From 16th to 20th September 2008, the 13th World Conference of the International Society of Family Law will take place in Vienna. The topic of the conference is “Family Finances”.
A preliminary programme as well as further information on the venue, registration etc. can be found on the website of the University of Vienna.
(Many thanks to Thomas Thiede (Vienna) for the tip-off.)
On Thursday 15 May 2008, at 17.00, the Swiss Institute of Comparative Law (ISDC, Lausanne) will host a lecture (in French) by Prof. Fritz Sturm (University of Lausanne) on “Le nom en droit international privé” (”Name in Private International Law”).
The lecture is one of the monthly seminars on private international law and comparative law organized by the ISDC (”Les jeudis de l’ISDC”). A small fee is required for participation (free for students and academics). Further information (and the full list of seminars) is available here.
An interesting volume, collecting the contributions presented at the Seminario de Otoño de Derecho Internacional Privado (Fall Seminar on Private International Law), hosted in October 2007 by the University Carlos III of Madrid, has been recently published by Editorial Colex, under the editorship of Prof. Alfonso Luis Calvo-Caravaca and Prof. Esperanza Castellanos Ruiz: La Unión Europea ante el Derecho de la Globalización.
The papers (in Spanish, Italian and Portuguese) cover various aspects of European Private International Law, analysing its current development in the light of issues arising from globalization. Here’s the table of contents:
Title: La Unión Europea ante el Derecho de la Globalización, edited by Alfonso Luis Calvo-Caravaca and Esperanza Castellanos Ruiz, Editorial Colex, Madrid, 2008, 515 pages.
ISBN: 978-8-48-342113-0. Price: EUR 70.
(Many thanks to Pietro Franzina, University of Ferrara, for the tip-off)
The High Court of Australia has recently addressed the Hague Convention on the Civil Aspects of International Child Abduction: MW v Director-General, Department of Community Services [2008] HCA 12. In a 3:2 decision, the Court considered that the Director-General (as State Central Authority) had not sufficiently established that the removal of a child from New Zealand to Australia was wrongful, and thus the Family Court of Australia ought not to have made an order for the return of the child.
In Australia, the Hague Convention does not apply of its own force, but is instead implemented by the Family Law Act 1975 (Cth) and the Family Law (Child Abduction Convention) Regulations 1986(Cth). The case turned on reg 16(1A)(c) of the Regulations, which provides that “the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia”. As such, the High Court was required to address difficult factual and legal questions relating to the child’s circumstances in New Zealand. At least in the case of New Zealand law, that task was eased in Australia by the Evidence and Procedure (New Zealand) Act 1994 (Cth).
“At the heart of this sad case, which raises questions of international and federal law under the Hague [Abduction] Convention, is a custody battle over a young girl who has not seen either of her parents in years.” That was the lead-in from Judge Jordan to the recent decision by a three-judge panel of the Third Circuit. Carrascosa v. McGuire, No. 07-1748/4130 (3rd Cir., March 20, 2008), involved a Spanish mother, once married to an American father, whose child was habitually resident in New Jersey. Upon their divorce, the couple signed a “Parenting Agreement” that established an “interim resolution” of the custody issue and prohibited either of them from traveling outside the country with their daughter. Shortly thereafter, the mother took the daughter to Spain.
A judge in New Jersey issued several orders for the daughter’s return, and when each went unanswered, issued a warrant for the mother’s arrest. In the meantime, however, purporting to follow the Hague Abduction Convention, the Spanish Courts had decided that the Parenting Agreement violated Article 19 of the Spanish Constitution (regarding the freedom to chose one’s place of residence), determined that the removal to that country was not “wrongful” within the meaning of the Convention, and ordered that the daughter remain. When the mother returned to the United States to attend to the divorce proceedings, she was arrested. She challenged her detention as “in violation of the laws and treaties of the United States” through a writ of habeas corpus. In essence, she argued that a decision of the Spanish Court that the Parenting Agreement was null and void should be afforded comity, and void the charges of contempt against her.
The Federal District Court for the District of New Jersey denied the writ, and the Third Circuit affirmed. Applying the Hague Convention and its implementing legislation, the Court recognized that “[t]here is no dispute that [the daughter’s] place of habitual residence, prior to . . . her [removal] to Spain, was the United States, in particular New Jersey.” As to whether her removal to Spain was wrongful under Article 3 of the Hague Convention, the District Court examined whether the father’s custody rights were breached by Victoria’s removal. Because, under New Jersey law, the father had custody rights by virtue of a valid Parenting Agreement, and the mother breached those rights by removing the daughter to Spain without his consent, the removal was “wrongful” within the meaning of Article 3 of the Hague Convention.
