarios a la Normatividad Procesal en el Código Nacional de Procedimientos Civiles y Familiares” by Nuria González Martín and Jorge Alberto Silva.

Commenting: Magistrado Oscar Gregorio Cervera and Ligia Claudia González Lozano.

There is a fee for participation both in person and online.

 

Mazepin / Conseil
Relations extérieures
Guerre en Ukraine : le Tribunal confirme le gel des fonds de M. Dmitry Arkadievich Mazepin

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided to us by the editor of the journal.

J. Oster, Provisional Measures Against Cross-Border Online Platforms

In its ruling of 15.2.2022 (Trustpilot A/S ./. Interreal Group B.V.), the Gerechtshof Amsterdam had to decide on provisional measures within the meaning of Article 35 Brussels Ibis Regulation against an online evaluation platform. The Court held that Article 35 Brussels Ibis Regulation applied independently of a jurisdiction clause concerning the proceedings on the merits of the case. However, according to the Court, Article 35 Brussels Ibis Regulation only covers measures having a provisional or protective character. The Court found that this applies to an obligation of an online platform to temporarily store user data available to the platform, but it excludes both obligations of that online platform to hand over user data to the applicant company and a forward-looking duty to store the data of prospective users.

M. Cremer, Golden Passports in Private International Law

A number of states grant citizenship by investment, which allows wealthy individuals to acquire a new nationality essentially through payment. The article analyzes the impact of so-called golden passports in private international law. It contends that from a theoretical standpoint, choice of law rules are not required to use nationality obtained through investment as a connecting factor. In practice, private international law avoids applying the corresponding law in most, but not all cases. However, in certain situations, European law imposes a different result for golden passports from EU Member States.

R.A. Schütze, Security for Costs of English and Swiss Plaintiffs in German Courts

The decision of the Federal Supreme Court (Bundesgerichtshof – BGH) is a milestone in the German-British relations regarding the procedural position of English plaintiffs in German courts after the Brexit. The BGH – overruling an earlier judgment of the Regional Court of Appeal Frankfurt/Main – decided that plaintiffs residing in the UK are not obliged to provide security for costs under sect. 110 German Code of Civil Procedure (ZPO). The Court applied the European Convention on Establishment (Art. 34, Sect. 4).
The Court further decided that Plaintiffs residing in Switzerland have no such obligation either under the Lugano Convention 2007.
The BGH finally decided that Respondent must request security for costs in the instance the event occurs that gives Respondent the right to claim security for cost.

C. Thole, The Distinction between Civil Matters and Acta Iure Imperii under Art. 1 Brussels Ibis Regulation

On 22 December 2022 the CJEU handed down a further judgment on the definition of civil and commercial matters within the meaning of Art. 1 Brussels Ibis Regulation and the distinction between civil matters and acta iure imperii. The short judgment denied the applicability of the regulation with regard to an action of a public authority of a Member State against companies established in another Member State seeking a declaration of the existence of restrictive practices, an order penalising those practices and an order on the cessation of those practices. Christoph Thole finds the judgment to be feasible, but parts of the Court’s line of reasoning remain doubtful.

T. Bens, The Bogus Entrepreneur, the Intermediating Life Companion and the Bona Fide Contractual Partner: Determination of Consumer Status under Art. 17(1) Brussel Ibis Regulation

The preliminary ruling of the Court of Justice of the European Union in Wurth Automotive concerns the determination of whether a person has the status of consumer as defined by Art. 17 Brussels Ibis Regulation. According to settled case law of the Court of Justice, the national court must determine the aim for which the contract was concluded by the person who claims the consumer status. The referring Austrian court nonetheless seems to have had some issues with applying the case law of the Court on “mixed” contracts given the peculiar facts and circumstances of the case. The highly factual preliminary questions are all reformulated by the Court to rather abstract questions of interpretation, evaluation and evidence. The ruling confirms that a person who misleads their professional contractual partner as to the aims for which they sought to conclude the contract cannot invoke the protective jurisdictional rules for consumers, but also ties this defence to certain questionable evidentiary restrictions.

I. Bach and F. Burghardt, The Role of the Last Joint Habitual Residence on Post-Marital Maintenance Obligations

Art. 5 of the 2007 Hague Protocol on the law applicable to maintenance obligations holds an exemption to Art. 3’s general principle: Regarding post marriage maintenance, the law at the creditor’s habitual residence does not apply if the marriage is more closely connected to another state. The BGH now established a de minimis exception for Art. 5: The law of the other state only prevails if its connection to the marriage is a) closer than the connection of the creditor’s habitual residence and b) sufficiently close in absolute terms. Ivo Bach and Frederik Burghardt argue that such an additional threshold is neither in line with the wording of Art. 5 nor with the Drafters’ intention and the ratio legis. Unfortunately, the BGH has refused to refer the question to the ECJ for a preliminary ruling.

