Droit international général

Second Issue of 2018’s Revue Critique de Droit International Privé

Conflictoflaws - il y a 2 heures 13 min

The last issue of the Revue critique de droit international privé will shortly be released. It contains several casenotes and an article, authored by Campbell McLachlan who is Professor of Law at Victoria University of Wellington (“Entre le conflit de lois, le droit international public et l’application internationale du droit public : le droit des relations externes des Etats »).

The abstract reads as follows:

The relationships between States and individuals of foreign nationality from the perspective of their constitutional rights and freedoms raise a series of issues that all States must resolve and that sit at the interface of the constitutional order of each of them and the intertional legal system through which they are connected. Today, this interface has progressively become porous, raising legal problems in increasing numbers and with increased frequency. The various responses generated thereby exercise a powerful influence over the legal imaginary, including on the ways in which a legal system represents its own relationship with the rest of the world. The thesis developed here is that such responses belong to a third discipline, in between the two traditional, public and private, branches of international law. This discipline can be called «  the law of external relations », borrowing a term from one of the Restatements of the United States but little used in Europe. In what follows, the possible conceptions of this disciplinary field will be explored, along with its relationship to private international law.

A full table of contents is available here.

Just released: New Volume of the Judges’ Newsletter on International Child Protection

Conflictoflaws - mar, 07/17/2018 - 15:53

By Frédéric Breger, Legal Officer at the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

The Permanent Bureau of the HCCH has just released Volume XXII of the Judges’ Newsletter (Summer-Fall 2018) with a Special Focus on “The Child’s Voice – 15 Years Later”.

This “Anniversary” Volume was published in co-operation with Professor Marilyn Freeman (University of Westminster, London, England) and Associate Professor Nicola Taylor (University of Otago, Dunedin, New Zealand) in the context of their British Academy research grant on the objection of the child under Article 13(2) of the 1980 Child Abduction Convention. It gathers contributions from 25 authors (academics, lawyers, judges, mediators, psychologists…) and covering approximately 15 jurisdictions on the topic of the “objection of the child” exception. The objective of this publication is to share good practices on how to hear children in the context of a child abduction case; it further outlines examples of guidelines and normative work developed across jurisdictions in relation to the voice of the child.

A French version of this Volume will be available in October 2018. All previous volumes of the Judges’ Newsletter are available here.

CIArb Accelerated Route to Fellowship: September 14-16, 2018 in Washington, D.C.

Conflictoflaws - lun, 07/16/2018 - 20:41

The Accelerated Route to Fellowship Program is a designed for senior practitioners in the field of dispute resolution procedures. Fellowship is the highest grade of Institute membership and allows the use of the designation FCIArb.The program focuses on applicable laws and procedures for the conduct of efficient arbitration hearings in complex international cases. Satisfactory assessment of performance in role play exercises will permit the candidate to take the award writing examination for qualification as a Fellow of the Chartered Institute of Arbitrators, which will be administered as part of the program.

Registration and other details are available here.

Out now: Issue 3 of RabelsZ 82 (2018)

Conflictoflaws - dim, 07/15/2018 - 18:03

The new issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabels Journal of Comparative and International Private Law” (RabelsZ) has now available. It contains the following articles:

Lord Reed, Comparative Law in the Supreme Court of the United Kingdom

Peter Mankowski, Über den Standort des Internationalen Zivilprozessrechts -Zwischen Internationalem Privatrecht und Zivilprozessrecht (International Procedural Law: Between Choice of Law and Procedural Law):

International procedural law is the link and the intermediary between choice of law and procedural law. Over the last decades it has developed into a fully grown sub-discipline of its own and of equal rank as choice of law. In fact, for practical purposes it has become even more important than choice of law. International procedural law benefits from its position in the middle and enjoys the best from its two neighbouring worlds of choice of law and procedural law.

