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The EAPIL Working Group on the Reform of the Brussels I bis Regulation has set up a survey to collect feedback and comments on the proposals formulated in the preliminary position paper.  

By now, over 60 participants from many different Member States have answered the survey. To allow an even broader participation, the deadline for taking the survey has been extended until 15 April 2023.

Participation in the survey is open to anybody interested in the reform of the Brussels I bis Regulation, non matter whether they are members of the European Association of Private International Law, or not.

Written by Alessa Karlinski and Maren Vogel (both Free University Berlin).

On February 23rd and 24th, 2023, young scholars came together at the Siegmund Freud University, Vienna, to discuss different views on private international law under the theme of “Deference to the foreign – empty phrase or guiding principle of private international law?”. Continuing the success of the previous three German-Speaking Conferences of Young Scholars in PIL from previous years in Bonn, Würzburg and Hamburg, this year’s conference was hosted in Austria by Martina Melcher and Florian Heindler who organized the event together with Andreas Engel, Katharina Kaesling, Ben Köhler, Bettina Rentsch, Susanna Roßbach and Johannes Ungerer.

As keynote speaker, Professor Horatia Muir Watt (Sciences Po Paris) borrowed from the often-used metaphor of the “dismal swamp” to present an “ecosophical” approach to private international law. For this purpose, she engaged anthropological and philosophical insights of Western and indigenous origin on the meaning of law and the regulatory functions of private international law in particular.

Vanessa Grifo (University of Heidelberg) presented possible insights from the theory of the post-migrant society for international family law. Based on sociological accounts of “post-migrant” identities, Grifo discussed that a person’s cultural identity can form “hybrid” solidarity to different legal systems and oppose the collective national identity of the country of immigration. While previously, according to Kegel, connecting factors were understood to build upon certain generally neutral conflict-of-laws interests, cultural identity is becoming a relevant aspect of party interests, which she demonstrated with the help of different recent judgement of the German Federal Court of Justice. This paradigm, Grifo argued, shows a shift from the system of the traditional German understanding of connecting factors following Kegel.

Victoria Garin (European University Institute, Florence) examined the connection between private international law and the concept of Relativism. The basis of her analysis is the contemporary private international law attempting to coordinate conflicting regulatory claims of several legal systems. Garin identified extraterritoriality, difference and equivalence as assumptions used in private international law to solve this conflict. These assumptions, Garin argued, are premised on Relativism in its forms as descriptive and normative theory. Through the lens of Relativism a critical examination of private international law, especially regarding current developments in literature, was made. Garin explained to what extent the criticism of Relativism can be applied to private international law theory.

Dr Shahar Avraham-Giller (Hebrew University Jerusalem) presented two seemingly contradictory developments in private international law. First Avraham-Giller pointed out, that legal questions are increasingly restrictively categorised as procedural questions in the EU and in common law states which leads to a broader application of foreign law as the lex causae. The application of the lex fori to procedural questions can itself be understood as an overriding mandatory provision of the forum. On the other hand, as Avraham-Giller projected, an increased recourse of courts to the means of other overriding mandatory provisions to safeguard national public interests can be observed. In her opinion, these seemingly contradictory developments can be explained as an answer to the development of a more “private” understanding of civil proceedings, seeking primarily peaceful settlement of private disputes, while enforcing other values and public goals through mandatory overriding provisions at the same time.

Raphael Dummermuth (University of Fribourg) then shed light on deference to the foreign in the context of the interpretation of the Lugano Convention. First, he addressed the question of the implementation of the objective of taking into account the case law of the ECJ by non-EU courts, as stated in Art. 1(1) Protocol 2 Lugano Convention. The application of the Lugano Convention, he pointed out, requires a double consideration of the foreign: the court must consider standards or judgments that are outside the Lugano Convention and in doing so apply a foreign methodology. Nonetheless, the one-sided duty of consideration is limited where the results of interpretation are decisively based on principles of EU law. He came to the conclusion, that precedent effect should therefore only be given to results that are justifiable within the scope of the classical methodology.

The first day of the conference closed with a panel discussion between Professor Dietmar Czernich, Professor Georg Kodek and Dr Judith Schacherreiter on deference to the foreign in private international legal practice and international civil procedure. The discussants shared numerous insights: from the appointment of expert opinions on foreign law, to deference to the foreign in international commercial arbitration and the practice of legal advice.

Selina Mack (LMU Munich) opened the second day of the conference examining the ordre public in the field of succession law using the example of the right to a compulsory portion in Austria and Germany. Mack began by comparing similar regulations in Germany and Austria with the so-called family provision in England. She then contrasted a decision of the Supreme Court of Austria (OGH) with a decision of the German Federal Court of Justice (BGH), both of which deal with the ordre public according to Art. 35 of the European Inheritance Regulation when applying English law. The ordre public clause under Art. 35 is to be applied restrictively. While the OGH did not consider the ordre public to be infringed, the BGH, on the other hand, assumed an infringement. Mack concluded that this is a fundamental disrespect of the foreign by the BGH.

Tess Bens (MPI Luxembourg) examined methods of enforcing foreign judgments under the Brussels Ia Regulation. Said Regulation does not, in principle, harmonise enforcement law. She presented the enforcement mechanism as applying the enforcement law of the enforcing state by means of substitution or, insofar as the order or measure was unknown to the enforcement law, by means of transposition. Due to structural differences in the enforcement law of the Member States, as Bens outlines, practical problems can nevertheless arise. Especially since the abolition of the exequatur procedure in the case of insufficient concretisation of the enforcement order, the Brussels Ia Regulation does not provide a procedure. Finally, she discussed that these frictions might be mitigated by anticipating differences and requirements of the enforcing by the courts, nonetheless limited due to the difficulty of predictability.

Afterwards, the participants were able to discuss various topics in a small group for one hour in three parallel groups, each introduced by two impulse speeches.

The first group looked at the factor of nationality in private international law. Stefano Dominelli (Università di Genova) introduced into the current debate on the connecting factor of nationality in matters concerning the personal status. In his opinion, it is debateable whether a shift towards the application of local law really strengthens deference to the foreign. Micheal Cremer (MPI Hamburg) looked at the handling of so-called golden passports in the EU. He pointed out, that European conflict of laws regularly does not take the purchased nationality into account, being in line with most of the theoretical approaches to the nationality principle.

The second group focused on the influence of political decisions on the application of foreign law. Dr Adrian Hemler (University of Konstanz) presented the concept of distributive justice as a reason for applying foreign law. He emphasised, that the difference between purely national and foreign constellations makes the application of foreign law necessary. In his presentation, Felix Aiwanger (LMU Munich) looked at different standards of control with regard to foreign law. He argued that legal systems that can be considered as reliable are subject to a simplified content review.

The third group discussed the treatment of foreign institutions in international family law. Dr Lukas Klever (JKU Linz) presented the recognition of decisions on personal status in cases of surrogacy carried out abroad. He discussed differences and possible weaknesses in the recognition under the Austrian conflict of laws and procedural law. Aron Johanson (LMU Munich) then provided a further perspective with a look at the institute of polygamy. He explained, that while in Germany a partial recognition can be possible, Sweden had switched to a regular refusal of recognition. Subsequently the question of a duty of recognition arising from the free movement of persons as soon as one member state recognises polygamy was asked.

Dr Tabea Bauermeister (University of Hamburg) devoted her presentation to the conflict of laws dimension of the claim for damages in Art. 22 of the European Commission’s proposal for a directive on corporate sustainability due diligence (CSDDD), paragraph 5 of which compels the member states to design it as an overriding mandatory provision. She outlined, that regulatory goals can also be achieved through mutual conflict-of-laws provisions. An example of this is the codification of international cartel offence law. Bauermeister concluded, that the use of mandatory overriding provisions instead of special conflict-of-laws provisions expresses a distrust of the foreign legislature’s competence or willingness to regulate and therefore represents a disregard of the foreign.

