Droit international général

Jean-Sylvestre Bergé who is a law professor at Université Côte d’Azur (CNRS GREDEG) and a former member of the Institut Universitaire de France has recently published a new open access essay titled Rethinking Flow Beyond Control – An Outreach Legal Essay (ed. DICE, coll. Confluence des droits collection, 2021, 154 p., already announced here).

This work is the continuum of his previous legal essay titled “Situations in Motion and The Law – A Pragmatic Epistemology” (Les situations en mouvement et le droit – Essai d’une épistémologie pragmatique, Dalloz, 2021, announced here) which examines a number of legal constructs in national, international or European contexts and the way they respond each time they are faced with “situations in motion”. As explained by the author, “it was an attempt at deconstruction and reconstruction with the aim of offering a series of tools that could improve our understanding of both ordinary and complex circulation phenomena”.

Since the very inspiring work of Jean-Sylvestre Bergé is about circulation across territories, following a global approach, I have interviewed Jean-Sylvestre to know more about his new essay from a private international law perspective.

 — Can you share with us the central idea of your work? 

First of all, I would like to make it clear that this book is written for a wide audience, not just lawyers, and writing it in English allows me to capture all the exchanges I had during its preparation and now to share them as widely as possible.

The book is divided in two parts.

The first part is an epistemological analysis of circulation and law through the lens of circulation. The approach is therefore different from the one traditionally chosen, particularly by private international law scholars, who study the “law of circulation” (e.g. legal aspects of movement of goods or persons). I reverse the perspective: how does the phenomenon of circulation question the constructions of law and in particular those of private international law?

For example, when we study the cross-border circulation of judgments or civil status documents, there is a disciplinary pre-understanding. The analysis is made under the rules and methods of the subject. The book proposes to “decompartmentalize” knowledge and analysis, by taking various examples in several disciplinary fields.

The second part of the book aims at characterising circulation and pushing it to a point of paroxysm: this is the figure of “rupture” that I call the “total loss of control in circulation”. I think about flows produced by all of us in the everyday life and the loss of control of the stakeholders, such as a family, a company or even the whole world. This figure of loss of control is interesting because it is a “clash of the titans” with the law. Law is dominated by the control of situations and, for my part, I work on the loss of control of flows. This is not an unknown object of study, but lawyers find it difficult to accept! Think of the nuclear risk and its legal treatment. Control is certainly not total…

 — If we take the example of cross-border circulation of civil status documents, when do we reach a situation of “loss of control”? Can private international law regulate the situation “beyond control”?

Let’s take the specific case of children born of surrogate motherhood abroad (where it is legal), and then the request for transcription of the child’s birth certificate in the country where the parents live and which prohibits this method of procreation, such as France. In this context, the core issue could be the circulation of the child. There are mechanisms that allow for the circulation of the child; consequently, this infers all subsequent constructions, including those of private international law, which deal with and regulate the circulation of civil status records of these children born of surrogate motherhood.

In France, this circulation was liberated by the “Taubira” circular concerning travel documents allowing the child to leave his/her State of birth for France, even though surrogate motherhood is prohibited in France. If we want to fight surrogate motherhood (from the point of view of its opponents), we must attack the circulation, block it, prohibit it… Can we ban these children from circulation and how can we do it? There is a “reading template” to respect, starting with the respect of the fundamental rights of the child with regard to circulation or non-circulation.

This is another way of considering this topic, renewing the usual debate on the prohibition (or not) of this mode of procreation and the cross-border “recognition” of the parent-child relationship; it is the prism of circulation beyond control, following an epistemological approach of private international law.

 — What is the main contribution of your work to private international law theory and practice?

The book invites us to revisit the legal acquis (including private international law acquis) by using the language of an epistemology of circulation and of a total loss of control, such as internationality, extraneity, mobility or relocation (see the index of the book). There are well-known concepts in private international law that could allow the issue of circulation to be brought back to the center of the proposed analysis. For example, in France, the “Matter doctrine” according to which a contract is international if it involves the interests of international trade through the ebb and flow of financial values across borders.  In my opinion, this doctrine is not sufficient to consider that the issue of the international dimension of a situation is settled. It has not provided for a conceptual framework for circulation phenomena under private international law. It can usefully be rethought through the concept of flow in the context of situations in motion.

To this end, I propose new notions, such as a distinction between cases in which the law tackles situations in motion from a “consequential perspective” (i.e. looking at its causes and effects) or “in and of itself” (i.e. from end to end). This distinction is very interesting because it allows to study mechanisms of private international law to see whether they deal with mobility from beginning to end or, on the contrary, whether they only deal with its causes or effects. It is often the latter answer that prevails because it is the easiest way for the law in general. Let us think of the expulsion of an individual from a territory: it is a question of apprehending an incoming flow. There is a legal apparatus that deals with the issue only by its causes or effects in this case.

In contrast, the law can grasp the movement in its entirety, from start to finish: this is the case in extradition conventions, in the mechanism of the European arrest warrant, or in private international law of the legal regime for the return of illegally displaced children, in the Hague Convention on international child abduction. This text puts in place a very sophisticated mechanism based on a very high level of cooperation between public authorities, which makes it possible to apprehend the circulation and return of the child with immediate effect.

In this contrasting context, the question is which path the law chooses to take in its legal treatment of circulation? This is a legal policy choice with varying levels of construction. End-to-end mechanisms are fragile, often held in check and more complex to set up and implement because they require an understanding across territories of the complete mechanisms. The treatment of the subject by its causes or effects is easier, the law knows how to “receive” or “send” a situation in motion. It is a much more unilateral rationale and, whatever one may say, unilateralism is a key-component of private international law…

 — The book also develops a “modal analysis of circulations”, distinguishing between the forms of circulations that lead to different legal regimes.

Yes, this approach is well-known in transport law: depending on the type of transport by air, sea or road, there are adapted legal regimes. We can use this rationale to analyse some mechanisms of private international law.

For example, circulation in law is consubstantial with its subject. In private international law, is the person consubstantial with its object? People should be allowed to circulate without losing their status. This question has already been examined but the analysis can be renewed. We know that we cannot let everyone circulate freely. So as soon as we deal with movement, it is because we have the right to control it; if we deal with controlling movement, it is because movement is not free. In law, we do not talk about movement when it is free; if the law talks about it, it is because it controls it. Hence my counterpoint: loss of control!

 — The book proposes another concept, which could be very useful for international lawyers, that of the “normative space of flows”. Can you tell us more about it?

I start from the idea that it is the flow that designates the perimeter of actors in a field with cross-border implications, and brings them into contact (e.g. a buyer and a seller in an international contract). This flow is composed of a set of factual and legal data. Sometimes, this can give rise to collateral damage that is difficult to grasp and that draws new, global perspectives. In this context, my theoretical proposal is to say that the flow creates its own space and that this space is capable of producing its own law.

For example, a transatlantic air flight is a normative space of flow; it should be possible to study it as the ephemeral constitution of a legal order that federates around its object the movement of the plane from Paris to Toronto, a set of rules of private law, public law, soft law, hard law, requirements on corporate social responsibility, etc… All these rules have the flow as their object. If I put the flow back at the center of the legal order, I redraw the relationships between the legal norms at the start of the flow.

There are a large number of possible examples.

To return to the example of surrogate motherhood in an international context, the circulation of the child is a normative space of flows that disrupts the classic legal framework for understanding this phenomenon.

 — In this normative space of flows, where does control lie? Is the circulation always “beyond control”?

It depends! Circulation can be under control or beyond control for the law in a normative space of flows. In the hypothesis of a plane accident, its legal treatment can be analysed through the normative space of flows but the law will have difficulty in regaining control of the situation, given the complexity of the cross-border legal treatment of the situation (i.e. compensation for material and physical damage, search for the responsibilities of the parties involved, etc.).

