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On 7 March 2023, the Italian Court of Cassation rendered a judgment (No 6723/2023) on the public policy exception as a ground for refusing, pursuant to Articles 45 and 46 of the Brussels I bis Regulation, the recognition and enforcement in Italy of a decision rendered by a Danish Labour Court.

In its judgment, the Court of Cassation addressed (and sometimes dodged) a number of questions concerning the interplay between, on the one hand, the uniform regime of the public policy exception set out by the Brussels I bis Regulation and, on the other hand, Italian procedural law, read in the light of the case law of the CJEU and of the ECtHR.

Facts and Procedure(s)

On 8 December 2017, a Labour Court in Denmark, sitting in a single-judge formation and as a judge of first and last instance, ascertained that a company established in Italy had violated a number of provisions of Danish employment law. Said Italian company had seconded a group of construction workers in Denmark, whose working conditions were regulated by a collective agreement concluded between this company and Danish trade unions.  Subsequently, however, the Italian company breached the obligations stemming therefrom, by omitting to pay salaries, pension insurance contributions, holiday remuneration and other social benefits in accordance with the conditions set by said agreement. Based on these grounds, the Danish Labour Court condemned the company to pay (to the trade unions) a total amount of € 1.900.000,00 ca. This amount was calculated by taking into account the making of budgetary savings unlawfully realized by the company (essentially, by underpaying its workers and omitting to comply with social security obligations) complemented by a 7% increase for deterrence (ca. € 129.000,00). In Danish law, this fine (bod) finds its legal basis in Article 12 of Act. No 106 of 2008.

The Danish trade unions subsequently sought to enforce that judgment in Italy. At this stage, the Italian company filed an application under Articles 45 and 46 of the Brussels I bis Regulation, claiming, inter alia, a breach of the Italian public policy stemming from:

1. an alleged lack of impartiality of the Danish judge, based on the remark that “the majority of the members of the deciding court were designated by one of the trade unions who were parties to the procedure”.
2. the Danish court’s refusal to submit a preliminary reference to the CJEU concerning the interpretation of a number of provisions of (primary and secondary) EU law, deemed relevant for the resolution of the dispute(notably, the freedom to provide services, the principle of non-discrimination based on nationality, Article 12 of the Charter, Article 3 of Directive 96/71/CE and Article 6 of Directive 98/49/CE).
3. the “criminal” nature of the fine (bod) imposed by the Danish Tribunal and/or its non-conformity with the criteria set by the Combined Civil Sections of the Cassation itself for the recognition and enforcement in Italy of punitive damages.

The Italian Court of first instance (Tribunale di Siracusa) refused the recognition and enforcement of the Danish decision, deeming that the sanction inflicted by the Labour Court was indeed criminal in nature, in application of the Engel criteria.

The Court of Appeal of Catania reversed this ruling and granted recognition and enforcement, holding that this sanction aimed at compensating the trade union for a breach of contract, consistently with the ordinary function of civil liability. While the Court of Appeal acknowledged that the 7% increase (bod) might have an inhibiting or repressive purpose, it found it in compliance with the criteria established by the Court of Cassation for the recognition of punitive damage in Italy.

Called by the applicant to assess whether the lower courts had correctly interpreted and applied the law, the Court of Cassation came back to questions 1), 2) and 3), mentioned above.

Unpacking the Cassation’s Ruling

The Cassation’s judgment addresses a number of legal questions, which should be separately assessed.

a. On the Possibility of Raising the Public Policy Exception Ex Officio

This issue was brought to the attention of the Court of Cassation in connection with the alleged lack of impartiality of the Danish judge, who – according to the applicant – had been unilaterally appointed by one of the trade unions who were parties to the dispute (Danish law, it seems, allows the parties to labour disputes to appoint the members of the deciding panel). The fact that the Danish legal order offered no possibility of appealing the decision rendered by this judge constituted, in the applicant’s view, an additional violation of the right to a fair trial, having particular regard to the ‘criminal’ nature of the inflicted sanction

The Court of Appeal had refused to rule on this allegation, deeming that this claim had not been (adequately) substantiated by the applicants in the original application submitted before the court of  first instance. It should therefore be regarded as a new claim raised first the first time on appeal and dismissed as inadmissible. According to the applicant, however, this ground of refusal (contrariety to public policy for the lack of impartiality of the deciding panel) should have been raised ex officio by the first instance judge.

The Court of Cassation briefly considers this line of argument in an obiter, where it acknowledged that this way of reasoning would lead to an additional legal question. It should be determined, in particular, whether the Italian judge

is empowered to raise ex officio a breach of the substantive or procedural public policy of the forum, in application of the domestic procedural rules that usually allow for this possibility (in Italy, Article 112 of the code of civil procedure), or whether, conversely, this ex officio control is precluded by the favor that [the Brussels I Bis] Regulation expresses towards the recognition [of foreign judgments], in that it explicitly requires the party who has an interest in not having that judgment enforced in the forum to take appropriate steps to that end [free translation by the author of this post].

To answer this question, the Court of Cassation would have had to take a stance on the interplay between the uniform procedural regime established (sometimes implicitly) by the Brussels I bis Regulation and the domestic rules of procedure of the forum, as well as on the leeway granted to the latter by the principle of procedural autonomy. Regrettably, the Court of Cassation decided to “dodge” this question. In fact, it continues its reasoning by remarking that: “even admitting that the applicant had properly raised the claim concerning the partiality of the deciding panel at the first instance” (as the company was also alleging), the terms in which this claim was formulated would be too generic and unsubstantiated. This claim was solely grounded in the letter of the Danish law, which allows for the abstract possibility that the trade unions appoint the members of the deciding panel under specific conditions. However, this was not what happened in that concrete case, since the case file evidenced that the judge who issued the contested judgment had been chosen (through a different procedure) among those serving at the Danish Supreme Court. Moreover, it had never been recused by the applicant in the proceedings in the issuing State.

The Court of Cassation also rejected the applicant’s argument whereby the sheer existence of a provision allowing for the appointment of the judicial panel by trade unions who are parties to the dispute could amount to a “structural deficiency” of the Danish legal order. To this end, the Italian Court reminded that the notion of “public policy” under the EU PIL Regulations shall not be construed with reference to purely internal values, but rather according to a broader international perspective. In this vein, the Court of Cassation remarked that many foreign states establish similar systems of judicial appointment and that , in any case,

it is not for the judge called to decide on a cause of non-recognition of a judgment issued by a court of a EU Member State to investigate about systemic deficiencies in legal order of the State of origin (‘structural deficiencies’), in the light of the respect and consideration paid to this State (specifically, Denmark) at the pan-European level.

b. On the Breach of the Obligation to Request a Preliminary Ruling and the Public Policy Exception

This issue was solved in a rather straightforward manner by the Court of Cassation. The applicant claimed that, as the judge of first and last resort, the Danish court should have referred a preliminary question to the CJEU, since the interpretation of a number of provisions of EU law was, in his view, essential for the resolution of the dispute. The non-respect of the obligation established by the CILFIT case law would then result in legal impossibility of recognizing and enforcing the ensuing foreign judgment, this being contrary to the public policy of the requested State.

The Court of Cassation evoked, in this respect, the case law of both the ECtHR and the CJUE. In Ullens dr Schooten, the former held that a national court’s refusal to grant the applicants’ requests to refer to the Court of Justice preliminary questions on the interpretation of EU law, that they had submitted in the course of the proceedings, does not violate Article 6 of the ECHR if this refusal has been duly reasoned. In Consorzio Italian Management, the CJEU specified that

if a national court or tribunal against whose decisions there is no judicial remedy under national law takes the view… that it is relieved of its obligation to make a reference to the Court under the third paragraph of Article 267 TFEU, the statement of reasons for its decision must show either that the question of EU law raised is irrelevant for the resolution of the dispute, or that the interpretation of the EU law provision concerned is based on the Court’s case-law or, in the absence of such case-law, that the interpretation of EU law was so obvious to the national court or tribunal of last instance as to leave no scope for any reasonable doubt (§ 51).

Against this backdrop, the Court of Cassation deemed that the Danish Court had sufficiently explained the reasons behind its refusal to refer a preliminary question to Luxembourg. It also added that this assessment should be made solely on the basis of the reasoning developed in the judgment whose recognition is sought: any further assessment on this point, extending to the correctness of the interpretation given to the Danish provisions and their application to the facts of the case, would amount to a review on the merits, explicitly forbidden under the Brussels regime.

c. On the Allegedly Criminal Nature of the Danish Fine (Bod)

Concerning the disputed nature of the fine inflicted with the judgment whose recognition was sought, the Court of Cassation aligned with the view expressed by the Court of Appeal. It noted that, in the Danish legal order, the bod is characterized as a financial penalty (sanzione pecuniaria) belonging to the toolbox of civil liability. It can be inflicted solely for breaches of collective work agreements and pursues a double objective: on the one hand, strengthening the binding effects of these contracts (whose purpose would be defeated if, in case of non-compliance, the compensation granted by the court was limited to the damage effectively suffered by the trade union) and, on the other hand, fighting social dumping. The Cassation therefore recognizes that the bod combines the functions typically vested in civil liability with a deterrent effect typical of criminal law, aiming at the preservation of the general welfare. However, this “duality of functions” of the bod cannot, as such, serve as a basis to qualify this financial penalty as a criminal sanction.

For the purposes of a correct characterization of a fine as being “criminal” in nature, the Court of Cassation pointed to the judgment No. 43 of 2017 of the Italian Constitutional Court, which in turn refers to the Engel criteria. Accordingly, a fine may be recognized as being criminal in nature – even despite a different explicit characterization in positive law – if (a) it affects the population at large; (2) pursues aims that are not merely reparatory, but also punitive and preventative; (3) has punitive character, its consequences being able to reach a significant level of severity (§ 3.3).

Assessed from this standpoint, the Court of Cassation concluded that the Danish bod could not be regarded as being criminal in nature. Its (partially) “punitive” function should rather be ascribed to the system of civil liability.