Susanne Lilian Gössl, Anpassung im EU-Kollisionsrecht (Adaptation in EU Private International Law):

Adaptation or adjustment has to date received little general attention in EU private international law (EU PIL) despite this tool being of high importance in maintaining the coherence between the EU PIL system and national law. The Brussels Ia Regulation, the Succession Regulation and the Matrimonial/Registered Partnership Property Regimes Regulation explicitly provide for the tool of adaptation. Nevertheless, those provisions only deal with one certain category of that tool, what is termed transposition. In general, adaptation refers to the judge’s discretion to deliberately deviate from a rule in an exceptional case in which two different national laws apply in juxtaposition and the combined application could lead to a contradictory result intended by neither of the two national systems. Adaptation diminishes or eliminates those contradictions. The judge’s discretion to adapt national and EU rules implicates questions about the relationship between EU and Member State competence. The present analysis is the first to address this topic comprehensively. It develops a system to decrease contradictions between EU PIL and national law. As the EU PIL system is still only fragmentary, the analysis is twofold. First, the article analyses the necessity, requirements and means of adaptation in a case that is governed by two EU PIL rules. Second, the article analyses whether the outcome changes if the applicable law is determined by one EU PIL rule and one national PIL rule.

Alexander Hellgardt, Das Verbot der kollisionsrechtlichen Wahl nicht-staatlichen Rechts und das Unionsgrundrecht der Privatautonomie (Fundamental Right of Party Autonomy and the Prohibition Against the Choice of Non-State Law):

Choice of law is a cornerstone of European private international law. However, existing secondary law continues to restrict the choice to state law, excluding non-state law regimes like the Principles of European Contract Law, the UNIDROIT Principles of International Commercial Contracts or detailed standard-form contracts. This article tests the restriction against the principle of party autonomy, which is shown to be a European fundamental right. Party autonomy encompasses the right to choose nonstate law regimes in international cases. Any restriction on the choice of non-state law regimes, therefore, needs to be justified. Where private international law does not impose any restrictions on the choice of law, as is the case in the choice of contract law between commercial parties, there is no apparent justification for excluding the choice of non-state law regimes. Hence, European secondary law has to be interpreted in the light of the fundamental right of party autonomy. This allows commercial parties to choose non-state contract law regimes for their international transactions.

Harald Baum, Andreas M. Fleckner & Mihoko Sumida, Haftung für Pflicht-verletzungen von Börsen – Deutschland und Japan im Vergleich (Liability for Trading Irregularities at Stock Exchanges):

It appears from public records that no German stock exchange, exchange operator, or host state has ever been held liable by a court for trading irregularities at the exchange (such as clearly erroneous executions). The Tokyo Stock Exchange, in contrast, was ordered to pay damages of almost eleven billion yen (roughly 80 million euros) following the Mizuho case. This paper discusses how the issues raised by the Mizuho case would have been handled under German law and compares the results with the decisions of the courts in Japan.

Job Vacancy at the University of Mannheim (Germany)

Conflictoflaws - ven, 07/13/2018 - 08:30

The Faculty of Law at the University of Mannheim is looking for a research fellow (akademische Mitarbeiterin / akademischer Mitarbeiter) at the Chair for Private Law, International and European Business Law (Prof. Dr. Moritz Renner) on a part-time basis (50 %, E 13 TV-L) as of 1 September 2018 or later.

His/her tasks will include supporting the chairholder in research and teaching, especially in the areas of conflict of laws, company law, banking law, and foundations of law.

The research fellow will be given the opportunity to conduct his/her own Ph.D. project under the supervision of the chairholder. The successful candidate holds a first law degree (Erste juristische Prüfung or equivalent) above average (at least “vollbefriedigend”). A very good command of German and English is required, further language skills will be an asset.

The position will be paid according to the salary scale E 13 TV-L. The contract period will be limited according to the Wissenschaftszeitvertragsgesetz.

The University of Mannheim aims at increasing the number of women in academia. Therefore, applications of qualified women are particularly welcome. Candidates with disabilities will be given preference in case of equal qualification.

If you are interested, please send your application (cover letter in German, CV, all relevant documents) by 31 July 2018 to: Professor Dr. Moritz Renner, Universität Mannheim, Lehrstuhl für Bürgerliches Recht, Internationales und Europäisches Wirtschaftsrecht, Schloss, D-68131 Mannheim, LS11@jura.uni-mannheim.de

The job advert in full detail is available here.

Save the date: Conference Pathways to Civil Justice in Europe, Rotterdam, 19-20 November

Conflictoflaws - ven, 07/13/2018 - 01:31

On 19-20 November 2018, the conference ‘Challenge Accepted! Exploring Pathways to Civil Justice in Europe’ will take place at the Erasmus School of Law in Rotterdam (under the ERC project Building EU Civil Justice). It will focus on how (1) the use of artificial intelligence in dispute resolution, (2) the privatisation of justice and the multiplication of alternative dispute resolution schemes, (3) the increased possibility of self-representation, and (4) court specialisation, in particular international commercial courts, influence the civil justice system. The panel descriptions are available here.