The problem is that there is no “meta rule” of private international law to seize one single court with a unique applicable law at the global level. In the example of an air crash, there is inevitably a scattering of the procedure with victims who are culturally different, the evidence is spread over several territories, the area of the accident may even be a-national (on the high seas), etc.

Finally, we may wonder if the law – including private international law – is capable of dealing with the phenomenon of circulation. The answer is difficult. When it circulates, the answer is positive, but when the circulation is difficult or when there is no circulation at all, we wonder. This brings us to the limits of the legal treatment of situations in motion. Why is this so? Because the flow cannot produce its own normative space.

 — What about EU private international law? In what way does the unification of PIL rules in the European area contribute to the discourse on situations in motion and its legal treatment?

The European system of private international law is a normative space of flows. This may seem obvious, but it is no small thing to say! It is a legal system that modifies the reference system of private international law. This is huge! It was originally the (national) forum and sometimes we looked a little at the lex causae, but that remained rare. And now we have a supranational construction that anchors a space that is not a territory as a point of reference. This changes everything: it is a normative space of flows like a national forum.

In this context, the book proposes that lawyers and lawmakers take the flow as the object of normative construction. This could perhaps make it possible to overcome certain failures of the law to embrace situations in motion. But there is strong resistance because each legal order wants to keep its perimeter, its control and deal with the situation alone, even if it goes beyond its borders…

 

In conclusion, I would like to thank Jean-Sylvestre for this fascinating analysis of situations in motion, based on the concept of flow, and this invitation for lawyers, including experts in private international law, to rethink the “applicable law” (i.e. from its conception to its implementation).

The CJEU held (first Chamber, which includes the  CJEU President Koen Lenaerts) in C‑499/18 P Bayer Crop Science v European Commission a few months back. Here at GAVCLaw the judgment was firmly on our minds – but my analysis not yet put to paper.

The case centres around the legality of the conditions imposed by the EU for the approval of the active substances clothianidin, thiamethoxam and imidacloprid (these are neonicotinoids), and prohibiting the use and sale of seeds treated with plant protection products containing those active substances. The act challenged by Bayer is Commission Implementing Regulation 485/2013 and the justification for the measures are the documented losses of honeybee colonies as a result of the use of the substances.

The application follows a tried and tested path of applicants in the chemical and related sectors. Firstly and preferably, find some holes in the (often extensive) documentary trail of preparatory and advisory paperwork relied upon by the Institutions in their measure, and claim these devastate the legality of the eventual measure. A typical example would be ‘the studies relied upon reported testing of the substances on small ponies while the eventual regulation cites concerns for both small and medium-sized ponies’. Secondly, try and tempt the CJEU into finding fault with the application of core principles of EU law (such as subsidiarity, proportionality, ultra vires, attributed powers etc) and /or EU sectoral policy (such as in particular the precautionary principle), or confuse the Court with at best esoteric but usually sophistic discussions on eg ‘new and scientific knowledge’.

The General Court had found against Bayer. Much of the appeal before the CJEU discusses the first type of arguments and, like the General Court, dismisses them.

On the suggested infringement of the precautionary principle, the Court first of all rejects that precaution cannot be relied upon until an ‘exhaustive’ scientific assessment is made: [81]: ‘an exhaustive risk assessment cannot be required in a situation where the precautionary principle is applied, which equates to a situation in which there is scientific uncertainty.’ The point is NOT that precaution does not engage with science. It does. That is also where its weakness may lie: it desperately speaks the language of data, science and numbers yet as the saying goes, “Data is like a spy – if you torture it long enough, it will tell you anything you want to know.” The point is rather (see eg [78]) that for one to have to wait for every single new potential sub-study into a sub-issue, would hand industry the golden ticket for delay tactics; [82] that studies are underway which may call into question the available scientific and technical data, is not an obstacle to application of the precautionary principle.

Bayer put essentially the same argument to the CJEU with slightly differing angles (eg suggesting that for already approved active substances, precaution must be applied to a higher threshold than for new to be approved substances) and the Court rejected them at each turn.

A good judgment.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

 

 

 

 

 

In a judgment of 23 November 2021, the Paris Court of Appeal ruled that the French provisions implementing the 1986 Agency Directive are not overriding mandatory provisions, and thus do not define French public policy.

It is hard to reconcile this judgment with the Ingmar case of the European Court of Justice.

Background

Swiss company Guess Europe entered into an agency contract with a French company to market its products in France. The agency contract provided for the application of Swiss law and, it seems, arbitration in Switzerland.

After the French agent did not meet its target, Guess terminated the contract without paying any indemnity for termination. It then initiated arbitration proceedings seeking, inter alia, that it did not owe anything under the agency contract. Guess partly prevailed: the arbitrator ordered Guess to pay certain commissions, but ruled that it did not owe anything else.

In parallel, the French agent initiated proceedings before French courts against the French subsidiary of Guess seeking payment of commissions and production of certain documents for the purpose of determining the amount of its indemnity after termination. The action was dismissed on an unknown ground. The parties debated whether Guess France could be characterised as principal before both fora, so it is possible that the agent lost on the ground that Guess France was not concerned with these claims.

Guess Europe obtained a declaration of enforceability of the arbitral award in France. The French agent appealed and argued that the award was contrary to French public policy.

Ingmar

The main argument of the French agent was obviously that the European Court of Justice held in Ingmar v. Eaton (C-381/98) that

Articles 17 and 18 of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents, which guarantee certain rights to commercial agents after termination of agency contracts, must be applied where the commercial agent carried on his activity in a Member State although the principal is established in a non-member country and a clause of the contract stipulates that the contract is to be governed by the law of that country.

This strongly suggested that these provisions of the Agency Directive should be considered as overriding mandatory provisions by the Member States.

If so, it would also seem that these provisions should define the public policy of the Member States.

The Judgment of the Paris Court of Appeal

The Paris Court of Appeal, however, ruled that the French provisions implementing the Agency Directive (articles L. 134-1 et seq. of the French Commercial Code) do not define French international public policy. It held:

an internal mandatory rule, even if it is the result of the transposition of a European directive, the imperative nature of which has been recalled by the Court of Justice of the European Union, is only likely to come under the French concept of international public policy if, after having verified its applicability to the dispute, its disregard violates this concept, that is to say the set of rules and values whose disregard cannot be tolerated by the French legal order, even in international matters (§29).

The Court found, however, that the dispute fell within the scope of the Directive. But it then ruled that the purpose of the Directive is not to define the most essential values and principles which should trigger the public policy exception.

The Court ruled that the provisions of European Union law

even if they are described as mandatory, do not all pursue objectives aimed at guaranteeing essential principles or values whose disregard by the Member States cannot be tolerated in an international context (§ 39)

and that this was not the purpose of the aforementioned directive and its transposition, the objective of which

is essentially to harmonize and approximate the laws of the Member States with regard to the defence of the private interests of commercial agents without the protection of vital interests of those same Member States being at stake, or even if it is clear from such provisions that they are necessary for the implementation of a compelling policy of defending freedom of establishment or undistorted competition (§40).

Precedent

The Court of Appeal relied on two judgments of the Cour de cassation in support of its position. One is pretty unclear, but the other one had indeed ruled that the French implementing provision was a domestic mandatory rule and thus not an overriding mandatory provision.

The debate in this case, however, was not whether French law should be applied to displace the application of the law of a third State, but whether it should be applied to displace the application of German law.

Assessment

The Paris Court of Appeal certainly has a point. The reasons given by the ECJ to justify its decision show that its goal was not to assess whether the Directive serves the crucial interests of the Member States. Rather, the Court wanted to advance its own agenda of creating a single market, and used strategically private international law to that end.

This being said, there is a precedent, and it is binding on the Member States.