The Spanish court, however, in nullifying the Parenting Agreement, never applied New Jersey law, despite their explicit recognition that the daughter’s habitual place of residence was New Jersey. They instead based their decision on the “wrongfulness” of the removal solely on Spanish law, while paying only “lip-service” to the Convention. According to the U.S. Court, this “glaring departure . . . from the mandate of the Hague Convention”—i.e. the “total failure to determine [the father’s] rights of custody under [the law of the child’s habitual residence]”—the decision of the Spanish court was given no weight. The removal was wrongful under the Convention, and the mother’s detention was held to be not “in violation of the law or treaties of the United States.”
Today, Advocate General Sharpston has delivered her opinion in case C-353/06 (Grunkin and Paul).
The background of the case is as follows: The case concerns a child who was born in Denmark having, as well as his parents, only German nationality. The child was registered in Denmark – in accordance with Danish law – under the compound surname Grunkin-Paul combining the name of his father (Grunkin) and the name of his mother (Paul), who did not use a common married name. After moving to Germany, German authorities refused to recognise the surname of the child as it had been determined in Denmark, since according to German private international law (Art.10 EGBGB) the name of a person is subject to the law of his/her nationality, i.e. in this case German law and according to German law (§ 1617 BGB), parents who do not share a married name shall choose either the father’s or the mother’s surname to be the child’s surname.
The Local Court (Amtsgericht) Niebüll which was called to designate the parent having the right to choose the child’s surname, sought a preliminary ruling of the ECJ on the compatibility of Art.10 EGBGB with Articles 12 and 18 EC-Treaty. However, the ECJ held that it had no jurisdiction to answer the question referred since the referring court acted in an administrative rather than in a judicial capacity (judgment of 27 April 2006, C-96/04). In the following, the parents applied again - without success - to have their son registered with the surname Grunkin-Paul. The parents’ challenge to this refusal was heard, by virtue of German procedural law, by the Amtsgericht Flensburg. The Amtsgericht Flensburg held that it was precluded from instructing the registrar to register the applicants’ son under this name by German law. However, since the court had doubts as to whether it amounts to a violation of Articles 12 and 18 EC-Treaty to ask a citizen of the European Union to use different names in different Member States, the court referred with decision of 16th August 2006 (69 III 11/06) the following questions to the ECJ for a preliminary ruling:
In light of the prohibition on discrimination set out in Article 12 of the EC Treaty and having regard to the right to the freedom of movement for every citizen of the Union laid down by Article 18 of the EC Treaty, is the provision on the conflict of laws contained in Article 10 of the EGBGB valid, in so far as it provides that the right to bear a name is governed by nationality alone?
Advocate Generel Sharpston now held in her opinion that the Court should answer the question raised by the Amtsgericht Flensburg as follows:
– a choice of law rule under which a person’s name is to be determined in accordance with the law of his nationality is not in itself incompatible with Articles 12, 17 or 18 EC;
– however, any such rule must be applied in such a way as to respect the right of each citizen of the Union to move and reside freely in the territory of the Member States;
– that right is not respected if such a citizen has been registered under one name in accordance with the applicable law of his place of birth, before it becomes necessary to register his name elsewhere, and is subsequently required to register a different name in another Member State;
– consequently, the authorities of a Member State may not, when registering the name of a citizen of the Union, automatically refuse to recognise a name under which he has already been lawfully registered in accordance with the rules of another Member State, unless recognition would conflict with overriding reasons of public interest which admit of no exception.
See for the full opinion the website of the ECJ. See further on this case also our previous posts on the judgment of the Court of 27 April 2006 which can be found here as well as on the referring decision of the Amtsgericht Flensburg which can be found here.
The papers presented at the international conference held in March 2007 at the University Carlo Cattaneo of Castellanza (see our previous post), and a final report drafted on the basis of the discussion that arose in the colloquium, have been published by CEDAM, under the editorship of Alberto Malatesta, Stefania Bariatti and Fausto Pocar: “The External Dimension of EC Private International Law in Family and Succession Matters“.
Here’s an excerpt from the Foreword of the volume:
Under the 2005 Framework Programme for Judicial Cooperation in Civil Matters, the European Commission funded an International Research Project presented by the University Carlo Cattaneo of Castellanza on the EC harmonisation of Private International Law and the external relations in family and succession law.
A group of scholars coming from various European countries agreed to undertake the task of carrying out an in-depth analysis of the scope of the Community powers in the field of Private International Law in the above matters, with special reference to relationships connected with third States.
The focus on family and succession law was deemed crucial in the light of the many initiatives of the European Community in this field pursuant to Articles 61(c) and 65 of the EC Treaty, and of the hot debate they raised about the need itself of such measures and their content. On the other hand, in the course of the Research Project, the European Court of Justice rendered the long-awaited Lugano Opinion (Opinion No 1/03), that provided some general guidelines about the future external dimension of the Community action in the conflicts of laws and its role in the international community.