The full program with a great line-up of speakers and information on registration will follow soon.

Special call for applications for a one-year postdoctoral fellowship

Conflictoflaws - jeu, 07/12/2018 - 13:44

A special call for applications for a one-year postdoctoral fellowship aimed at threatened researchers from developing countries (one or two bursaries can be awarded)

The details of the fellowship conditions are available on the web site at the following address:

The deadline for submitting the application is August 31, 2018 at noon.

Much-awaited US Supreme Court decision has been rendered: Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd.

Conflictoflaws - mer, 07/11/2018 - 21:03

The decision is available here and further documentation is available in the following blog: http://www.scotusblog.com/case-files/cases/animal-science-products-inc-v-hebei-welcome-pharmaceutical-co-ltd/. I would also like to refer to previous posts by fellow editors here and here. The US Supreme Court held that: “A federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but the court is not bound to accord conclusive effect to the foreign government’s statements.”

In a nutshell, the US Supreme Court said that the weight to be given to foreign government statements depends on the circumstances of the case. In particular, it notes that “[t]he appropriate weight [a federal court determining foreign law should give to the views presented by a foreign government] in each case, however, will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials. No single formula or rule will fit all cases, but relevant considerations include the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.”

One thing of note is that the US Supreme Court refers to Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, which is a very important case in the context of the Hague Evidence Convention.

Call for papers: Contractual Issues in Private International Law

Conflictoflaws - mer, 07/11/2018 - 20:52

Marmara University Law School in Istanbul/TURKEY is organizing an international conference on Contractual Issues in Private International Law on 11 October 2018. All the information regarding the application can be found at etkinlik.marmara.edu.tr/contractsinpil

Spanish version of the 2018 Draft Convention on the Recognition and Enforcement of Foreign Judgments is available

Conflictoflaws - mer, 07/11/2018 - 20:18

The Spanish version of the 2018 Draft Convention on the Recognition and Enforcement of Foreign Judgments has been made available here.

Advanced Introduction to Private International Law and Procedure

Conflictoflaws - mer, 07/11/2018 - 11:26

Peter Hay (Emory University, School of Law, USA) has recently published a new book on Private International Law and Procedure. Published in the Elgar Advanced Introduction Series the author has kindly provided the following (extended) summary:

This book deals with the problems that arise in international litigation in civil and commercial cases. Some are familiar problems – for instance, when does a court have jurisdiction over an out-of-state defendant? – except that the international context adds complexity. Other problems are unique to the settlement of international disputes, for instance, does another country’s law apply to the substance of the case and how does one get a domestic judgment recognized and enforced in a foreign country?

The presentation is problem-oriented and takes a comparative-law approach. The three parts of the book present the principal problems parties face in dealing with cases with an international dimension. The latter may be either parties in different countries dealing with each other or facts or elements of the case that involve more than the state where suit is brought (the forum state).

There are no international law solutions to these problems, despite the name of the subject of this advanced introduction. “Private International Law” is the national law of each country dealing with international cases involving private law subject matters. Answers to the litigation problems identified and discussed in the text may therefore differ somewhat or substantially depending on the national law lens through which these problems are viewed. For this reason, this volume uses a comparative approach.

There are, of course, many nuances in the national laws around the world (see the Encyclopedia of Private International Law). But two main “systems” (again with differences within each) stand out, at least in the Western world: the civil law system, derived and developed from Roman law, which is the basis of much of European, South American and some other law, and the common law that spread from England to the United States, Canada and the British Commonwealth. To narrow things down, this volume compares – in the main, but not exclusively – the law of the European Union as largely representative of civil-law solutions and the approaches followed in the United States for the common law.

It would be a vast, indeed misleading overstatement to say that the systems show evidence of converging. Nonetheless, and with problems and the need for solutions being similar, some solutions do resemble each other. As the Conclusion suggests, European law has made particular strides in evolving a modern Conflicts law, in some respects adopting some of the flexibility that characterizes American law, but doing this in a circumspect and very principled way. Work on a new Restatement in the United States and beginning work in the Hague Conference on Private International Law on a new effort to come up with a multilateral convention on jurisdiction and judgment recognition may result in significant developments in the not too distant future.