A. Botthof, Convention on the Civil Aspects of International Child Abduction: State of Return and Best Interests of the Child After the Making of an Order for the Return of the Child

Two recent decisions shed new light on the Convention on the Civil Aspects of International Child Abduction. The Court of Appeal of Berlin comments on the controversial question of whether a wrongfully removed child can be returned to a Contracting State other than that in which the child was habitually resident immediately before the removal. According to the Court of Appeal, this is possible if children return to their usual family ties and relationships. The Supreme Court of Justice of Austria was concerned with the best interests of the child in the return process. The current decision reaffirms the established jurisdiction, according to which the claim that the child’s best interests are endangered by the return can only be based on facts that occurred after the making of an order for the return of the child.

D. Wiedemann, European Account Preservation Order (EAPO) for Penalty Payments

Within the scope of application of the Brussels Ibis Regulation, creditors have two options when enforcing a judgment obliging a debtor to perform an action or to refrain from an action: On the one hand, creditors can enforce this judgment across borders by means of the enforcement methods available in another Member State. On the other hand, creditors may obtain an order levying a penalty payment and enforce that order in accordance with the enforcement measures for monetary claims in another Member State (Art. 55 Brussels Ibis Regulation). Thus, creditors are free to choose whether to enforce the judgment or to enforce an order levying a penalty payment across the border. The securing of penalty payments by means of a European Account Preservation Order (Regulation 655/2012) could be a third procedural option. In the first case, the Higher Regional Court of Cologne refused to allow this option. The court decided that creditors may not pursue a European Account Preservation because the penalty payment essentially concerns a claim to perform an action and not a pecuniary claim. In the second case, the CJEU implied that penalty payments should indeed be regarded as pecuniary claims. However, a penalty payment order that does not determine the final amount cannot justify the issuance of a European Account Preservation Order. In this case, the creditor has to satisfy the court that the claim is likely to succeed (Art. 7(2) Regulation 655/2012).

P. Hay, The Rise of General Jurisdiction Over Out-of-State Enterprises in the United States

In June 2023, the U.S. Supreme Court continued its revision of personal jurisdiction law, in this case by refining, thereby perhaps expanding, the law of when a court may exercise general personal jurisdiction – that is, jurisdiction over all claims – over a non-resident person or an out-of-state enterprise. In Mallory v. Norfolk Southern Railway Co., it held in a 4+1:4 decision that, when a state requires a non-resident company to register to do business in the state and such registration constitutes consent to jurisdiction over all claims against it, such exercise is permitted. In reaching its conclusion, the Court applied a more than a century old (1917) precedent. The plurality of four Justices also compared the exercise of such jurisdiction to “tag jurisdiction” (general jurisdiction over persons present in the state at the time of service) and did not consider the Court’s much more recent cases on specific (claim-related) jurisdiction to be in contrast with (i.e., to overrule) the 1917 decision. The dissent disagreed and, in light of the majority’s new revision, considered specific jurisdiction now significantly deleted. Indeed, it does seem that the distinction between general and specific jurisdiction continues to become considerably blurred.

