Agrégateur de flux

 Written by Seung Chan Rhee and Alan Zheng

Suppose a company sells tickets for cruises to/from Australia. The passengers hail from Australia, and other countries. The contracts contain an exclusive foreign jurisdiction clause nominating a non-Australian jurisdiction. The company is incorporated in Bermuda. Cruises are only temporarily in Australian territorial waters.

A cruise goes wrong. Passengers, Australian and non-Australian, want relief under the Australian Consumer Law (ACL). They commence representative proceedings alleging breaches of consumer law, and negligence in the Federal Court of Australia. The Australian court must first resolve the conflict of laws problems posed – problems as sustained as they have been complex in the history of private international law.

These are the facts at the heart of the Ruby Princess cruise, and her 2,600 passengers. The story was reported widely. A COVID-19 outbreak prematurely terminated the cruise. Many passengers contracted COVID-19; some died. Unsurprisingly, the cruise then spawned an inquiry and a class action against Carnival plc (Carnival) as charterer and operator of the Ruby Princess, and Princess Cruise Lines Ltd, the Bermuda-registered subsidiary and vessel owner.

Statute has left little of the common law untouched. This short note analyses the interaction between a mandatory law and an exclusive jurisdiction clause in the context of the case. The note observes the tension between the selection of the statutist approach or conventional choice of law rules as an analytical starting point, in difficult consumer protection cases.

Background

The Ruby Princess’ passengers contracted on different sets of terms and conditions (US, UK and AU). The US and UK terms and conditions contained exclusive foreign jurisdiction clauses favouring the US and English courts respectively (PJ, [26], [29]). US customers also waived their rights to litigate in representative proceedings against Carnival (the ‘class action waiver’) (PJ, [27]). In aid of these clauses, Carnival sought a stay of the proceedings vis-à-vis the UK and US passenger subgroups.

Whether a stay is granted under Australian law turns on whether the Australian court is ‘a clearly inappropriate forum’ (See Oceanic Sun Line Special Shipping Co Inc v Fay at 247–8) (Oceanic Sun Line). In Regie Nationale des Usines Renault SA v Zhang (Renault v Zhang), the High Court (at [78]) described the test as requiring the applicant to show the Australian proceeding:

would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious …

In Voth v Manildra Flour Mills Pty Ltd (Voth), a majority observed (at 566):

the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration … the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties.

Through these cases the High Court elected not to follow the English approach (see Spiliada Maritime Corporation v Cansulex Ltd) which requires that another forum is clearly or distinctly more appropriate. The Australian test, after Voth poses a negative test and a more difficult bar.

First Instance

Stewart J found the Federal Court was not a clearly inappropriate forum and declined to stay the proceedings. A critical plank of this conclusion was the finding that the exclusive foreign jurisdiction and class action waiver clauses were not incorporated into the contracts (PJ, [74]). Even if the clauses were incorporated, Stewart J reasoned in obiter that the class action waiver was void as an unfair contract term under s 23 of the ACL (PJ, [145]) and the Federal Court was not a clearly inappropriate forum.

As noted in Voth and Oceanic Sun Line, simply because the contract selected the US or UK as the particular lex causae did not end the analysis (PJ, [207]) — the US and UK subgroups were not guaranteed to take the benefit of the ACL in the US and English courts, notwithstanding Carnival’s undertaking that it would not oppose the passengers’ application to rely on the ACL in overseas forums (PJ, [297], [363]). Ultimately, there remained a real juridical advantage for the passengers to pursue representative proceedings together in Australia.

Carnival appealed.

Full Court

The majority (Derrington J, Allsop CJ agreeing) allowed Carnival’s appeal, staying the US subgroup’s proceedings. Unlike the primary judge, the majority reasoned the clauses were incorporated into the US subgroup contracts. Further, a stay should be refused because the US and English courts had similar legislative analogues to the ACL (FCAFC, [383]-[387]). Although he US passengers would lose the benefit of the class action, that was a mere procedural advantage and the question of forum is informed by questions of substantive rights (FCAFC, [388]).

Rares J dissented, upholding the primary judge’s refusal of a stay (FCAFC, [96]).

The passengers appealed to the High Court.

The Interaction between a Mandatory Law and an Exclusive Jurisdiction Clause

Statutes generally fall into one of three categories (see Maria Hook, ‘The “Statutist Trap” and Subject-Matter Jurisdiction’ (2017) 13(2) Journal of Private International Law 435). The categories move in degrees of deference towards choice of law rules. First, a statute may impose a choice of law rule directing the application of the lex fori where a connecting factor is established. Second, a statute may contain, on its proper construction, a ‘self-limiting’ provision triggered if the applicable law is the lex fori. Third, a statute may override a specified lex causae as a mandatory law of the forum. An oft-repeated refrain is that all local Australian statutes are mandatory in nature ([2023] HCATrans 99).