Dr Sophia Schwemmer (Heidelberg University) then examined private enforcement under the CSDDD vis-à-vis third-state companies. She stated, that while third-state companies were included in the scope of application insofar as they are active in the EU internal market, the applicability of the CSDDD could normally not be achieved using the classic conflict-of-laws rules. The CSDDD resorts to an overriding mandatory provision for this purpose. However, Schwemmer concluded that a different approach, e.g. an extended right of choice of law for the injured party, was also imaginable and preferable.

As last speaker, Dr Lena Hornkohl (University of Vienna/Heidelberg University) addressed the effects of EU blocking regulations on private law. She stated that the application of EU blocking statutes as a reaction to extraterritorial third-country regulations can lead to almost irresolvable conflicts in private law relationships. Hornkohl then critically examined the ECJ case law that postulates the direct applicability of the Blocking Regulation in private law relationships. Binding private parties to the Blocking Regulation, she concluded, leads to the instrumentalisation of private law at the expense of private parties with the aim of enforcing foreign policy objectives.

A conference volume will be published by Mohr Siebeck Verlag later this year. The next PIL Young Researchers Conference will take place in Heidelberg in 2025.

A conference on the codification of European private international law will take place on 21 April 2023 at the Université Catholique de Louvain. The conference, titled Vers un code Européen de droit international privé, is meant to be a tribute to Marc Fallon.

The working language will be French and English.

Speakers and moderators include: Jean-Yves Carlier, Stéphanie Francq, Pietro Franzina, Cristina González Beilfuss, Fabienne Jault-Seseke, Thomas Kadner Graziano, Catherine Kessedjian, Patrick Kinsch, Thalia Kruger, Paul Lagarde, Johan Meeusen, Marie-Laure Niboyet, Etienne Pataut, Fausto Pocar, Sylvie Sarolea, Andreas Stein, Jinske Verhellen, Pieter-Augustijn Van Malleghem, Melchior Wathelet, Patrick Wautelet, Alain Wijffels, Dai Yokomizo. The concluding remarks will be offered by Marc Fallon.

The concept is as follows.

Why and for what purpose should European private international law be codified? This twofold question will be at the heart of the discussions on April 21, 2023, during a colloquium paying tribute to the remarkable work of Professor Marc Fallon in the fields of private international law and European law, and in particular to his involvement in the Belgian and European codification of private international law.

How did we come to envisage a European codification of private international law? What do we expect from it? Does an EU codification have the same ambitions as national codifications? Do these ambitions not vary according to the place, the time and the context of international constraints imposed on the legislator? Does a codification at the European level, and at the present time, imply specific needs, challenges and consequences, even dangers, for both the national and the European legal orders?

And above all, does it offer new prospects or hopes for the European project and for the discipline of private international law?

The full programme is available here, together with the registration form.

Ever since the infamous West Tankers saga, if not before, the interplay between the international jurisdiction of national courts and arbitral tribunals has been subject to a constant stream of publications. Writing a monograph on this topic that is both fundamental and innovative in this field is therefore no small feat – making this book by Faidon Varesis, which has come out at the beginning of the year and is based on his Cambridge dissertation, all the more impressive.

The book is organized in three parts (which are not evident from the Table of Contents). Varesis first discusses the importance of commercial disputes in a globalized world, focusing on the private and regulatory interests involved. He then looks more closely at the issue of jurisdiction and the interplay between litigation and arbitration at what he identifies as “jurisdictional intersections” (referring to a range of different situations in which state courts or arbitral tribunals need to resolve questions of adjudicative jurisdiction), before discussing the concept of party autonomy and its expression in an arbitration agreement. In the second part, Varesis then develops a theoretical model for the distribution of jurisdiction between arbitration and litigation that puts the arbitration agreement at its centre. In the third and final part, the author then tests this model against the current legal framework in England and Wales and demonstrates how it would enable courts and arbitral tribunals alike to solve questions arising at the aforementioned jurisdictional intersections in a global-law spirit.

Arguably the most significant contribution of this book to existing scholarship and debates is its attempt to construct a system around a “horizontal” (rather than hierarchical) relationship between arbitration and litigation as two equivalent yet interdependent modes of dispute resolution. How much appetite there is for such an approach in the wake of Katharina Pistor’s Code of Capital and other critical accounts of corporations seemingly using the law to create and (re-)distribute capital and wealth behind closed doors is obviously open to debate; but this does not make Varesis’ attempt to reconstruct a horizontal system of jurisdiction, arbitral or adjudicatory, that reconciles the distribution of regulatory competence with the need for substantial fairness any less of an intellectually stimulating exercise.

The EAPIL Working Group on the Law Applicable to Digital Assets has issued a Position Paper to comment on the private international law aspects of the Draft Principles and Commentary on Digital Assets and Private Law issued by UNIDROIT in January 2023.

The Position Paper can be found here.

The issue of the applicable law to digital assets, which is the subject matter of the Position Paper, will be taken up jointly by UNIDROIT and the Hague Conference on Private International Law, which have announced earlier this month their plan to launch the HCCH-UNIDROIT Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens.

The EAPIL Working Group will follow the joint work of HCCH and UNIDROIT.

On 13 March 2023, the Journal of International Dispute Settlement  published a private international law article:

G Antonopoulou, “The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts” 

International commercial arbitration is the most preferred dispute resolution method in cross-border commercial disputes. It has been, however, claimed that arbitration has lost its flexibility by becoming increasingly formal and by incorporating litigation practices. In academic literature, this trend has been termed the ‘judicialization’ of international commercial arbitration. This article argues that while arbitration is becoming progressively judicialized, international commercial courts evidence an opposite, less studied trend; namely, the ‘arbitralization’ of courts. Through a comparative analysis of different international commercial courts, the article explores how the competition with arbitration has prompted the establishment of these courts, and how arbitration has served as the inspiration for some of their most innovative features. The article concludes that while the incorporation of arbitration features could improve court proceedings, some of international commercial courts’ arbitration features undermine procedural justice and the role of courts as public institutions and therefore hit the limits of arbitralization.

A new private international law article was just published in the Arab Law Quarterly.:

A Dawwas, “Tacit Choice of Law Applicable to International Commercial Contracts: The Hague Principles and Arab Laws Compared”

This article deals with the law tacitly chosen by the parties to govern their international commercial contracts. It shows the method by which The 2015 Hague Principles on Choice of Law in International Commercial Contracts and Arab laws refer to tacit choice, whether directly or indirectly. In addition, it tackles the level of strictness in tests for tacit choice and its criteria under both The Hague Principles and Arab laws. It concludes that, in order to achieve more predictability and legal certainty, the Legislatures in Arab states should reform the legal provisions on choice of law applicable to the contract with foreign element(s) according to the best practice followed by The Hague Principles in this regard.

The author of this post is Stefano Ferrero, partner at Gattai Minoli, Milan.

As a follow-up to the post by Pietro Franzina on this blog regarding the approach of Italian courts to worldwide freezing injunctions issued in common law countries, I would like to share some additional information and remarks on the matter.

By a ruling of 28 December 2021, the Court of Appeal of Naples provided guidance also to the second issue mentioned in the post, i.e., whether a worldwide freezing order should undergo some adaptation in the State requested (in particular, Italy) at the stage of enforcement.

It is worth noting that the relationship between the sequestro conservativo, a precautionary measure typical of the Italian legal system, and the freezing (formerly Mareva) injunction (or order), a precautionary measure typical of English law, has long been the subject of doubts and uncertainties. The difficulties encountered reflect, in my view, a misunderstanding.

Based on the assumption that a sequestro operates in rem whereas a common law freezing injunction operates in personam, and that the two measures would accordingly be fundamentally different in substance, Italian Land Registrars have generally refused to record English freezing orders affecting immoveable property located in Italy.

Registrars have mostly relied, for this purpose, on a decision rendered in January 2014 by the Court of First Instance of Bologna, which rejected a complaint pursuant to Articles 2674 bis of the Italian Civil Code and 113 ter of the Italian Civil Code made against the temporary and precarious registration of a freezing order that was effected pursuant to Article 2674 bis of the Italian Civil Code.

However, Land Registrars have apparently long been unaware that in June 2014 the Bologna Court of Appeal (with the agreeing opinion of the Attorney General’s Office) had then upheld the complaint against the Bologna Court decree, ordering the Registrar to proceed with registration without reservation.