Out Now: Liber Amicorum for Christian Kohler

Conflictoflaws - mar, 07/10/2018 - 10:22

On 18 June 2018, Professor Dr. Christian Kohler, former General Director at the CJEU and honorary professor for private international law, European civil procedural law and comparative law at the University of Saarbrücken, celebrated his 75th birthday. On this occasion, numerous colleagues and friends both from the CJEU and European academia contributed to a liber amicorum in his honour: Burkhard Hess, Erik Jayme and Heinz-Peter Mansel (eds.), Europa als Rechts- und Lebensraum, Liber amicorum für Christian Kohler, Gieseking Verlag (Bielefeld) 2018; XII and 596 pp.; ISBN: 978-3-7694-1199-7. The volume contains 44 articles (mostly) on private international law in English, French and German (moreover, it features a touching French poem by Catherine Kessedjian). The full table of contents and further information are available at the publisher’s website here.

Unilever. Court of Appeal summarily dismisses CSR jurisdiction against mother company, confirming High Court’s approach. Lex causae for proximity again left undiscussed.

GAVC - jeu, 07/05/2018 - 09:09

The Court of Appeal in [2018] EWCA Civ 1532 has confirmed the High Court’s approach in [2017] EWHC 371 (QB) AAA et al v Unilever and Unilever Tea Kenya ltd, holding that there is no good arguable case (the civil law notion of fumus boni iuris comes closes, as Bobek AG notes in Feniks) against Unilever, which could then be used to anchor the case in the English jurisdiction.

Pro memoria: jurisdiction against Unilever is clear, following Article 4 Brussels I Recast. That Regulation’s anchor mechanism however is not engaged for Article 7(1) does not apply against non-EU based defendants. It is residual English private international law that governs this issue.

Appellants appeal in relation to the High Court’s ruling that neither Unilever nor UTKL (the Kenyan subsidiary) owed the appellants a duty of care. Unilever has put in a respondent’s notice to argue that the judge should have found that there was no duty of care owed by Unilever on the additional ground that, contrary to her view, there was no proximity between Unilever and the appellants in respect of the damage suffered by them, according to the guidance in Chandler v Cape Plc. Unilever and UTKL also sought to challenge that part of the judgment in which the judge held that, if viable claims in tort existed against Unilever (as anchor defendant) and UTKL, England is the appropriate place for trial of those claims. Unilever also cross-appealed in relation to a previous case management decision by the judge, by which she declined an application by Unilever that the claim against it should be stayed on case management grounds, until after a trial had taken place in Kenya of the appellants claims against UTKL.

The legal analysis by Sales LJ takes a mere five paragraphs (para 35 onwards). Most of the judgment is taken up by an (equally succinct) overview of risk management policies within the group.

At 35 Sales LJ notes ‘Having set out the relevant factual background in relation to the proximity issue (i.e. whether the appellants have any properly arguable case against Unilever in the light of Chandler v Cape Plc and related authorities), the legal analysis can proceed much more shortly. It is common ground that principles of English law govern this part of the case.

– the ‘common ground’ presumably being lex loci incorporationis.

This is an interesting part of the judgment for I find it by no means certain that English law should govern this part of the case. In one of my chapters for professor Vinuales’ en Dr Lees’ forthcoming OUP book on comparative environmental law, I expand on that point.

The long and the short of the argument is that Unilever did not intervene in the affairs of its subsidiary in a more intensive way than a third party would have done. Reference at 37 is made to the contrasting examples given by Sir Geoffrey Vos in Okpabi, ‘One can imagine … circumstances where the necessary proximity could be established, even absent the kind of specific facts that existed in Vedanta … Such a case might include the situation, for example, where a parent required its subsidiaries or franchisees to manufacture or fabricate a product in a particular way, and actively enforced that requirement, which turned out to be harmful to health. One might suggest a food product that injured many, but was created according to a prescriptive recipe provided by the parent. …’

and, at 38, to the raison d’être of mother /daughter structures,

“… it would be surprising if a parent company were to go to the trouble of establishing a network of overseas subsidiaries with their own management structures it if intended itself to assume responsibility for the operations of each of those subsidiaries. The corporate structure itself tends to militate against the requisite proximity …

– subject evidently to proof of the opposite in the facts at issue (a test seemingly not met here).


(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

Feniks: Bobek AG rejects forum contractus for Actio Pauliana and defends predictability of the Brussels regime.