In December 2021, the European Commission launched a public consultation on the cross-border protection of vulnerable adults. Feedback obtained will be used to assess the need for a legislative initiative in the area, as well as to inform possible EU measures.

As a result of the combined effects of an ageing population and the mobility of citizens, more and more vulnerable adults find themselves in cross-border situations. The existence of different rules between EU Member States, as well as judicial, administrative and language barriers may affect the continuity and effectiveness of their legal protection.

All interested parties (citizens, judges, court staff, legal practitioners, academic, officials, medical staff, social workers, etc.) are invited to submit responses by 29 March 2022 (midnight Brussels time). The short questionnaire is available in all EU languages at the following link: Civil judicial cooperation – EU-wide protection for vulnerable adults (europa.eu).

A call for evidence to share relevant experience in the area of cross-border protection of vulnerable adults is also open, with the same deadline of 29 March 2022 (midnight Brussels time). The call for evidence is available here: Civil judicial cooperation – EU-wide protection for vulnerable adults (europa.eu).

Are you looking for an academic stay in Germany’s sunniest and most eco-friendly city? At the Institute for Comparative and Private International Law of the University of Freiburg (Germany), a vacancy has to be filled at the chair for civil law, private international law and comparative law (Prof. Dr. Jan von Hein), from April 1st, 2022 with

 

a legal research assistant (salary scale E 13 TV-L, personnel quota 25%).

 

The assistant is supposed to support the organizational and educational work of the chairholder, to participate in research projects of the chair as well as to teach their own courses (students’ exercise). Applicants are offered the opportunity to obtain a doctorate.

 

The applicant is expected to be interested in the chair’s main areas of research. They should possess an above-average German First State Examination (vollbefriedigend) or an equivalent foreign degree. A thorough knowledge of civil law and the German language is a necessity. Severely handicapped persons will be preferred if their qualification is equal.

 

Please send your application (Curriculum Vitae, certificates and, if available, further proofs of talent) to Prof. Dr. Jan von Hein, Albert-Ludwigs-Universität Freiburg, Institut für Ausländisches und Internationales Privatrecht, Abteilung III, Niemensstraße 10 (Peterhof), D?79098 Freiburg (Germany), no later than February 18th, 2022.

 

As the application documents will not be returned, we kindly request you to submit only unauthenticated copies. Alternatively, the documents may be sent as a pdf file via e-mail to ipr3@jura.uni-freiburg.de.

Giovanni Zarra (Federico II University of Naples) has recently published a book titled ‘Imperativeness in Private International Law. A View from Europe’ (Asser – Springer, 2022).

The book is devoted to a study of the ways and forms through which imperativeness, to be intended as the sum of the various peremptory norms expressing the identity of a legal system, works today in private international law and argues that imperative norms today not only function as a bar to the application of foreign laws and free movement of decisions, but may also positively promote interests and values at the basis of any legal system. Moreover, the book carries out an in-depth analysis of how the concept of imperativeness is influenced by international and EU law, arguing that – in particular in the field of human rights – a minimum content of imperativeness, shared by EU countries, is emerging. In addition, the research, combining theoretical and practical approaches and methodologies, addresses, among others, the question concerning the extent to which the evolution of the concepts of overriding mandatory provisions and public policy has affected the traditional doctrinal views conceptualizing private international law as a neutral subject; in this regard, through the analysis of the category of imperativeness, the book demonstrates that this subject has, in realty, significant (and today not negligible) implications over individual rights. For this reason, the author highlights the crucial role of adjudicators and the importance of the employment of interpretative techniques, such as balancing of principles and rights, in the application of imperative norms.

More in detail, Chapter 1 proposes an historical analysis relating to the development of private international law during time and it focuses on how imperativeness has evolved during the various phases of the evolution of the subject, with particular attention on how and why the distinction between public policy and overriding mandatory rules emerged.

Chapter 2 addresses the various theories relating to the foundation of the distinction between public policy and lois d’application immédiate, exploring in particular the actual margin of discretion courts have in the identification of an overriding mandatory rule, and arrives at arguing that the category of overriding mandatory rules shall today be strictly interpreted in order to comply with the openness characterizing modern systems of private international law. Lois d’application immediate may, therefore, exist only in the cases where there is a clear legislative intention to overcome the functioning of the conflict of laws mechanism.

Chapter 3 tests the findings of the previous investigation in light of the regulations issued by the European Union. The analysis shows, also in light of the practice of EU organs, a tension between the necessity to reduce the recourse to imperativeness in intra-EU relationships and the States’ persisting need to ensure the protection of the principles and rules expressing the identity of their legal systems.

Chapter 4 focuses on the interaction between imperativeness in private international law and substantive obligations arising from international and EU law to assess the existence of “truly international” and EU imperative norms. This Chapter also discusses the (rare) cases of conflicts between imperative norms deriving from supranational law and domestic fundamental principles and offers significant food for thought on how to manage these conflicts.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 10 February 2022 at 5:00 pm (Mexico City time – CDT), 8:00 pm (Montevideo time). The purpose of this webinar is to present the book entitled Text and Context of the Private International Law Act No 19.920, which will be presented by Dra. Cecilia Fresnedo de Aguirre and Dr. Gonzalo Lorenzo (in Spanish).

Uruguay’s Private International Law Act No 19.920 may be consulted by clicking here. We have previously reported on this new legislation here.

The details of the webinar are:

Link: https://us02web.zoom.us/j/82518817186?pwd=bGw0UjZ4RTBFS3dSaWZ6WXJxZjVLZz09

Meeting ID: 825 1881 7186

Password: AMEDIPBMA

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

The CJEU has been very generous with airline passengers when it comes to applying the rules on jurisdiction in the Brussels I bis Regulation, especially with regard to indemnity for cancelled or delayed flights.

In Rehder v Air Baltic, it had famously ruled that the passenger can actually choose between the place of departure and the place of arrival when bringing a claim against the airline. Later decisions have extended this choice to cases of combined flights, with the CJEU ruling that the passenger can bring the claim against the airline at the place of departure of the first leg or the place of arrival of the last leg, provided that both legs of the flight have been booked together (see for instance Flightright v Iberia, Air Nostrum and my previous post on EAPIL).

The claim in JW et al. v LOT also concerned a combined flight. However, the passenger had brought the claim neither at the place of departure (in Warsaw) nor at the final destination (on the Maldives) but rather at the place of an infamous stopover (Frankfurt am Main). This choice seems surprising given that both the passenger as well as the operating airline were domiciled in Warsaw. The idea might have been that the delay at the root of the action occurred at this place, but it would still have been more practical to sue in Warsaw.

As it turned out, it was also legally unwise to sue at the stopover, since the CJEU actually rejects the jurisdiction of the courts there. The Court rules that the place of performance of service contracts in the sense of Article 7(1)(b) of the Brussels I bis Regulation is where the “the main provision of services is to be carried out”. In its previous case law, the CJEU had considered only the place of departure and the final destination as such points. While the Court acknowledges that this list is a “non-exhaustive illustration” (see para 23), it balks at including the stopover in it.

Exactly why is difficult to tell. Objectively, it can hardly be denied that many of the essential flight services are performed at the stopover. Among them are the boarding of the passengers, their reception by the crew and their disembarkation as well as the transport of luggage. Nevertheless, the Court had already mentioned in Rehder that “places where the aircraft may stop over also do not have a sufficient link to the essential nature of the services resulting from that contract” (Rehder para 40).

This obiter dictum has now been turned into a binding ruling in JW et al. v LOT.

Apparently, the Court wants to restrict the possible places where suits against airlines can be brought. It also invokes, to this effect, the objectives of proximity and of the sound administration of justice and the need for predictability of the competent tribunal (JW et al. v LOT, paras 25 and 26). However, a suit at the place of the stopover is not completely unforeseeable for the airline, especially where the delay occurred there, such as in the present case. Nor would it run against the objectives of proximity and the sound administration of justice if the court there were to hear the dispute.