And this is the table of contents (available as a .pdf file on the publisher’s website):
Introductory Speech - Fausto Pocar: The “Communitarization” of Private International Law and its Impact on the External Relations of the European Union;
First Part - EC EXTERNAL RELATIONS AND PRIVATE INTERNATIONAL LAW
General Discussion
- - - - - - - - -
Second Part - GENERAL PROBLEMS OF EC PRIVATE INTERNATIONAL LAW WITH REGARD TO RELATIONS WITH THIRD STATES
Section 1: Jurisdiction, Recognition and Enforcement of Judgments and Administrative Cooperation
General Discussion
- - - - - - - - -
Section 2: Applicable Law
General Discussion
Final Report: Alberto Malatesta.
- - - - - - - - -
Title: The External Dimension of EC Private International Law in Family and Succession Matters, edited by Alberto Malatesta, Stefania Bariatti and Fausto Pocar, CEDAM (Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale, n. 71), Padova, 2008, XIV-392 pages.
ISBN: 978-88-13-27276-0. Price: EUR 36.
(Many thanks to Gaetano Vitellino, University “Carlo Cattaneo” of Castellanza, for the tip-off)
A very interesting volume, collecting the contributions presented by prominent European and Japanese scholars at a conference organised in 2007 by the Max Planck Institute for Private Law in Hamburg, has been recently published by Mohr Siebeck: Japanese and European Private International Law in Comparative Perspective. A presentation of the book, and the TOC, are available on the MPI’s website:
Edited by Jürgen Basedow, Harald Baum und Yuko Nishitani, this conference volume is based on a symposium of the same name that was held in March 2007 at the MPI for Private Law in Hamburg and represents the first comprehensive analysis of the new Japanese private international law in any western language.
The idea of national codification is advancing on a global scale in conflict of laws. A large number of legislative projects dealing with codifying and modernizing private international law, both on the national and the supranational level, have been launched in the past few years. Among such recent initiatives, the advances taken by the European and the Japanese legislators are particularly reflecting these developments. On January 1, 2007, the new Japanese ‘Act on General Rules for Application of Laws’ entered into force replacing the outdated conflict of laws statute of 1898. This major reform finds its parallels in the current efforts of the European Union to create a modern private international law regime for its member states.
This volume presents the first comprehensive analysis of the new Japanese private international law available in any western language and contrasts it with corresponding European developments. Most of the contributors from Japan are scholars who were actively involved in and responsible for preparing the new Act. All of them are renowned experts in the field of private international law. Leading European experts in the conflict of laws supplement the Japanese analyses with comparative contributions reflecting the pertinent discussion of parallel endeavours in the EU. To guarantee better understanding, English translations of both the present and the former Japanese statutes have been added.
Table of Contents:
I. General Introduction
Jürgen Basedow: The Recent Development of the Conflict of Laws - Trevor C Hartley: The Brussels Regulation and Non-Community States - Masato Dogauchi: Historical Development of Japanese Private International Law - Hironori Wanami: Background and Outline of the Modernization of Japanese Private International LawII. Contractual Obligations
Yuko Nishitani: Party Autonomy and Its Restrictions by Mandatory Rules in Japanese Private International Law - Catherine Kessedjian: Party Autonomy and Characteristic Performance in the Rome Convention and the Rome I Proposal - Fausto Pocar: Protection of Weaker Parties in the Rome Convention and the Rome I ProposalIII. Assignment of Receivables
Aki Kitazawa: Law Applicable to the Assignment of Receivables in Japan (Nihon ni okeru saiken jôto no junkyo-hô) - Eva-Maria Kieninger: General Principles on the Law Applicable to the Assignment of Receivables in EuropeIV. International Company Law
Dai Yokomizo: International Company Law in Japan - Sylvaine Poillot-Peruzzetto: International Company Law in the ECJ Decisions - Daniel Zimmer: The Proposal of the Deutscher Rat für Internationales PrivatrechtV. Non-Contractual Obligations
Toshiyuki Kono: Critical and Comparative Analysis of the Rome II Regulation on Applicable Laws to Non-contractual Obligations and the New Private International Law in Japan - Thomas Kadner Graziano: General Principles of Private International Law of Tort in Europe - Marc Fallon: The Law Applicable to Specific Torts in EuropeVI. International Family Law
Yasuhiro Okuda: Divorce, Protection of Minors, and Child Abduction in Japan’s Private International Law - Maarit Jänterä-Jareborg: Jurisdiction and Applicable Law in Cross-Border Divorce Cases in Europe - Alegría Borrás: Protection of Minors and Child Abduction under the Hague Conventions and the Brussels II bis RegulationVII. International Civil Procedure Law
Yoshihisa Hayakawa: International Adjudicative Jurisdiction in Japan - Dieter Martiny: Recognition and Enforcement of Foreign Judgments in Germany and EuropeAnnex I
Major European Community Legislation in Private International LawAnnex II
Japanese Legislation in Private International Law
Title: Japanese and European Private International Law in Comparative Perspective, edited by Jürgen Basedow, Harald Baum, and Yuko Nishitani, Mohr Siebeck (Materialien zum ausländischen und internationalen Privatrecht/48), Tübingen, March 2008, XVIII + 434 pages.