GAVC - mer, 07/04/2018 - 14:02

Is the actio pauliana by a Polish company against a Spanish company, which had bought immovable property from the former’s contracting party, one relating to ‘contract’ within the meaning of Article 7(1) Brussels I Recast?

Bobek AG Opined in C-337/17 Feniks v Azteca on 21 June. His Opinion features among others a legal history class on the action pauliana, and eventually a justifiable conclusion: the action is not one in contract. In C-115/88 Reichert I the Court held that the French civil law actio pauliana does not fall within exclusive jurisdiction concerning rights in rem in immovable property (Article 24(1). Soon afterwards, the Court added in C-261/90 Reichert II that the same actio pauliana was neither a provisional measure nor an action bringing proceedings concerned with the enforcement of a judgment. It was also not a matter relating to tort, delict or quasi-delict.

That left only the potential for a forum contractus to be decided.

The AG reviews a number of arguments to come to his decision. One of those I find particularly convincing: at 62: assuming that the applicability of the head of jurisdiction for matters relating to a contract were to be contemplated, the question that immediately arises is which of the two contracts potentially involved should be taken as relevant? To which of the two contracts would an actio pauliana in fact relate? Among others (at 69-70) Sharpston AG’s Opinion in Ergo is discussed in this respect and the AG in my view is right when he dismisses the contractual relations at issue as an anchor point.

At 69 the AG also adds a knock-out point which could logically have come at the very beginning of the Opinion:

‘it should also be added and underlined that both approaches outlined above fail to satisfy the requirement of ‘obligation freely assumed by one party towards another’, [the AG refers to Handte, GAVC] that is by the Defendant towards the Applicant. Even if the case-law of this Court does not require that there is identity between the parties to the proceeding and to the respective contract, it appears difficult to consider that the mere filing of an actio pauliana creates a substantive-law relationship between the Applicant and the Defendant resulting from, for example, some kind of legal subrogation founded by an act of COLISEUM (as the Applicant’s initial debtor).’

Readers further may want to take note of para 92: the AG’s view to treat the power of recitals with caution. The AG ends at 97-98 with a robust defence of the Brussels regime, with specific reference to the common law (footnotes omitted):

‘What has to be sought is a principled answer that applies largely independently of the factual elements in an individual case. While fully acknowledging and commending the attractive flexibility of rules such as forum(non) conveniens that allow for derogation in the light of the facts of a specific case, the fact remains that the structure and the logic of the Brussels Convention and Regulations is indeed built on different premises. What is understandably needed in a diverse legal space composed of 28 legal orders are ex ante reasonably foreseeable, and thus perhaps somewhat inflexible rules at times, and less of an ex post facto explanation (mostly as to why one declared oneself competent) heavily dependent on a range of factual elements.

All in all, in the current state of EU law, actio pauliana seems to be one of the rare examples that only allows for the applicability of the general rule and an equally rare confirmation of the fact that ‘… there is no obvious foundation for the idea that there should always or even often be an alternative to the courts of the defendant’s domicile’. ‘


A solid opinion with extra reading for the summer season (on the Pauliana).


RiDoc 2018: Call for Abstracts

Conflictoflaws - mar, 07/03/2018 - 11:30

Following the successful international doctoral conference two years ago, the Faculty of Law in Rijeka is organising RiDoc 2018: Rijeka Doctoral Conference, to be held on 7 December 2018. The call for abstracts is available here and contains all the necessary details. It is important to note that the applications are welcome by 25 July 2018 and the results of the review will be known by 15 September 2018. Applications and any questions should be addressed to ridoc@pravri.hr.

The concept of ‘right of access’ under Brussels II bis encompasses grandparents

Conflictoflaws - lun, 07/02/2018 - 17:14

In the judgment C-335/17 of 31 May 2018, the CJEU confirms that the autonomous concept ‘right of access’ under Brussels II bis Regulation encompasses the rights of access of grandparents to their grandchildren.


Ms Valcheva is the grandmother of a child born from the marriage between Ms Valcheva’s daughter and the father of the child. That marriage was dissolved. Ms Valcheva lives in Bulgaria. The child lives in Greece with his father, holding full custody of the child. Ms Valcheva found that she could not maintain quality contact with her grandson. She seised a court in Bulgaria with a request to establish arrangements so that she could see her grandson more frequently.