M. Reimann, The Renewed Threat of “Grasping” Jurisdiction over Corporations – and Its Limits

In its latest decision on personal jurisdiction, Mallory v. Norfolk Southern Railway Co. (600 U.S. __, 2023), the US Supreme Court handed the states a new weapon against corporations that are not “at home” in the forum state. In a 5:4 decision, the Court found the requirement that a corporation consent to general in personam jurisdiction as a condition for obtaining a business license compatible with the due process clause of the fourteenth amendment. In this manner, a state can circumvent the rule established in Daimler AG v. Bauman (2014) that corporations are subject to general in personam jurisdiction only where they are “at home” (i.e., typically in the state(s) of their incorporation or headquarters). Yet, the jeopardy for corporations is not quite as serious as it seems at first glance for three reasons. First, at least so far, very few states have used this form of “consent”, and there is reason to believe that it will not become the overwhelming practice. Second, at least if such consent is the only connection between the defendant and the forum state, the respective suits will often be dismissed under the forum non conveniens doctrine because the forum will not have any plausible interest or reason to entertain them. Third, requiring consent to general in personam jurisdiction as a condition for obtaining a business licence will almost surely be challenged under the so-called “dormant commerce clause”. That provision was not before the Court in Mallory; it imposes serious limits on what states can do to out-of-state corporations. The consent requirement likely violates these limits in cases in which the forum state has no legitimate interest in adjudicating the dispute. Thus, in the long run, the consent requirement will likely be effective only if the forum state has a reasonable connection with the litigation before its courts. Such a narrowed version would be a welcome correction of the overbroad protection that (especially foreign) corporations have enjoyed under Daimler. Foreign corporations should also consider that the consent requirement can kick in only if they need a business license from the forum state – which is not the case if they act there through subsidiaries or just occasionally. Still, foreign corporations have reason to worry about the future of personal jurisdiction because Mallory is another indication that the Court’s majority is not willing to protect them as broadly as in the past. It is, for example, quite possible that the Court will eventually allow personal jurisdiction over an out-of-state corporation on the basis of service of process on one of its officers in the forum state.

T. Kono, Punitive Damages and Proactive Application of Public Policy in the Context of Recognition of Foreign Judgments in Japan

The Californian judgment including punitive damages was partially enforced in California. The question of whether the enforced portion could be interpreted to include the portion that awarded punitive damages was raised as a precondition for the enforceability of the unpaid portion in Japan. The Supreme Court of Japan stated that the punitive damages portion in the Californian judgment does not meet the requirements of Article 118(3) of the Japanese Code of Civil Procedure and that the exequatur on the foreign judgment cannot be issued as if the payment was allocated to the claim for the punitive damages. The Supreme Court seems to have taken the position that Japan’s system of recognition of foreign judgments is a system that can proactively deny the effect of foreign judgments not only where the effect of the foreign judgment extends into Japanese territory, but also where the effect of the foreign judgment does not extend into Japan. The author of this article is of the view that the social function of punitive damages would not constitute public policy at state levels insofar as punitive damages are insurable. Hence, the proactive use of public policy by the Japanese Supreme Court would not cause direct tension with those states. In other states, where they are not insurable, however, under certain circumstances, public policy in Japanese law versus public policy in US law may arise as a debatable issue.

S. Noyer, Annual Conference of the Society for Arab and Islamic Law in honor of Omaia Elwan, October 7 and 8, Heidelberg, Germany

Sattvica / EUIPO - Maradona e.a. (DIEGO MARADONA)
Propriété intellectuelle et industrielle MARQ
Bataille juridique autour de la marque DIEGO MARADONA : le Tribunal de l’Union européenne confirme le refus de l’EUIPO d’enregistrer le transfert de cette marque en faveur de la société argentine Sattvica

The PAX Moot case for the 2024 moot competition on private international law is now out. The 2024 Round is dedicated to Petar Šarčević.

The Petar Šarčević Round explores social media platforms’ activities such as content creation and monetization from a private international law perspective.

The case requires participants to deal with matters of international jurisdiction of the District Court of Ljubljana and applicable law in a complex factual situation involving parental responsibility, contractual relationships, validity of a contractual relationship entered into by a minor, termination of contractual relations, tort claims, and removal of online published content.

The moot competition has two phases: a written and an oral round. The oral round will take place in Ljubljana from 24-26 April 2024.

More information about the competition, the schedule building up to the oral round in Ljubljana, the applicable rules for the Petar Šarčević Round, and the registration procedure for the teams taking this challenge will follow soon.

To all teams deciding to join the competition: good luck in preparing the case!

The author of this post is Costanza Honorati, professor of EU law and private international law at the University of Milan Bicocca. She chaired the working group that prepared a position paper on behalf of the  European Association of Private International Law in view of the eight meeting of the Special Commission on the practical operation on the 1980 Child Abduction and the 1996 Child Protection Conventions, and attended the meeting on behalf of EAPIL.

The Special Commission (SC) charged by the Hague Conference on Private International to discuss  the practical operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention met for the eighth time from 10 to 17 October 2023. The meeting was attended by 471 delegates, in person and online, representing 66 HCCH Members, 13 non-Member Contracting Parties, 27 observers from inter-governmental and non-governmental organisations, including the European Association of Private International Law (see its position paper as Info. Doc. No 18 of October 2023)

As usual, at the end of the meeting the SC adopted a set of Conclusions & Recommendations (C&R), whose content is briefly summarized below, with a focus on a selection of issues. To the reader’s benefit the two Conventions are addressed here separately.