In Italy, the recognition of foreign (civil) judgments awarding punitive damages is regulated by a ruling of the Combined Sections of the Court of Cassation of 2017 (No. 16601). Therein, that Court admitted, for the first time, that punitive damages could be compatible with Italian public policy under specific conditions: (1) they shall comply, first and foremost, with the principle of legality and the principle that there must be a legal basis, pursuant to which conduct giving rise to the imposition of punitive damages must be defined beforehand in legislation; (2) secondly, and relatedly, punitive damages damages shall be foreseeable; and (3) their amount should not be disproportionate, ie grossly excessive in nature. Having regard to these criteria, the Cassation concluded that the Danish bod could be recognized in Italy, given that: it found a sufficiently specific legal basis in Danish law (ie in the provisions of Act. No 106 of 2008); the application of these provisions was adequately foreseeable, also as concerns the determination of the amount of the fine, given that Danish courts have issued specific guidelines for these purposes; the damage awarded for “punitive purposes” was not grossly disproportionate in relation to the amount of the prejudice effectively suffered by the trade unions and their members (7% thereof).

Based on these arguments, the Court of Cassation finally gave the green-light to the recognition and enforcement of the Danish judgment in Italy, thus rejecting the claimant’s application under Articles 45 and 46 of the Brussels I bis Regulation.

In Yin v Wu [2023] VSCA 130, the Court of Appeal of the Supreme Court of Victoria set aside a judgment[1] which had affirmed the enforcement a Chinese judgment by an Associate Justice of the Supreme Court.[2] This was a rare instance of an Australian court considering the defence to enforcement of a foreign judgment on the basis that the judgment debtor was denied natural justice—or procedural fairness—before the foreign court.

Background

The dispute concerned a payment made by a Chinese national living in China, Di Wu, to a Chinese national living in Australia, Ke Yin. The payment was made pursuant to a foreign exchange agreement: Yin had promised to pay Wu a sum of US Dollars in exchange for Wu’s Chinese RMB.

The arrangement was made unusually through a series of Telegram and WhatsApp messages, from accounts with different numbers and aliases. (In Australia, we would say that the arrangement sounded ‘suss’.) The agreement was seemingly contrary to Chinese law, which may have contributed to the clandestine character of communications underlying the agreement; see [30].

After Wu transferred the funds—RMB ¥3,966,000—Yin denied that the full sum was received and did not transfer any sum of US Dollars to Wu. Yin eventually returned RMB ¥496,005 but not the balance of what Wu had paid. Wu went to the police on the basis he had been ‘defrauded’; they refused to act. Meanwhile, while broadcasting video under a pseudonym on Twitter, Yin suggested that his accounts had been frozen at the instigation of Wu’s cousin and with the participation of ‘communists’.

On 13 October 2017, Wu commenced a proceeding against Yin in the Ningbo People’s Court. The Court characterised the foreign exchange agreement as ‘invalidated and unenforceable’, but nonetheless provided judgment and costs to Wu for RMB ¥3,510,015 (‘Chinese Judgment’).

The Chinese Judgment recorded that: ‘[t]he defendant [Yin] failed to attend despite having been legally summoned to attend. As such, the court shall enter default judgment according to the law. … Any party dissatisfied with this judgment may, within 15 days from the date of service of the written judgment, file an appeal …’: [27].

Wu commenced enforcement proceedings in China. An affidavit in those proceedings recounted that Yin’s whereabouts were then unknown, but Yin had been served according to relevant procedure of the Chinese forum, which allowed service ‘by way of public announcement’: [31]. The ‘Public Notice’ provided as follows (see [32]):

‘In relation to the private loan dispute between the plaintiff Wu Di and defendant Yin Ke, you are now, by way of public notice, served with the Complaint and a copy of the evidence, notice to attend, notice to adduce evidence, risk reminder, summons to attend court, notice of change of procedure, civil ruling and the letter of notice. You are deemed to have been served with the said documents after sixty days from the date of this public notice.’

 

Recognition and enforcement sought in Australia

Wu filed an originating motion in the Supreme Court of Victoria, seeking an order for enforcement of the Chinese Judgment, or alternatively, reimbursement of the sum paid to Yin.

The latter and alternative order may be understood in terms of an order seeking the recognition of the obligation created by the Chinese Judgment, to be given effect through the remedial powers of the Australian forum: see Kingdom of Spain v Infrasructure Services Luxembourg S.À.R.L.  (2023) 97 ALJR 276; [2023] HCA 11, [43]–[46]; Schibsby v Westenholz (1870) LR 6 QB 155, 159.

Australia has a fragmented regime for recognition and enforcement of foreign judgments; see generally Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen, ‘The HCCH Judgments Convention in Australian Law’ (2019) 47(3) Federal Law Review 420. New Zealand judgments are treated with deference under the Trans-Tasman Proceedings Act 2010 (Cth); judgments of various other jurisdictions are easily registered under the Foreign Judgments Act 1991 (Cth), where the relevant court is identified in the Foreign Judgments Regulations 1992 (Cth) on the basis of reciprocal treatment of Australian judgments in the relevant foreign jurisdiction. For other in personam money judgments, recognition and enforcement may occur pursuant to common law principles.

At common law, a foreign judgment may be recognised and enforced if four conditions are satisfied—subject to defences:

‘(a)           the foreign court must have exercised jurisdiction that Australian courts will recognise;

(b)           the foreign judgment must be final and conclusive;

(c)           there must be an identity of the parties; and

(d)           the judgment must be for a fixed sum or debt’: Doe v Howard [2015] VSC 75, [56].

Here, the Chinese Judgment was assessed according to the common law principles.

In his defence, Yin pleaded (among other things) that he was not served with the documents commencing the foreign proceeding which produced the Chinese Judgment, or any other documents relevant to the foreign proceeding while it was on foot. He also pleaded that he was unaware of the existence of the Chinese Judgment until the Australian proceeding was commenced. As an extension of that plea, Yin said that enforcement of the Chinese Judgment should be refused on the basis of public policy, or because there was a failure by the Chinese court to accord Yin natural justice: [6].

Wu sought summary judgment on the basis that Yin’s defence had no prospects of success. On 22 October 2021, summary judgment was entered in favour of Wu by an Associate Justice of the Supreme Court: Wu v Yin (Supreme Court of Victoria, Efthrim AsJ, 22 October 2021); see Wu v Yin [2022] VSC 729, [5].

The Associate Justice referred (at [33]) to Boele v Norsemeter Holding AS [2002] NSWCA 363, [28], where Giles JA of the New South Wales Court of Appeal held as follows:

‘In determining whether due notice has been given regard will be had to the notice provisions of the foreign court: for example, notification not by personal service but in accordance with the rules of the foreign court may be held to be consistent with affording natural justice even if not in accord with notice provisions of the forum (see Jeannot v Fuerst (1909) 25 TLR 424; Igra v Igra (1951) P 404; Terrell v Terrell (1971) VR 155).’

Efthrim AsJ considered that the statement in the Chinese Judgment that Yin had ‘been legally summoned to attend’ was enough to defeat the natural justice defence: [2022] VSC 729, [74]–[79]. Although the ‘public notice’ service underlying the Chinese Judgment would generally be insufficient for service within Australia under Australian law, it was considered sufficient for the purposes of overcoming the defence.

Yin appealed to the Supreme Court’s trial division on the ground (among others) that Efthrim AsJ erred in holding that Yin’s defence that he was not accorded natural justice in the Chinese proceeding had no prospect of success. Tsalamandris J rejected this ground, and Yin’s appeal: [2022] VSC 729, [124], [133]. Yin applied for leave to appeal the decision of Tsalamandris J to the Court of Appeal.

Before the Court of Appeal

The Court of Appeal overturned the decision of Tsalamandris J, granting leave to appeal and allowing the appeal on the following ground (see [79]):

Ground 1: the judge erred in upholding the associate justice’s conclusion that the defence to the enforcement claim had no real prospect of success, and in doing so erred by imposing an onus on Yin to adduce evidence about applicable Chinese law relating to service by public announcement and why that method of service had not been properly invoked in this case. Further, the judge erred by relying on the Wang affidavit [the affidavit in the Chinese enforcement proceeding, mentioned above] which was not in evidence, or not relied on by Wu, on the hearings before either the associate justice or the judge.

The Court of Appeal’s decision turned on the available evidence. Yin deposed that he was not served with any documents in connection with the Chinese proceedings. That evidence was uncontradicted: [90]. In these circumstances, ‘the associate justice and the judge erred in placing the onus on Yin to establish that there was no valid service on him by alternative means permitted by Chinese law’: [84]. Yin’s evidence raised a prima facie case that he had been denied natural justice in the Chinese proceedings: [91].

In obiter, the Court of Appeal also considered that even if it were assumed ‘that the evidence was sufficient to establish that Yin had been “legally summoned”, the evidence as a whole [did] not establish that the public notice procedure apparently adopted complied with the requirements of natural justice in the circumstances of the case’: [84]; [95].

The Court of Appeal cited (at [96]–[99])) Terrell v Terrell [1971] VR 155, which was also cited in Boele, [28]. Terrell was about a petition for divorce by an American husband who had left his wife in Australia and returned to the US. The husband obtained a decree if divorce in the US. The Australian court considered a forum statute that would give effect to foreign decrees if they would be recognised under the law of the domicile. But the statute provided that a foreign decree would not be recognised ‘where, under the common law rules of private international law, recognition of it[s] validity would be refused on the ground that a party to the marriage had been denied natural justice’; see [96].

Barber J considered that ‘natural justice’ was ‘not a term of great exactitude, but in this context probably refers to the need for the defending party to have notice of the proceedings and the opportunity to be heard’: Terrell, 157. A foreign judgment produced in circumstances where the respondent to the foreign proceedings had no notice of them or an opportunity to be heard would be amenable to a natural justice defence. Barber J considered an exception to that position, which was inapplicable in the circumstances as the husband had withheld the wife’s address from the foreign court (see Terrell, 157):

‘To this basic rule there is an exception, that where the foreign court has power to order substituted service or to dispense with service, and that power has been properly exercised upon proper material, even where the respondent was not in fact made aware of the proceedings, such proceedings cannot be held to be unjust, as similar powers are available to our courts. However, there must have been some attempt to effect personal service: Grissom v Grissom, [1949] QWN 52. Moreover, if the order for substituted service is based on a false statement that the petitioner did not know the respondent’s whereabouts, or where a false statement is made as to the respondent’s address for service, the decree will not be recognized as valid: Norman v Norman (No2) (1968) 12 FLR 39; Grissom v Grissom, supra; Macalpine v Macalpine, [1958] P35; [1957] 3 All ER 134; Brown v Brown (1963) 4 FLR 94; [1963] ALR 817;Middleton v Middleton, [1967] P 62; [1966] 1 All ER 168.