In the High Court, Carnival contended that if contracting parties select a lex causae other than the forum law, the forum statute will not apply unless Parliament has expressly overridden the lex causae.

The passengers (supported by the Commonwealth Attorney-General and ACCC, as interveners) took a different starting point — the threshold question is whether the forum law, as a matter of interpretation, applies to the contract irrespective of the parties’ usage of an exclusive jurisdiction clause. In this case, several factors supported the ACL’s application including s 5(1)(g) of the CCA, and the need to preserve the ACL’s consumer protection purpose by preventing evasion through the insertion of choice of law clauses.

The parties adopted unsurprising positions. The passengers’ case was conventionally fortified by the statutist approach, prioritising interpretation in determining the forum statute’s scope of application. Carnival relied on the orthodox approach, prioritising choice of law rules in controlling when and to what extent forum statutes will apply, and more aligned with comity norms and party autonomy the selection of the governing law of private agreements. The orthodox approach was exemplified in Carnival’s submission that ‘[i]t was not the legislature’s purpose to appoint Australian courts as the global arbiter … of class actions concerning consumer contracts across the world’ (See Respondent’s Outline of Oral Argument, p. 3).

Against that view, it was said that party autonomy should be de-emphasised where contracts are not fully negotiated, involve unequal bargaining power and standard terms (contracts of ‘adhesion’ as here provide a good example): see [2023] HCATrans 99 and the exchange between Gordon J and J Gleeson SC.

As scholars have noted, differences between the two approaches can be almost imperceptible. Characterisation is a ‘species of interpretation’ (Michael Douglas, ‘Does Choice of Law Matter?’ (2021) 28 Australian International Law Journal 1). However, the approach taken can lead to different outcomes in hard cases.

The key obstacle to the statutist approach is uncertainty. If interpretation of a statute’s extraterritorial scope controls the choice of law, then how do contracting parties ensure their selection of law prevails and that they are complying?

Interpretation (both in the choice of law sense and statutory interpretation) invites reasonable arguments that cut in both directions requiring judicial adjudication. Take, for example, Carnival’s response to the passengers’ argument that the ACL’s consumer protection policy weighs against the use of choice of law clauses to evade liability. Carnival contended any evasion can be controlled by a two-step approach: firstly, applying the ACL’s unfair contract provisions to the choice of law clause itself and, if it the clause is void, only then secondly applying the provisions to the contract as a whole. However, this only shifts the application of statutory interpretation to an anterior stage, namely how and when a given choice of law clause, on its face, might be considered unfair. To the extent any determination of unfairness could be made, this turns on the consequences of the clause per se than any particular manner of wording. Such an outcome equally produces unpredictability as to the anticipated effect and application of the forum law.

There is another example on point. Section 5(1)(g) extends the ACL to the ‘engaging in conduct outside Australia’ by bodies corporate carrying on business in Australia. Carnival’s expressio unius-style argument that s 5(1)(g) does not support the passengers’ case because the unfair contracts prohibition is not predicated on ‘engaging in’ any conduct, whereas ACL prohibitions apply to ‘conduct’. Accordingly, taking up a point made by the Full Court majority (FCAFC, [301]), Carnival contended a limitation should be read into s 5(1)(g) else it capriciously apply to companies like Carnival whose business were entirely engaged outside of Australia’s territorial limits.

Nevertheless, as the appellants pointed out (relying on drafting history), ‘when the unfair contract terms legislation was first introduced … s 5(1) was specifically amended to apply to those provisions’ (See Appellant’s Written Submissions, p. 6).  It is therefore apparent how the statutist approach invites a certain level of textual skirmishing.

Choices are available to judges under both the statutist approach and in the application of choice of law rules (see Michael Douglas, ‘Choice of Law in the Age of Statutes’ in Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson, Commercial Issues in Private International Law: A Common Law Perspective (Hart Publishing, 2019) ch 9). However, it does not follow that there are comparable levels of certainty in the two approaches. Characterisation of a case as contract or tort (to take a very general example) invites a narrower range of choices than the entire arsenal of statutory interpretation techniques deployable analysing words in a statutory provision. That is so because characterisation is controlled by matters external to submissions, namely pleadings and the facts as objectively found (e.g. where was the defective product manufactured, or where was the injury sustained). Interpretation, particularly through the modern focus on text, context and purpose, is not disciplined by facts or pleadings. Instead, it is shaped by submissions and argumentation actuated by the connotative ambiguity found in statute.