It remains to be seen whether this case law will also be applied to flights with the place of departure and final destination in third countries and a mere stopover in the EU. It needs to be borne in mind that these flights also fall under the purview of the Passenger Regulation as long as they are operated by an EU airline (see Article 3(1) of the Flight Compensation Regulation). In such cases, the Court may find it convenient to offer the passenger a jurisdiction at the place of the stopover and not only at the airline’s headquarters or place of statutory seat, which could be in a different Member State.

— Thanks to Verena Wodniansky-Wildenfeld for her help in preparing this post.

The UK Ministry of Justice opened this week (2 February 2022) a consultation on whether the UK should sign and ratify the Singapore Convention on Mediation 2018. The consultation closes at 23:59 on 1 April 2022. A Consultation document (with questions to the public) is available at https://www.gov.uk/government/consultations/the-singapore-convention-on-mediation

The Court of Justice delivered two days ago (3 February 2022) its judgment in Case C‑20/21 (JW, HD, XS v LOT Polish Airlines), which is about Article 7(1)(b) Brussels I bis :

« The second indent of Article 7(1)(b) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs on which transport is performed by separate air carriers, where a claim for compensation, brought on the basis of Regulation (EC) No 261/2004 […] arises exclusively from a delay of the first leg of the journey caused by a late departure and is brought against the air carrier operating that first leg, the place of arrival for that first leg may not be classified as a ‘place of performance’ within the meaning of that provision ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=253283&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=1413659

The European Commission has launched a public consultation on the prospect of an EU-wide protection for vulnerable adults, i.e., persons aged 18 or more who are unable to protect their interests because of an impairment or insufficiency of their personal faculties.

In the document presenting the initiative, the Commission notes that vulnerable adults, together with their legal representatives, “currently face multiple barriers when they move abroad, buy or sell properties, or just manage their bank account in another Member State”. This is so, “because the rules governing cross-border cases (private international law rules) differ from one Member State to another”.

Actually, none of the legislative measures enacted  so far by the Union on the basis of Article 81 TFEU deals with the support that vulnerable needs may need to access to exercise their legal capacity.

The aim of the consultation is to “gather evidence on the problem and its consequences and to give all interested parties the opportunity to share their views on the possible policy options”.

The deadline for contributing to the consultation is 29 March 2022.

The Scientific Council of the European Association of Private International Law has approved a proposal for the creation of a Working Group charged with drafting a response to the consultation on behalf of the Association.

The members of the group are Pietro Franzina (co-chair), Estelle Gallant, Cristina González Beilfuss (co-chair), Katja Karjalainen, Thalia Kruger, Tamás Szabados and Jan von Hein.

The Working Group plans to hold a webinar in the coming weeks in order to publicly present a preliminary draft and collect the views of experts and stakeholders.

Further details will be made available in the Group’s dedicated page.

For information: pietro.franzina@unicatt.it.

The CJEU held yesterday in C-20/21 LOT Polish Airlines, on the place of performance (hence creation of jurisdiction in an application for flightdelay compensation) of a flight consisting of a confirmed single booking and performed in several legs by two separate air carriers. That the claim came within Article 7(1)’s gateway for contracts is a result of CJEU flightright. The Court also held in that case that both the place of departure of the first leg of the journey and the place of arrival of the last leg of the journey were forum contractus.

In the case at issue, jurisdiction is sought for the place of landing of the first leg of the journey. In CJEU Zurich Insurance, on multimodal transport, place of dispatch was added as forum contractus, with the CJEU refraining from holding explicitly whether other legs of the journey could count as such forum (Tanchev AG had opined they should not). In current case, the CJEU would seem to confirm my feeling that in Zurich Insurance it implicitly sided with a limitation of fora. Indeed it holds that the place of arrival of the first leg is not forum contractus under A7(1), however, there is a caveat: [24]:

the referring court does not indicate the elements of the contract which could justify, with a view to the efficacious conduct of proceedings, the existence of a sufficiently close link between the facts of the dispute in the main proceedings and its jurisdiction.

The CJEU’s dictum is formulated in more absolute terms:

The second indent of [A7(1) BIa] must be interpreted as meaning that, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs on which transport is performed by separate air carriers, where a claim for compensation, brought [under the flightdelay Regulation 261/2004] arises exclusively from a delay of the first leg of the journey caused by a late departure and is brought against the air carrier operating that first leg, the place of arrival for that first leg may not be classified as a ‘place of performance’ within the meaning of that provision

However given the caveat [24] it is not to be excluded that contractual terms could distinguish the finding of lack of forum contractus.

Geert.

EU Private International Law, 3rd ed. 2021, 2.399 ff.

#flightdelay Regulation, place of arrival of first flight is no 'place of performance' granting jurisdiction under A7(1) Brussels Ia #CJEU C‑20/21 LOT Polish Airlineshttps://t.co/5R4YKF3ShL

— Geert Van Calster (@GAVClaw) February 3, 2022

The Société de législation comparée is organising, in partnership with the French Conseil supérieur du Notariat, the universities of Nîmes, Strasbourg and Lyon and with the Institut des Usages (Montpellier), an international symposium dedicated to the Certificat de coutume.

The importance of the subject is major. Statement or written certificate on the content of a foreign law rule, the Certificat de coutume is subject to a heterogeneous practice both in terms of its establishment and its processing.

Ignored by many jurists, its reliability is often called into question due to a double insufficiency that it may conceal: with regard to the law attested when it is issued by a public authority, with regard to the impartiality when it is issued by a private person.

However, these criticisms are not insurmountable. In addition to the combination with other means of establishing the content of the foreign law rule in question, the Certificat de coutume does not avoid obliterate any contradictory discussion and the freedom of interpretation of the authority before which it is produced. The liabilities associated with the Certificat de coutume, whether that of the drafter, the counsel of the parties or the notary using such a certificate, constitute a formidable safeguard against tendentious approaches.

Above all, we must not ignore the virtues of empiricism, which could – in these times of debates regarding a future codification of French private international law – reveal important and good practices to be considered de lege ferenda.

The real added value of this project therefore lies in the desire to lift the veil on the Certificat de coutume, which currently constitutes a blind spot in private international law. Its name is certainly known to all, but its legal system still appears to be embryonic. The ambition of the symposium is to do constructive work and to offer concrete proposals, fruit of a collective reflection, bringing together the essential players in this field.

The symposium will be held in French on 12 April 2022 at the Amphitheater of the French Higher Council of Notaries (60 boulevard de la Tour-Maubourg – Paris, 7th).

Prior registration is required before April 7, 2022 by sending an email to: emmanuelle.bouvier@legiscompare.com

Conference validated as continuing education for lawyers.

Programme and description in French: https://www.legiscompare.fr/web/Certificat-de-coutume-Pratiques-en-droit-des-affaires-internationales-12-avril

The Programme is as follows:

CERTIFICAT DE COUTUME

Practices in international business law

Scientific direction

Gustavo Cerqueira, professor at the University of Nîmes

Nicolas Nord,  Secretary General of the International Commission on Civil Status

Cyril Nourissat, professor at Jean Moulin University – Lyon 3

Opening / 8:45 a.m.

Me David Ambrosiano, president of the Conseil supérieur du notariat        

Me Pierre-Jean Meyssan, 2nd vice-president of the CSN, in charge of legal affairs

 

Introduction / 9:00 a.m.

Certificat de coutume: historical and functional aspects

Bertrand Ancel, professor emeritus at the University of Paris II Panthéon Assas

 

I. Establishment of the certificat de coutume / 9:30 a.m.

under the chairmanship of Bernard Haftel, professor at the Sorbonne Paris Nord Univ.