ISBN: 978-3-16-149547-2. Price: euro 89.
Following the cases of Applicant C and Sundelind Lopez, a third reference for a preliminary ruling on Brussels II bis has been referred to the ECJ – again (as Applicant C) by the Finnish Korkein Hallinto-oikeus (Case C-523/07, Applicant A).
The present case concerns children who have their habitual residence in Sweden, live transitionally in Finland and became Swedish citizens during the proceedings. Since the Finnish court had doubts whether it can exercise international jurisdiction under the Brussels II bis Regulation to take measures in connection with child protection due to the childrens’ alleged permanent residence in Sweden, the court has referred the following questions to the ECJ for a preliminary ruling:
1(a) Does Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, (the Brussels IIa Regulation) apply to the enforcement, such as in the present case, of a public-law decision made in connection with child protection, as a single decision, concerning the immediate taking into care of a child and his or her placement outside the home, in its entirety,
(b) or, having regard to the provision in Article 1(2)(d) of the regulation, only to the part of the decision relating to the placement outside the home?
2 How is the concept of habitual residence in Article 8(1) of the regulation, like the associated Article 13(1), to be interpreted in Community law, bearing in mind in particular the situation in which a child has a permanent residence in one Member State but is staying in another Member State, carrying on a peripatetic life there?
3(a) If it is considered that the child’s habitual residence is not in the latter Member State, on what conditions may an urgent measure (taking into care) nevertheless be taken in that Member State on the basis of Article 20(1) of the regulation?
(b) Is a protective measure within the meaning of Article 20(1) of the regulation solely a measure which can be taken under national law, and are the provisions of national law concerning that measure binding when the article is applied?
(c) Must the case, after the taking of the protective measure, be transferred of the court’s own motion to the court of the Member State with jurisdiction?
4 If the court of a Member State has no jurisdiction at all, must it dismiss the case as inadmissible or transfer it to the court of the other Member State?
In the meantime, after this new reference has been lodged on 23 November 2007, the Court already had to deal with the issue raised in the first question of the present reference in the context of case C-435/06, Applicant C. In its judgment of 27 November 2007 the Court held in this regard that:
Article 1(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, is to be interpreted to the effect that a single decision ordering a child to be taken into care and placed outside his original home in a foster family is covered by the term ‘civil matters’ for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection.
The Finnish court has decided to refer the question to the ECJ again being aware of the first reference which had still been pending at the time the second reference was made. This might be explained by the fact that the Finnish court saw a need for clarification by the ECJ also with regard to the other questions and therefore decided not to wait for the ECJ’s decision on the first reference in case Applicant C.
See with regard to case C-435/06, Applicant C, also our previous posts on the judgment as well as the Advocate General’s opinion.
(Many thanks to Dr. Helena Raulus, Erasmus University Rotterdam for valuable information on the Finnish referring decision.)
It has been a little while since my last trawl through the law journals, and a few articles and casenotes have been published in the intervening period that private international law enthusiasts may wish to add to their reading list:
J.M. Carruthers, “De Facto Cohabitation: the International Private Law Dimension” (2008) 12 Edinburgh Law Review 51 - 76.
P. Beaumont & Z. Tang, “Classification of Delictual Damages - Harding v Wealands and the Rome II Regulation” (2008) 12 Edinburgh Law Review 131 - 136.
G. Ruhl, “Extending Ingmar to Jurisdiction and Arbitration Clauses: The End of Party Autonomy in Contracts with Commercial Agents?” (2007) 6 European Review of Private Law 891 - 903. An abstract:
In the judgment discussed below, the Appeals Court of Munich (OLG München) deals with the question whether jurisdiction and arbitration clauses have to be set aside in the light of the Ingmar decision of the European Court of Justice where they cause a derogation from Articles 17 and 18 of the Commercial Agents Directive. The Court concludes that this question should be answered in the affirmative if it is ‘likely’ that the designated court or arbitral tribunal will neither apply Articles 17 and 18 nor compensate the commercial agent on different grounds. Thus, the Court advocates that Articles 17 and 18 be given extensive protection. This is, however, problematic because such extensive protection imposes serious restrictions on party autonomy, whereas these restrictions are not required by Community law in general or by the principle of effectiveness in particular. Therefore, it is very much open to doubt whether this decision is in the best interests of the Internal Market.