That has led the High Court to observe that choice of law rules uphold certainty. In Renault v Zhang, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated ([66]-[67]):

The selection of the lex loci delicti as the source of substantive law meets one of the objectives of any choice of law rule, the promotion of certainty in the law.  Uncertainty as to the choice of the lex causae engenders doubt as to liability and impedes settlement.

Against the aim of certainty (and deference to choice of law clauses) are the countervailing considerations arising from legislative policy and the higher-order status of statute over choice of law rules sourced from the common law (see Douglas, ‘Choice of law in the Age of Statutes’). The interveners put it as an ‘unattractive prospect’ if the ‘beneficial’ aspects of the ACL regime could be defeated by expedient foreign jurisdiction clauses.

Insofar as the legislature evinces an intent to confer the benefit of legislation beyond Australia’s territorial bounds, courts bound by an interpretive obligation to give effect to that legislative intention will not be able to defer to choice of law rules. In the case of the CCA and the ACL, s 15AA of the Acts Interpretation Act 1901 (Cth) enjoins courts to prefer the interpretation ‘that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act)’. Douglas and Loadsman (see ‘The Impact of the Hague Principles on Choice of Law in International Commercial Contracts’ (2018) 19(1) Melbourne Journal of International Law 1) observe that:

It is consistent with this purposive approach to statutory interpretation that Australian courts take a broad approach to the geographical scope of Australian statutes. In an environment where Australian lives and businesses increasingly cross borders on a regular basis, it would defeat the purposes of many pieces of Australian legislation if courts were to take a territorially-limited approach to statutes’ scope of operation.

No doubt there is some truth to Carnival’s submission that Parliament did not intend to render Australian courts the global arbiters of consumer contracts. However, subject to a pronouncement to the contrary from the High Court, the judgments to date in Karpik v Carnival plc suggest a statutist analysis, however uncertain, difficult or comity-ablating, will be a necessary precondition to determining the weight given to the wording of a choice of law clause. This is ultimately a consequence of the premium placed on a purposive construction to mandatory laws arising out of the home forum. For better or worse (and a strong case has been made for worse – see Maria Hook, ‘The “Statutist Trap” and Subject-Matter Jurisdiction’ (2017) 13(2) Journal of Private International Law 435), ‘[i]f the purposive approach to statutory interpretation gives rise to forum shopping in favour of Australian courts, so be it’ (see Douglas and Loadsman, 20).

Notwithstanding this, another difficulty with Carnival’s submissions in favour of the choice of law approach is that it functionally revives the common law presumption of non-extraterritorial application of laws and elevates the rebuttability threshold of that presumption to something made ‘manifest’ by parliament (which has been keenly disputed in the High Court: see Respondent’s Submissions, [10]).

It is important to recall that the presumption was always couched in the language of construction. In Wanganui-Rangitiei Electric Power Board v Australian Mutual Provident Society, Dixon J stated (at 601):

The rule is one of construction only, and it may have little or no place where some other restriction is supplied by context or subject matter.

Rebuttability does not arise at all if the context or subject matter of the forum statute, as a matter of interpretation, supplies a relevant territorial connection. If it so supplies, that territorial connection operates as a restriction.

Dixon J also went on to state (at 601):

But, in the absence of any countervailing consideration, the principle is that general words should not be understood as extending to cases which, according to the rules of private international law administered in our courts, are governed by foreign law.

Most recently in BHP Group Ltd v Impiombato, Kiefel CJ and Gageler J (at [23]) considered the common law presumption resembled a ‘presumption in favour of international comity’ rather than one against extraterritorial operation – although it is worth noting that three other judges recognised (at [71]) the common law presumption was ultimately a statutory construction rule which did not always require reference to comity. Nevertheless, an important factor for Kiefel CJ and Gageler J in finding the class action provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth) were not restricted to Australian residents by the presumption was the fact no principle of international law or comity would be infringed by a non-consenting and non-resident group member being bound by a judgment of the Federal Court in relation to a matter over which that court had jurisdiction.

Conversely, as Derrington J noted on appeal (FCAFC, [300]), the extension of s 23 to the transactions of companies operating in overseas markets as a result of their ancillary dealings in Australia would have been an ‘anomalous result’. Such a result would not have promoted comity between Australia and other national bodies politic, where the ACL would have had the result of potentially subjecting foreign companies to obligations additional to those imposed by the laws of their home country. As Carnival put it in the High Court:

if a company happens to carry on business in Australia, all of its contracts with consumers (as defined) all over the world are then subject to Part 2-3 of the ACL. It would mean, for example, that contractual terms between a foreign corporation and consumers in Romania under standard form contracts can be deemed void under s 23 (Respondent’s Submissions, [36]).