9:30 a.m. The purpose of the certificate

Determination of the purpose of the certificate

Gilles Vercken, lawyer at the Paris Bar

 

Attestation of uses

Pierre Mousseron, professor at the University of Montpellier

Kevin Magnier-Merran, lecturer at the University of Lorraine

 

Articulation of the sources of foreign law

Gustavo Cerqueira, professor at the University of Nîmes

 

Coffee break

10:50 a.m. The writer of the certificate

The plurality of actors

Nicolas Nord, Secretary General of the ICCS

 

The challenges of choosing an editor

Karlo Fonseca Tinoco, lawyer at the São Paulo Bar

 

11:30 a.m. The certificate method

Developing the certificate – comparative approaches

Alejandro Garro, professor at Columbia University, NY

 

Editor’s discretion

Cyril Nourissat, professor at Lyon 3 University

 

II. The processing of the certificat de coutume / 2:00 p.m.

under the chairmanship of Laurence Usunier, professor at CY Cergy Paris Univ.

2:00 p.m. The interest of the certificate for the parties

Jacques-Alexandre Genet, lawyer at the Paris Bar

 

2:20 p.m. The value of the certificate for the authorities

Jean-Luc Vallens, honorary magistrate, former Pr. assoc. at Unistra

Louis Degos, arbitrator, managing partner KL Gates LLP – Paris

Pierre Tarrade, notary, rapp. general of the 115th congress of notaries of France

 

3:20 p.m. Certificate distortion control

Sylvaine Poillot-Peruzzetto, SE Advisor at the Court of Cassation

 

Coffee break

III. Certificat de coutume Responsibilities / 4:00 p.m.

under the chairmanship of Etienne Farnoux, professor at Unistra

4:00 p.m. The editor’s responsibility

Thibault de Ravel d’Esclapon, lecturer at Unistra

 

4:20 p.m.  The responsibility of the council of the parties

Olivier Berg, lawyer at the Paris Bar

 

4:40 p.m. The liability of the notary using a certificate

Marc Cagniart, first vice-president of the Chamber of Notaries of Paris

 

Conclusion: Perspectives de lege ferenda / 5:00 p.m.

Pascal de Vareilles-Sommières, professor at the University of Paris I

 

 

 

 

 

 

 

 

Marc Schmitz, President of the International Union of Judicial Officers (UIHJ) and Patrick Gielen, Chairman of the joint appointment commissions of the Bailiffs, have edited a book, published by Bruylant, on service of judicial and extrajudicial documents in Europe (La signification des actes judiciaires et extrajudiciaires en Europe). It aims at preparing legal professionals to the recast of the Service Regulation (announced here).

The European Union of Judicial Officers (UEHJ) gathered a panel of experts to propose a first analysis of the main changes provided by the Regulation (EU) 2020/1784 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and which will enter into force on 1 July 2022.

It is worth mentioning that the European Commission, through its e-Justice service, offers an unpublished analysis (in French and English) of the secure and reliable decentralised computer system, known as e-CODEX, which is to be set up to facilitate the electronic exchange of data between Member States (recently mentioned here).

Covered topics include: European Case Law on Regulation (EC) No 1393/2007 of 13 November 2007; Service Regulation: Implementation, Applications and Belgian Interpretations; The new Regulation (EU) 2020/1784 presented to practitioners; The e-Codex and the European platform for the transmission of documents.

Contributors include: Marc Schmitz, Patrick Gielen, Guillaume Payan, Léonard Maistriaux, Mathieau Chardon, Nicolau Cristian, Serba, Dragos, Koit Haldi

Full table of contents here and more information here.

This post was written by Johan Meeusen, who is a professor at the University of Antwerp and a Member of the Scientific Council of EAPIL. The post was posted first on the site of GEDIP.

Introduction

The judgment of the Court of Justice of the European Union (CJEU) in the Pancharevo case (CJEU 14 December 2021, V.M.A./Stolichna obshtina, rayon ‘Pancharevo’, C-490/20) was eagerly awaited. A few years ago, in Coman (judgment of 5 June 2018, C-673/16), the Court had obliged Romania on the basis of Article 21(1) TFEU to recognise, solely for residence purposes, the same-sex marriage that its national Coman and his American partner Hamilton had contracted in Belgium. In Pancharevo, the Court was confronted with the – perhaps even more sensitive – issue of same-sex parenthood, again in the context of the mobility rights that Union citizens derive from Article 21(1) TFEU, interpreted in the light of fundamental rights on the one hand, and considerations of national identity and public policy of the Member State concerned on the other.

Facts

V.M.A. is a Bulgarian national and K.D.K. is a United Kingdom national. Both women have lived in Spain since 2015 and were married in Gibraltar in 2018. In December 2019, V.M.A. and K.D.K. had a daughter, S.D.K.A., who was born and resides with both parents in Spain. Her birth certificate, issued by the Spanish authorities, refers to V.M.A. as ‘Mother A’ and to K.D.K. as ‘Mother’ of the child. V.М.А. applied to the Sofia municipality for a birth certificate for S.D.K.A. to be issued to her, the certificate being necessary, inter alia, for the issue of a Bulgarian identity document. However, the Sofia municipality instructed V.M.A. to provide evidence of the parentage of S.D.K.A., with respect to the identity of her biological mother, as the Bulgarian model birth certificate has only one box for the ‘mother’ and another for the ‘father’, and only one name may appear in each box. After V.М.А. replied that she was not required to provide the information requested, the Sofia municipality refused the application for a birth certificate. The reasons given for that refusal decision were: the lack of information concerning the identity of the child’s biological mother and the fact that a reference to two female parents on a birth certificate was contrary to the public policy of the Republic of Bulgaria, which does not permit marriage between two persons of the same sex.

V.M.A. brought an action against that refusal decision before the Administrativen sad Sofia-grad (the Administrative Court of the City of Sofia, Bulgaria). That court states that, notwithstanding the fact that S.D.K.A. does not have a birth certificate issued by the Bulgarian authorities, she has the Bulgarian nationality under Bulgarian law. The court has doubts, however, as to whether the refusal by the Bulgarian authorities to register the birth of a Bulgarian national, which occurred in another Member State and has been attested by a birth certificate that mentions two mothers and was issued by the competent authorities of the latter Member State, infringes the rights conferred on such a national in the Treaty provisions on Union citizenship and the Charter of Fundamental Rights of the European Union (hereinafter: the Charter). The Bulgarian authorities’ refusal to issue a birth certificate is, after all, liable to make it more difficult for a Bulgarian identity document to be issued and, therefore, to hinder that child’s exercise of the right of free movement and thus full enjoyment of her rights as a Union citizen. The Bulgarian court therefore refers four questions to the Court of Justice for a preliminary ruling. These questions seek to ascertain whether EU law obliges a Member State to issue a birth certificate – in order for an identity document to be obtained according to the legislation of that State – for a child, a national of that Member State, whose birth in another Member State is attested by a birth certificate that has been drawn up by the authorities of that other Member State in accordance with the national law of that other State, and which designates, as the mothers of that child, a national of the first of those Member States and her wife, without specifying which of the two women gave birth to that child. If the answer is in the affirmative, the referring court asks whether EU law requires such a certificate to state, in the same way as the certificate drawn up by the authorities of the Member State in which the child was born, the names of those two women in their capacity as mothers.

Judgment

The Court answers the questions referred for a preliminary ruling in a fairly short judgment which, in line with and with frequent reference to its earlier Coman judgment, is characterised by a functional approach designed to ensure that the Union citizens concerned can exercise their rights of free movement without requiring Bulgaria to recognise same-sex parenthood for wider purposes, let alone to incorporate it into its legislation, or to issue a birth certificate to that effect itself.

