Agrégateur de flux

The author of this post is Omar Vanin. He earned a Phd in Private International Law from the University of Padova and is now in private practice.

On 7 August 2020, the Italian Supreme Court (Corte di Cassazione) ruled on the non-recognition of a judgment whereby a Palestinian religious court had acknowledged the severance of the matrimonial ties between a muslim couple, on the ground that the judgment offended the public policy of Italy (the ruling is numbered as follows: No 16804/20; the text has not yet been officially published by the Court, but it’s available here through the website Cassazione.net).

Proceedings were brought by a woman of Italian and Jordanian nationality against the recording in Italy of a judgment rendered, on an application by her husband, by the Sharia court of Western Nablus (West Bank). The husband had repudiated the woman in accordance with Islamic law, and the Sharia court, taking note of the repudiation (talaq), had certified that the couple had ceased to be bound by marriage.

The woman argued that the judgment was at odds with the public policy of Italy. She submitted, first, that Islamic law, as applied in the West Bank, failed to provide equal rights to the spouses in relation to divorce, and, secondly, that the she was not given an opportunity to present her case in the proceedings which resulted in the judicial declaration.

The man, for his part, claimed that talaq merely constituted a process of revocable separation, and that the judgment was passed after an unsuccessful attempt by the Sharia court to reconcile the couple.

Islamic law sees marriage as a contract. Talaq is one of the grounds on which marriage may be terminated.

The traditional view is that only the husband is entitled to have the marital ties severed by means of repudiation.

Developments have occurred in this area in several Islamic jurisdictions. In some of them, the wife may seek to have the marriage terminated through a declaration by the competent (religious) authority, based on a breach of the husband’s obligations towards her.

Concurrently, marriage termination is losing its ‘contractual’ features, and rather represents, in some jurisdictions, the outcome of a judicial procedure.

Against this backdrop, a case-by-case analysis may prove necessary to assess whether, in the circumstances, the authorities involved merely attested a unilateral termination prompted by the husband or rather declared such termination based on their own independent assessment.

The Cassazione held that, in the case at issue, the basic procedural rights of the wife had been violated. Indeed, the woman did not take part in the proceedings instituted by her husband before the Sharia court, in the framework of which he irrevocably repudiated his wife.

In fact, the woman was notified of the procedure after the judgment was given, and only to enable the court to ascertain that no reconciliation had occurred in the three months following the decision.

In addition, the Cassazione ruled that the judgment was also incompatible with the substantive public policy of Italy, since talaq could only be exercised by the male spouse, thus violating the principle of equality of rights between husband and wife enshrined both in the Italian Constitution and in various international instruments in force for Italy, such as Protocol No. 7 to the European Convention on Human Rights.

By the described ruling, the Cassazione took a stance on a topic that lower courts in Italy have been discussing for several years. Prior to this judgment, the Court itself had relatively few opportunities to address the matter, the latest of which dates back to 1983.

The conclusion reached by the Supreme Court, namely that traditional talaq is inconsistent with public policy, accords with the Court’s own precedents and with most lower courts’ judgments. In fact, the reasoning of the Cassazione echoes, to a large extent, the reasoning of several among such lower courts.

In various respects, the views expressed by the Cassazione are in line with those expressed, often in a more nuanced way, in other European countries.

In 2014, for instance, the French Cour de Cassation denied the recognition of an Algerian judgment acknowledging the unilateral repudiation of an Algerian wife by an Algerian husband on the ground that it contravened the principe whereby the spouses enjoy equal rights as regards the termination of marriage.

The Cour de Cassation had previously granted effect to judgments rendered as a result of talaq, through the doctrine of ‘mitigated’ public policy. The latter doctrine posits that, in appropriate circumstances, foreign judgments offending as such public policy may nevertheless be granted recognition to the extent to which their authority is merely invoked as a basis for a different claim, one that is not, per se, inconsistent with public policy (e.g., a claim for spousal support based on the termination of marriage through talaq).

Eventually, the Cour de Cassation abandoned this line of thought in 2004, stressing the radical incompatibility of talaq with a paramount principle of the French legal system such as gender equality.

The question remains debated in France, among scholars, of whether a milder solution ought to be adopted where to deny recognitin would preclude the wife from enjoying some important benefits (see in general, among recent contributions available on the web, this paper by Yann Heyraud).

Note, incidentally, that the concept of ordre public atténué is not necessarily followed everywhere. The Italian Supreme Court, for example, has never explicitly endorsed the doctrine of attenuated effects in respect of talaq or other legal institutions.

Greek courts, for their part, have expressed the view that talaq judgments ought to be denied recognition on grounds of public policy. Recently, however, lower courts admitted the recognition of of such judgments in cases where an application to that effect was lodged by the wife herself (see further the chronicle and remarks by Apostolos Anthimos here).

The position taken by the Italian Supreme could hardly be criticised in itself. The Court’s reasoning, however, is unpersuasive in at least two passages.