Without an expressed intention to the contrary, it was unlikely that Parliament had intended to ‘legislate beyond the bounds of international comity’ – into an area that would ordinarily be expected to be governed by foreign law.

To some extent, the judgments to date, despite their differing conclusions, suggest in common that an entirely non-statutist outcome (insofar as the CCA and ACL is concerned) is something of a will-o’-the-wisp. If it is accepted that matters of high forum public policy can supervene the contractual arrangements of the parties, expressed in no uncertain terms, then a court must always evaluate legislation in a statutist manner to determine how contractual arrangements interact with that policy. This is so even if, as in Derrington J’s view in Carnival plc v Karpik, the conclusion would be that the policy would not be advanced by applying the mandatory law.

The High Court’s decision will not only clarify the ambit of the CCA regime; it will materially bear upon the desirability of Australian courts as a forum for future transnational consumer law class actions. Coxtensively, companies with Australian operations liable to be on the respondent end of such class actions will be watching the developments closely before drafting further exclusive foreign jurisdiction clauses.

Judgment is reserved in the High Court.

Seung Chan Rhee is a solicitor at Herbert Smith Freehills. Alan Zheng is an Australian-qualified lawyer at Linklaters LLP. The views in this note are the views of the authors alone. The usual disclaimers apply.

 

 

 

 

 

 

 

In its Communication Ensuring justice in the EU – a European judicial training strategy for 2021-2024, the European Commission underlined the importance of European judicial training opportunities that enable legal practitioners to understand the role of EU law in their daily practice and to ensure that the rights and obligations stemming from EU law are respected in national judicial proceedings.

The European Institute for Public Administration (EIPA) and ICF are working to create and develop a series of e-learning courses (e-Capsules) for European practitioners on EU Civil Justice, Criminal Justice and Fundamental Rights for the European Commission Directorate-General for Justice and Consumers (DG JUST).

In order to identify the training needs and knowledge gaps all legal professionals within the 27 EU Member States are struggling with in the area of EU fundamental rights, civil justice, and criminal justice, EIPA and ICF have designed an online survey.

Those with an interest in these areas are invited to participate in the online survey that is available here in English, French, and German. The survey is meant to take approximately 10 minutes and can be completed over more than one session, if needed.

The survey is open until 31 October 2023.

Cet épisode vise à mieux faire connaitre la Fondation des avocats européens. Il détaille les actions et projets menés par la Fondation, notamment dans le domaine de la formation des avocats, tels que LAWYEREX, TRALIM , TRADATA, CIVILAW. Les modalités des financements et consortiums entre Barreaux européens sont également abordées.

Sur la boutique Dalloz Règles de la profession d’avocat 2022/2023 Voir la boutique Dalloz

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En application de l’article 22 du règlement « successions », « un ressortissant d’un État tiers résidant dans un État membre de l’Union européenne peut choisir la loi de cet État tiers comme loi régissant l’ensemble de sa succession ».

Sur la boutique Dalloz Code de procédure civile 2024, annoté Voir la boutique Dalloz

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Written by Ugljesa Grusic, Associate Professor at University College London, Faculty of Laws

Dr Ugljesa Grusic and Prof Alex Mills are pleased to announce that, alongside the UCL Faculty of Laws Research Scholarships which are open to all research areas, this year we have an additional scholarship specifically for doctoral research in private international law. The scholarship covers the cost of tuition fees (home status fees) and provides a maintenance stipend per annum for full time study at the standard UKRI rate. The annual stipend for 2023/24 (as a guide) was £20,622. The recipient of the scholarship will be expected to contribute to teaching private international law in the Faculty for up to 6 hours per week on average, and this work is remunerated in addition to the stipend received for the scholarship.

We particularly welcome applications with research proposals in fields that fall within our areas of interest, which are broad and include the following sub-topics within private international law: protection of weaker parties; environmental protection; business and human rights; sustainable development; digital technology; party autonomy; the relationship between public and private international law; private international law theory and/or methodology; colonialism; and private international law issues in arbitration and foreign relations law.

More information about UCL Faculty of Laws, our PhD programme, the process of applying and the scholarship is available here, here and here. Applicants should apply through the normal UCL Faculty of Laws PhD application process. All applicants within the relevant subject areas will be considered, but we recommend that applicants also specify in their application that they wish to be considered for these scholarships. The deadline date for applications for the 2024/25 academic year is 16 November 2023.

Prospective students are welcome to get in touch with either Dr Grusic at u.grusic@ucl.ac.uk or Prof Mills at a.mills@ucl.ac.uk.