A similar case has been brought a few years later in Naples. The Registrar had ordered the registration with reservation of an English freezing order, the Court had rejected the complaint with a decree of December 2020 that the Court of Appeal of Naples eventually overturned (under an unreported decision, available here, in Italian), despite the opposition of the Italian revenue authorities (Agenzia delle Entrate).

The decisions of the two Courts of Appeal share the basic idea that the distinction between the sequestro as a measure in rem and the freezing order as a measure in personam has no relevance in the context of the present discussion: a careful examination of the rules of the two judicial remedies (as regards the United Kingdom, the Civil Procedure Rules, the Land Registration Act 2002 and the Land Registration Rules 2003) reveals that they have, also from the point of view of their operation and effects, profound similarities.

Such conclusions had already been reached in 2015 by the English High Court (Arcadia Petroleum Ltd and others v Bosworth and others [2015] EWHC 3700 (Comm) – 15 December 2015), that had declared the full equivalence between English freezing orders and continental attachments, confirming that the (however limited) difference between in rem and in personam nature is, in fact, a false problem.

Moreover, the two Italian measures are based on the assumption that within the European judicial area there is the fundamental principle, confirmed by Article 54 of the Brussels I bis Regulation, whereby the requested State must implement unknown foreign measures by adapting them in the manner and with the effects proper to an equivalent domestic measure.

Admittedly, adaptation may not be available where the foreign measure in question is at odds with the fundamental principles of the requested Member State.

With reference to this last profile, the Court of Appeal of Naples confirmed in the unreported decision mentioned above the full compatibility of the freezing orders with Italian public policy. The Court emphasized that the good arguable claim and the fumus boni iuris tests are largely equivalent, as do the risk of dissipation and periculum in mora tests. Registration in the Italian land registers and the restriction in the English Land Registries are also similar, in that they have an effect limiting the circulation of the goods affected, although the restriction imposes an ex ante (and stricter, for it concerns the validity itself of the act of disposal) limit, whereas the registration operates ex post through the sanction of the relative ineffectiveness of the act of disposal.

The Court of Appeal eventually endorsed the principle affirmed by the Court of Cassation in the ruling of 2021 reported by Pietro Franzina in his post, which had already clarified that the fact that the violation of a freezing order may give rise to a personal criminal sanction (the contempt of court) is a recurring consequence also in Italian law, which punishes the failure to comply with court orders (Article 388 of the Criminal Code).

The lectures of Mario J. A. Oyarzábal entitled “The influence of public international law upon private international law in history and theory and in the formation and application of the law”, which were delivered at The Hague Academy of International Law in 2020, will be published on 22 March 2023 in the Collected Courses of the Academy (Recueil des cours de l’Académie de droit international de La Haye, Vol. 428, 2023, pp. 129 et seq.).

Mario Oyarzábal is an Argentine diplomat and scholar, currently the Ambassador of the Argentine Republic to the Kingdom of the Netherlands.

The summary below has been provided by the author.

As its title suggests, this course explores the influence of public international law upon private international law, in the history and the theory as well as in the formation and the application of the law.

The course focuses on the biggest transformations that have taken place on the international plane over the course of the last century and assesses how that has affected the legal landscape, raising questions as to the scope and the potential of private international law and the suitability of the traditional sources of international law to address the role of private actors and the incursion of public law in the private arena.

In Chapter I, the author analyses how the concepts of public and private international law have evolved over time, from the Jus Gentium and the origins of the conflict of laws to the rise of sovereignty and positivism which led to the exclusion of private disputes connected with more than one State from the domain of international law. Much attention is given to the developments in international relations and international law that took place since the second half of the 20th century – institutionalization, decolonization, human rights, globalization – which have produced a profound transformation in the sources, the method and ultimately the scope of private international law. The significance for private international law of the human rights movement and the regime for the protection of foreign investors are assessed from both backward and forward-looking perspectives.

Chapter II addresses the public international law sources of private international law in an ever-changing world. Starting with the sources stated in the Statute of the International Court of Justice, the author digs into the relevance of other international sources of private international law such as community law, human rights standards and non-legally binding norms (or soft law), party autonomy and reciprocity. The law of treaties – their interpretation and the conflict of treaties – as applied to private international law is dealt with in certain detail, as well as the role – and potential – of the jurisprudence of the International Court of Justice in the determination of the rules of private international law in certain areas.

The last Chapter addresses the interaction of public and private international law in selected areas: jurisdictional immunities – of foreign States, diplomats and international organizations – and the right of access to justice; mutual legal assistance – in relation with the 2019 Hague Judgments Convention, and the so-called “MLA initiative” on a convention for the investigation and prosecution of international crimes; sovereign debt restructuring processes in light of Argentina’s experience; the international law principle of the best interests of the child as applied to abducted, migrant and refugee children; international sports law with special focus on FIFA and football; international arts law under the 1970 UNESCO Convention and the 1995 UNIDROIT Convention and general international law; cybercrime as well as cryptocurrencies. The private international law issues relating to nationality, deep seabed mining, and sea level rise – which are the subjects of public international law – are also introduced.

Having analyzed the prevailing trends, the lectures survey three areas in which the interconnectivity of actors, activities and norms are present requiring public/private law solutions: international economic law – in relation to climate litigation and the human rights preoccupations present in the investment protection regime, as well as the issue of economic and financial sanctions which have exacerbated with the war in Ukraine; international data flows and the threat they pose to personal data protection in particular; and the protection of vulnerable persons and groups including older adults, tourists and migrants.

This course takes a pragmatic problem-solving approach, which nonetheless is systemic and based on principles, and argues that while public and private international law are and should be kept as separate legal fields, both are needed to address an increasing number of issues.    

 

Below is the table of contents:

The Influence of Public International Law upon Private International Law: In History and Theory and in the Formation and Application of the Law by Mario J. A. Oyarzábal:

Table of Contents
Foreword 141
Preliminary remarks 143

Chapter I. The influence of public international law upon the history and the theory of private international law 146
1. The evolving concepts of public and private international law 146
2. A historical and theoretical overview 151
(a) Jus gentium and the origins of the conflict of laws 151
(b) International comity 152
(c) Sovereignty and the dearth of the internationalist approach . 154
(d) The legal conscience of the civilised world 155
(e) The early normative and institutionalisation efforts 158
(f) The Russian and the American revolutions 163
(g) The growing international legal community 170
(h) International law and development 176
(i) Public law in the international arena 186
(j) The privatisation of the State 196
(k) Expansion and diversification of international law 198
(l) Significance for private international law of the human rights movement 209
(m) From international law to transnational law 223
3. Should private international law be international law? 230

Chapter II. The influence of public international law upon the formation of private international law 240
A. Sources of the law 240
1. Customary international law 240
2. Treaties 244
(a) Private international lawmaking treaties  244
(b) Validity and application of treaties 248
(c) Reservations  255
(d) Interpretation of treaties

(e) Application of successive treaties regarding the same subject matter

(f) Treaties as part of the domestic systems of private international law

(g) Incidences of non-recognition of States, breach of diplomatic relations and State succession 259
3. General principles of law 286
4. Judicial decisions  290
(a) Decisions of the ICJ and its predecessor 290
(b) Arbitral awards  298
(c) Decisions of national courts  302
5. The writings of publicists  307
B. Other sources 309
1. “Community” law 309
2. Human rights standards  317
3. Non-legally binding norms 324
4. Party autonomy 332
5. Reciprocity 333
Note on comity 339
Note on international conferences and organisations concerned with private international law 340