On basis of the findings of the referring court, which it says alone has jurisdiction in that regard, the Court considers that S.D.K.A. has Bulgarian nationality and hence is a Union citizen. It confirms that a Union citizen who has made use of his or her freedom to move and reside within a Member State other than his or her Member State of origin may rely on the rights pertaining to that status, including against his or her Member State of origin. This also applies to Union citizens who were born in the host Member State of their parents and who have never made use of their right to freedom of movement. Relevant in this regard is the right to move and reside provided for in Article 21(1) TFEU and Article 4(3) of Citizens’ Rights Directive 2004/38, which requires Member States to issue to their own nationals an identity card or passport stating their nationality in order to enable them to exercise this right. The Bulgarian authorities are therefore required to issue to S.D.K.A. an identity document, regardless of whether a Bulgarian birth certificate has been drawn up for her.

Next, the Court recalls its consideration in Coman that the rights which Union citizens enjoy under Article 21(1) TFEU include the right to lead a normal family life, together with their family members, both in their host Member State and in the Member State of which they are nationals when they return to the territory of that Member State. In more concrete terms, since the Spanish authorities lawfully established that there was a parent-child relationship, biological or legal, between S.D.K.A. and her two parents, V.M.A. and K.D.K., the latter must, therefore, be recognised by all Member States as having  the right to accompany that child when her right to move and reside freely within the territory of the Member States is being exercised. Accordingly, the Bulgarian authorities are required, as are the authorities of any other Member State, to recognise that parent-child relationship for the purposes of permitting S.D.K.A. to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU. To that end, V.M.A. and K.D.K. must have a document which mentions them as being persons entitled to travel with that child. In this case, the authorities of the host Member State, Spain, are best placed to draw up such a document, which may consist in a birth certificate. The other Member States are obliged to recognise that document.

According to the Court, that does not detract from the competence of the Member States with regard to a person’s status. After all, it is established case law that each Member State must comply with EU law when exercising its competence. In addition, the obligation to issue an identity card or a passport to S.D.K.A. and to recognise the parent-child relationship between her and her two mothers does not undermine the national identity or pose a threat to the public policy of Bulgaria, since it does not require Bulgaria to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which S.D.K.A. derives from EU law, the parent-child relationship between herself and the persons mentioned on the birth certificate drawn up by the Spanish authorities.

Referring to the interpretation by the European Court of Human Rights of Article 8 of the ECHR and to the relevant provisions of the Convention on the Rights of the Child, the Court considers lastly that it would be contrary to Articles 7 and 24 of the Charter to deprive S.D.K.A. of the relationship with one of her parents when exercising her right to move and reside freely within the territory of the Member States or for her exercise of that right to be made impossible or excessively difficult in practice on the ground that her parents are of the same sex.

In the final paragraphs of the judgment, the Court examines the hypothesis that S.D.K.A. is not of Bulgarian nationality and sees in this no reason to rule otherwise. K.D.K. and S.D.K.A., irrespective of their nationality, must be regarded by all the Member States as being, respectively, the spouse and the direct descendant within the meaning of Article 2(2)(a) and (c) of Directive 2004/38 and, therefore, as being V.M.A.’s family members. They are thus ‘beneficiaries’ within the meaning of the Citizens’ Rights Directive (cf. Art.3(1)) with the derived right of free movement and residence attached to that status.

In the light of the foregoing, the Court rules that the provisions of EU law under examination must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State (in this case, Spain), designates as that child’s parents two persons of the same sex, the Member State of which that child is a national (in this case, Bulgaria) is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

Comments

In Pancharevo, the Court guarantees the freedom of movement and the fundamental rights of Union citizens in a way that, on the one hand, accommodates their personal and family interests and, on the other hand, respects both the competence of the Member States regarding the status of the person and the societal sensitivities – in this case, Bulgarian – involved. The judgment is remarkable for several reasons.

Firstly, this case provides an excellent illustration of the conflict between the claims of mobile Union citizens, who do not want to be restricted in their cross-border activities, and the different values and legislation of the Member States. Pancharevo is the logical next step after Coman and shows once more that the status and family law of the Member States, at least as regards its choice-of-law aspects, can no longer be seen as separate from the impact of EU law.

Secondly, the Court ensures continuity with its ruling in Coman. In the latter ruling, the Court did not oblige Romania in any way to introduce same-sex marriage or to give general recognition to the same-sex marriage contracted by a Romanian or a Union citizen in another Member State. On the contrary, the Court stressed several times that it was only a question of recognition ‘solely for the purpose of granting a derived right of residence to a third-country national’ (in that case, the American spouse of the Romanian Coman). The Court continues this strictly functional approach in Pancharevo. As such, the Court explicitly states that, since EU law does not affect the competence of the Member States regarding the status of persons, ‘the Member States are thus free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law’ (paragraph 52). Furthermore, the Court’s interpretation of the obligation of Member States to recognise the civil status of persons established in another Member State systematically relates to the right to freedom of movement and, precisely for that reason, does not pose a threat to the public policy or the national identity of Bulgaria: it is merely a question of recognising the filiation of the child ‘in the context of the child’s exercise of her rights under Article 21 TFEU and secondary legislation relating thereto’ (paragraph 56). Hence, as the Court adds, that does not mean that Bulgaria is required ‘to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents’ (paragraph 57).

Thirdly, it is also noteworthy that, in paragraph 57, the Court does not refer (solely) to the right of the Union citizen to move and reside freely, but more widely to ‘the exercise of the rights which that child derives from EU law’. The Court, which used similar wording in Coman, does not elaborate on this, and the question therefore remains to what extent the aforementioned ‘functional’ approach will remain tenable in the future. Will it really be possible for Romania, in the wake of Coman, to limit the effects of the recognition of the marriage to the residence status of Coman’s American husband Hamilton? Will this couple not want to (and be allowed to?) invoke their marriage status, which is recognised for the purposes of residence, for other legal purposes in Romania as well – tax, filiation, relational aspects of property, inheritance law, etc. – on the grounds that a refusal to do so also infringes the right to freedom of movement and residence and/or the right to private and family life guaranteed by the Charter? And can the same happen in the aftermath of Pancharevo, where, moreover, the rights of the child, protected by Article 24 of the Charter, are at stake? Will the impact of EU law on the recognition of parentage effectively be limited to the provision of an identity document and the recognition of the foreign birth certificate for the purpose of exercising the right to freedom of movement? In fact, even before Pancharevo, the Commission had already planned a legislative initiative in 2022, based on Article 81(3) TFEU, aimed at the mutual recognition of parenthood between Member States in accordance with the motto stated by Commission President von der Leyen in her ‘State of the Union’ of 16 September 2020: ‘If you are parent in one country, you are parent in every country’.

Fourthly, it is noteworthy that the Court briefly discusses the situation where, if checks so should reveal, it would appear that S.D.K.A. does not have Bulgarian nationality. In this case, it relies on V.M.A.’s Bulgarian nationality and categorizes her partner K.D.K. and daughter S.D.K.A. as, respectively, spouse and direct descendant within the meaning of Article 2(2)(a) and (c) of the Citizens’ Rights Directive 2004/38. The latter are then ‘beneficiaries’ within the meaning of the Directive and enjoy derived rights of movement and residence. The Court adds to this that ‘a child, being a minor, whose status as a Union citizen is not established and whose birth certificate, issued by the competent authorities of a Member State, designates as her parents two persons of the same sex, one of whom is a Union citizen, must be considered, by all Member States, a direct descendant of that Union citizen within the meaning of Directive 2004/38 for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto’ (paragraph 68). In this respect, the Court follows the line taken in Coman, which combined recognition of the competence of the Member States in relation to personal status with a (partially) autonomous interpretation of the concept of ‘spouse’ used in Article 2(2)(a) of Directive 2004/38, in the sense that it refers to a person who is a person joined to another person by the bonds of marriage regardless of their sex. Pancharevo also recognises, on the one hand, the substantive competence of the Member States, but, on the other, gives a specific Union law interpretation to the concept of ‘direct descendant’ used in the same directive: the relationship referred to in Article 2(2)(c) of the directive is not necessarily based on a biological relationship. Thus, if parentage has been validly established in an official birth certificate of a Member State, more traditional conceptions of biological kinship between parent and child in the host Member State cannot preclude the status of the latter as ‘direct descendant’. On this last point, the Court follows the path it had already set in SM (judgment of 26 March 2019, C-129/18).