 

Alex Mills and I are pleased to announce that, alongside the UCL Faculty of Laws Research Scholarships which are open to all research areas, this year we have an additional scholarship specifically for doctoral research in private international law. The scholarship covers the cost of tuition fees (home status fees) and provides a maintenance stipend per annum for full time study at the standard UKRI rate. The annual stipend for 2023/24 (as a guide) was £20,622. The recipient of the scholarship will be expected to contribute to teaching private international law in the Faculty for up to 6 hours per week on average, and this work is remunerated in addition to the stipend received for the scholarship.

We particularly welcome applications with research proposals that fall within our areas of interest, which are broad and include the following sub-topics within private international law: protection of weaker parties; environmental protection; business and human rights; sustainable development; digital technology; party autonomy; the relationship between public and private international law; private international law theory and/or methodology; colonialism; and private international law issues in arbitration and foreign relations law.

More information about UCL Faculty of Laws, our PhD programme, the process of applying and the scholarship is available here, here and here. Applicants should apply through the normal UCL Faculty of Laws PhD application process. All applicants within the relevant subject areas will be considered, but we recommend that applicants also specify in their application that they wish to be considered for these scholarships. The deadline date for applications for the 2024/25 academic year is 16 November 2023.

Prospective students are welcome to get in touch with either myself at u.grusic@ucl.ac.uk or Professor Mills at a.mills@ucl.ac.uk.

Dix-sept magistrats de liaison français sont actuellement en poste à travers le monde. Éclairage sur le quotidien de ces magistrats sans frontières au service de l’entraide judiciaire internationale. Créée en 1993 par la France, l’Italie et les Pays-Bas, la fonction de magistrat de liaison fête cette année ses trente ans. Cette initiative du juge Falcone destinée à améliorer la coopération judiciaire dans le cadre de la lutte contre la mafia en Europe s’est depuis étendue à toutes les formes de coopération dans le domaine de la justice entre un grand nombre de pays à travers le monde.

Sur la boutique Dalloz Droit pénal international Voir la boutique Dalloz

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Recently, the Hague Academy of International Law published the 2024 programme of its renowned Summer Courses in Public International Law (8-26 July) and Private International Law (29 July – 16 August).

Following the Inauguaral Lecture by Lord Lawrence (former Justice of the UK Supreme Court), this year’s General Course in Private International Law will focus on “The Metamorphoses of Private International Law” and will be delivered by Charalambos Pamboukis (University of Athens).

Furthermore, Special Courses will be offered in English by Jack Coe (Pepperdine Law School), Andrew Dickinson (University of Oxford), Carlos Esplugues (University of Valencia) and Natalie Y. Morris-Sharma (Attorney General’s Chambers Singapore), while Eva Lein (University of Lausanne) and Alessandra Zanobetti (University of Bologna) will deliver their presentations in French. As always, all lectures will be simultaneously interpreted into English or French and vice versa.

Advanced Students, especially those who are ambitious to sit for the prestigious Diploma Exam, are highly encouraged to apply for the Academy’s Directed Studies as well. The French edition of these interactive afternoon seminars will be directed by Fabien Marchadier (University of Potiers), while English-speaking candidates are taught by Jacco Bomhoff (London School of Economics).

Registration is open from 1 November 2023 to 31 January 2024 via the institution’s own Online Registration Form . For further information on the HAIL 2024 Summer Courses and the Academy in general, please consult the HAIL Homepage or refer to the attached PDF Programme.

G. ST. T. (Proportionnalité de la peine en cas de contrefaçon)
Rapprochement des législations
Une peine minimale de cinq ans d’emprisonnement en cas de contrefaçon d’une marque peut s’avérer disproportionnée

Lufthansa CityLine
Temps de travail : l’obtention d’une rémunération majorée pour le dépassement d’un certain nombre d’heures de travail ne peut défavoriser le travailleur à temps partiel

The Asian Private International Law Academy (APILA) will be holding its second conference at Doshisha University, Kyoto, on 9 and 10 December 2023. The keynote addresses will be delivered by Professor Emerita Linda Silberman on 9 December and Professor Gerald Goldstein on 10 December. The first day of the conference will comprise presentation and discussion of works-in-progress. The conference will devote most of 10 December to discussion and finalisation of the Asian Principles on Private International Law (APPIL) on three topics: (1) recognition and enforcement of foreign judgments, (2) direct jurisdiction, and (3) general choice of law rules. Persons interested in attending or wishing further information should email reyes.anselmo@gmail.com to that effect.  Please note that, while APILA can assist attendees by issuing letters of invitations in support of Japanese visa applications, APILA’s available funding is limited.  In the normal course of events, APILA regrets that it will not be able to provide funding for travel and accommodation expenses.

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2024.