After considering Terrell and other authorities, the Court of Appeal concluded as follows (at [107]):

… even if Wu had established by admissible evidence that service of the Chinese proceeding was legally effected on Yin by some form of public notice — albeit one which did not come to Yin’s attention — the Court should not have recognised the Chinese judgment on a summary basis. This is because at the time Wu commenced the Chinese proceeding he well knew of a number of alternate means of giving notice of the proceeding to Yin, namely, by Twitter, WhatsApp and Telegram. Indeed, Wu’s case in the Chinese proceeding and in this Court was based on money paid under an alleged contract made by these means. In these circumstances, there is a case to be investigated at trial as to whether Wu informed the Chinese court of these alternative means of giving notice of the Chinese proceeding to Yin.

The Court then provided (at [108]) some helpful dicta on the future application of the natural justice defence to enforcement of foreign judgments, considering the following proposition in Nygh’s Conflict of Laws (LexisNexis, 10th ed, 2020) at 990 [40.84]:

It matters not that the forum would not have dispensed with notice in the same situation, although a line would have to be drawn somewhere as in the case where the rules of a foreign court dispensed with the need of giving a foreign defendant any form of personal notification even in peacetime.

The Court opined (at [109]):

In our view, in considering whether natural justice has been provided, modern courts should move with the times in their assessment of the sufficiency of foreign modes of service which do not aim to give defendants personal notification by the many electronic means now commonly available. Courts should draw the line and look unfavourably on modes of service by foreign courts which do not attempt to give notice by such means where a defendant’s physical whereabouts are unknown but electronic notice in some form is possible.

Yin failed on his other grounds of appeal. As the underlying decision also provided summary judgment for Wu’s restitution claim, the Court of Appeal characterised the restitution claim as separate to the enforcement claim: [111]. The Court of Appeal affirmed the decision that Yin’s defence that he did not know Wu went ‘nowhere’: [118]. Wu ultimately succeeded: he obtained summary judgment for the restitution claim, together with interest: [158].

Some takeaways

Yin v Wu provides a few insights for the natural justice defence to recognition and enforcement of foreign judgments in common law courts.

The first concerns the onus of proof. The onus of making out a defence to recognition of a foreign judgment would ordinarily fall on a defendant: Stern v National Australia Bank [1999] FCA 1421, [133].  The Court of Appeal’s decision demonstrates how burdens may shift in the practical operation of private international law in the context of litigation. (On the difference between legal and evidentiary burdens, and how they may shift, see Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27.) Once Yin had produced evidence he was not served, it was up to Wu to contradict that evidence. The omission may be understood on the basis that the underlying decision was one for summary judgment.

Second, the decision is notable for framing enforceability in terms of a natural justice defence rather than in terms of the first criterion for recognition or enforcement: ‘the foreign court must have exercised jurisdiction that Australian courts will recognise’. This element is often framed as a requirement of ‘international jurisdiction’. Yin was not within the territorial jurisdiction of the Chinese court at any relevant time, and nor did he submit to the foreign court. International jurisdiction was seemingly predicated on Yin’s nationality. Arguably, this is insufficient for recognition and enforcement at common law in Australia (but see Independent Trustee Services Ltd v Morris (2010) 79 NSWLR 425, cf Liu v Ma (2017) 55 VR 104, [7]). The focus on natural justice defence rather than international jurisdiction would be a product of how the parties ran their cases.

Third, although the Court of Appeal allowed the appeal as regards the natural justice defence, the judgment supports the orthodox view that this defence should have a narrow scope of operation. As Kirby P opined in Bouton v Labiche (1994) 33 NSWLR 225, 234 (quoted at [73]), courts should not be ‘too eager to criticise the standards of the courts and tribunals of another jurisdiction or too reluctant to recognise their orders which are, and remain, valid by the law of the domicile’. Australian courts provide for substituted service in a variety of circumstances; it would be odd if a foreign court’s equivalent procedure was held to engage the natural justice defence.

Finally, the case serves as a warning for litigants seeking to enforce a judgment of a Chinese court in Australia: relying purely on the ‘public notice’ mechanism of the Chinese forum, without taking further steps to bring the proceeding to the attention of the defendant, may present problems for enforcement. The same can be said for transnational litigation in any jurisdiction that does not require ‘personal service’ in the sense understood by common law courts.

Dr Michael Douglas is Senior Lecturer at the University of Western Australia and a Consultant at Perth litigation firm, Bennett.

 

[1] Wu v Yin [2022] VSC 729 (Tsalamandris J).

[2] Wu v Yin (Supreme Court of Victoria, Efthrim AsJ, 22 October 2021).

This note has been kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), University of Freiburg (Germany).

On 8 June 2023, the Swiss Federal Supreme Court (Bundesgericht) pronounced a judgment on the removal of gender markers of a person according to German Law and denied the recognition of this removal in Switzerland.

Background of the judgment is the legal and effective removal 2019 of the gender information of a person with swiss nationality living in Germany. Such removal is possible by a declaration of the affected person (accompanied by a medical certificate) towards the Registry Office in accordance with Sect. 45b para. 1 of the German Civil Status Act (Personenstandsgesetz, PStG). The claimant of the present judgment sought to have the removal recognized in Switzerland and made a corresponding application to the competent local Swiss Office of the Canton of Aargau. As the Office refused to grant the recognition, the applicant at the time filed a successful claim to the High Court of the Canton of Aargau, which ordered the removal of the gender markers in the Swiss civil and birth register.

The Swiss Federal Office of Justice contested this decision before the Federal Supreme Court. The highest federal Court of Switzerland revoked the judgment of the High Court of the Canton of Aargau and denied the possibility of removing gender information in Switzerland as it is not compatible with Swiss federal law.

According to Swiss private international law, the modification of the gender indications which has taken place abroad should be registered in Switzerland according to the Swiss principles regarding the civil registry (Art. 32 of the Swiss Federal Act on the Private International Law, IPRG). Article 30b para. 1 of the Swiss Civil Code (ZGB), introduced in 2022, provides the possibility of changing gender. The Federal Supreme Court notes that the legislature explicitly refused to permit a complete removal of gender information and wanted to maintain a binary alternative (male/female). Furthermore, the Supreme Court notes that the legislature, by the introduction in 2020 of Art. 40a IPRG, neither wanted to permit the recognition of a third gender nor the complete removal of the gender information.

Based on these grounds, the Federal Supreme Court did not see the possibility of the judiciary to issue a judgment contra legem. A modification of the current law shall be the sole responsibility of the legislature. Nevertheless, the Supreme Court pointed out that, due to the particular situation of the affected persons, the European Court of Human Rights requires a continual review of the corresponding legal rules, particularly regarding social developments. The Supreme Court, however, left open the question of whether the recognition of the removal of gender information could be a violation of Swiss public policy. The creation of a limping legal relationship (no gender marker in Germany; male or female gender marker in Switzerland) has not been yet addressed in the press release.

Currently, only the press release of the Federal Supreme Court is available to the public (in French, German and Italian). As soon as the written grounds will be accessible, a deeper comment of the implications of this judgment will be made on ConflictOfLaws.

This year’s annual meeting of the German Branch of the International Law Association will take place at the Goethe-University in Frankfurt (Main) on Friday, 7 July 2023. The subject will be “Regional Developments in International Law in Africa and Latin America”. The list of distinguished speakers includes Prof. Dr. Thoko Kaime, University of Bayreuth, Alan Diego Vogelfanger, LL.M., University of Bonn/Universidad de Buenos Aires, Kholofelo Kugler, LL.B., M.A., University of Lucerne (Switzerland), and Priv.-Doz. Dr. Jan Peter Schmidt, Max-Planck-Institute for Comparative and International Private Law. The full program can be found here. For registration, please click here. A passive attendance via Zoom will be possible.

In MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch), Marsh M admirably summarises the extensive authorities both English and CJEU (and almost all of them discussed on this blog) on ‘purely economic damage’, in the case at issue at the applicable law level with a view to identifying overcharging on card transaction services. The claim is non-contractual for claimant operated through a ‘sponsor’, RRS, a London-based bank.

[55] Visa’s primary case is that the direct damage occurred at the time when Visa messaged RRS with transaction amounts that are said to be incorrect. Visa invites the court to follow a line of cases dealing with negligent misstatement. In a case of negligent misrepresentation it is said the damage will occur at the place where the misstatement is received and relied upon (compare the discussion in Kwok v UBS). Visa’s alternative case is that direct damage occurred when RRS failed to collect an Optional Issuer Fee – OIF, as a result of the defendant’s inaccurate messaging, for onward transmission to the claimant in France. [57] On either case the defendant says that damage occurred in England being the “direct” damage resulting from the wrong and that the loss felt ultimately in the claimant’s bank account in France is indirect damage.

the judge [68-5] holds that

where the claim is for the non-receipt of OIFs, the wrong only has a direct economic effect upon the claimant by non-receipt of OIFs. That effect is likely to have been felt by the claimant in France. It is not at all obvious that the effect of the wrong as it resonated in financial terms should be seen as an indirect consequence of the previous events.

The case of course once again shows the intricate difficulty of the (in)direct damage distinction and I agree with Master Marsh  that certainly at the level of an application for strike-out, Visa’s arguments are not convincing to blow the suggestion of French law being the applicable law, out off the water.

Geert.

Failed application to strike out the applicable law part of a claim as being French law
Discussion on applicable law for purely economic damage, A4 Rome II, must go to trial

MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch)https://t.co/AAQRDh4yrM

— Geert Van Calster (@GAVClaw) June 6, 2023

One my of students, Jules Culot, has excellent analysis of the recent Belgium Supreme Court’s turnaround (T BV v S-O GmbH – what is with the anonymisation?!) on Belgium’s rule for dispute resolution in the context of exclusive distribution agreements: see here. I am a great believer in progress via (acknowledged) assimilation and I am happy largely to refer to Jules.

As Jules notes, the Supreme Court has taken a similar approach as the final Court of Appeal ruling in the infamous Unamar case: the granted concessions for exclusive distribution are said primarily to safeguard “private interests” and consequently not to qualify as specific mandatory laws under Article 9(1) Rome I. It is by far certain that for national laws to qualify as lois de police or as the Belgians call it, lois d’application immédiate, they necessarily must safeguard general interests.

With our head librarian, Christoph Malliet, I share the frustration that the appealed judgment of the Antwerp Court of Appeal of 10 March 2021, is not available anywhere – but I shall not start raging about the so 1950s approach to publication of case-law in Belgium: I want to start the week-end later with positive vibes.

Geert.

EU Private International Law, 3rd ed. 2021, 3.88.