Chapter III. The influence of public international law upon the application of private international law: selected problems 342
1. Jurisdictional immunities and the right of access to justice 342
2. From mutual recognition to international legal cooperation  365
3. Sovereign debt restructuring: Public and private law litigation 379
4. International law on the rights of the child 411
(a) International human rights of children in private international law 411
(b) Best interests of abducted children 416
(c) The protection of the best interests of migrant children 421
(d) Best interests of the child in intercountry adoption 428
5. International sports law 431
(a) International sports organisations: Personality and lawmaking and law enforcement 431
(b) The case of FIFA 439
6. International art law 449
(a) Cultural internationalism and cultural nationalism 449
(b) The public and the private international law approaches 452
(c) Free market and exports control 455
(d) Human rights considerations 456
(e) Anti-seizure statutes 458
(f) Conflicts law in illegally exported works of art 461
(g) Cultural heritage, peace and security 462
7. International norms and standards in cyberspace 464
(a) Cybercrime, rights and global politics 466
(b) The rise of cryptocurrency 468
Note on nationality 473
Note on deep seabed mining and the protection of the marine environment 476
Note on sea level rise 477
Critical recap and outlook 480
Epilogue 503
Selected bibliography 505

The HCCH this month published some recent developments on private international law in Issue 1 of Uniform Law Review for 2023 as “News from the Hague Conference on Private International Law (HCCH)”

Over the past year, the HCCH, supported by its Permanent Bureau, has continued its work for the progressive unification of the rules of private international law (PIL). This annual contribution to the Uniform Law Review provides an overview of the activities of the HCCH from 1 November 2021 to 30 November 2022 and anticipates some upcoming events, encompassing the HCCH’s three main areas of work: international family and child protection law, transnational litigation and apostille, and international commercial, digital, and financial law.

Originally posted in News and events – Nigeria Group on Private International Law (ngpil.org)

On 4 March 2023, the Nigerian Group on Private International Law (“NGPIL”) colleagues were pleased to meet the winners of the 2023 NGPIL Conflict of Law’s Essay Prize. This year, we awarded two candidates, winner and first runner up, for excellent and engaging pieces on PIL and Nigeria.

Our winner, Oluwabusola Fagbemi, an LLM student from the University of Ibadan, Oyo State emerged as the winner of this year’s competition. She wrote on “A Comparative Analysis of Product Liability in the Conflict of Laws”, a piece that the deciding panel found to engage robust research, comprising of Nigeria common law, EU approach, English approach and US approach. Our winner was awarded 185,000NGN. In her words “It is an honour to be selected for The NGPIL Prize for the year 2022/2023. Thank you very much…It was also great to get to know them [NGPIL] and hear of their exciting work, and the impact that they are making in the PIL space globally… believe that The NGPIL is the right place for me to grow, learn, advance my career, and develop my interests in PIL. I will definitely keep in touch and remain connected, and I am looking forward to future collaboration.”

Adeyinka Adeoye from the Nigerian School of Law, Kano Campus received the 1st runner prize on her paper entitled “Product Liability in Private International Law” from a Nigerian perspective. She was awarded 65,000NGN. In her words “I am super excited that my essay emerged first runner-up. This news came at the best possible time“.

Huge congratulations to Busola and Adeyinka!

Freezing orders, i.e., orders that prevent a person from disposing of their assets pending a determination as to the existence of a claim, are governed by procedural rules that vary greatly from one legal system to another.

English courts, and more generally the courts of common law jurisdictions, may grant orders that can prove remarkably powerful in practice.

Unlike the freezing injunctions that civil law courts are normally permitted to issue, which operate in rem, English freezing orders are in personam measures. They are not given in respect of one or more assets designated for this purpose,  but rather address the person of the (alleged) debtor. The latter will found themselves in contempt of court, and face the relevant penalties (which may include imprisonment, in some circumstances), if they ignore or breach the order.

How Well Do Freezing Injunctions Travel Abroad?

Injunctions granted in common law countries may aim to prevent the person concerned from disposing of any of their assets, mo matter whether those assets are located in the forum State. The issue arises then of whether a “worldwide” freezing injunction may be given effect in a State other than the State of origin, notably a State whose law ignores in personam precautionary orders.

The enforceability of a foreign worldwide freezing injunction can only be at issue, in reality, where and to the extent to which the law of the State where the assets are located includes interim measures among the foreign decisions that are eligible, in principle, for recognition and enforcement.

Domestic rules on the recognition and enforcement of foreign decisions mostly exclude interim measures from their scope, but some internationally uniform texts provide otherwise, subject to appropriate safeguards. That is the case, in particular, of the Brussels I bis Regulation, pursuant to Article 2(a), which applies to provisional measures originating in a Member State of the Union.

The markedly different approach to freezing orders followed by civil law and common law jurisdictions, respectively, involves that injunctions emanating from a common law country could be denied (recognition and) enforcement in a civil law country on grounds of public policy. Secondly, where a common law injunction is not prevented as such from having effect in a civil law State, the issue may arise of whether, and how, the measure should undergo some adaptation (as the term is understood in Article 54 of the Brussels I bis Regulation) in the State requested, at the stage of enforcement.

The View or the Italian Supreme Court’s on the Issue

A ruling of the Italian Supreme Court (order No 25064, of 16 September 2021) provides an illustration of the kind of concerns that may surround the first of the two issues above (the second issue will not be discussed here).

The Case in a Nutshell

The Supreme Court’s ruling, in reality, only deals with the issue in an indirect way. The question, in fact, was not whether a foreign freezing injunction qualified for enforcement in Italy, but rather whether a foreign judgment on the merits ought to be denied recognition on the ground that, in the course of the proceedings leading to that judgment, a freezing injunction had been granted against the party that eventually lost the case.

By a judgment of 2011, the Royal Court of Guernsey awarded damages to Credit Suisse Trust Ltd for the negligent performance by N.G. and others of their obligations under a contract for professional services (it is worth noting that during the period when the United Kingdom was a Member State of the European Union, Guernsey was neither a Member State nor an Associate Member of the Union; some EU law provisions applied to Guernsey and in Guernsey, but these did not include legislation on judicial cooperation in civil matters, such as the Brussels I Regulation).

Credit Suisse Trust filed an application with the Court of Appeal of Rome to have the judgment enforced in Italy. The Court, however, dismissed the request on the ground that the judgment failed to meet the requirements for recognition set out in Article 64(b) and (g) of the Italian Statute on Private International Law. Article 64(b) provides that a foreign judgment may not be recognized in Italy if the act instituting the proceedings was not served upon the defendant in conformity with the law of the State of origin and if the basic rights of defence (“i diritti essenziali della difesa”) were violated in the proceedings in that State. Article 64(g), for its part, stipulates that a foreign judgment may not be given effect in Italy if doing so would contravene public policy.

The Court of Appeal came to this conclusion based on the fact that, on 26 January 2011, upon a request by Credit Suisse Trust, the Royal Court of Guernsey had granted a freezing order which restrained N.G. from dealing with his assets, whether located in Guernsey or anywhere else in the world, under penalty of contempt of court. The order belonged to the kind of interim measures that English courts used to refer to as Mareva injunctions.

The measure in question, the Court of Appeal noted, was an in personam freezing injunction, whereas, under Italian law, a freezing order cannot operate otherwise than in rem, meaning that it necessarily refers to one or more particular assets, specified in the order itself.

Additionally, the Court of Appeal noted that the Guernsey Court had ordered that the respondent disclose his most valuable assets, and do so within days, again under penalty of contempt, whereas Italian law courts are generally not permitted to impose a duty of disclosure of this kind, let alone one requiring such a prompt reaction, in connection with an asset preservation order. According to the Court of Appeal, the Royal Court of Guernsey had, by granting a freezing injunction with the described characteristics, undermined the ability of N.G. to present his case, and had significantly limited N.G.’s right to deal with his assets.

The result, the Court of Appeal found, was all the more objectionable since the orders of the Royal Court of Guernsey apparently failed to put any burden on the other party in the proceedings and its assets. In the view of the Court of Appeal, all this substantiated a violation of the principle of the equality of arms, as well as of the principle whereby all parties should be given an opportunity to effectively present their case, which implies the right to adequate time and facilities to prepare a defence.

Credit Suisse Trust sought to have the ruling of the Court of Appeal quashed by the Italian Supreme Court. The move proved successful.