The course will be opened by Lord Lawrence Collins of Mapesbury (Former Justice at the United Kingdom Supreme Court) with a lecture on Use and Abuse of Comity in International Litigation.

The general course, titled The Metamorphoses of Private International Law, will be given by Charalambos Pamboukis (National and Kapodistrian University of Athens).

The special courses will be as follows: Jack Coe (Pepperdine Law School), Non-ICSID Convention Investor-State Awards in Domestic Courts; Andrew Dickinson (University of Oxford), Natural Justice in Recognition and Enforcement of Foreign Judgments; Carlos Esplugues (University of Valencia), New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and non-Judicial Authorities; Eva Lein (University of Lausanne), Breathing Space in International Contractual Disputes; Natalie Y. Morris-Sharma (Director at the Attorney-General’s Chambers Singapore), The Singapore Convention and the International Law of Mediation; Alessandra Zanobetti (University of Bologna), The Effects of Economic Sanctions and Counter-Measures on Private Legal Relationships.

The directors of studies will be Kubo Macák (University of Exeter) and Jacco Bomhoff (London School of Economics and Political Science) for the English-speaking section, Alain-Guy Tachou Sipowo (Université de Montréal) and Fabien Marchadier (University of Poitiers) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee, scholarship, doctoral scholarship and Directed Studies applicants is between 1 November 2023 and 31 January 2024.

More information on the Academy’s programmes, including the upcoming Winter Course, may be found here.

Zippo Manufacturing e.a. / Commission
Politique commerciale
Le Tribunal annule les droits de douane additionnels sur certains briquets en provenance des États-Unis 

This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas.

In a judgment of 11 May 2023, the French Supreme Court For private and criminal matters (Cour de cassation) ruled that the requirement in the French civil code that the legal representatives of a child give their consent to his/her adoption, and which applies irrespective of the law governing otherwise adoption, is no ground for denying exequatur to a foreign adoption judgment.

Background

Two decisions rendered by the Nottingham Family Court on 17 March 2009 and two other decisions rendered by the London Family Court on 22 November  2012 granted the adoption of four children to an English national and a French and English national who entered into a civil partnership in 2003 and married in 2017. By a judgment of 17 December 2020, the French first instance court (Tribunal judiciaire de Nantes) granted exequatur to the four English decisions.

Court of Appeal

By a judgment of 25 October 2021, the Rennes Court of Appeal overturned the first instance decision on the ground that the legal representatives of the children, namely their biological parents, had not given their consent to the adoption.

Article 370-3 of the French Civil Code reads

The requirements for an adoption are governed by the national law of the adoptive parent or, in case of adoption by two spouses, by the law which governs the effects of their union. An adoption however may not be declared when it is prohibited by the national laws of both spouses.
Adoption of a foreign minor may not be declared when his personal law prohibits such an institution, unless the minor was born and resides usually in France.
Whatever the applicable law may be, adoption requires the consent of the legal representative of the child. The consent must be free, obtained without any compensation, subsequent to the birth of the child and informed as to the consequences of adoption, especially when it is given for the purpose of a plenary adoption, as to the full and irrevocable character of the breaking off of the pre-existing kinship bond.

According to the Court of Appeal, the requirement contained in Article 370-3 of the French Civil Code that they give their free and informed consent, notably regarding the irrevocability of adoption since the pre-existing bond of filiation is dissolved by a full adoption (“adoption plénière”), is a substantive provision of private international law which must be applied whatever the law applicable to the adoption may be and an essential principle of the French law of adoption. Hence the court concluded that the English decisions were not in conformity with French international public policy and should not be enforced, as their enforcement would deprive the French international public policy of its substance.

Supreme Court

The issue was thus to determine whether Article 370-3 of the French Civil Code, which requires that the legal representative of the child give their free and informed consent to the adoption of the child, can be opposed to the enforcement of a foreign adoption judgment if such consent was not obtained.

By a judgment of 11 May 2023, the French Supreme Court overruled the decision of the Court of Appeal on the ground that Article 370-3 of the French Civil Code may not be invoked against a foreign adoption judgment to prevent its exequatur.

In other words, the fact that the children’s legal representatives did not give their consent to the adoption ordered by a foreign judgment cannot be invoked against the enforcement of this judgment. This judgment confirms the already established solution according to which the violation of the requirement that the free and informed consent of the child’s legal representative is necessary for the adoption to be ordered pursuant to Article 370-3 of the French Civil Code cannot amount to a ground of refusal of enforcement of the foreign adoption judgment. The French Supreme Court had indeed ruled so in a judgment of 7 December 2016 about an Ivorian judgment. Article 370-3 only applies in French adoption proceedings.