The Bulgarian court of first instance held that Bulgarian courts had no jurisdiction. According to the court, the scope of Brussels II bis covers a wide family circle including the child’s grandparents and, therefore, applied to Ms Valcheva’s claim. Based on Article 8 Brussels II bis it is, in principle, the courts of the child’s habitual residence at the time the court was seised that has jurisdiction (in this case, Greek courts). The decision was upheld on appeal. Ms Valcheva has subsequently seised the Supreme Court of Cassation, Bulgaria, which referred the following question to the CJEU.

Question referred for preliminary ruling

Is the concept of “rights of access” used in Article 1(2)(a) and Article 2.10 of Regulation No 2201/2003 to be interpreted as encompassing not only access between the parents and the child but also the child’s access to relatives other than the parents, that is to say the grandparents?

Consideration by the CJEU

The CJEU answers the question in the positive. The Court notes that that the concept ‘right of access’ must ‘be interpreted autonomously taking account of the wording, scheme and objectives of Regulation No 2201/2003, in the light, in particular, of the travaux préparatoires for that regulation, as well as of other acts of EU and international law’ (at [19]). The CJEU elaborates on these references in three main considerations.

First, the wording of the Regulation imposes no limitation in regard to the person who may benefit from the right of access (at [21]).

Second, the Regulation aims to create ‘a judicial area based on the principle of mutual recognition of judicial decisions through the establishment of rules governing jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility.’ (at [28]). Not only does the objective cover all decisions on parental responsibility (at [29]), according to recital 5, but the ‘decisions on visiting rights are also identified as a priority’, according to recital 2. The CJEU bases the interpretation of the recitals on the Commission working document on mutual recognition of decisions on parental responsibility COM(2001) 166 final of 27 March 2001. There, the EU legislature would have made an explicit choice not to impose restrictions on the persons who may exercise parental responsibility. (at [31]).

Third, the CJEU notes the risk of irreconcilable decisions from various Member States, pointed out by the Advocate General. If the right of access of grandparents would fall outside the scope of Brussel II bis, the ‘questions relating to those rights could be determined not only by the court designated in accordance with Regulation No 2201/2003 but also by other courts which might consider themselves to have jurisdiction on the basis of private international law.’ (at [35]). ‘As observed by the Advocate General in point 56 of his Opinion, the granting of rights of access to a person other than the parents could interfere with the rights and duties of those parents, namely, in the present case, the father’s rights of custody and the mother’s rights of access. Consequently, it is important, in order to avoid the adoption of conflicting measures and in the best interests of the child, that the same court — that is to say, as a rule, the court of the child’s habitual residence — should rule on rights of access’ (at [57]).

The “Coman” Case (C-673/16): Some Reflections from the Point of View of Private International Law

Conflictoflaws - lun, 07/02/2018 - 02:00

Written by Dr. iur. Baiba Rudevska (Latvia)

On 5 June 2018, the ECJ rendered a judgment in the Coman case (C-673/16). For the first time the ECJ had the opportunity to rule, on the concept of ‘spouse’ within the meaning of the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Directive 2004/38) in the context of a same-sex marriage. Even if the Directive only covers questions related to the entry and residence in the European Union (EU), this judgment could be of interest for Private International lawyers as well.

Main Facts:

Mr Coman (a Romanian and American citizen), and Mr Hamilton (an American citizen) met in the United States and lived there together. Mr Coman later took up residence in Belgium while Mr Hamilton continued to live in the US. In 2010 they got married in Belgium. In 2012 they contacted the competent Romanian authority to request information on the conditions under which Mr Hamilton, a non-EU citizen, could obtain the right to reside in Romania for more than three months. The Romanian authority replied that Mr Hamilton had only a right of residence for three months because, according to the Romanian Civil Code, marriage between two persons of same sex was not recognised. The case went up to the Constitutional Court, which decided to make the request for a preliminary ruling. One of the questions referred to the ECJ was as follows:

Does the term “spouse” in Article 2(2)(a) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, include the same-sex spouse, from a State which is not a Member State of the European Union, of a citizen of the European Union to whom that citizen is lawfully married in accordance with the law of a Member State other than the host Member State?

Only this question is of interest for private international law (hereinafter referred to as “PIL”). Let us take a look at the decision and at the reasoning of the ECJ.

Decision of the ECJ:

The ECJ decided that:

  1. In a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38 in a Member State other than that of which he is a national, and, whilst there, has created and strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex.
  2. Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those of the main proceedings, a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. That derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38.