The Supreme Court’s Ruling

The Corte di Cassazione held that the fact that the order was of a kind unknown to Italian law does not entail, as such, that the proceedings were unfair, let alone that the resulting judgment should be barred from recognition. The public policy defence, taken in its procedural limb, can only succeed, the Supreme Court reasoned, where it clearly appears that the proceedings before the court of origin were tainted by a serious violation of basic procedural rights.

Thus, a judgment on the substance of the case may not be refused recognition on grounds of public policy for reasons relating to an interim measure given in the course of the proceedings in the State of origin, unless it is established that, by granting such a measure, the court of origin violated the procedural rights of the party concerned in such a fundamental way as to undermine the fairness of the whole proceedings. The Corte di Cassazione, however, found no evidence of such a violation in the circumstances. In fact, the Court considered that the freezing order and the disclosure order came with appropriate safeguards and concluded that the Guernsey judgment fulfilled the conditions for recognition in Italy.

The Supreme Court reached this conclusion based on an analysis of the concerns underlying the common law and the Italian law approach to freezing injunctions.

The Court began by observing that Interim measures, specifically those aimed at preserving assets, are an essential component of all domestic legal systems. They are not meant, as such, to discriminate the alleged debtor vis-à-vis the requesting party. The goal of interim measures is rather to ensure the effectiveness of the decision that the court is ultimately asked to render and avert such risks as may be associated with the time needed to bring the proceedings on the substance to an end.

While the goal pursued is basically common to all legal systems, each jurisdiction surrounds interim measures with the safeguards that it considers appropriate. One should not give a decisive weight to the diversity of these safeguards, the Supreme Court argued, insofar as they all ensure the equality of the parties’ arms.

One key question, then, is whether, in the State of origin, the person affected by the order had been granted “arms” which enabled him to react to the “arms” of the other party. In the case at hand, the Supreme Court noted, the Royal Court of Guernsey had retained the power to revoke and modify the measure upon a request by the alleged debtor, and had the power to require the applicant to enter into such undertakings on such terms as may be specified, notably to compensate such prejudice as the freezing order may cause to the other party. Significantly, the Supreme Court added, a failure to comply with such an undertaking may result in the applicant, too, being in contempt of court, in the same way as the respondent in the event of a failure to observe the freezing or the disclosure orders.

The Supreme Court further observed that the fact that the Guernsey orders involved the threat of harsh penalties in case of non-compliance does not entail that the granting of the measures in question necessarily involve a violation of procedural public policy.

The Court acknowledged that indirect coercive measures raise some delicate issues. It noted, however, that recourse to coercive measures to promote compliance with a court order is not alien to the Italian legal system: Article 388 of the Italian criminal code, for example, makes it a criminal offense to deliberately evade from an order given in court proceedings, and Article 127 of the Italian code on intellectual property goes as far as to criminalize any failure to answer (or any false information in response to) the questions that a court may ask where seized of proceedings relating to counterfeiting and other infringements of intellectual property rights. According to the Supreme Court, this is an indication that the mere fact that the provision of penalties, in common law jurisdictions, for the non-compliance of freezing orders is not in itself a reason to regard such orders as inconsistent with Italian public policy.

A more detailed analysis of the ruling (in English) can be found in a comment which appeared on the open-access journal Italian Review of International and Comparative Law, published by Brill.

As already announced on this blog, the University of Bonn will host a two-day conference titled The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlook, 9 and 10 June 2023.

The event, organised in cooperation with the Permanent Bureau of the Hague Conference on Private International Law, is meant to provide a comprehensive analysis of the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil and commercial matters, and to assess its possible implications in various regions of the world.

Opened by welcome addresses by Matthias Weller (University of Bonn) and Christophe Bernasconi (Secretary General of the Hague Conference on Private International Law), the conference will feature panels  moderated by Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, João Ribeiro-Bidaoui, nd Melissa Ford. Speakers include Xandra Kramer, Wolfgang Hau, Pietro Franzina, Marcos Dotta Salgueiro, Cristina Mariottini, Paul Beaumont, Andreas Stein, Linda J. Silberman, Geneviève Saumier, Ilija Rumenov, Burkhard Hess, Béligh Elbalti, Abubakri Yekini, Chukwuma Okoli, Verónica Ruiz Abou-Nigm, Adeline Chong, Zheng (Sophia) Tang, Ning Zhao, José Angelo Estrella-Faria, and Hans van Loon.

Registrations are still open. Those willing to attend are invited to write an e-mail to sekretariat.weller@jura.uni-bonn.de.

The full programme, together with information concerning the registration fees and other practical aspects, can be found here. See also the conference poster here.

A collection of essays on the Judgments Convention, written by the experts involved in the conference, is due to be published by Bloosmbury in May 2023.

 

The CJEU last week held in C-177/22 JA v Wurth Automotive. The case concerns the consumer title of Brussels Ia, in particular a refinement of the CJEU  C-630/17 Milivojević and C-28/18  Petruchová case-law (involvement of people with a background in the sector), C-498/16 Schrems (evolvement of use from non-professional to professional or the other way around) and  CJEU C‑464/01 Gruber criteria (dual (non-)professional use).

Applicant in the main proceedings, whose partner is a car dealer and managing director of an online platform for the sale of motor vehicles, was mentioned on the homepage of that platform as the graphic and web designer, without actually having carried out that activity at the time of the facts in the main proceedings. At the request of the applicant in the main proceedings, the partner did some research and contacted the defendant in the main proceedings from his professional email address, in which he indicated a price offer for the purchase of a vehicle. It was stated in that email that the contract of sale was to be concluded on behalf of the applicant in the main proceedings, however a little while after the purchase the partner enquired (but was rebuffed) about the possibility to indicate the VAT amount of the invoice (typically only of interest to business buyers).

Firstly, in applying the consumer title, must account be taken of current and future purposes of the conclusion of that contract, and of the nature of the activity pursued by that person as an employed or self-employed person? As for the latter, the CJEU answer [27] is clearly ‘no’, with reference to Roi Land Investments. As for the former, whether the purpose for the use is current or planned in the future, per Milivojević [88-89], is held by the CJEU not to be of relevance. I would personally add to both Milivojević and Wurth Automotive that any such future use must have been somehow signalled to the business. While the CJEU in Schrems confirmed the possibility to lose the consumer status as a result of subsequent professional use, it has not held (and in my view ought not to) that an initial professional use later changed to non-professional use, may belatedly trigger the consumer section (it has of course supported the later ‘internationalisation’ of the contract per Commerzbank).

Next, what is the burden of proof on whom, and what needs to be proven, when a good or service has been procured for dual professional and non-professional use. Here, the CJEU [30] ff confirms that first of all the professional use or not of the good or service needs to be established on the basis of the objective elements of the file. Only if “that evidence is not sufficient, that court may also determine whether the supposed customer had in fact, by his or her own conduct with respect to the other party, given the latter the impression that he or she was acting for business purposes, such that the other party could legitimately have been unaware of the non-professional purpose of the transaction at issue” [32].

[36] “the impression created by the conduct of the person claiming the status of ‘consumer’….on the part of the other contracting party, may be taken into account to establish whether that person should be afforded the procedural protection laid down in Section 4 of that regulation.”

In the case at issue,

[38] inaction following the presentation of a contract identifying the buyer as a trader, can constitute evidence (but not of singlehandedly determinative value) that the applicant in the main proceedings could have created, on the part of the defendant in the main proceedings, the impression that she was acting for professional purposes;

[39] ditto the sale of the vehicle shortly after the conclusion of the contract and [40] the potential making of a profit, albeit that the latter would in the view of the CJEU ordinarily not be of great impact.

The CJEU finally is not prepared (despite a self-confessed [47] in Wurth Automotive] potential to read same in CJEU Gruber) to read a benefit of the doubt, in inconclusive cases, to the benefit of the alleged consumer, leaving that with reference to CJEU TOTO to national procedural law. Here I think the Court could have held against such benefit on the basis of Brussels Ia itself.

Geert.

EU private International Law, 3rd ed. 2021, 2.231 ff.