F. Bolton & R. Radia, “Restrictive covenants: foreign jurisdiction clauses” (2008) 87 Employment Law Journal 12 - 14. The abstract:
Reviews the Queen’s Bench Division judgment in Duarte v Black and Decker Corp and the Court of Appeal decision in Samengo-Turner v J&H Marsh & McLennan (Services) Ltd on whether restrictive covenants were enforceable under foreign jurisdiction clauses contained in the long-term incentive plan agreements of UK domiciled employees of multinational companies. Examines the conflict of laws and whether English law applied under the Convention on the Law Applicable to Contractual Obligations 1980 Art.16 and under Regulation 44/2001 Arts.18 and 20.
W. Tetley, “Canadian Maritime Law” L.M.C.L.Q. 2007, 3(Aug) Supp (International Maritime and Commercial Law Yearbook 2007), 13-42. The blurb:
Reviews Canadian case law and legislative developments in shipping law in 2005 and 2006, including cases on: (1) carriage of goods by sea; (2) fishing regulations; (3) lease of port facilities; (4) sale of ships; (5) personal injury; (6) recognition and enforcement of foreign judgments; (7) shipping companies’ insolvency; (8) collision; and (9) marine insurance.
S. James, “Decision Time Approaches - Political agreement on Rome I: will the UK opt back in?” (2008) 23 Butterworths Journal of International Banking & Financial Law 8. The abstract:
Assesses the extent to which European Commission proposed amendments to the Draft Regulation on the law applicable to contractual obligations (Rome I) meet the concerns of the UK financial services industry relating to the original proposal. Notes changes relating to discretion and governing law, assignment and consumer contracts.
A. Onetto, “Enforcement of foreign judgments: a comparative analysis of common law and civil law” (2008) 23 Butterworths Journal of International Banking & Financial Law 36 - 38. The abstract:
Provides an overview of the enforcement of foreign judgments in common law and civil law jurisdictions by reference to a scenario involving the enforcement of an English judgment in the US and Argentina. Reviews the principles and procedures applicable to the recognition and enforcement of foreign judgments in the US and Argentina respectively, including enforcement expenses and legal fees. Includes a table comparing the procedures for the recognition and enforcement of foreign judgments in California, Washington DC and New York.
J. Carp, “I’m an Englishman working in New York” (2008) 152 Solicitors Journal 16 - 17. The abstract:
Reviews case law on issues arising where a national of one country works in another country. Sets out a step by step approach to ascertaining: the law governing the employment contract; the applicability of mandatory labour laws, including cases on unfair dismissal, discrimination, working time, and the transfer of undertakings; which country has jurisdiction; and public policy. Offers practical suggestions for drafting multinational contracts.
J. Murphy - O’Connor, “Anarchic and unfair? Common law enforcement of foreign judgments in Ireland” 2007 2 Bankers’ Law 41 - 44. Abstract:
Discusses the Irish High Court judgment in Re Flightlease (Ireland) Ltd (In Voluntary Liquidation) on whether, in the event that the Swiss courts ordered the return of certain monies paid by a Swiss airline, in liquidation, to an Irish company, also in liquidation, such order would be enforceable in Ireland. Considers whether: (1) the order would be excluded from enforcement under the common law on the basis that it arose from a proceeding in bankruptcy or insolvency; and (2) the order would be recognised on the basis of a “real and substantial connection” test, rather than traditional conflict of laws rules.
V. Van Den Eeckhout, “Promoting human rights within the Union: the role of European private international law” 2008 14 European Law Journal 105 - 127. The abstract:
This article aims to contribute both to the ‘Refgov’ project, which is focused on the ambition to find ways of promoting human rights within the EU, but also, more in general and apart from the project, to an improved understanding of the crucial place conflict of law rules occupy in the building of a common Europe—a highly political question behind apparently technical issues. In the study the author deals with the parameters, points of interest, etc in relation to private international law which should be heeded if European Member States ‘look at’ each other’s laws, and—in the context of the ‘Refgov’ project—if the idea is to exchange ‘best practices’ or harmonise substantive law, or to harmonise private international law, etc further through a type of open method of coordination. The contribution also shows that private international law issues are decisive in respect of every evaluation of the impact of European integration on human rights, both if this integration process takes place through ‘negative’ harmonisation (for example by falling back on the principle of mutual recognition) and through ‘positive’ harmonisation.
R. Swallow & R. Hornshaw, “Jurisdiction clauses in loan agreements: practical considerations for lenders” (2007) 1 Bankers’ Law 18 - 22. Abstract:
Assesses the implications for borrowers and lenders of the Commercial Court judgment in JP Morgan Europe Ltd v Primacom AG on whether proceedings brought in Germany challenging the validity a debt facility agreement were to be treated as the first seised under Regulation 44/2001 Art.27 (Brussels I Regulation), despite the fact that the agreement contained an exclusive jurisdiction clause in favour of the English courts. Advises lenders on the drafting of loan agreements to help mitigate the risk of a jurisdiction clause being frustrated. Considers the steps that might be taken by the lender once a dispute has arisen.