As we can see from the operative part, the ECJ does not impose the recognition of same-sex marriages in all the Member States.

Main Reasoning of the ECJ:

The first important thing to be noted is that the ECJ only uses the term “recognition of marriage” (paras. 36, 40, 42, 45, 46 of the judgment) whereas the Advocate General only referred to the term “autonomous interpretation” (paras. 33-58 of the opinion). And vice versa– the ECJ does not directly mention the term “autonomous interpretation” and the Advocate General does not analyse the “recognition of marriage”. This raises an interesting question: what exactly was the method used by the ECJ in this case? Autonomous interpretation and recognition are two different methods; the former is widely used both in EU law (in general) and in international human rights law, whereas the latter is typical of PIL. Only in the second case (if we recognise that the ECJ has applied the recognition method) will this judgment be important and have a considerable impact in the field of PIL.

Here is my opinion on how this judgment should be construed:

1. The ECJ starts its reasoning by de facto using the method of autonomous interpretation:

(a) The term ‘spouse’ refers to a person joined to another person by the bonds of marriage (para. 34 of the judgment).

(b) The term ‘spouse’ within the meaning of Directive 2004/38 is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned (para. 35 of the judgment).

(c) Article 2(2)(a) of that directive, applicable by analogy in the present case, does not contain any reference with regard to the concept of ‘spouse’ within the meaning of the Directive. It follows that a Member State cannot rely on its national law as a justification for refusing to recognise in its territory, for the sole purpose of granting a derived right of residence to a third-country national, a marriage concluded by that national with a Union citizen of the same sex in another Member State in accordance with the law of that state (para. 36 of the judgment).

However, after that, the ECJ switches to the term ‘recognition of marriage’ (paras. 35 et seq.). Does the ECJ switch to recognition or is it still using autonomous interpretation with different words?

2. It seems that the ECJ continues to applyautonomous interpretation of the term ‘spouse’, as the Advocate General did in his observations. In fact, the use of the words ‘recognition of marriage’ must be understood within the context of Romanian domestic law (Civil Code) according to which marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or by foreigners are not recognised in Romania (paras. 8, 36 of the judgment). From the point of view of PIL, it is important to point out that this Romanian legal provision already contains the Romanian public policy clause; in other words, the public policy exception is already integrated in this legal norm.

Why Autonomous Interpretation?

Both the Advocate General and the ECJ stressed that Article 2(2)(b) of the Directive 2004/38 refers to the conditions laid down in the relevant legislation of the Member State to which that citizen intends to move or in which he intends to reside, but Article 2(2)(a) of that Directive, applicable by analogy in the present case, does not contain any such reference with regard to the concept of ‘spouse’ within the meaning of the Directive. Consequently, the Member State cannot rely on its national law as a justification for refusing to recognise in its territory, for the sole purpose of granting a derived right of residence to a third-country national, a marriage concluded by that national with a Union citizen of the same sex in another Member State in accordance with the law of that state (para. 36 of the judgment; paras. 33, 34 of the opinion).

The Advocate General points out that the terms of a provision of EU law without express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the EU (para. 34 of the opinion). The method of autonomous interpretation (qualification lege communae) is the only alternative to a reference to domestic law (qualification lege forior lege causae). There are no other alternatives, even if in practice the ECJ does not clearly emphasise the application of this method [Audit M. L’interpretation autonome du droit international privé communautaire // Journal du droit international, 2004, n° 3, p. 799].

The use of the Advocate General’s opinion in the reasoning of the ECJ leads to the conclusion that the ECJ has applied the method of autonomous interpretation (rather than recognition) of a precise term to construe, namely ‘spouse’ (Article 2(2)(a) of the Directive).

Why Not Recognition?

The method of recognition is one of the methods used within the framework of PIL. However, as Professor Lagarde has shown, this method can be applied in primary EU law and not in secondary law (like directives or regulations) [Lagarde P. La reconnaisance. Methode d’emploi. In: Vers de nouveaux équilibres entre ordres juridiques. Mélanges en l’honneur de H.Gaudemet-Tallon. Paris: Dalloz, 2008, p. 483].