Great primer by @TheLegalSmeagol on the Belgian Supreme Court reversing half a century of authority on arbitration and exclusive distribution (re: lois de police, overriding mandatory law) https://t.co/ovCCgkG4M7 pic.twitter.com/JgwSkC8fXR

— Geert Van Calster (@GAVClaw) May 26, 2023

Edward Elgar Publishing has just published an Advanced Introduction to Cross-Border Insolvency Law, authored by Reinhard Bork (University of Hamburg).

The book is meant both for students who study company, commercial and private international law, and to practitioners who are not specialists of insolvency law. In its approach it provide both in-depth information for advance readers and accessible information for beginners and follows a comparative law approach to explore some of the most important issues of insolvency law.

The blurb of the book reads as follows:

The Advanced Introduction to Cross-Border Insolvency Law provides a clear and concise overview of cross-border insolvency law with particular focus on the rules governing insolvency proceedings that occur between and across countries. Increasingly, such proceedings have an international dimension, which may involve, for example, debtors with assets abroad, foreign creditors, contractual agreements with counterparties in different jurisdictions, or companies with offices or subsidiaries in a different country. The book expertly steers the reader through the complex interactions between national and supra-national rules, international model laws, and the principles that underpin them.

On 19-20 October 2023 the Conference Sustaining Access to Justice in Europe: New Avenues for Costs and Funding will take place at Erasmus University Rotterdam. Speakers from academia, policy, business and consumer associations from Europe, the US and Asia will discuss developments in funding, including third-party litigation funding and crowdfunding, collective actions, public interest litigation, ADR and ODR and entrepreneurial lawyering.

Description

Access to civil justice is of paramount importance for enforcing citizens’ rights. At the heart access to civil justice lies litigation funding and cost management. Yet, over the past decades, access to justice has been increasingly put under pressure due to retrenching governments, high costs of procedure, and inefficiency of courts and justice systems. Within this context, the funding of litigation in Europe seems to be shifting from public to private sources. Private actors and innovative business models have emerged to provide new solutions to the old problem of financial barriers to access to justice.

With the participation of academics, policymakers, practitioners, academics and representatives of civil society from all over Europe and beyond, the conference seeks to delve deeper into the financial implications of access to justice and the different ways to achieve sustainable civil justice systems in Europe. The topics addressed in this international academic conference include different methods of financing dispute resolution and regulating costs, such as third-party funding, crowdfunding, blockchain technologies, public interest litigation, developments in ADR/ODR, new business models of legal professionals as well as law and economics perspectives on litigation funding.

Program, registration and call for papers

The full program is available here and further information and registration is available here.

A call for papers for early career researchers is available here; deadline is 7 July 2023.

This conference is organised by Erasmus School of Law in the context of the NWO Vici Project: ‘Affordable Access to Justice’, funded by the Dutch Research Council.

This post was written by Ugljesa Grusic, Associate Professor at University College London. It offers a preview of the upcoming developments relating to Zubaydah v Foreign and Commonwealth Office, a case pending before the UK Supreme Court.

While private international law is no longer regarded as an apolitical field, it is rare for it to become directly entangled in clandestine intelligence operations, secret state deals, and egregious human rights violations. However, the UK Supreme Court is set to hear precisely such a case on 14 and 15 June 2023 in Zubaydah v Foreign and Commonwealth Office. This case is important not only because of its context, but also because it raises a crucial question of private international law. Can reasonable/legitimate expectations, justice, convenience, fairness, and appropriateness, as fundamental principles underlying the application of foreign law, be of practical relevance for determining the applicable law in difficult cases?

Facts

Abu Zubaydah, the first detainee in a CIA black site and the first subject of what the CIA euphemistically refers to as ‘enhanced interrogation techniques’, but what should rightfully be recognised as torture and cruel, inhuman or degrading treatment, is currently a ‘forever prisoner’ in Guantánamo. He is suing the UK government for its alleged complicity in the CIA’s wrongful conduct, which itself was part of the US ‘war on terror’.

Claims

Zubaydah is suing the UK government for misfeasance in public office, conspiracy, trespass to the person, false imprisonment, and negligence. The crux of the claims is that the Security Service and the Secret Intelligence Service (better known as, respectively, the MI5 and the MI6) were aware that Zubaydah was being arbitrarily detained at CIA black sites, where he was being subjected to torture and maltreatment during interrogations conducted by the CIA, but nevertheless sent questions with a view to the CIA eliciting information from him, expecting and/or intending (or at the very least not caring) that he would be subjected to such torture and maltreatment. The defendants are neither confirming nor denying these allegations.

Central Issue

The claim is brought in tort. The Rome II Regulation does not apply due to the acta iure imperii exception. Section 15(1) of the Private International Law (Miscellaneous Provisions) Act 1995 states that the choice-of-law rules for torts in the Act apply ‘in relation to claims by or against the Crown as [they apply] in relation to claims to which the Crown is not a party’. The lex loci delicti applies pursuant to section 11 of the 1995 Act. However, section 12 provides an escape clause.

In this case, the claimant (respondent in the appeal) aims to plead and establish his claim by reference to English law. On the other hand, the defendants (appellants in the appeal) argue that the laws of Thailand, Poland, Cuba (Guantánamo Bay), Morocco, Lithuania, and Afghanistan (the ‘Six Countries’, where he was allegedly detained, tortured, and mistreated) should govern.

Private international law thus becomes the focal point of the power dynamics at play in this case. Of course, the defendants are not asserting that the MI5 and MI6 officers who sent questions to their CIA counterparts had the specific laws of the Six Countries in mind as governing their actions. Rather, they are arguing that the laws of the Six Countries apply because this would make the claimant’s claim more uncertain and resource intensive and, consequently, more challenging to establish. Lane J accepted the defendants’ argument, but Dame Sharp P, Thirlwall and Males LJJ unanimously allowed the appeal.

Importance of the Case

This case holds importance for private international law for two reasons. Firstly, it highlights the role of private international law in holding the executive accountable and vindicating fundamental rights, particularly in cases involving alleged wrongs arising out of the external exercise of British executive authority. I will not discuss this aspect of the case here, except to say that I have written a whole book on the topic, Torts in UK Foreign Relations, which will be published by Oxford University Press in their Private International Law series on 13 June 2023.

The focus here is on the second important aspect of the case, which involves the reliance by the parties and the courts on reasonable/legitimate expectations, justice, convenience, fairness, and appropriateness, as fundamental principles underlying the application of foreign law, as important factors in the choice-of-law process.

As elucidated by the editors of Dicey, Morris and Collins in paragraph 1-006, ‘The main justification for the conflict of laws is that it implements the reasonable and legitimate expectations of the parties to a transaction or an occurrence.’ In the following paragraphs, the editors further assert that failing to apply foreign law in ‘appropriate cases’ would lead to ‘grave injustice and inconvenience’. As private international lawyers, we recognise these and similar principles as the truths of our field. However, courts rarely delve into the reasons for applying foreign law and the practical relevance of these fundamental principles. It is in the most difficult cases, such as Zubaydah, that courts may have to go back to the drawing board.

Consider a scenario where a person negligently injures a Ruritanian victim while driving in Ruritania. It is well-established that Ruritanian law would govern the tort in such a case. The application of Ruritanian law can be justified based on the reasonable/legitimate expectations of the parties involved. By driving to Ruritania, the tortfeasor submits to Ruritanian law, and the Ruritanian victim naturally expects the application of its own country’s law. Additionally, the application of foreign law can be explained by notions of justice, either as the attainment of individual private justice or the systemic justice derived from the appropriate allocation of regulatory authority among states.

However, do these ideas still hold weight where the victim was forcibly and unlawfully ‘extraordinarily rendered’ from one country to another, where their senses of sight and hearing were deprived during transportation using goggles and earmuffs, and where they were kept unaware of their location by their captors and torturers? What if the defendant accomplice was oblivious and indifferent to the victim’s whereabouts? And what if the objective of the claims is to hold a government accountable and vindicate fundamental rights that are part of the forum state’s bill of rights?

Parties’ Arguments

These are big questions, and I address them all in my new book. Here, I want to limit myself to summarising the parties’ arguments, based on the arguments advanced in the High Court and the Court of Appeal.

The claimant is relying on three arguments. First, the focus should be on the defendants’ alleged tortious conduct of sending questions to the CIA, rather than the conduct of the CIA. Second, the factors connecting the tort to the Six Countries are weak because the claimant had no control or knowledge of his location, the defendants were unaware or indifferent to the claimant’s whereabouts, and the claimant was effectively held in ‘legal black holes’ in the Six Countries, outside any legal system. Third, the factors connecting the tort to England are strong because the relevant conduct occurred in England, it was undertaken for the perceived benefit of the UK, the defendants acted in their official capacity under UK law, and they were subjected to UK criminal and public law.

The defendants are relying on four arguments. The first and second arguments (the relevant conduct; the strength of the relevant factors) present a mirror-image of the claimant’s first two arguments. Third, the escape clause in section 12 of the 1995 Act should be strictly interpreted. Fourth, tortious claims arising out of the external exercise of British executive authority do not require the disapplication of the lex loci delicti and the application of the escape clause, as shown by a string of cases involving the wars in Afghanistan (Mohammed v MoD) and Iraq (R (Al-Jedda) v SoS for Defence; Rahmatullah v MoD), as well as the UK’s participation in the extraordinary rendition, arbitrary arrest, torture, and maltreatment by foreign states (Belhaj v Straw), where English courts refused to apply English law.

While the High Court aligned with the defendants’ arguments, adopting a broad view of the relevant conduct and a narrow interpretation of the escape clause, the Court of Appeal was sympathetic to the claimant’s arguments. The Court of Appeal relied in its decision on reasonable/legitimate expectations, justice, convenience, fairness, and appropriateness, as is clear from these paragraphs:

41. These are strong connections connecting the tortious conduct with England and Wales. They reflect also the parties’ reasonable expectations. While it is true that the claimant himself had no connection with this country, he could reasonably have expected, if he had thought about it during the 20 years in which he has been detained, that the conduct of any country’s security services having to do with him would be governed by the law of the country concerned. As for the Services, they would reasonably have expected that their conduct here would be subject to English law …

42. … This conclusion gives effect to the principles on which the 1995 Act is founded, including the reasonable expectations of the parties, and to the general principle of private international law identified by the Law Commission “that justice is done to a person if his own law is applied”… the Services can hardly say that it would be unfair (or to use the statutory term, inappropriate) for their conduct to be judged by the standards of English law, as distinct from (for example) Lithuanian or Moroccan law.