 

CJEU this AM C-177/22 Wurth Automotive
Jurisdiction for consumer contracts, Brussels Ia
Non-objection to proposed B2B contract, Qs from purchaser's partner (professionally active in sector concerned) re VAT on invoice, do feed into 'consumer' qualificationhttps://t.co/SSEVaWHQiP

— Geert Van Calster (@GAVClaw) March 9, 2023

The Council on General Affairs and Policy (CGAP) of the HCCH met from 7 to 10 March 2023. The meeting was attended by over 450 participants, representing 80 HCCH Members, 8 non-Member States, 7 intergovernmental organizations, 9 international non-governmental organizations, and members of the Permanent Bureau. The Conclusions & Decisions adopted by CGAP are now available in English and French.

In terms of work relating to possible new legislative instruments, CGAP mandated the establishment of a Working Group on private international law (PIL) matters related to legal parentage generally, including legal parentage resulting from an international surrogacy arrangement. Noting progress made by the Working Group on matters related to jurisdiction in transnational civil or commercial litigation in the development of provisions for a draft Convention, CGAP invited the convening of two further Working Group meetings. It also supported further exploratory work on the PIL implications of the digital economy, including, among other, by mandating the conduct of a study on the PIL implications of CBDCs and by endorsing the launch of the HCCH-UNIDROIT Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens. Across several projects, CGAP welcomed the cooperation with UNCITRAL, UNIDROIT, and WIPO, including with respect to work in the areas of digital economy, insolvency proceedings and intellectual property.

In relation to post-Convention work, CGAP approved the Toolkit to Prevent and Address Illicit Practices on Intercountry Adoption and the Model Forms for use under the 1993 Adoption Convention, mandated the development of a Template for Country Fact Sheets on available post-adoption services relating to search for origins, and mandated the establishment of a Working Group on financial aspects of intercountry adoption. CGAP also agreed upon the extension of the scope of the International Hague Network of Judges (IHNJ) to matters relating to the 2000 Protection of Adults Convention. CGAP endorsed the Conclusions & Recommendations of the recent meetings of the Special Commissions (SCs) on the practical operation of the 1993 Adoption, 2000 Protection of Adults, and 2007 Child Support Conventions, and welcomed the preparations for the upcoming meetings of the SCs on the practical operation of the 1980 Child Abduction and 1996 Child Protection Conventions, to be held in the second half of 2023, and on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions. Finally, CGAP mandated the PB to continue work, in partnership with relevant subject-matter experts, and subject to available resources, to study the 2006 Securities Convention and digital developments in respect of securities markets; the interpretation of analogous institutions for the purpose of Article 2 of the 1985 Trusts Convention; and, in relation to the 2015 Choice of Law Principles, the feasibility, desirability and necessity of developing guidance on applicable law in international contracts providing protection to weaker parties.

From a good governance perspective, CGAP approved the HCCH Strategic Plan for 2023-2028. It also decided to adopt Spanish as an official language of the HCCH as of 1 July 2024. Finally, CGAP decided to recommend Dr Christophe Bernasconi to the Netherlands Standing Government Committee on Private International Law for the position of Secretary General of the HCCH for another five-year mandate.

The author of this post is Francesca Maoli (University of Genova).

On 9 March 2023, the CJEU delivered a judgment on the European Certificate of Succession, created by Regulation No 650/2012 on matters of succession, and the recording, in a land register, of a right of ownership in immovable property (C‑354/21, R.J.R. v Registrų centras VĮ).

The Court held that land registry authorities of a Member State may reject an application for registration of immovable property, where the only document submitted in support of that application is a European Certificate of Succession which does not identify the immovable property in question.

The Case

The facts of the case are summarized here. The matter concerned the refusal of the Lithuanian VĮ Registrų centras (State Enterprise Centre of Registers) to register ownership rights on the basis of a European Certificate of Succession alone, which was issued by the competent German probate court. According to Lithuanian authorities, the Certificate did not contain the data required by the Lithuanian Law on the Real Property Register, as it did not identify the immovable property inherited by the applicant. In other words, no information was provided to clearly detect the asset(s) attributed to the heir for whom certification was requested.

The decision was appealed and the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) referred a question to the CJEU for a preliminary ruling. The Lithuanian judge highlighted a prima facie incompatibility between German succession law and Lithuanian law concerning the recording of a right of ownership in land registers. In fact, German law of succession is governed by the principle of universal succession and consequently, it is not possible to indicate or designate the assets forming part of the estate. In particular, according to the Lithuanian court, this happens where a single heir inherits the deceased’s entire estate. On the other hand, the Lithuanian Law on the land register provides that an application for registration of rights in rem in immovable property shall contain supporting documents and information that allow for precise identification of the immovable property in question: in particular, it requires the address and the so-called Unikalus No. (unique number of the property).

The Court’s Ruling

The CJEU – by reframing the question proposed by the domestic court – identified the issue as concerning not only the relationship between Article 1(2)(l) and Article 69(5) of the Succession Regulation, but also Article 68, that specifically concerns the content of the European Certificate of Succession.

The Court highlighted that Article 1(2)(l) of the Succession Regulation excludes from its scope of application “any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording of failing to record such rights in a registers”. According to Article 69(5), the European Certificate of Succession constitute a valid document for the recording of succession property in the relevant register of a Member State “without prejudice to points (k) and (l) of Article 1(2)”. Coherently, the Certificate contains certain information in so far as it is necessary for the purpose for which it is issued and “if applicable, the list of rights and/or assets for any given heir” (Article 68(l)).

According to the CJEU, the content of the Certificate may vary from case to case. However, this does not depend only on the applicable succession law, but rather on the purposes for which the Certificate is issued. While the Certificate may constitute a valid document for the recording of succession property in public registers, the legal requirements for such recording are governed by national law. This means that, according to the Succession Regulation, each Member State is free to determine the conditions for the registration of an immovable property and may impose the applicants to include all identifying data of such a property. If the only supporting document to the application is a European Certificate of Succession which does not contain those information, national authorities may reject that application.

Assessment  

The CJEU adopted an interpretation of the Succession Regulation that does not go beyond the intent and aim of its provisions. While the European Certificate of Succession has the scope to demonstrate the quality and the rights of the heirs, Article 1(2)(l) is clear in attributing to national law the discipline of the legal requirements for property registration. According to the CJEU, the effet utile of the Certificate is not undermined by the need to identify the immovable property on which the heir may exercise their rights.

Indeed, the CJEU’s reasoning is coherent with the position expressed by the European Commission already in 2016. In response to a question from the European Parliament, the Commission stated that the European Certificate of Succession must contain all the required information, based on the purpose for which it is issued: since the function of the certificate is primarily to enable the heir to prove their status with regard to the assets of the estate located in another Member State, it is necessary for these assets to be identified and described in the document. Only in this way can the certificate constitute a valid title for the registration of the property in the relevant registers of a Member State.

In the specific case, the situation was quite straightforward: as the heir was the sole heir, the German probate court could have easily identified the assets, especially if Lithuanian registers were to make it possible to trace a deceased person’s property. On the other hand, German case law considers this practice incompatible with German inheritance law, regardless of the circumstances of the case. At the same time, Lithuanian law is free to determine the rules and conditions for property registration: the Succession Regulation is clear in this regard.

Indeed, an interesting consideration stems from the opinion of Advocate General Szpunar, who fostered the effet utile of the European Certificate of Succession, which the CJEU did not follow.  According to the Advocate General, the content of the Certificate is determined by the applicable succession law. Since German law adheres to the principle of universal succession, the heir succeeds to the estate as a whole, rather to particular assets, which are transferred as a totality. This means that the fragmentation of domestic succession laws may indeed undermine the effet utile of the Certificate, since the Certificate alone may not be sufficient to allow for the recording in national land registers and therefore to produce its effets in all Member States according to Article 69(5).

This book, by Adeline Chong and Man Yip, faculty members at the Yong Pung How School of Law at the Singapore Management University, is part of the Oxford Private International Law Series. There is a 30% discount for purchases made through the OUP website using the promotion code AUTHFLY30. The publisher’s blurb is as follows:

 

“There has been significant reform in Singapore private international law in recent years. Developments such as the establishment of the Singapore International Commercial Court, the incorporation of the Hague Convention on Choice of Court Agreements into Singapore law, and the enactment of the Insolvency, Restructuring and Dissolution Act 2018, have all thrown the country into a period of rapid growth.