A. Dutton, “Islamic finance and English law” (2007) 1 Bankers’ Law 22 - 25. Abstract:
Reviews cases relating to Islamic finance, including: (1) the Commercial Court decision in Islamic Investment Co of the Gulf (Bahamas) Ltd v Symphony Gems NV on whether the defendant was liable to make payments under a Sharia compliant contract governed by English law that would contravene Sharia law; (2) the Court of Appeal ruling in Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd (No.1) interpreting a choice of law clause expressed as English law “subject to the principles” of Sharia law; and (3) the Commercial Court judgment in Riyad Bank v Ahli United Bank (UK) Plc on whether the defendant owed a duty of care to a Sharia compliant fund where it had contracted directly with its parent bank.
J. Burke & A. Ostrovskiy, “The intermediated securities system: Brussels I breakdown” (2007) 5 European Legal Forum 197 - 205. Abstract:
Presents a hypothetical case study of a dispute arising from a cross-border securities transaction involving parties from the UK, Sweden and Finland to examine the application of the private international law regime under Regulation 44/2001 Art.5(1) (Brussels I Regulation), the Convention on the Law Applicable to Contractual Obligations 1980 Art.4 (Rome Convention) and the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary. Considers the extent to which commercial developments in the securities industry have outstripped the current conflicts of law rules.
M. Requejo, “Transnational human rights claims against a state in the European Area of Freedom, Justice and Security: a view on ECJ judgment, 15 February 2007 - C292/05 - Lechouritou, and some recent Regulations” (2007) 5 European Legal Forum 206 - 210. Abstract:
Comments on the European Court of Justice ruling in Lechouritou v Germany (C-292/05) on whether a private action for compensation brought against Germany with respect to human rights abuses committed by its armed forces during its occupation of Greece in the Second World War fell within the scope of the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 Art.1, thus preventing the defendant from claiming immunity for acts committed during armed conflict. Examines the EC and US jurisprudential context for such private damages claims.
L. Osana, “Brussels I Regulation Article 5(3): German Law Against Restrictions on Competition” (2007) 5 European Legal Forum 211 - 212. Abstract:
Summarises the Hamburg Court of Appeal decision in Oberlandesgericht (Hamburg) (1 Kart-U 5/06) on whether the German courts had jurisdiction under Regulation 44/2001 Art.5(3) (Brussels I Regulation) to order a German tour operator not to incite Spanish hotels to refuse to supply contingents to a competitor German tour operator, behaviour that had been found to be anti-competitive.
C. Tate, “American Forum Non Conveniens in Light of the Hague Convention on Choice of Court Agreements” (2007) 69 University of Pittsburgh Law Review 165 - 187.
E. Costa, “European Union: litigation - applicable law” (2008) 19 International Company and Commercial Law Review 7 - 10. Abstract:
Traces the history of how both the Convention on the Law Applicable to Contractual Obligations 1980 (Rome I) and Regulation 864/2007 (Rome II) became law. Explains how Rome II regulates disputes involving non-contractual obligations and determines the applicable law. Notes areas where Rome II does not apply, and looks at the specific example of how Rome II would regulate a dispute involving product liability, including the habitual residence test.
E.T. Lear, “National Interests, Foreign Injuries, and Federal Forum Non Conveniens” (2007) 41 University of California Davis Law Review 559 - 604 [Full Text Here]. Abstract:
This Article argues that the federal forum non conveniens doctrine subverts critical national interests in international torts cases. For over a quarter century, federal judges have assumed that foreign injury cases, particularly those filed by foreign plaintiffs, are best litigated abroad. This assumption is incorrect. Foreign injuries caused by multinational corporations who tap the American market implicate significant national interests in compensation and/or deterrence. Federal judges approach the forum non conveniens decision as if it were a species of choice of law, as opposed to a choice of forum question. Analyzing the cases from an adjudicatory perspective reveals that in the case of an American resident plaintiff injured abroad, an adequate alternative forum seldom exists; each time a federal court dismisses such a claim, the American interest in compensation is irrevocably impaired. With respect to deterrence, an analysis focusing properly on adjudicatory factors demonstrates that excluding foreign injury claims, even those brought by foreign plaintiffs, seriously undermines our national interest in deterring corporate malfeasance.
I am sure that I have missed various articles or case comments published in the last couple of months. If you spot any that are not on this list (or, even better, if you have written one and it is not on this list), please let me know.
As stated on the website of the European Judicial Network, the replies received with regard to the Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition (COM(2006) 400 final) are now available at the EJN’s website.
See with regard to the Green Paper on matrimonial property also our previous posts which can be found here, here and here.
Further, also the replies which have been received with regard to the Green Paper improving the efficiency of the enforcement of judgments in the European Union: The attachment of bank accounts (COM(2006) 618 final) are available at the EJN’s website as well.