Conclusion

Zubaydah is now awaiting a decision from the UK Supreme Court, which will determine whether or not English applies. Regardless of the outcome, this case is likely to become a prominent authority on the reasons for applying foreign law and the practical relevance of fundamental principles underlying the application of foreign law.

The hearing at the UK Supreme Court will be streamed live for those interested, scheduled for Wednesday and Thursday, 14 and 15 June 2023. The live stream can be accessed by following the link ‘watch live court sittings’ on the court’s home page.

Written by Christina Shin, University of Sydney Law School

On 1 June 2023, International Children’s Day, the University of Sydney’s Centre for Asian and Pacific Law (CAPLUS) hosted an online webinar discussing the issue of children’s welfare and voices in private international law (PIL). In the first part of the webinar, five experts were invited to share their views on the status quo, challenges, and potential solutions to protect the welfare of children in the international and transnational context. The second part of the webinar involved a roundtable discussion among the experts. This event was moderated by Dr. Jeanne Huang, Associate Professor at the Sydney Law School and CAPLUS co-director. The guest speakers were as follows:

• Philippe Lortie, co-head of the International Family and Child Protection Law Division at the Hague Conference on Private International Law Permanent Bureau. Mr. Lortie has more than 30 years of experience in the field of child protection.
• Professor Lukas Rademacher, Professor of Private Law, Private International Law, and Comparative Law at Kiel University, Germany. Professor Rademacher read law in Düsseldorf and Oxford and obtained a PhD in Münster. He is currently habilitating in Cologne, Germany.
• Miranda Kaye, Senior Lecturer at the University of Technology Sydney. Ms. Kaye is a member of Hague Mothers, a project aiming to end the injustices created by the Hague Child Abduction Convention. She also has experience in public service (Law Commission of England and Wales) and as a practicing solicitor (family law in the UK).
• Anna Mary Coburn, former attorney for the US Government (USG) involving the Hague Children’s Conventions and a Regional Legal Advisor and Foreign Service Officer for USAID. Ms. Coburn now has her own legal practice in private international family law, focusing on children’s rights.
• Haitao Ye, lawyer at the Shanghai office of the Beijing Dacheng Law LLP specialising in marriage and family dispute resolution, as well as wealth inheritance and management. She is a former experienced judge in civil and commercial trials at the Shanghai Pudong New District People’s Court.

 

Mr. Lortie opened the webinar by introducing the Hague Conference on Private International Law (HCCH), an intergovernmental organisation with a mandate to develop conventions to progressively unify the rules of PIL in all areas, including children’s rights. Mr. Lortie’s presentation covered three matters: the future of parent surrogacy, the 1996 Convention on Parental Responsibility and Protection of Children, and the 2007 Convention on the International Recovery of Child Support. After 10 years of working on its Parentage/Surrogacy Project, the HCCH has implemented a working group of state representatives to voice their views on the laws and policies of their respective states. According to Mr. Lortie, the HCCH’s immediate mandate is to develop a single or two-instrument solution that applies to all children. Mr. Lortie explained that the recent US Supreme Court decision of Golan v. Saada emphasises the benefits of being a party to the 1996 Convention, as it allows judges to order protective measures in urgent circumstances under Art. 11 (such as returning a child post-abduction). The US is currently not a party to the 1996 Convention. Moreover, Mr. Lortie pointed out that Australia is not yet a party to the 2007 Convention, despite NZ, the US, EU, and UK being parties (and Canada having signed). This Convention allows applications for child support and communications to occur securely over the Internet and aims to keep procedural costs low for the benefit of member states.

 

Professor Rademacher’s presentation explored whether well-intentioned protective measures could cause more harm than good, by examining the German Constitutional Court’s (FCC) highly controversial recent decision declaring the unconstitutionality of Germany’s “Act to Combat Child Marriage”. Under that Act, passed in 2017 partly as a response to the large number of refugees seeking asylum in Germany, marriages made under foreign law were voidable if one spouse was under 18 at the time of marriage and null and void if they were under 16. It also prevented courts from applying the public policy doctrine of ordre public. The FCC found that the Act violated the German Constitution’s Article 6 on the basis that it disproportionately curtailed the freedom of marriage. Professor Rademacher explained that the FCC’s ruling has been subject to misinterpretation – rather than endorsing child marriage, it highlights the nuanced balancing act required when considering a child’s best interests. For example, the legislation did not regulate the consequences of a voided marriage – such as the minor spouse losing the legal protections of marriage, as well as rights arising from dissolution of the marriage (including financial claims). The FCC reasoned that these consequences ran counter to the purpose of protecting minors, as well as the protection of free choice. Professor Rademacher concluded that this FCC decision demonstrates that whilst legislatures may pass laws that delimit and regulate marriage, the most rigid laws may not necessarily be in best interests of protecting children.

 

Ms. Kaye presented on Australia’s recent amendment to the Family Law Act with respect to the Hague Abduction Convention (HAC), focusing on the potential unintended consequences of these changes on mothers fleeing the country due to domestic violence (DV). Under the HAC, children are generally returned to the left-behind parent with limited exceptions. Ms. Kaye focused on one exception, HAC Article 13(1)(b), which gives courts discretion not to order a child’s return where there is a ‘grave risk’ that it would ‘expose the child to physical or psychological harm’. Whilst there is no explicit reference to DV, Ms. Kaye explained that Article 13(1)(b) is most widely used in such cases. She went on to examine the new Reg 16 of the Family Law (Child Abduction Convention) Regulations 1986 which implements HAC Article 13(1)(b), expressing concern towards its wording that courts ‘may’ (not ‘must’) consider whether returning a child may expose them to family violence, giving courts a potentially detrimental discretion. Ms. Kaye also raised the issue of inequality of arms – in Australia, a HAC application is brought by a central authority, not the left-behind parent. With no means-testing, left-behind parents often have a considerable jurisdictional advantage with better legal advice at their disposal than taking parents, who rarely receive Legal Aid in HAC cases. Optimistically, the government recently allocated $18.4M of its Federal Budget to investing in children’s protection, with $7.4M dedicated to balancing legal representation. Finally, Ms. Kaye discussed the voice of the child, nothing that Reg 16(c)(3) imposes more onerous wording than the HAC, and additional evidential requirements. Ms. Kaye considered this in the context of a child’s right to culture and connection to land, which, whilst of paramount importance in matters involving First Nations children, has proved difficult to translate in Hague cases.

 

Fourthly, Ms. Coburn shared her views on child participation in PIL proceedings. She began with an overview of the public international legal framework for children, for which the UN Convention on the Rights of the Child (UNCRC) and its Optional Protocols provide guiding principles. These three optional protocols concern children in armed conflict (OPAC), the sale of children, child prostitution and pornography (OPSC) and a communications procedure allowing direct child participation in individual cases (OPIC). Ms. Coburn noted that although the US has not ratified the UNCRC, its laws provide for child participation in proceedings involving parties from states that have ratified it. Child participation in Hague matters is relevant in two areas: 1) where a child has agency to express their views in proceedings that affect them, and 2) children’s direct involvement in the formation and implementation of instruments designed to protect their welfare. Ms Coburn noted that whilst the US is not party to the UNCRC nor OPIC, the Supreme Court in Golan v Saada appeared to apply a best interest standard in considering whether to return a child to their place of habitual residence under the HAC due to grave risk of harm. Ms. Coburn concluded that continued efforts amongst IGOs demonstrate a trend towards more forceful support for children’s rights and participation, such as the WHO–UNICEF–Lancet Commission which advocates for improving child participation in all countries.

 

Finally, Ms. Haitao Ye discussed the emerging issue of protecting children’s civil rights in cross-border surrogacy. Ms. Ye framed this issue in the context of rapid technological developments in the reproductive space, as well as the emotional stakes involved for interested parties. She began by discussing China’s first (ongoing) custody dispute, where a Chinese same-sex couple shared surrogate children who were born in the US but taken to China by one parent when the relationship deteriorated. Ms. Ye also discussed Balaz (2008) involving a German couple and an Indian surrogate mother, where neither country’s domestic laws allowed the surrogate twins to obtain citizenship of either country. These disputes raise concerns about the lack of uniformity amongst surrogacy legislation, conflicting PIL principles of children’s best interests and other domestic public interests and demonstrate the lag between current legislation and practical reality. Balaz illustrates the potential risk of surrogate children facing statelessness, which denies their access to certain rights such as welfare. Ms. Ye concluded by sharing her opinion that the current body of PIL is not ready to meet the challenges of transnational surrogacy, which poses the risk of commercial exploitation. Nonetheless, she suggested that joint efforts of the international community, such as establishing international and national central agencies to record, review and regulate transnational surrogacy should continue to further protect surrogate children.

 

In part two of the webinar, a roundtable discussion took place between the expert speakers on the core question: “How can we define the ‘best interest’ of a child?”

• Ye referred to a custody dispute case in the Shanghai No. 2 Intermediate People’s Court, involving a German father and Chinese mother. Ms. Ye demonstrated that Chinese courts place paramount importance on a child’s interests; in that case, the court considered factors such as the children’s living and educational environment, parental income, nationality, and the best care that could be received from either party.
• Coburn opined that the US’ failure to ratify UNCRC will become problematic as the PIL sector moves towards increasing child participation and their best interests. At a federal level, US courts are less likely to refer to children’s best interests and right to participate. Moreover, although state courts interpret child protection principles that are similar to the UNCRC, they will not necessarily order protections that are not entrenched in statute.
• Kaye emphasized the significant difference between Australian Family Court matters (where a child’s best interests are paramount) and Hague matters, where best interests are considered not in Australia, but in the country of habitual residence. She reiterated her concern that systematically, ‘best interests’ in Hague matters are not met in DV matters.
• Professor Rademacher drew attention to intersectional issues at play, noting that German court cases often implicate refugees and disproportionately impact young women. This is a Europe-wide issue that has resulted in stricter child marriage laws in countries like France and the Netherlands – however, he observed that these jurisdictions tend to have more flexible public policy approaches than Germany with respect to underage marriage.
• Lortie concluded the roundtable by agreeing with Ms. Kaye that DV adds difficulties to putting in practice the principles and protections under the HAC and UNCRC, resulting in wrongful removal and retention of children. He emphasised the importance of education and states’ responsibilities to implement solutions to combat DV on a domestic level.

On 6 June 2023, the Mexican National Code of Civil and Family Procedure has been passed by decree issued by the Mexican president Andrés Manuel López Obrador. Indeed, after many years of stagnation, the National Code has finally been published today in the Mexican Federal Official Gazette. See here. It will enter into force tomorrow (see article 1 of the transitory articles).