The 1980 Child Abduction Convention

The SC took note that, since the Seventh Meeting of the SC in 2017, five States have become Contracting Parties to the 1980 Child Abduction Convention (Barbados, Botswana, Cabo Verde, Cuba, and Guyana), bringing the total number of Contracting Parties to the Convention to 103.

Interesting information were drawn from the fifth Statistical Study drawn by prof. Nigel Lowe and Victoria Stephens for the year 2021 (Prel. Doc. No 19A ). While the data in that year are likely to have been affected by the COVID-19 pandemic, a few relevant findings are worth mentioning. Among these, the increase in the average number of days it took to reach a final decision; the increase of refusals to return; the almost double increase of proportion of refusals to return on the basis of the Article 13(1)(b) exception, compared with the results of the 2015 statistical study; the small decrease in cases going to court; the increase of cases being settled outside court .

While the SC has reaffirmed and reiterated some of the conclusions adopted in previous meetings, a few specific topics have been discussed in greater detail.

Under the heading Addressing delays under the 1980 Child Abduction Convention, the SC found that delays continue to be a significant obstacle in the operation of the 1980 Child Abduction Convention and the SC strongly recommended Contracting Parties experiencing delays to review their existing processes in order to identify potential causes of delays.

With this in mind the SC reiterated

the effectiveness and value of the use of information technology for efficient communication between authorities, sharing of data, and to assist in reducing delays and expedite return proceedings.

The SC thus encouraged States to continue implementing and enhancing the use of information technology and to make use of the Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention as a helpful resource (para 5-9).

The SC then addressed the Relationship of the 1980 Child Abduction Convention with other international instruments – 1989 UN Convention on the Rights of the Child (UNCRC). Having recalled the rationale for the return of the child and the scope of the return proceedings, the SC emphasized how return proceedings should not include a comprehensive ‘best interests assessment’. In particular the SC stated, at para 14 e 15 that

[w]hile the exceptions derive from a consideration of the interests of the child, they do not turn the return proceedings into custody proceedings. Exceptions are focussed on the (possible non-) return of the child. They should neither deal with issues of custody nor mandate a full “best interests assessment” for a child within return proceedings.

Similar findings are featured in the communication No 121/2020 of the UN Committee on the Rights of the Child under the Optional Protocol on a Communications Procedure.

The SC had a lively discussion on the Application of Article 13(1)(b) of the 1980 Child Abduction Convention in a contest of Domestic violence. The C&R reflect the discussion summarizing some of the results as following. It firstly makes reference to the Guide to Good Practices on Article 13, noting that, according to paragraph 33,

harm to a parent, whether physical or psychological, could, in some exceptional circumstances, create a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Article 13(1)(b) exception does not require, for example, that the child be the direct or primary victim of physical harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child.

In light of the ongoing discussions and initiatives promoted by advocates for victims of domestic violence, the SC supported the proposal to hold a international open forum allowing for discussions amongst organisations representing parents and children and those applying the Convention. The Philippines offered to assess hosting the forum in Manila in 2024 and States have been invited to contribute in the organisation and funding of such a forum (para 26)

Closely connected to domestic violence is the related issue of Safe return and measures of protection. Interestingly, the SC made it clear that a court may also order protective measures to protect the accompanying parent in order to address the grave risk to the child (para 28). As regards undertakings, the SC reiterated that the efficacy of the measures of protection will depend on whether they are enforceable in the State of habitual residence of the child. Insofar, voluntary undertakings are not easily or always enforceable and, because they may not be effective in many cases, they should be used with greatest caution. It was also suggested that, when undertakings are made to the court of the requested State, they should be included in the return order in order to help facilitate enforcement in the State of habitual residence of the child. This is a new practice that could come result interesting.

The issue of hearing of the child again attracted much interest. Based on the fact that States follow very different approaches when hearing the child, C&R aim to circulate some good practices, such as (para 37)

a) the person who hears the child, be it the judge, an independent expert or any other person, should have appropriate training to carry out this task in a child-friendly manner and training on international child abduction; b) if the person hearing the child speaks to one parent, they should speak to the other; c) the person hearing the child should not express any view on questions of custody and access as the child abduction application deals only with return.

It was also emphasised that when hearing the child for the purposes of Article 13(2), this should be done only for such purpose and not in respect of broader questions concerning the welfare of the child, which are for the court of the child’s habitual residence. In other terms, the hearing of the child should be kept in the framework of an exception to return and not embrace a wider scope.