You can find further information on the Green Paper on the attachment of bank accounts on our related site.
In 2007, the French supreme court for private matters (Cour de cassation) ruled five times on the recognition in France of Islamic divorces obtained in Algeria (judgments of 10 July 2007, 19 September 2007, 17 October 2007, 31 October 2007) or in Morocco (judgment of 22 May 2007). Even by the standard of a civil law supreme court which delivers thousands of judgments each year, this is a high number.
The facts of the cases are almost invariably the same. The couple was of Algerian (or Moroccan) origin. They were sometimes born there, or even had got married there. They then emigrated to France, where they have been living ever since. They sometimes acquired French citizenship.
It seems that it is normally the wife who wants the divorce. She therefore decides to sue, in France. But the husband then travels to Algeria or Morocco and gets an islamic divorce (Talaq) there. He subsequently attempts to rely on the res judicata effect of the Moroccan judgment to stop the French proceedings. This is where the French court has to decide whether the foreign judgment can be recognised in France and thus have a res judicata effect.
The reasons why the wife chooses France, and the husband their country of origin, are quite simple. The wife seeks an allowance for her and the children. A French court would give her much more than an Algerian court. And in any case, under Islamic law, at least as a matter of principle (there are some variations among sunni schools), women may not ask for divorce. This is a right which belongs to men only.
The practice could appear as shocking for a variety of reasons. First, it seems that husbands seek divorce in Algeria or Morocco to avoid French courts and the French law of divorce. Second, it appears that, typically, women will not even be called in the foreign proceedings, which is contrary to the basic understanding of due process. At the same time, this is not completely illogical, since they have no say in the proceedings anyway (although it seems that they sometimes have a say in respect of the financial consequences of the divorce). Third, Islamic law of divorce is essentially unequal.
For long, the Cour de cassation was unwilling to rule that islamic divorces ought to be denied recognition because they are the product of a law which does not consider men and women equal. The court would still deny recognition to most Islamic divorces, but on the ground that the wife had not been called to the foreign proceedings. Alternatively, the court would sometimes rule that the husband had committed a fraude à la loi, i.e. had initiated proceedings in Algeria for the sole purpose of avoiding French proceedings. However, such intent was often difficult to prove. After all, he was Algerian, and initiating proceedings where he was from was not unreasonable. However, this method led the court to recognize some of these divorces. For instance, in 2001, it accepted to recognize an Algerian divorce decision where the wife had participated to the foreign proceedings and had been awarded a (tiny) allowance.
In 2004, the Cour de cassation changed its doctrine and ruled that Islamic divorces are contrary to French public policy on the more general and abstract ground that divorce in Algerian or Moroccan law is in the hands of the sole husband, which infringes the principle of equality between spouses in the dissolution of marriage. The Islamic law of divorce has been rejected abstractly ever since. Formally, the court has ruled that the principle of equality between spouses flows from the European Convention of Human Rights (Article 5, Protocol VII).
The five 2007 judgments all deny recognition to the Algerian or Moroccan divorces on that ground. The law now seems settled. It is thus quite surprising that the court still has to rule so often on the issue. France has certainly a large Algerian and Moroccan population (and generally has the biggest Muslim population in Europe), which explains why so many disputes arise. One wonders, however, why the costs of litigation up to the supreme court do not discourage husbands. My guess is that, for some reason, they do not bear them.
On 9 January 2008 Evelyne Gebhardt, Rapporteur in the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE), has released her Draft report on the Commission’s Proposal for a Council regulation amending regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (COM(2006)399 of 17 July 2006).
Pursuant to Rule 47 of the European Parliament’s Rules of Procedure (16th edition - November 2007), the Rome III regulation is subject to the procedure with associated committees, since its subject matter ‘falls almost equally within the competence of two committees’ (as determined in Annex VI to the Rules of Procedure), and it is under the primary responsibility of the LIBE Committee, while the Committee on Legal Affairs (JURI) has been asked for an opinion. Carlo Casini, draftsman for the JURI Committee, presented a Draft opinion on 4 December 2007, that was discussed in the meeting of 19 December 2007.
The ‘Rome III’ file currently being examined by the LIBE Committee is thus formed by the following documents, besides the initial Commission’s Proposal and Annexes - SEC(2006)949 and SEC(2006)950 - of 17 July 2006:
Once the Report is adopted in the LIBE Committee, the exam of the Rome III regulation is scheduled in the plenary session of the European Parliament on 22 April 2008 (see the OEIL page on the status of the procedure).
It must be stressed that, pursuant to Art. 67(5) of the EC Treaty, the Rome III regulation is subject to the consultation procedure, so the Council is not bound by Parliament’s position. The latest Council’s document publicly available on the matter is a text drafted in June by the German and Portuguese Presidency on the basis of the meetings of the Committee on Civil Law Matters and of the comments of Member States’ delegations (doc. n. 11295 of 28 June 2007). The latest ‘Summary of discussions’ (doc. n. 5753/08, currently not accessible) was prepared by the Committee on Civil Law Matters on 28 January 2008.