This development is ground-breaking because it will gradually replace the states codes of civil and family procedure in Mexico, harmonising procedural law in all 32 Mexican states. A specific procedure has been foreseen for the way in which it will be adopted in the Mexican states (see article 2 of the transitory articles).

There are many interesting provisions for Private International Law lawyers, we will be preparing a brief summary, which will be published here. By way of example, see the provisions on international child abduction: articles 1150-1161.

*** Sección Tercera De la Cooperación, cuando intervengan Niñas, Niños y Adolescentes Artículo 1150. El ejercicio del derecho de visita y custodia de niñas, niños o adolescentes cuyos padres radiquen en países diferentes de manera habitual, se regirá conforme a los instrumentos internacionales y se observarán las siguientes reglas: I.           Las autoridades nacionales ejecutarán las medidas necesarias a fin de lograr la plena convivencia de las niñas, niños o adolescentes con sus padres, incluyendo la utilización de medios telemáticos; II.          El derecho de visita de una niña, niño o adolescente a otro país diferente al del lugar de su residencia, implicará que el progenitor que lo reciba en visita en el Extranjero o en los Estados Unidos Mexicanos, asegure la restitución de la niña, niño o adolescente, y III.          La autoridad jurisdiccional fijará a cargo de qué persona correrán los gastos de desplazamiento, si es que no hubiese acuerdo entre los interesados. Artículo 1151. Las solicitudes de restitución internacional de niñas, niños o adolescentes se regirán de acuerdo con los tratados internacionales y en su defecto, por las siguientes disposiciones: I.           La autoridad jurisdiccional tendrá la facultad de ordenar las medidas precautorias y de aseguramiento, con el fin de asegurar el bienestar de las niñas, niños y adolescentes y prevenir que sean nuevamente trasladados indebidamente o retenidos. II.          Los procedimientos de restitución no podrán pronunciarse y decidir sobre el fondo de la guarda y custodia. III.          En los casos de retención o traslado ilícito de una niña, niño o adolescente, deberá procederse de inmediato y sin dilaciones a la restitución del mismo. IV.         Cuando la niña, niño o adolescente reclamado, no se encuentre en territorio mexicano, el órgano competente autorizado responderá a la solicitud informando el resultado de la búsqueda. Ninguna autoridad jurisdiccional de lugar diferente al de la residencia habitual de la niña, niño o adolescente, podrá declarar a favor de la persona que retiene o efectúe el traslado, algún derecho de custodia, salvo que el derecho convencional internacional lo permita. Si se encuentran en trámite procedimientos jurisdiccionales que resuelvan la custodia, éstos deberán suspenderse. Artículo 1152. La autoridad jurisdiccional nacional podrá rechazar una solicitud de restitución de una niña, niño o adolescente, cuando la persona que se oponga a la restitución compruebe que: I.           La persona, institución u organismo titulares de la solicitud de restitución, no ejercía de modo efectivo el derecho de custodia en el momento en que fue trasladado o retenido, o había consentido o posteriormente aceptado, dicho traslado o retención. II.          Existe un riesgo grave de que la restitución del menor lo exponga a un peligro físico o psicológico, o que de cualquier otra manera ponga al menor en una situación intolerable. III.          La niña, niño o adolescente, se oponga a la restitución, si ya alcanzó una edad y un grado demadurez suficiente en que resulte apropiado tener en cuenta su opinión. IV.         La restitución podría violentar los derechos humanos reconocidos en los Estados Unidos Mexicanos y las garantías que para ellos se otorguen. V.          Cuando la solicitud de restitución se hubiere presentado un año después de ocurrido el trasladoo la retención y se comprueba que la niña, niño o adolescente, ha quedado integrado a su nuevo medio ambiente. Artículo 1153. Los procedimientos de restitución deberán ser iniciados dentro del plazo máximo de un año contado a partir de la fecha en que la niña, niño o adolescente hubiere sido trasladado o retenido ilícitamente,por lo que corresponderá a la autoridad competente ordenar la restitución inmediata del menor. Respecto de menores cuyo paradero se desconozca, el plazo se computará a partir del momento en que fueren precisa y efectivamente localizados. Artículo 1154. Toda solicitud de restitución de una niña, niño o adolescente, proveniente del extranjero, se presentará, por conducto de la Secretaría de Relaciones Exteriores, la cual lo remitirá a la o las autoridades jurisdiccionales competentes. Si en los Estados Unidos Mexicanos se encuentra la niña, niño o el adolescente, deberán adoptarse todas las medidas adecuadas tendientes a obtener la restitución voluntaria de la niña, niño o adolescente. Las autoridades nacionales podrán propiciar una solución amigable, a través de la mediación. De no lograrse ésta en una única sesión, deberán iniciar procedimiento jurisdiccional o administrativo con el objeto de conseguir la restitución, o en su caso, permitir la regulación o ejercicio efectivo del derecho de visita. Artículo 1155. La solicitud de restitución deberá contener al menos lo siguiente: I.           Nombre y datos generales de la niña, niño o adolescente; II.          Nombre y datos del solicitante y el carácter con el que promueve respecto a la niña, niño o adolescente; III.          Antecedentes y los hechos relativos al traslado o sustracción; IV.         El nombre de la persona que se presume retuvo o traslado ilícitamente y el domicilio o ubicación donde se presume que se encuentra la niña, niño o adolescente, y V.          Cualquier información que sea necesaria o pertinente para su localización. Artículo 1156. La solicitud de restitución deberá estar acompañada de: I.           Copia documento que acredite la custodia de la niña, niño o adolescente solicitado; II.          Constancia de la residencia habitual de la niña, niño o adolescente solicitado; III.          Cualquier otro documento con el que se pueda probar el medio en el que se desarrolla habitualmente la niña, niño o adolescente; IV.         Fotografías y demás datos o elementos precisos de identificación de la niña, niño o adolescente en su caso, y V.          La traducción de los documentos que se presenten en un idioma distinto al del país al que se solicite la restitución. La autoridad competente podrá prescindir de algunos de estos requisitos si a su juicio se justifica la restitución. Artículo 1157. Toda petición de restitución será preferente y, salvo consideración especial de la autoridad jurisdiccional, deberá concluir dentro del plazo de seis semanas a partir de su presentación. Artículo 1158. Ningún procedimiento de custodia tramitado en los Estados Unidos Mexicanos suspenderála restitución ordenada. Artículo 1159. Presentada la solicitud de restitución, la autoridad jurisdiccional dispondrá de un plazo de veinticuatro horas para pronunciarse sobre su admisión. En caso de ser admitida, ordenará correr traslado a la parte de la que se presume ha retenido o trasladado ilícitamente a la niña, niño o adolescente para que, con los apercibimientos legales correspondientes, acuda ante la autoridad jurisdiccional dentro del término de tres días hábiles siguientes en compañía de la niña, niño o adolescente, así como todas las pruebas que considere necesarias para apoyar su objeción a la restitución, si fuera el caso. El auto que admita la solicitud deberá disponer las medidas cautelares necesarias, y en su caso, ordenará la entrevista con la niña, niño o adolescente solicitado, en términos de este Código Nacional. Artículo 1160. En la audiencia única la autoridad jurisdiccional intentará conciliar a las partes para su restitución voluntaria y la parte requerida deberá manifestar si acepta restituir voluntariamente a la niña, niño o adolescente; en caso de que así sea, se levantará el acta correspondiente con las condiciones que las partes concedan, debiendo ser dicho acuerdo sancionado por la autoridad jurisdiccional. En caso de que haya objeción en la restitución, quien se oponga deberá hacer valer las excepciones aplicables y ofrecer las pruebas correspondientes que las acrediten. En esa audiencia, la autoridad jurisdiccional realizará la entrevista a la niña, niño o adolescente. Hecho lo anterior, admitirá o no las pruebas ofrecidas y enseguida procederá a su desahogo, en términos de este Código Nacional. Artículo 1161. Concluido el desahogo, la autoridad jurisdiccional deberá resolver sobre la restitución,dentro de la misma audiencia. En caso de que se otorgue la restitución, la autoridad jurisdiccional dictará las medidas adecuadas y eficaces para garantizar el retorno seguro de la niña, niño o adolescente. La autoridad jurisdiccional deberá informar de dicha decisión a la Secretaría de Relaciones Exteriores.

 

Written by Professor Eric Clive

The Secretary of State for Scotland, a Minister of the United Kingdom government, has made an order under section 35 of the Scotland Act 1998 blocking Royal Assent to the Gender Recognition Reform (Scotland) Bill 2022, a Bill passed by the Scottish Parliament by a large majority. The Scottish government has challenged the order by means of a petition for judicial review. The case is constitutionally important and may well go to the United Kingdom Supreme court. It also raises interesting questions of private international law.

At present the rules on obtaining a gender recognition certificate, which has the effect of changing the applicant’s legal gender, are more or less the same in England and Wales, Scotland and Northern Ireland. The Scottish Bill would replace the rules for Scotland by less restrictive, de-medicalised rules. An unfortunate side effect is that Scottish certificates would no longer have automatic effect by statute in other parts of the United Kingdom. The United Kingdom government could remedy this by legislation but there is no indication that it intends to do so. Its position is that it does not like the Scottish Bill.

One of the reasons given by the Secretary of State for making the order is that having two different systems for issuing gender recognition certificates within the United Kingdom would cause serious problems. A person, he assumes, might be legally of one gender in England and another in Scotland. There would therefore be difficulties for some organisations operating at United Kingdom level – for example, in the fields of tax, benefits and pensions. This immediately strikes a private lawyer as odd. Scotland and England have had different systems in the law of persons for centuries – in the laws on marriage, divorce, legitimacy, incapacity and other matters of personal status – and they have not given rise to serious problems. This is because the rules of private international law, even in the absence of statutory provision, did not allow them to.

In a paper on Recognition in England of change of gender in Scotland: a note on private international law aspects[1] I suggest that gender is a personal status, that there is authority for a general rule that a personal status validly acquired in one country will, subject to a few qualifications, be recognised in others and that there is no reason why this rule should not apply to a change of gender under the new Scottish rules.

The general rule is referred to at international level. In article 10 of its Resolution of September 2021 on Human Rights and Private International Law, the Institute of International Law says that:

Respect for the rights to family and private life requires the recognition of personal status established in a foreign State, provided that the person concerned has had a sufficient connection with the State of origin … as well as with the State whose law has been applied, and that there is no manifest violation of the international public policy of the requested State ….