To begin with, the Cassazione failed to take a clear stance on the nature of talaq in a situation where a foreign judicial authority is involved in the process. Arguably, the issue has repercussions on the methods through which the severance of matrimonial ties may be given effect in Italy. If the severance of those is understood to be produced by a judicial decision (i.e., one based on an assessment by the authority in question, following the husband’s declaration), its effectiveness in Italy depends on whether the conditions for the recognition of such a foreign decision are met in the circumstances. Instead, if talaq is labelled as a contractual act (i.e., as a declaration of the husband that the competent judicial authority is merely required to attest, e.g., for publicity reasons), then its effects in Italy would depend on whether the act in question was performed in accordance with the law specified under the pertinent Italian conflict-of-laws rules. Of course, public policy may prevent a talaq from producing effects in Italy in both scenarios, but the question remains of whether the issue of its should be addressed against the background of the rules on the recognition of judgments rather than those on the conflicts of laws. In some cases, the conditions required under the applicable rules may not be fulfilled, which would make any inquire into public policy useless.

In the case at issue, the Cassazione observed that the Sharia court of Western Nablus simply took note of the repudiation, without carrying out, properly speaking, any assessment. The Court, however, failed to elaborate on the implications of such a characterisation for the identification of the relevant methods and rules of private international law, and in fact contented itself with noting that the decision ought to be denied recognition on grounds of public policy.

The second questionable passage in the Supreme Court’s ruling is a general remark whereby a foreign judgment declaring the severance of matrimonial ties ought to be denied recognition on grounds of public policy unless such a judgment is based on, or at least implies, a finding that the bond of affection between the spouses has irretrievably come to an end.

Doubts may be raised as to the pertinence of the latter requirement. As a matter of fact, even Italian courts do not inquire into the reasons why the spouses may be seeking divorce, when pronouncing the dissolution of marriage under Italian law.

The Court of Justice delivered today its judgment in case C‑540/19 (WV v Landkreis Harburg) which is about Article 3 (b) of the Maintenance Regulation. The decision should have a clear practical impact: « A public body which seeks to recover, by way of an action for recovery, sums paid in place of maintenance to a maintenance creditor, and to which the claims of that maintenance creditor against the maintenance debtor have been transferred by way of subrogation, may validly invoke the jurisdiction of the court for the place where the creditor is habitually resident, as provided in Article 3(b) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations”.

Source: http://curia.europa.eu/juris/document/document.jsf?docid=231185&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=2561617

AG  Saugmandsgaard Øe delivered last week (10 September 2020) his opinion in case C‑59/19 (Wikingerhof GmbH & Co. KG contre Booking.com BV), which is about Brussels I bis. The opinion is currently available in selected EU official languages only (such as German and Spanish). It is not available in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

“L’article 7, point 2, du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale doit être interprété en ce sens qu’une action en responsabilité civile fondée sur la violation des règles du droit de la concurrence relève de la « matière délictuelle ou quasi délictuelle », au sens de cette disposition, y compris lorsque le demandeur et le défendeur sont parties à un contrat et que les prétendus agissements anticoncurrentiels que le premier reproche au second se matérialisent dans leur relation contractuelle ».

Source : here

La Cour de cassation a examiné un pourvoi relatif à la question de l’application des dispositions de la loi du 23 mars 2019 relative au seuil d’aménagement des peines. Est-elle applicable aux procédures en cours, ou seulement aux procédures dont les faits poursuivis ont été commis postérieurement à l’entrée en vigueur de la loi, le 24 mars 2020 ? Dans son avis, l’avocate générale a soutenu la deuxième hypothèse. La décision sera rendue le 20 octobre.

en lire plus

The new Uruguayan General Law of Private International Law has passed the Senate and will now be submitted to the House of Representatives. This means that a project that was initiated in 1994 by Didier Opertti Badán will finally come to fruition. ASADIP’s blog provides a note by Cecilia Fresnedo that lays out, in Spanish, the arduous path that the project took between 1994 and now. It is also possible to download the draft legislation.

Despite its small size, Uruguay has long been one of the leaders of private international law in Latin America, and has been highly regarded worldwide. Cecilia Fresnedo reported on the project last year at a conference on the role of academia in Latin American private international law at the Max Planck Institute; she has written on Uruguayan Private International Law – Past and Future in the Festschrift for Herbert Kronke that came out earlier this year. The 2016 draft of the law is here; an  appreciation by José Antonio Tomás Ortíz de la Torre is here.

I reported earlier on the jurisdictional issues in BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2020] EWHC 2436 (Comm) . In current judgment the issue of interest to the blog is the possibility of res judicata /issue estoppel on  the substance of the claim as a result of arguments made in the jurisdictional challenge.

The issue is an important one given the English (potentially other States’) courts’ inclusion of a ‘serious issue to be tried’ test in which the judge has to decide to ‘much the better of the argument’ standard at the jurisdictional gateway level. While aimed at determining jurisdiction, this inevitably engages with some discussion on the merits.

Cockerill J is justifiably cautious in accepting much estoppel, given the clear separation between jurisdictional and substantial discussions. I do feel she might have pointed out the relevance of the case being heard under Brussels Ia rules as opposed to residual English rules. Under the former, a certain amount of merits engagement may be required for some jurisdictional gateways as discussed repeatedly on the blog (and in the jurisdictional rulings there was clearly a lot of engagement with the facts, to establish Article 25 consent for choice of court). But there can certainly not be a ‘serious issue to be tried’ condition for the substance of the case, in the jurisdictional gateways of BIa (summary dismissal proceedings are an entirely different matter).

Geert.

Discussion on res judicate /issue estoppel and abuse of process in relation to earlier judgments upholding jurisdiction of the English courts – which I discuss here https://t.co/mn3rGYTttG

— Geert Van Calster (@GAVClaw) September 11, 2020

Bail commercial - Procédure civile

Cassation

Bail commercial - Preuve