Last but not least, Pancharevo will undoubtedly stimulate the debate among conflicts scholars on the precise significance of the so-called ‘recognition method’ as an alternative choice-of-law method. As was the case with Coman as well, the Court in Pancharevo interprets EU law but its judgment profoundly impacts the recognition of personal status from the perspective of conflict of laws as well. While the Court’s approach is characterized by a functional, hence cautious approach, an essential question is whether this restraint is really tenable, given the far-reaching impact of both EU free movement and fundamental rights law… The significance of Pancharevo for EU conflict of laws in particular will be further examined by GEDIP. The group currently discusses a European codification of the general part of private international law, working inter alia in that context on the recognition of situations validly established abroad. The sub-group which examines the latter issue obviously will take into account the CJEU’s judgment in Pancharevo when preparing its report for the next GEDIP meeting, scheduled to take place in Oslo in September.

Conclusion

With its purposive interpretation of Union citizenship, invariably described as ‘destined to be the fundamental status of nationals of the Member States’, the Court of Justice ensures the mobility of Union citizens. In a diverse European Union based on the protection of fundamental rights, in which the personal status of the individual still is a competence of the Member States, this implies openness to diversity. With its balanced and well-founded Pancharevo judgment, in which the functional recognition of the parentage relationship and the broad interpretation of the concept of ‘direct descendant’ stand out, the Court ensures both the effectiveness of the rights of Union citizens, including the protection of fundamental rights, and respect for the competence and national identity of the Member States. Nevertheless, it is clear that with its judgments in Coman, SM and now Pancharevo, the CJEU has embarked on a progressive path, with openness to diversity and new family forms, for the benefit of mobile Union citizens.

Introduction

The case arises from a a long-running family dispute of the parties over the distribution of assets left by their late brother in the USA.  Z. is the sister, and M. the brother of the deceased. Over the course of several years, the parties entered into a series of agreements with an eye towards efficiently dividing the assets and providing for the effective management of the properties and businesses included in the estate. All attempts to settle the dispute amicably failed. Eventually, the case was decided in favour of Z. by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The efforts of M. to vacate the award failed. As a next step, Z. sought recognition and enforcement of the US award in Greece. First and second instance courts decided in favour of Z. Upon second appeal (cassation) of M., the Supreme Court ruled that the Athens Court of Appeal failed to examine two grounds of appeal raised by M. The case was sent back to the appellate court [Supreme Court nr. 635/20.5.2021]

Stage 1: USA

The parties entered into an agreement known as the “U.S. Agreement,” which set out a process for: (1) an accounting of the affairs of the . . . [U.S. Companies] during the relevant time period leading to a report detailing [an] auditor’s findings; (2) . . . [setting] a period in which the Parties would ‘confer amicably and in good faith to agree on the amount of any distributions or payments that should be made in order to’ realize the objective of equal distribution of the assets or their proceeds and of the earnings of the assets in the relevant period; (3) [and making] a determination as a result of this process as to ‘the extent to which [either Party] has received a disproportionate share of prior income or other distributions in respect of [the U.S. Companies] and the amount of such excess benefit.

The U.S. Agreement further provided that, if the parties failed to agree on the amount of the Party Distribution by way of the auditor’s report, “the amount of the D. Distribution, the P. Distribution, the T. D. and/or the Party Distribution as applicable shall be determined by an arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules,” subject to confirmation by any court having appropriate jurisdiction.

The audit contemplated in the U.S. Agreement was never completed, and the parties were unable to come to reach an agreement on the amount of the Party Distribution. After several years of litigation in both federal and state courts, Z. instituted the subject arbitration in 2009. The arbitration panel issued its Final Award on March 20, 2014, finding in favor of Z. in the amount of approximately $10.8 million, inclusive of approximately $4.8 million of prejudgment interest.

1. filed a petition to vacate the Final Award on June 16, 2014, and on August 29, 2014, he filed the instant motion in support of that petition. The Petitioner’s Arguments for Vacatur were the following:
2. a) Failure to Determine the U.S. Company Distributions.
3. b) Manifest Disregard of the Law and Agreement – “Redefining” the Term “Received”.
4. c) Award of Prejudgment Interest as Exceeding Authority.

The Southern District Of New York decided that the Petitioner’s motion to vacate the arbitration panel’s Final Award is denied and Respondent’s cross-motion to confirm the award is granted.

Stage 2: Greece

The application to recognize and enforce the US award was granted by the Athens Court of 1st Instance [nr. 443/2018, published in: Epitheorissi Politikis Dikonomias (Civil Procedure Law Review) 2017, 643 et seq, note Kastanidis]. The appeal against the first instance court was dismissed [Athens Court of Appeal 5625/2018, unreported]. The final appeal was successful. The Supreme Court ruled that the appellate court did not examine two cassation grounds:

1. No reference is made in the judgment of the Athens CoA in regards to the lack of an arbitration agreement, as evidenced by points 1-9 of the US Agreement, which refer to an arbitral determination, not an award.
2. No reference is made in the judgment of the Athens CoA in regards to the excess of authority by the arbitrators.

As a result, the Supreme Court reversed the judgment of the Athens CoA, and ordered Z. to pay the costs of the proceedings.

Comments

An issue that was not examined by the Supreme Court was the conduct of M. during the arbitral proceedings, and the grounds invoked for vacating the AAA award. There is no evidence that M. challenged the authority of the arbitration panel to issue an award. In addition, the arguments for vacatur do not challenge the panel’s authority, save the award of Prejudgment Interest under (c), which was dismissed by the Greek instance courts as contrary to the principle of non-revision on the merits.

The question has been addresses by legal scholarship as follows:

One issue that is not dealt with in the Convention is what happens if a party to an arbitration is aware of a defect in the arbitration procedure but does not object in the course of the arbitration. The same issue arises in connection with jurisdictional objections that are raised at the enforcement stage for the first time. The general principle of good faith (also sometimes referred to as waiver or estoppel), that applies to procedural as well as to substantive matters, should prevent parties from keeping points up their sleeves [ICCA Guide to the NYC, 2011, p. 81].

The Federal Arbitrazh (Commercial) Court for the Northwestern District in the Russian Federation considered that an objection of lack of arbitral jurisdiction that had not been raised in the arbitration could not be raised for the first time in the enforcement proceedings; The Spanish Supreme Court said that it could not understand that the respondent “now rejects the arbitration agreement on grounds it could have raised in the arbitration” [ICCA Guide to the NYC, 2011, p. 82]

It is generally accepted that the party resisting enforcement of the award may, under certain circumstances, be barred from raising a defense under Article V(1)(c) in the exequatur proceedings. Preclusion may, in particular, occur if the party resisting enforcement has taken part in the arbitral proceedings without objecting to the jurisdiction or competence of the arbitral tribunal when it had the opportunity to do so [Wolff/(Borris/Hennecke), New York Convention, Second Edition, 2019, p. 340 nr. 257].

Conclusion

It is not entirely clear whether the judgment of the Athens Court of Appeal did in fact fail to take into account the grounds aforementioned. As mentioned above, the judgment has not been published in the legal press. However, the extracts reproduced in the ruling of the Supreme Court allow the reader to have some doubts. In any event, the case will be re-examined by the Court of Appeal, and most probably, will end up again before the Supreme Court…

From 7 to 13 February 2022, Università degli Studi, Milan and the European Court of Arbitration organize, in cooperation with Comitato Italiano dell’Arbitrato, the Milan-based international law firms Bonelli Erede and DLA Piper, with the support of the Centre of Research on Domestic, European and Transnational Dispute Settlement, the Milan Arbitration Week which, through various events, deals with domestic arbitration, international commercial arbitration and arbitration in the field of international investment.