So far as the laws of England and Scotland are concerned, there are authoritative decisions and dicta which clearly support such a general rule. Cases can be found in relation to marriage, divorce, nullity of marriage, legitimacy and legitimation. A significant feature is that the judges have often reasoned from status to particular rules. It cannot be said that there are just isolated rules for particular life events. And the rules were developed at common law, before there were any statutory provisions on the subject.

Possible exceptions to the general rule – public policy, no sufficient connection, contrary statutory provision, impediment going to a matter of substance rather than procedure – are likely to be of little if any practical importance in relation to the recognition in England of changes of gender established under the proposed new Scottish rules.

If the above arguments are sound then a major part of the Secretary of State’s reasons for blocking the Scottish Bill falls away. There would be no significant problem of people being legally male in Scotland but legally female in England, just as there is no significant problem of people being legally married in Scotland but unmarried in England. Private international law would handle the dual system, as it has handled other dual systems in the past. Whether the Supreme Court will get an opportunity to consider the private international law aspects of the case remains to be seen: both sides have other arguments. It would be extremely interesting if it did.

From the point of view of private international law, it would be a pity if the Secretary of State’s blocking order were allowed to stand. The rules in the Scottish Bill are more principled than those in the Gender Recognition Act 2004, which contains the existing law. The Scottish Bill has rational rules on sufficient connection (essentially birth registered in Scotland or ordinary residence in Scotland). The 2004 Act has none. The Scottish Bill has a provision on the recognition of changes of gender under the laws of other parts of the United Kingdom which is drafted in readily understandable form. The corresponding provisions in the 2004 Act are over-specific and opaque. The Scottish Bill has a rule on the recognition of overseas changes of gender which is in accordance with internationally recognised principles.

The 2004 Act has the reverse. It provides in section 21 that: A person’s gender is not to be regarded as having changed by reason only that it has changed under the law of a country or territory outside the United Kingdom. This is alleviated by provisions which allow those who have changed gender under the law of an approved overseas country to use a simpler procedure for obtaining a certificate under the Act but still seems, quite apart from any human rights aspects, to be unfriendly, insular and likely to produce avoidable difficulties for individuals.

 

[1] Clive, Eric, Recognition in England of change of gender in Scotland: A note on private international law aspects (May 30, 2023). Edinburgh School of Law Research Paper No. 2023/06, Available at SSRN: https://ssrn.com/abstract=4463935 or http://dx.doi.org/10.2139/ssrn.4463935

Luís de Lima Pinheiro (University of Lisbon) has posted Laws Applicable to International Smart Contracts and Decentralized Autonomous Organizations (DAOS) on SSRN.

The abstract reads:

International contracts, legal persons and other external organizations raise choice-of-law problems. Should smart contracts and DAOs in general be considered international? Are the choice-of-law rules in force for State courts and for arbitral tribunals appropriate for the determination of the applicable laws? To provide replies to these questions the present essay starts by general introductions to smart contracts and DAOs and also outlines the Private International Law framework of these realities. Solutions for difficulties on the application of the choice-of-law rules in force and more flexible approaches to address them are proposed.

On September 1st, 2023, the 2019 Hague Judgments Convention will enter into force for the Member States of the EU and Ukraine. According to the HCCH, the Convention is “a true gamechanger in international dispute resolution”, which will “reduce transactional and litigation costs, facilitate rule-based multilateral trade and investment, increase certainty and predictability” and “promote effective justice for all”. The international conference taking place in Bonn later this week will likely strike an equally celebratory tone.

This sentiment is not shared universally, though. In a scathing article just published in Zeitschrift für Europäisches Privatrecht (ZEuP) entitled ‘Judgments Convention: No Thanks!‘, Haimo Schack (University of Kiel) labels the Convention as “evidently worthless”.

Schack comes to this damning conclusion in three steps. First, he argues that the 2005 Choice of Court Convention, the first outcome of the decades-long HCCH Jurisdiction Project, has been of minimal use for the EU and only benefited Singapore and London. Second, he points out the limited scope of the 2019 Convention, which is not only (inherently) unable to limit the exorbitant exercise of jurisdiction or avoid, let alone coordinate parallel proceedings, but also contains a long list of excluded areas of law in its Art. 2 (including, most significantly, the entire field of intellectual property: Art. 2(1)(m)). Schack argues that combined with the equally long list of bases for recognition and enforcement in Art. 5, the Convention will make recognition and enforcement of foreign judgments significantly more complicated. This effect is exacerbated, third, by a range of options for contracting states to further reduce the scope of application of the Convention, of which Art. 29 is particularly “deadly”, according to Schack. The provision allows contracting states to opt out of the effect of the Convention vis-à-vis specific other contracting states, which Schack fears will lead to a ‘bilateralisation’ similar to what prevented the 1971 Convention from ever getting off the ground, which will reduce the 2019 Convention to a mere model law. All in all, Schack considers the Convention to do more harm than good for the EU, which he fears to also lose an important bargaining chip in view of a potential bilateral agreement with the US.

Leaving his additional criticism of the HCCH’s ongoing efforts to address the problem of parallel proceedings aside, Schack certainly has a point in that the 2019 Convention will not be easy to apply for the national courts. Whether it will be more complicated than a myriad of rarely applied bilateral conventions may be subject to debate, though. It also seems worth pointing out that the 1971 Convention contained a significantly more cumbersome mechanism of bilateralisation that required all contracting states to conclude additional (!) bilateral agreements to enter into force between any given pair of them, which is quite different from the opt-out mechanism of Art. 29. In fact, it seems at least arguable that the different ways in which contracting states can tailor their accession to the Convention to their specific needs and concerns, up to the exclusion of any treaty relations with a specific other contracting state, may not be the proverbial nail in the coffin as much as it might be a key to the Convention’s success. While it is true that these mechanisms appear to undermine the internationally binding nature of the Convention, bringing it closer to a model law than a binding treaty, they also make it possible to accommodate different degrees of mutual trust within a single legal framework. The fact that the 2005 Convention has preserved some degree of judicial cooperation between the EU Member States and the UK in an area now otherwise devoid of it may be testimony to the important purpose still served by international conventions in the area of international civil procedure despite – but maybe also as a result of – their increasingly limited, tailor-made scope(s).

In Athenian Brewery and Heineken v Macedonian Thrace Brewery ECLI:NL:HR:2023:660, the Dutch Supreme Court is likely to refer to the CJEU on the approach to ‘relatedness’ in competition law cases, required to substantiate anchor jurisdiction. It is the Greek authorities that have held that  Heineken’s Greek daughter, in which it held close to 99% of shares, had infringed competition law.

Competition law works with an assumption of attributability of daughter undertakings’ infringements to their mother corporation: see CJEU ENI and recently C-377/20 SEN /AGCM. The SC now should like to ask the CJEU how that assumption relates to Article 8(1) Brussels Ia’s anchor defendant mechanism, which requires claims to be ‘closely related’, whether the case needs to be distinguished from CJEU CDC seeing as it is the Greek, not the EU competition authorities which held the infringement, and what impact the issue has on the assessment required per CJEU Universal Music and Kolassa.

An impending reference of note.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1.

Competition law, jurisdiction
Dutch SC minded to refer to #CJEU on role of EU competition law's presumption of mother corp involvement in daughter's abuse of dominant position, for purposes of A8(1) BIa's anchor defendant mechanism, 'closely connected'https://t.co/Mum1uuMWzT

— Geert Van Calster (@GAVClaw) April 28, 2023

In ECLI:NL:GHAMS:2023:887 (parties names anonymised given the nature of the case; husband and wife have been divorced under civil law since 2018; the ex-husband is domiciled and lives in France; the ex-wife is also domiciled in France yet is habitually resident in Israel) the courts at Amsterdam held upon appeal that the mere rabbinical (Conference of European Rabbis) instruction for a husband to appear before the Amsterdam Beth Din so as to grant get to his wife, does not suffice to make Amsterdam either locus delicti commissi or locus damni.

The French courts have already granted damages to the wife on the basis of the husband’s continued refusal to engage with the Beth Din. Authority referred to viz A7(2) BIa includes CJEU Vereniging van Effectenbezitters, and leads the court to conclude that Amsterdam is not a new locus delicti commissi viz the husband’s continued refusal to engage with the religious courts, but rather a continuation of the same delicti commissi which led to the French allocation of damages [3.11]. [3.12] the wife’s Mozaik reference to CJEU Shevill is not accepted with reference to the possibility under Jewish law of other Beth Dins to have jurisdiction in the case.

On locus damni and per CJEU Universal Music, I understand the reluctance to identify Amsterdam as locus damni given the lack of links between the case and the parties, to The Netherlands. Per CJEU Ofab I would suggest however that a different outcome on locus delicti commissi could have been possible.

Geert.

EU Private International Law, 3rd ed. 2021, 2.432 ff.

Interesting judgment Amsterdam
A7(2) Brussels Ia

Rabbinical instruction for husband to appear before Amsterdam Beth Din to grant Get to his wife, does not suffice to make A'dam locus delicti commissi
No locus damni in A'dam, eitherhttps://t.co/hClfbCYVwe #lawandreligion

— Geert Van Calster (@GAVClaw) April 28, 2023

A late post on the Amsterdam courts’ injunction, in interlocutory proceedings, ordering Hammy Media to remove secretly filmed amateur adult content. The judgment will be of interest to both privacy lawyers and jurisdictional aficionados.

The court is not too bothered with a neat and exhaustive analysis of the jurisdictional issue. This could have brought it to a discussion of CJEU e-Date, Bolagsupplysningen, etc,  removal orders as also applied in the context of the right to be forgotten, and of course the complex relationship between Brussels Ia and the GDPR when it comes to jurisdiction.

Instead, it identifies The Netherlands as a Member State with full jurisdiction as locus delicti commissi (ldc),  seemingly arguing [4.2] (it reasons are a bit muddled) that the use of a specific internet domain name to target Dutch customers, and the use of (whether not automatically translated) Dutch on that site, makes The Netherlands the (or perhaps: ‘a’?) ldc, which in one breath it mentions as meeting with the foreseeability requirement that is part of the general DNA of Brussels Ia. It supports its jurisdiction with a refernece to A79 GDPR’s ‘habitual residence’ of the data subject’s gateway as I discuss here.

Except for that material for which Hammy Media can show consent of all persons involved, the court then bans distribution of the material, worldwide as far as those resident in The Netherlands is concerned, and in The Nethelrands as far as the data subjects not resident in The Netherlands is concerned.

It does not specify why it introduces that distinction, although it is clearly linked to jurisdictional limitations it feels itself limited to.

Geert.