The Japanese Institute for International Arbitration Research and Training (JIIART) will be holding an online seminar investigating use of alternative dispute resolution mechanisms in insolvency this Saturday 21 October 2023 at 14:00-16:00 Japan Standard Time. The event is free to attend but registration is required. You may register here. Details of the programme and speakers can be found in the event poster.

US Supreme Court Fellowship applications open Fellows conduct independent research and work with one of four offices – the Office of the Counselor to the Chief Justice, the Administrative Office, the Sentencing Commission, and the Federal Judicial Center (the education and research arm of the US federal judiciary).

Applications are due 17 November 2023.  More information is found below. https://www.supremecourt.gov/fellows/apply.aspx

ACICA Announces First Scholarship Program from Education Fund Established following ICCA Congress

The Australian Centre for International Commercial Arbitration (ACICA) has just announced a new scholarship program supported by the Education Fund Established following the ICCA Congress in Sydney in 2018.  The program includes two biennial scholarships to legal practitioners who are admitted in South Pacific Island jurisdictions. Applications will open in 2024, and recipients will be: “- awarded the opportunity to attend AAW including the ACICA & Ciarb Australia International Arbitration Conference, the lead event of AAW; – supported by the ACICA Secretariat to obtain an understanding of ACICA’s work; – offered the opportunity to be a part of an ADR practitioner network that ACICA seeks to encourage in the South Pacific; and – offered the opportunity to learn more about and participate in ICCA activities directed at aspiring arbitration practitioners, such as the Young ICCA mentoring program, the ICCA Inclusion Fund and the Johnny Veeder Fellowship Program. provided with information or inclusion in relevant ICCA programs.” For more, see  https://protect-au.mimecast.com/s/_yjWCBNqjlCDXpGQoFkYzxS?domain=acica.org.au or https://protect-au.mimecast.com/s/2MiXCANpgjCZKLQyYupsjoq?domain=acica.org.au

 

On Tuesday, November 7, 2023, the Hamburg Max Planck Institute will host its 38th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Christine Budzikiewicz (Phillips-Universität Marburg) will speak, in German, about

The Proposal for the Creation of a European Certificate of Parenthood

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Richard de la tour AG opined last Thursday in C‑566/22 Inkreal aka Inkreal s. r.  v Dúha reality s. r. o..

At issue is whether the sole use of international choice of court suffices to escalate a purely internal case to the ‘international’ level, hence within the reach of the Brussels Ia Regulation. The AG opined it does not. I don’t think he is right and I suspect the CJEU will not follow him.

FD, resident in Slovakia, as the assignor, and Dúha reality s. r. o., a company domiciled in Slovakia, as the assignee, concluded two loan agreements on 29 June 2016 and 11 March 2017 respectively. By means of a voluntary assignment agreement dated 8 December 2021, FD assigned the claims arising from those loan agreements to Inkreal, a company domiciled in Slovakia. In each of those agreements, the parties agreed that ‘any ambiguities or disputes arising from the agreement and in connection therewith shall be first resolved by negotiation aimed at reaching a solution acceptable for both parties. If the parties are unable to settle such a dispute, the dispute shall be settled by a court of the Czech Republic having substantive and territorial jurisdiction, in line with the [Code of Civil Procedure], as amended’. Following non-payment, Inkreal brought an action before the Czech courts, in application of the choice of court agreement.

(31) onwards the AG sides with that part of scholarship (most of the authors he refers to wrote in French or German, just a few in English and he seems to only cite Mankowski as holding opposite views; I am not saying that French or German scholarship ought not to be cited, far from it, it ought to much more frequently in all possible EU languages; yet there is more scholarship on the issue both by English scholars and by others writing in English) and national case-law which argues against Article 25 BIa catching such choice of court, alleging lack of ‘international’ element.

He develops five main reasons (see the Opinion for more detail) with often only one source for each.