All the information is available at this link: https://www.transnational-dispute-management.com/news/20220207.pdf

Brill launched a new Journal, The Italian Review of International and Comparative Law, which is managed by a group of professors from the University of Naples and the Scuola Superiore Sant’Anna in Pisa. The aim of the Journal is to publish contributions on International law, private International law, EU law and comparative law. In this regard, see the recently launched a call for papers on “The European Union and International Arbitration”.

Due to the ‘semaine blanche’, February is usually a short month at the Court of Justice. However, several PIL-related activities are worth noting this particular February. They start this Thursday with the judgment in C-20/21, LOT Polish Airlines. A chamber of three judges (Rodin, Bonichot, Spineanu-Matei) will decide on the request by the Regional Court, Frankfurt am Main, addressing jurisdiction under Article 7(1), of the Brussels I bis Regulation:

Must Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that the place of performance, within the meaning of that provision, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs, can also be the place of arrival of the first leg of the journey where transport on those legs of the journey is performed by two separate air carriers and the claim for compensation brought on the basis of Regulation (EC) No 261/2004 arises from the delay of the first leg of the journey and is brought against the operating air carrier of that first leg?

An advocate general’s opinion was deemed not necessary.

A public hearing in case C-646/20, Senatsverwaltung für Inneres und Sport, will take place on Tuesday 8th. The request focuses on Regulation Brussels II bis. The main proceedings concern the question of whether a private divorce granted in Italy further to concurring statements by the spouses before the civil registrar can be recorded in the German register of marriages without any additional recognition procedure.

The Bundesgerichtshof is asking the Court of Justice two short, straight-forward questions:

1. Is the dissolution of a marriage on the basis of Article 12 of Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’) a divorce within the meaning of the Brussels IIa Regulation?
2. If Question 1 is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of DL No 132/2014 to be treated in accordance with the rule in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements?

The reporting judge is M. Safjan, for the Grand Chamber (Lenaerts, Bay Larsen, Arabadjiev, Prechal, Regan, Rodin, Jarukaitis, Ilešič, Bonichot, Safjan, Kumin, Arastey Sahún, Gavalec, Csehi, Spineanu-Matei). After the hearing, Advocate General Collins will announce the date of publication of his opinion.

Two days later (10 February), the Court will hand down the judgment in the case of C-595/20, ShareWood Switzerland, on the interpretation of the Rome I Regulation. The requesting court is the Austrian Oberster Gerichtshof:

Is Article 6(4)(c) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations to be interpreted as meaning that a contract for the purchase of teak and balsa trees between an undertaking and a consumer, which is intended to confer ownership of the trees, which are then managed, harvested and sold for profit, and which includes for that purpose a lease agreement and a service agreement, is to be regarded as ‘a contract relating to a right in rem in immovable property or a tenancy of immovable property’ within the meaning of that provision?

Once again M. Safjian is the reporting judge, sitting with judges Jääskinen and Gavalec. The preliminary ruling will be taken without opinion.

On the same day, a chamber composed by judges Prechal, Passer, Biltgen, Wahl and Rossi (reporting), will rule on C-522/20, OE. The referring court – the Oberster Gerichtshof, Austria, acting as Court of Cassation in a matter of divorce- has asked the following to the Court in Luxembourg:

1. Does the sixth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 infringe the prohibition of discrimination in Article 18 TFEU on the ground that it provides, as a precondition to the jurisdiction of the courts of the State of residence, depending on the nationality of the applicant, for a shorter period of residence than the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003?
2. If the answer to Question 1 is in the affirmative: Does that infringement of the prohibition of discrimination mean that, based on the fundamental rule laid down in the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003, a period of residence of 12 months is required for all applicants, irrespective of their nationality, in order to rely upon the jurisdiction of the courts in the place of residence or is it to be assumed that a period of 6 months’ residence is the precondition for all applicants?

Among other, the applicant submits that under fifth and sixth indents of Article 3[(1)](a) of Regulation No 2201/2003 (Brussels II bis), jurisdiction for divorce proceedings is established for nationals of the forum State after just 6 months’ residence in that State, whereas nationals of other Member States must have been resident for at least 1 year; that this is unequal treatment solely on grounds of nationality and therefore infringes Article 18 TFEU.

No advocate general’s opinion has been asked for.

Finally, on 24 February Advocate General Szpunar will deliver his opinion in the case of C-501/20, M P A, giving us his views on habitual residence, forum necessitatiss and denial of justice in family matters. The request to the Court comes from the Audiencia Provincial of Barcelona; it relates to divorce proceedings of spouses who happen to be employees of the European Commission in its delegation in Togo. At stake are as well the dissolution of the matrimonial property regime, the determination of the regime and procedures for exercising custody and parental responsibility over the minor children, the grant of a maintenance allowance for the children and rules for the use of the family home in Togo. The interpretation requested affect the Brussels II bis Regulation, Regulation No 4/2009, and Article 47 of the Charter of Fundamental Rights of the European Union.

The questions are:

1. How is the term ‘habitual residence’ in Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009 to be interpreted in the case of the nationals of a Member State who are staying in a non-Member State by reason of the duties conferred on them as members of the contract staff of the European Union and who, in the non-Member State, are recognised as members of the diplomatic staff of the European Union, when their stay in that State is linked to the performance of their duties for the European Union?
2. If, for the purposes of Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009, the determination of the habitual residence of the spouses depended on their status as EU contract staff in a non-Member State, how would this affect the determination of the habitual residence of the minor children in accordance with Article 8 of Regulation No 2201/2003?
3. In the event that the children are not regarded as habitually resident in the non-Member State, can the connecting factor of the mother’s nationality, her residence in Spain prior to the marriage, the Spanish nationality of the minor children and their birth in Spain be taken into account for the purposes of determining habitual residence in accordance with Article 8 of Regulation No 2201/2003?
4. If it is established that the parents and children are not habitually resident in a Member State, given that, under Regulation No 2201/2003 there is no other Member State with jurisdiction to decide on the applications, does the fact that the defendant is a national of a Member State preclude the application of the residual clause contained in Articles 7 and 14 of Regulation No 2201/2003?
5. If it is established that the parents and children are not habitually resident in a Member State for the purpose of determining child maintenance, how is the forum necessitatis in Article 7 of Regulation No 4/2009 to be interpreted and, in particular, what are the requirements for considering that proceedings cannot reasonably be brought or enforced or prove impossible in a non-Member State with which the dispute is closely connected (in this case, Togo)? Must the party have initiated or attempted to initiate proceedings in that State with a negative result and does the nationality of one of the parties to the dispute constitute a sufficient connection with the Member State?
6. In a case like this, where the spouses have strong links with Member States (nationality, former residence), is it contrary to Article 47 of the Charter of Fundamental Rights if no Member State is considered to have jurisdiction under the provisions of the Regulations?

The case has been entrusted to Judges Prechal, Passer, Biltgen, Wahl, and Rossi (reporting).

The 35th Annual Survey of Choice of Law in the American Courts (2021) has been posted to SSRN. The authors of this year’s survey owe an enormous debt to Symeon Symeonides who has, over the past three decades, provided an extraordinary service by authoring the previous thirty annual surveys. Having now finished our first survey, we are all the more impressed with his work. Thank you Symeon — and thank you all for reading.

John Coyle (University of North Carolina School of Law)
William Dodge (University of California, Davis School of Law)
Aaron Simowitz (Willamette University College of Law)