EU Private International Law, 3rd ed. 2021, 2.256.

Adult website ordered to remove secretly filmed and amateur nude content, unless it can show consent of all involved

Worldwide removal viz NL domiciled, NL removal viz non-NL doms

Jurisdiction based on A7(2) Brussels IA and A79 #GDPR

SEOK v Hammy Mediahttps://t.co/67YHgvCt5L

— Geert Van Calster (@GAVClaw) April 19, 2023

Gilles Cuniberti reviewed the CJEU’s judgment in C‑264/22 FGTI v Victoria Seguros here, and I agree the judgment in convoluted terms replies to a fairly obvious question. Obvious, for with Giles, I would suggest the

‘result of the subrogation is clearly to transfer to the Fund the rights of the victims. Subrogation does not establish new rights. It merely transfers existing rights from one person (the victim) to another (here the Fund).’ (The Fund is the French public body compensating the victims of certain torts, whereupon it is subrogated in the victim’s rights).

The CJEU much more verbosely comes to the same conclusion, without making reference to the potential complication signalled by Giles, with respect to a likely or at the least potential French judgment eg confirming a relevant settlement, which could lead to novatio arguments.

Geert.

#CJEU C‑264/22 FGTI v Victoria Seguros
Rome II
Lex causae (incl for rules on limitation) for action of third party subrogated to rights of injured party, v person who caused the damage is, in principle, that of the country in which that damage occurshttps://t.co/YYFUSlutB9

— Geert Van Calster (@GAVClaw) May 19, 2023

On 31 May 2023, the European Commission presented a proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults (in the following: EU Adult Protection Regulation – EUAPR). This proposal is a response to significant demographic and social changes in the EU: Many Member States face enormous challenges posed by an increasingly aging population. Due to considerable improvements in medical care in recent decades, people grow much older than they used to, and this lengthening of the average lifespan in turn leads to an increase in age-related illnesses such as Alzheimer’s disease. This demographic change creates problems for private international law, because the mobility of natural persons has increased within the EU where borders may, in principle, be crossed without restrictions. Many people who have left their state of origin in search for work elsewhere in their youth or middle age do not return to their home state after retirement, but rather spend the last part of their lives where they have established a new habitual residence. Besides, more and more people decide to leave their home state once they have reached the age of retirement. Such processes of migration at a late stage in life may have different reasons: Some old-age movers may want to avoid a heavy taxation of their estates that would put a burden on their heirs, some may wish to circumvent other restrictions of domestic inheritance laws (e.g. the right to a compulsory portion), others may simply wish to spend the remaining parts of their lives in milder climates, e.g. the Mediterranean, or look for a place to stay where the cost of living is lower, e.g. in some parts of Eastern Europe. When these persons begin to suffer from an impairment or an insufficiency of their personal faculties which no longer allows them to protect their interests themselves, however, intricate conflict of laws problems may arise: The authorities or courts of which state shall have jurisdiction to take protective measures concerning vulnerable adults or their property? Which law is to be applied to such measures? Under which conditions may protective measures taken in one state be recognised and enforced in other states?

The EUAPR is meant to solve these problems. It is in many parts based on proposals made by two working groups set up by the European Law Institute and the European Association of Private International Law, respectively. The Regulation will partially supersede and complement the Hague Convention on the International Protection of Adults (in the following: Hague Adult Protection Convention – HAPC), a derogation which is permitted by Art. 49(2) and (3) HAPC. The Hague Convention was concluded on 13 January 2000 and entered into force on 1 January 2009 between France, Germany and the United Kingdom (restricted to Scotland, however). Today, the Convention is in force as well in Switzerland, Finland, Estonia, the Czech Republic, Austria, Monaco, Latvia, Portugal, Cyprus, Belgium, Greece, and Malta. The Netherlands, Ireland, Italy, Luxembourg, and Poland have signed the Convention, but have not ratified it yet. In the Netherlands, however, the Convention is already applied by the courts as a part of Dutch autonomous law (see Hoge Raad 2 February 2018, ECLI:NL:HR:2018:147). Thus, more than 23 years after the HAPC was concluded, the status of ratifications is rather unsatisfactory, as only 12 EU Member States have ratified the Convention so far. In order to speed up this process, the Regulation shall be accompanied by a Council Decision authorising Member States to become or remain parties, in the interest of the EU, to the HAPC.

For a long time, it was controversial whether the EUAPR could be based on the EU’s general competence in PIL matters (Art. 81(2) TFEU) or whether such a measure ought to be classified as concerning family law within the meaning of Art. 81(3) TFEU. On the one hand, adult protection is traditionally codified in the family law sections of many Member States’ civil codes (e.g. in Germany), and people will frequently benefit from the protection of family members (see COM(2023) 280 final, p. 4). On the other hand, a guardian, curator or a person endowed with a power of representation does not necessarily have to be a relative of the vulnerable adult. Following the example set by the EU Succession Regulation, the Commission eschews the cumbersome special procedure envisioned for family law matters and bases its proposal on Art. 81(2) TFEU instead.

As far as the spatial scope of the EUAPR is concerned, Art. 59 EUAPR contains detailed rules on the relation between the Regulation and the HAPC. The basic factor that triggers the application of the EUAPR is the vulnerable adult’s habitual residence in the territory of a Member State (Art. 59(1)(a) EUAPR).  There are some exceptions to this rule, however, in order to ensure a smooth coordination with the Contracting States of the HAPC which are not Member States of the EUAPR (see Art. 59(1)(b) and (2) EUAPR). The substantive scope of the EUAPR is broadly similar to that of the HAPC, although it should be noted that Art. 2(2) EUAPR speaks of “matters” to which the Regulation shall apply, whereas Art. 3 HAPC uses the narrower term “measures”. This may allow the inclusion of ex-lege powers of representation which are not directly covered by the HAPC. The Regulation’s personal scope is defined in Art. 3(1), which states that, for the purposes of the EUAPR, an adult is a person who has reached the age of 18 years. Although the Regulation is largely a response to problems created by an aging population, it must be borne in mind that its scope is not restricted to elderly people, but encompasses all adults above the age of 18, and, if the exceptional condition of Art. 2(2) EUAPR is met, even younger people.

With regard to the rules on jurisdiction, the Regulation largely refers to the HAPC, with one significant divergence, though. The Convention does not permit a direct prorogation of jurisdiction, because it was feared that an uncontrolled freedom of prorogating the authorities of another state could be abused to the detriment of the adult concerned. Art. 8(2)(d) HAPC merely gives the authorities of a Contracting State having jurisdiction under Art. 5 or 6 HAPC the possibility of requesting the authorities of another Contracting State designated by the adult concerned to take protective measures. Contrary to this restrictive approach, Art. 6(1) EUAPR provides that the authorities of a Member State other than the Member State in which the adult is habitually resident shall have jurisdiction where all of the following conditions are met:

• the adult chose the authorities of that Member State, when he or she was still in a position to protect his or her interest;
• the exercise of jurisdiction is in the interest of the adult;
• the authorities of a Member State having jurisdiction under Art. 5 to 8 HAPC have not exercised their jurisdiction.

The following paragraphs 2 to 3 of Art. 6 EUAPR concern formal requirements and the integration of the adult’s choice of court into the HAPC’s jurisdictional framework. The possibility of choosing the competent authorities is a welcome addition to the choice-of-law provision on powers of representation in Art. 15 HAPC.

In order to determine the applicable law, Art. 8 EUAPR refers to Chapter III of the HAPC. As in the HAPC, there are no specific conflicts rules for ex-lege powers of representation. Moreover, advance medical directives that are not combined with a power of representation (Art. 15 HAPC) are neither covered by the HAPC nor the EUAPR. Since the authorities exercising their jurisdiction under the HAPC usually apply their own law pursuant to Art. 13(1) HAPC, the spatial scope of the Convention’s jurisdictional rules also indirectly determines the reach of its conflicts rules. This will lead to a new round of the debate that we are familiar with in the context of the relationship between the Hague Child Protection Convention and the Brussels IIb Regulation, i.e. whether the intended parallelism only works if at least a hypothetical jurisdiction under the respective Convention’s rules can be established, or whether it suffices that jurisdiction is established according to a provision that is only found in the respective Regulation. Within the framework of the EUAPR, this problem will arise with regard to a choice of court pursuant to Art. 6 EUAPR, an option that is not provided for by the HAPC. Applying Art. 13(1) HAPC in this context as well seems to be the preferable solution, which leads to an indirect choice of law by the vulnerable adult even in cases where no voluntary power of representation is established under Art. 15 HAPC.

The recognition of measures taken in other Member States is governed by Art. 9 and 10 EUAPR. Notwithstanding mutual trust – and, in this particular area of law, with good reason – , the Regulation still contains a public policy clause (Art. 10(b) EUAPR). For the purpose of enforcement, Art. 11 EUAPR abolishes the declaration of enforceability (exequatur) that is still required under Art. 25 HAPC, thus allowing for simplified enforcement procedures within the EU.

A major innovation is found in Chapter VII. The Regulation will introduce a European Certificate of Representation (Art. 34 EUAPR) which will supersede the certificate under Art. 38 HAPC. The Certificate shall be issued for use by representatives, who, in another Member State, need to invoke their powers to represent a vulnerable adult (Art. 35(1) EUAPR). The Certificate may be used to demonstrate that the representative is authorised, on the basis of a measure or confirmed power of representation, to represent the adult in various matters defined in Art. 35(2) EUAPR.

Apart from those substantive achievements, the Regulation contains necessary rules on rather procedural and technical subjects, such as the cooperation between the competent authorities (Chapter VI EUAPR), the establishment and interconnection of protection registers (Chapter VIII EUAPR), digital communication (Chapter IX EUAPR), and data protection (Chapter X EUAPR). These rules will also lead to a major modernisation compared with the older rules of the HAPC.

In sum, the proposal of the EUAPR will considerably strengthen the international protection of vulnerable adults within the EU.

A book by Alexander DJ Critchley, titled The Application of Foreign Law in the British and German Courts, has been published by Hart in its Studies in Private International Law Series.

This book explores the application of foreign law in civil proceedings in the British and German courts. It focuses on how domestic procedural law impacts on the application of choice of law rules in domestic courts. It engages with questions involved in the investigation and determination of foreign law as they affect the law of England and Wales, Scotland, and Germany. Although the relevant jurisdictions are the focus, the comparative analysis extends to explore examples from other jurisdictions, including relevant international and European conventions. Ambitious in scope, it expertly tracks the development of the law and looks at possible future reforms.

More information is available here.