Therefore, in cases like Grunkin Paul(C-353/06) and Bogendorff von Wolffersdorff(C-438/14) we see the application of this method to names, according to provisions of TFEU (see operative parts of both judgments). The application of recognition also implies some changes in the civil registers of the Member States. On the other hand, what had been requested in the Comancase was the interpretation of Article 2(2)(a) of the Directive and not a ruling on the recognition of same-sex marriages within the EU. The sole context of the word ‘recognition’ can be found in the relevant provision of Romanian law, excluding the recognition of foreign same-sex marriages. One can only guess, but it seems that the confusion of two methods – “autonomous interpretation” and “recognition” – has been ultimately inspired by the wording of the Romanian legal provision.


The interpretation and application of the judgment in the Coman case is  narrower than it seems at the first glance. In reality, the ECJ has applied the method of autonomous interpretation of the term ‘spouse’ used in Article 2(2)(a) of the Directive 2004/38. According to the ECJ, this term is gender-neutral and must be understood as encompassing same-sex spouses – but only in the context of the Directive.

Therefore, this judgment does not impose the recognition of foreign same-sex marriages within the EU. It only means that Romania must grant entry and residence permits to same-sex spouses too. In such situations Romania must apply the autonomous interpretation of the term ‘spouse’ instead of a domestic legal norm prohibiting the recognition of foreign same-sex marriages in Romania. In other words, Article 21(1) TFEU must be seen as precluding a Member State from applying its domestic law on this particular point, and the domestic public policy exception cannot be applied either. However, this interpretation relates only to the Directive. The qualification lege communae of the term ‘spouse’ shall prevail over its qualification lege fori. No more and no less.

An additional remark: see the new Regulation (EU) 2016/1191 of the European Parliament and of the Council on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 [OJ L 200, 26.7.2016, pp. 1-136]. Article 2(4) of this Regulation states that it does not apply to the recognition, in a Member State, of legal effects relating to the content of public documents (including public documents establishing the fact of marriage, capacity to marry, and marital status; Article 2(1)(e)), issued by the authorities of another Member State.

International Business Courts – seminar and NCC update

Conflictoflaws - lun, 07/02/2018 - 00:45

As announced earlier the seminar Innovating International Business Courts, organized by Erasmus School of Law (ERC project Building EU Civil Justice), the Max Planck Institute Luxembourg, and the Montaigne Center of Utrecht University) will take place in Rotterdam on 10 July 2018. We have a great line-up of speakers and over 100 participants, including practitioners, academics, business representatives and policy makers from from all over Europe and beyond. During the drinks young researchers will do a poster presentation.

While the expectation was that the Netherlands Commercial Court (NCC) would open its doors on 1 July 2018 (see also the previous post), discussions in the Senate have caused delay. The discussions evolve around a number of issues, but most importantly the relatively high flat fee (compared to the fees of ordinary proceedings and for smaller companies/claims). Prof. Eddy Bauw, one of the founding fathers of the NCC, will update us on the 10th of July.

For more information and registratation click here; registration closes on 9 July at 9 a.m.

Job Vacancy at the University of Trier (Germany)

Conflictoflaws - sam, 06/30/2018 - 10:11

The Faculty of Law at the University of Trier is looking for a research fellow (Wissenschaftliche(r) Mitarbeiter(in)) at the Chair for Private Law, Private International Law and Comparative Law (Prof. Dr. Jens Kleinschmidt, LL.M. (Berkeley)) on a part-time basis (50 %) as soon as possible.

The position will be paid according to the salary scale E 13 TV-L, and the contract will be for an initial period of two years.

The research fellow will be given the opportunity to conduct his/her own Ph.D. project under the chairholder’s supervision (according to the applicable regulations of the Law Faculty). His/her tasks will include supporting the chairholder in research, teaching and administrative matters, an independent teaching obligation of 2 hours/week (in German) and pursuing his/her own Ph.D. project.

The successful candidate holds a first law degree (Erste juristische Prüfung) above average and has a particular interest in private law and the willingness to work in the research areas of the chair. A very good command of German and, in addition, English or French is required. Knowledge of another language or a stay abroad will be an asset.

Candidates with disabilities will be given preference in case of equal qualification. Applications by qualified women are particularly welcome.

If you are interested, please send your application (cover letter in German, CV, all relevant documents including transcripts and copy of law degree) by 31 July 2018 to: Professor Dr. Jens Kleinschmidt, Universität Trier, FB V – Rechtswissenschaft, 54286 Trier, Germany.

The job advert in full detail is available here.


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