Singapore Private International Law: Commercial Issues and Practice provides a roadmap to assist readers in navigating this changing landscape. In it, Chong and Yip offer an overview of Singapore’s legal system, exploring how governmental and judicial efforts have capitalised on Singapore’s location at the heart of Asia, its status as a leading financial centre globally, and its modern infrastructure, to make it the hub of choice for cross-border disputes and insolvency and restructuring efforts. Practical guidance is given to matters such as changes to jurisdiction, protective measures, the recognition and enforcement of foreign judgments, general choice of law issues, and issues specific to contract, tort, unjust enrichment, equitable obligations, trusts, property, corporations, and international insolvency and corporate restructuring. The book also looks at how the English common law principles have been implemented and developed in Singapore, with relevant cases, legislation, and foreign sources used to offer a comparative perspective.”

 

Further information can be found at this link: https://global.oup.com/academic/product/singapore-private-international-law-9780198837596?cc=sg&lang=en&#

For more than 40 years, the ICC Institute of World Business Law has been enhancing ties between the academic world and practising lawyers.

Launched in 2007, the Institute created the Institute Prize as a means to encourage focused research on legal issues affecting international business. Contributing to the understanding and progress of international commercial law around the world, the Institute Prize recognises legal writing excellence.

The Institute Prize is open to anyone 40 years of age or under as of deadline date who submits a doctoral dissertation or long essay (minimum of 150 pages) drafted in French or English on the subject of international commercial law, including arbitration.

Rules and deadlines concerning the next Prize edition in 2023 are finally out. The works submitted for the Prize should be sent to the Secretariat of the Institute at the contact address indicated below: iccprize@iccwbo.org by 3 April 2023 at the latest.

It goes without saying that CoL is proud that one of its former editors, Brooke Marshall, was named laureate of the 2021 ICC Institute of World Business Law Prize for her thesis on ‘Asymmetric Jurisdiction
Clauses’. We keep our fingers crossed that perhaps again someone from the global CoL community will be successful.

Following the publication of her monograph on PIL and non-judicial divorce, I have invited Nuria Marchal Escalona to provide an overview of the topic with a focus on the Spanish case. Nuria Marchal is a professor of Private International Law at the University of Granada (Spain).

The tag ‘non-judicial divorce’ does not refer to a single reality; it rather encompasses a number of ways to getting divorced out of court.

The comparison among legal systems allows for the conclusion that the regulation of non-judicial divorce is actually quite diverse, even in neighboring countries.

Roughly summarized, three models co-exist currently. In some jurisdictions, the competence for the dissolution of marriage in non-contentious cases is conferred to non-judicial authorities such as civil registrars, notaries or even mayors, in such a way that their intervention has a proper constitutive effect. This would be the case of Spain.

In other countries, like France, divorce results from the agreement of the spouses. There, the public authority’s role is very limited (Article 229-1st French Civil Code).

Finally, the dissolution of the marriage is pronounced by a religious court in Islamic-inspired legal systems, and are considered as ‘private divorce’.

This diversity accounts to a large extent for the difficulties met by applicants asking for a non-judicial divorce granted elsewhere to be effective in Spain. But also the issuance of a notarial deed of divorce in Spain in situations involving cross-border elements has to surmount a number of obstacles. The most relevant ones are address hereinafter.

Basic Features of Notarial Divorce in Spain

The de-judicialisation of the marital relationship took place in Spain by virtue of Law 15/2015 on Voluntary Jurisdiction. The Act empowers notaries to authorise divorce by mutual consent in both domestic and international cases. To this end, the spouses must draw up a regulatory agreement (Article 87 Civil Code). Besides, some material and procedural requirements must be fulfilled: a Spanish notary cannot issue a public deed of divorce if the settlement agreement is detrimental to one of the spouses, nor where there are non-emancipated minors, or minors with judicially modified capacity, who are dependent on the parents (moreover, children living in the family home and lacking an own income must consent to the measures affecting them).

A notary is also prevented from dissolving the marriage if the parties do not appear in person before him. In practice, however, this last requirement has fortunately been removed by Resolution of 26 January 2021 of the Dirección General de Seguridad Jurídica y Fe Pública allowing for the authorisation of a notarial deed of divorce with the intervention of a special proxy.

International and Territorial Jurisdiction

Spanish notaries can only grant a notarial deed of divorce in cross-border cases provided they are competent (internationally and territorially), both for the dissolution of the marriage and for determining inextricable related matters such as the financial regime of the marriage, the use of the home, or compensatory pension.

It should be noted that Spanish notarial authorities are not entitled to decide on the custody of minors – in other words, as already stated notarial divorce is only possible if the children of the marriage are of legal age, or emancipated.

To determine international jurisdiction, the notary will need to look into an array of legal instruments respectively addressing divorce and ancillary matters (maintenance, use of the family home and matrimonial property regime). This is the outcome of the limited material scope of application of the rules at stake. By way of consequence, the notary will be confronted with issues of characterization, as he will have to decide, for instance, if a particular institution pertains to maintenance or rather to the matrimonial property regime.

Already the question of the legal instruments applicable to the notary’s competence has not a straightforward answer. Whether Spanish notaries are bound by the provisions of the European instruments regulating international jurisdiction in the above-mentioned matters (Regulation No. 2019/1111, or Brussels II ter; Regulation No. 4/2009; Regulation No. 2016/1103), is unclear. It depends on whether they are ‘courts’ in the sense of the Regulations. However, the very notion is not univocal but varies from one instrument to another. Thus, while given the very broad concept of ‘court’ under Article 2.1 Brussels II ter, Spanish notaries will apply this Regulation to determine jurisdiction, they cannot rely on either Regulation No. 4/2009 or Regulation No. 2016/1103 to the same effect, for, according to them, they are not ‘courts’. For subject matters under the latter two Regulations, they are therefore bound by the jurisdictional criteria set out in the Spanish Organic Law of the Judiciary, in particular those listed in Article 22 quater f) for maintenance issues and in Article 22 quater c) for the dissolution of the marriage, and, where appropriate, the liquidation of the matrimonial property regime.

To grant the divorce, the notary has to be territorially competent too. Mismatches may arise in this regard. The allocation of competence among Spanish notaries to authorise a public deed of divorce follows Article 54 of the Notaries Act of 28 May 1862, according to which the spouses must give their consent either before the notary of their last common domicile or that of the domicile or habitual residence of any of them. It may happen that the international jurisdiction criteria do not allow for the identification of the notary territorially competent as indicated by the provision. Where two Spanish nationals resident in Germany apply for a notarial divorce in Spain, the Spanish notary will have international competence, but lack the territorial one. In such cases, one may argue the spouses can apply for divorce before any notary in Spain. The misalliance shows that the provisions of the 1862 Act are not adapted to the particularities of cross-border cases; de lege ferenda it should be amended.

Applicable Law

The ascertainment of the law applicable to grant a public deed of divorce in cross-border cases is also a complex operation. The dissolution of the marriage has further consequences on the relation between the spouses, which must be dealt with separately from the divorce. Just like with international jurisdiction, this is a consequence of the limited scope of application of the rules currently in force. And, again, delimitation problems are accompanied by delicate issues of characterization, with which the Spanish notarial authorities must contend once they have identified the relevant legal regime, which depends in turn on whether they are ‘jurisdictional bodies” as required in the EU Regulations (and related Hague instruments).

There is no consensus on the meaning of ‘jurisdictional bodies’ for the purposes of applying the EU and Hague provisions on applicable law. The lack of agreement impacts negatively on the overall coherence of the system. It is here posited that a Spanish notary, when dissolving a marriage, is vested with a decision-making function of a constitutive nature: in other words, he exercises ‘jurisdictional functions’. Therefore, he must be considered as a ‘jurisdictional body’ in the sense of both Regulation No. 1259/2010 (Rome III) and the 2007 Hague Protocol. Moreover, the same solution should prevail for Regulation No. 2016/1103 in spite of the Communication made by the Spanish Government denying such quality to Spanish notaries. In fact, Spain should immediately correct the declaration. Nonetheless, in the meantime Spanish notaries remain bound by Articles 9.2 or 9.3 of the Spanish Civil Code in order to decide on the law applicable to the matrimonial property regime.