1. (32).  The mere will of the parties in a purely internal situation must not suffice: existence of an international element has to be established according to “objective criteria”. I for one do not understand how party autonomy is not an “objective criterion”.
2. (33) ff Brussels Ia cannot have the effect of eliminating any distinction between the national and international rules of jurisdiction governed by EU law.  Four arguments to the contrary of a textual or teleological nature based on A25 BIa must in the AG’s view be dismissed. First, that non-EU domiciled parties can make valid choice of law for an EU court in his view is of no value; Second, the independence of the will of the parties cannot enables parties to “call into question the scope of that regulation, which is limited to international and not purely internal situations.” ( a clear circular argument);  Third, A25’s new lex causae rule for substantive validity of choice of court cannot rescue choice of court which does not initially engage with a ‘international’ situation (again circular); Fourth, the clear movement from Brussels I onwards towards supporting choice of court does not justify authorising the parties to derogate from national rules on jurisdiction without any limit or connecting factor. 
3. (38) The AG cites CJEU Owusu, Lindner and IRnova as confirming his view that “objective criteria” are required to support an international element (Owusu and IRnova) or the foreign nationality of the defendant (Lindner).
4. (40 ff) Rome I cannot be used as a benchmark, both because purely internal situations in Rome I remain subject to mandatory national provisions (see of course VinylsItalia) and because Rome I’s DNA is party autonomy which Brussels Ia’s Article 25 it is suggested is not. (Had he not lost me already, the AG would certainly have lost me here). The AG also refers in support to the 2005 Hague Choice of Court Convention and recitals in Council Decision 2014/887 (making the EU accede to that Convention and referring to links between both and one or two Hague anchors in Brussels Ia; but nowhere near the symmetry the AG suggests), opining that A1(2) Hague Convention somehow needs to be extended to Brussels Ia: that Article reads “a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.” Extending A1(2) Hague 2005 to Brussels Ia in my view is a massive stretch of statutory construction.
5. Finally (43) the AG somewhat backtracks and suggests factors testifying to an international element “should be assessed by the court seised on a case-by-case basis in a flexible manner or according to a broad conception.”

Finally the AG suggests (45 ff) that the CJEU should advice the referring court and ‘practice’ in general on the A25 conflit (viz the ‘international element’) mobile issue. When must the international nature of the situation be assessed: when the jurisdiction agreement is concluded or when the designated court is seised by the parties? Here he emphasises the contractual nature of the determination of jurisdiction (in direct contrast with his views above) and legal certainty rather than foreseeability, and suggests the international nature be assessed at the stage when the choice of court clause is agreed, not when the court is seised. That in my view undermines the core forum shopping intention of both Article 25 and Article 26 (voluntary appearance).

(49) the AG oddly backtracks again on this issue by suggesting that “it might be accepted that, in an internal situation with a prospect of becoming international, the parties [may] agree, when concluding their agreement, to designate a court of a Member State in sufficiently precise terms which express their intention  and provide for the exclusive jurisdiction of national courts where there is doubt as to the existence of a criterion requiring an international element.”  Rather than increasing legal certainty, that is bound to upend it IMHO.

The CJEU of course is not likely to entertain this last part of the Opinion.

In general, I believe it will have a more generous view of party autonomy and an eye on the interests of the European Judicial Area (per prof Dickinson), perhaps also as suggested by Matthew Hoyle, referring to Brussels Ia’s corrective mechanisms both for protected categories and ordre public (Article 45 BIa).

Geert. EU Private International Law. 4th ed. 2024, para 2.22 ff. https://twitter.com/GAVClaw/status/1713835285119648124

On 16 November 2023 the Lyon 3 University will host a colloquium on the French Draft Code of Private international Law, organised by Ludovic Pailler.

The presentation of the colloquium reads as follows:

Following a mission statement, the working group charged with considering the codification of private international law, chaired by Mr. Ancel, submitted its report to the Minister of Justice on 31 March 2022. This was followed by a public consultation and the announcement, by the Minister of Justice, that the project would come to fruition. This codification has already been the subject of two scientific events at our establishment (i.e. Lyon 3 University). One was devoted to the code’s construction model, the other to its content (see here). The third event, to be held on 16 November 2023 in Lyon, concerns a comparative law analysis of the draft code. 

The colloquium is divided into two parts. The first examines codification from the point of view of European Union member states. Both the value of this exercise and the practical ways in which it is carried out will be explored. Does French codification differ from its foreign equivalents? Is it expected? Doesn’t it run counter to European Union law? The second part of the presentation will be devoted to the point of views from outside the EU, with a view to testing the stated ambition of enhancing the attractiveness of French PIL, and analysing it in the light of experiences or initiatives undertaken in contexts where the subject is in decline (United States) or less integrated (Brazil).

The list of speakers and chairpersons includes : Olivier Gout, Cyril Nourissat, Ludovic Pailler, Frédérique Ferrand, Patrick Wautelet, Eva-Maria Kieninger, Pietro Franzina, Daniel Petrache, Hugues Fulchiron, Gian Paolo Romano, Yoko Nishitani, Chris Whytock, Gustavo Ferraz De Campos Monaco and Sabine Corneloup.

The event will be held in French and in English.

For registration see here. The full programme is available here.

L’arrêt rendu contre la France le 5 octobre mélange Alpes, remontées mécaniques et délégation de service public pour étudier la règle spécifique des biens de retour et sa compatibilité avec l’article 1er du Protocole additionnel.  

Sur la boutique Dalloz Les grands arrêts de la jurisprudence administrative Voir la boutique Dalloz

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