The very topical issue of asylum claim lodged in abduction cases was also shortly discussed, on the basis of Prel. Doc. No 16 . The C&R only indicate that such proceedings should be examined expeditiously (para 40).

The 1996 Hague Convention

Eight new States have become Contracting Parties to the 1996 Child Protection Convention since the 2017 SC, namely Barbados, Cabo Verde, Costa Rica, Fiji, Guyana, Honduras, Nicaragua and Paraguay, thus bringing the total number of Contracting Parties to the Convention to 54 (27 of which are EU Member States).

Some interesting clarifications were given in relation to recognition and enforcement of protection measures. First, in relation to the scope of application of Article 26(1) – a rule which provides that, where measures taken in one Contracting Party require enforcement in another Contracting Party, such measures shall be declared enforceable or registered for the purpose of enforcement in that other Contracting Party – the SC made it clear that not all measures of protection require enforcement under Article 26. Enforcement shall be required, for example, for the forced sale of property; or in relation to a parent refusing to abide by the orders made by the competent authority in another State. Because not all cases fall under Article 26, the SC invited Contracting Parties (in relation to their laws) and competent authorities (in relation to their procedures) to differentiate between those measures that require enforcement and those that do not (para 74-75).

Second, it was noted that, in order to facilitate the recognition and enforcement of measures of protection, the competent authority should carefully describe those measures in the decision and the grounds upon which it based its jurisdiction, including when jurisdiction is based on Article 11(1) (para 77-78).

Another interesting topic on which the SC focused is the placement of children. In this regard the SC endeavored to clarify what should be regarded as placement under Article 3(e) and Article 33 (i.e. any placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution) ) and also what should not be regarded as a placement (i.e. purely private arrangements, including the ones in the form of an agreement or unilateral act, including a notarial kafala; a child travelling abroad for tourism purposes with their foster parent) (para. 83 et seq).

It then offered a useful guidance on minimum steps for the procedure under Article 33. These include the following:

1. The competent authority of the State which is contemplating the measure of alternative care must consult the Central Authority or competent authority in the State where it is proposed that the measure will be exercised by: (1) discussing the possibility of such a placement in the receiving State; (2) transmitting a report on the child; (3) explaining the reasons for the proposed placement or provision of care outside the requesting State and in the requested State.

2. The Central Authority or competent authority of the State where it is proposed that the measure will be exercised gives its consent to the proposed placement or provision of care.

3. If the requested State has consented to the placement or provision of care, taking into account the child’s best interests, the competent authority of the requesting State then issues its decision.

 Call for Further Action

Finally, as a result of the lively debate in the course of the SC, the need for further future action of both the Permanent Bureau (PB) and Contracting States was recommended. This was further reflected in the C&R with respect to the following topics.

In relation to direct judicial communications and the International Hague Network of Judges (IHNJ), the proposal was advanced to develop a short model guide to court practice and further initiatives to hold a regional in-person meeting of the IHNJ in Brazil (May 2024) and a global in-person meeting of the IHNJ in Singapore (May 2025) (para 19).

Regarding the determination of wrongful removal pursuant Articles 8, 14 and 15, the SC invited the PB to draw up a note containing information on the use of such rules, drawing from the contents of Prel. Doc. No 14. (para 46).

As to the revised Request for Return Recommended Model Form and the new Request for Access Recommended Model Form, the SC concluded that further work needed. A Group of interested delegates will assist the PB in finalising both revised Forms (para 50).

Concerning relocation, after noting the strong impact on international abduction and the diversity of approaches of States in this matter, the SC proposed the development of a questionnaire by the PB directed to States to gather information about procedures that States have in place to facilitate lawful relocation (para 54);

With regard to transfer of proceedings under Article 8 and 9 of the 1996 Child Protection Convention, besides recalling the general duty to cooperate among Central Authorities and direct judicial communications between judges involved in a transfer of jurisdiction, the PB was asked to circulate the questionnaire annexed to to all Contracting Parties to the 1996 Child Protection Convention, with a view to collecting information from judges and Central Authorities regarding requests under Article 8 or 9 and to then review such document in light of the responses from Contracting Parties (para 69).

Finally, on the placement of children, the PB was asked to start collecting information on the operation of Article 33 from Contracting Parties in addition to that set out in Doc. No 20 and that a Working Group be established to develop: (a) a model form for cooperation under Article 33; and (b) a guide on the operation of Article 33.