Regarding the specific conflict of law solutions, it is worth mentioning that choice of law is the basic connecting point under the Rome III Regulation (for divorce) and the Hague Protocol of 2007 (for maintenance), as well as under the national rules on the matrimonial property regime, although in the latter case the choice is operative only in the absence of a common nationality of the spouses (Article 9.2 of the Spanish Civil Code). This parallelism facilitates the task of the notary, as it prevents legal fragmentation and problems of qualification and delimitation. However, coordination may fail since the possibility to choose the applicable law varies in scope depending on the instrument where it is embodied.

It may thus happen that, in order to determine the legal framework of the divorce and the ancillary issues, a notary must combine the law chosen by the parties for the dissolution of marriage with another one(s), the latter being ascertained through objective connecting points. Let’s take spouses of Spanish nationality residing in Italy and choosing Italian law to dissolve their marriage in Spain before a notary: the chosen law will be applicable [ex Article 5 a) R. Rome II] to the divorce, whereas Spanish law, ex Article 9.2 of the Spanish Civil Code, will rule on the economic regime of the marriage.

On a side note, it should be added that notarial divorce in Spain may be unnecessarily expensive due to the Spanish Declaration to the Rome III Regulation, coupled with a Resolution-Consultation of the Dirección General de Seguridad Jurídica y Fe Pública of 7 june 2016. According to the Declaration, the choice of law agreement must be concluded prior to obtaining the divorce – in other words, it is not possible before the court.

Besides, additional formal requirements under Article 7 of the Regulation are needed: the choice of law must be granted in an authentic instrument (before a notary public), or an ‘authentic document’ (a document whose date and signatures by the parties are unequivocal, even if it does not take the form of a notarial instrument). Eventually, choosing the applicable law requires a public document different from the public deed of divorce – therefore, higher costs for the spouses.

Recognition

As of today, the recognition in Spain of foreign non-judicial divorce raises many doubts. Due to the plurality of rules in Spanish private international law, this is a highly topical issue, both essential and complex, starting with already with the determination of the applicable rules. One must take into account, besides the usual variables (origin of the divorce, date on which it was granted), the type of non-judicial divorce at stake. This requires examining if a public authority was involved and the role it played: whether or not it has exercised a constitutive function, and (more relevant), whether or not it has performed functions equivalent to those allocated to Spanish courts.

Under the broad concept of ‘court or tribunal’ under Brussels II ter and Regulation No. 4/2009, all authorities in the Member States with jurisdiction in matters falling within the scope of said Regulations can be considered as belonging to such category. That is to say, for the purposes of these instruments, any authority, official or professional is a ‘court’ provided that the legal system to which it belongs confers on it the power to dissolve the marriage.

The CJEU ruled along these lines in its judgment of 15 November 2022 (Case C-646/20): a divorce settlement entered into before the Italian Registrar of Vital Statistics equates a court decision, provided that the issuing authority carries out a review of the settlement, i.e., of the conditions of the divorce under national law, and of the validity of the spouses’ consent. By analogy, a Spanish notarial divorce must be recognised as a ‘judicial determination’ in other Member States, since Spanish notaries perform such tasks. Had it not been withdrawn, the question referred to the Court of Justice of the European Union for a preliminary ruling in Case C-304/22 should had been solved along these lines.

The other ‘side of the coin’ of this broad definition of ‘court’ as interpreted by the CJEU is that a foreign divorce where the public authority has merely approved a private act does not constitute a judicial decision in the sense of the Regulations. This does not automatically entail the non-recognition of such divorce. In fact, Article 65 Brussels II ter acknowledges the effectiveness of registered private agreements and connects them with court judgments. From the procedural point of view, the equating of registered agreements to court decisions implies their automatic recognition in the terms of Article 30 et seq. of Brussels II ter.

Where European rules do not apply, conventional rules come to the forefront. Spain is a contracting State to a considerable number of bilateral conventions on recognition of decisions (ad ex. Colombia, Russia and China).  However, for non-judicial divorce such conventions have little impact, either because family matters are excluded from their scope of application, or because they only apply to the recognition of ‘judicial decisions’, meaning those originating from jurisdictional bodies. This is the reason why many times the legal regime applicable to the recognition of a foreign non-judicial divorce will be defined by national (autonomous) rules. In Spain, there is a plurality of sources in the area:

• The Third Additional Provision of Law 15/2015 on Voluntary Jurisdiction, on the registration of foreign public documents in public registers.
• Articles 11 and 12 of the same Law, addressing registration in public registers of foreign decisions on voluntary jurisdiction (Article 11), and the effects in Spain of voluntary jurisdiction proceedings and acts agreed by foreign authorities (Article 12).  Such provisions prevail over Article 41.2 of Law 29/2015 on International Legal Cooperation in Civil Matters, in accordance with the First Additional Provision of the International Legal Cooperation Act.
• Articles 323 and 144 of Law 1/2000 on Civil Procedure, on the recognition of foreign public documents.
• Articles 96 and 97 of Law 20/2011 on the Civil Register. These provisions deal with the recognition of foreign non-judicial decisions (Article 96) and of foreign extrajudicial documents (Article 97). They should prevail over the Law on Voluntary Jurisdiction when an application is made for the dissolution of the relationship to be registered with the Spanish Civil Registry.

In light of the foregoing, it is easy to imagine that ascertaining the competent rule and, therefore, the conditions to be checked to grant effects to a foreign extrajudicial divorce, can become a quite complicated endeavor.

It does not only depend on the type of divorce obtained (notarial, registered, etc.), thus on the document recording the divorce (notarial deed, extrajudicial decision or public act), but also on the effect that the recognition is intended to have (constitutive, evidentiary, entry into an official registry).

But, fundamentally, it will be conditional upon the function performed by the intervening authority, and on whether it corresponds to those of the Spanish judicial authorities in the field. Eventually, whether the foreign non-judicial divorce falls under the category of foreign ‘judicial decision” or rather under that of foreign ‘public document’, and the corresponding regime, depends on the answer to these questions.

The recognition of so-called ‘private divorces’, i.e. those dictated by a religious authority, poses even greater problems even if they are subsequently approved by a foreign authority. To qualify as a ‘decision’ and, therefore, for the autonomous legal regime on recognition of judgments to apply, the authority must have performed a constitutive function: in other words, it must have acted with ‘imperium’ in accordance with the system of origin. Otherwise, the foreign divorce will get a conflict-of-laws treatment. However, after the amendment of Article 107.2º of the Civil Code in 2015, there is no rule for that purpose under Spanish autonomous PIL provisions.

And, finally, it should not be forgotten that, more often than not, the decision or document on the dissolution of marriage by a non-judicial authority includes statements on the economic regime of the marriage, alimony and even parental relationship. According cross-border effectiveness to a foreign non-judicial divorce does not automatically benefit those ancillary matters. Let’s take a non-judicial divorce by mutual consent by notarial deed from Cuba: in Spain, it will generally be recognised as a non-contentious judicial decision under autonomous PIL. Should the divorce be accompanied by decisions on parental responsibility, the latter will fall under the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The regulatory fragmentation existing in Spanish law in the area may give rise to problems of consistency, and eventually lead to semi-claudicating divorces, meaning that they are effective in terms of the dissolution of the marital bound, but not in terms of its effects in relation to children, maintenance or the liquidation of the matrimonial property regime.

It has already been announced on this blog that a conference on The Law of Treaties as Applied to Private International Law is set to take place in Milan, on 5 and 6 May 2023, under the auspices of SIDI, the Italian Society of International Law and EU Law, and EAPIL.

The early bird period, which was initially meant to end on 6 March, has been extended until 20 March 2023. Those registering before the latter date will benefit from a discounted registration fee of 80 Euros (further reduced to 50 Euros for PhD students and those who earned their PhD over the last few weeks).

For more information, and the registration form, see here.