A political agreement is expected to be reached in the Council by the end of the Slovenian Presidency (June 2008). For further information on the Rome III regulation, see the dedicated section of our site.
The Spanish Parliament has adopted a new statute on international adoption on 28 December 2007.
Professor Alegría Borrás reports on the site of the French Society of Comparative Legislation (in French).
The Spanish text can be found here.
Ranjit and Anil Malhotra have written a piece on “Inter-Country Adoptions from India” in the new issue of the Commonwealth Law Bulletin (C.L.B. 2007, 33(2), 191-207 ). Here’s the abstract:
This article discusses the inter-country adoption procedure, coupled with the relevant legislation to be complied with by foreigners seeking to adopt children from India. At the outset, it is important to emphasise that at present there exists no general law on adoption of children governing non-Hindus and foreigners. Adoption is permitted by statute among Hindus, and by custom among some other communities. Quoting extensively from case law and legal provisions, this article examines the procedure to be followed in inter-country adoption from India and the role of the Central Adoption Resource Agency (CARA), the principal monitoring agency of the Indian Government handling all affairs connected with national and inter-country adoptions. In the section dealing with problems faced in Inter-Country adoption, the authors point out that: “At present non-Hindus and foreign nationals can only be guardians of children under the Guardian and Wards Act 1890. They cannot adopt children.” In conclusion, the authors call for an overhaul of the existing adoption law in India, not least, in the light of the growing demand for a general law of adoption enabling any person, irrespective of his religion, race or caste, to adopt a child.
Electronic access is available to subscribers.
A few weeks ago, I wrote a post on the story of a French couple who bypassed the French ban on surrogacy by resorting to a Californian surrogate mother. When the couple came back to France, French prosecutors took all available legal steps to deny them recognition of their parental status in France.
I am grateful to Kees Saarloos for forwarding me the judgment of the Paris court of appeal which ruled on the conflict issue on October 25, 2007. The judgment, however, is quite disappointing. It seems that French prosecutors were unable to analyze properly the conflict issues and thus to present a robust argumentation against the recognition of the parental status acquired in the U.S. This enabled the French court to reach a decision without truly addressing the issues. The judgment identified a few of them, but then stressed that they were not put forward by the plaintiff (i.e. the prosecutors), and that it did not need address them.
The judgment is more useful for the background it gives on what happened in California. The California Supreme Court had conferred the parental status to the French couple before the actual birth of the children, and ordered both the hospital in San Diego and the Californian Department of Public Health to mention the couple as the only parents on the hospital registry and the birth certificate. The couple could thus have sought recognition of a variety of foreign public acts. One was the Californian judgment, another was the birth certificate.
In a nutshell, the actual decision of the court can be summarized as follows:
As the plaintiffs have not challenged the recognition of either of these acts in France, their challenge of the transcription of the parental status on the French registries is inadmissible. The foreign acts govern.
The plaintiffs did not challenge the accuracy of the content of the transcription, but only the transcription itself. The issue of whether the couple was actually the parents of the children was therefore not before the court.
Finally, and in any case, failure to provide the couple with a parental status would result in the children having no parents legally speaking, which would not comport with the superior interest of the children.
One issue which is addressed (very) implicitly by the court is whether the dispute ought to have been decided by application of a law or of a decision. In other words, the court could have ruled that the issue at stake was one of choice of law. It would have then applied its choice of law rule in order to determine the law governing parenthood. Indeed, this was argued by the defendants. Instead, the court finds that the issue is one of recognition. The foreign acts govern, because they were recognised. Arguably, this could have been different if the accuracy of the content of the transcription had been challenged, and this is maybe what the court rules implicitly by noting that there was no such challenge.
Finally, the central issues of whether the foreign acts were contrary to French public policy and whether there had been a fraude à la loi are not addressed (on these ground for denial of recognition, see my previous post).
UPDATE: The French text of the decision can be found here (thanks to Esurnir). Various comments of the decision can be found on French blogs (see here and here) Finally, a personal reaction of the father of the children can be found here (in French). The couple has also created its own website.
On 6 and 7 December the Justice and Home Affairs Council will hold its 2838th session in Brussels, under the Portuguese Presidency. Among the “Justice” issues, scheduled for Friday 7th, the Presidency will inform about the agreement reached with the European Parliament on the Rome I Regulation (see our post on the EP report and legislative resolution at first reading). Here’s an excerpt from the background note:
The Presidency will inform the Council about a first reading agreement reached with the European Parliament on a Proposal for a Regulation of the law applicable to contractual obligations. […] Numerous informal meetings have been held with the European Parliament with a view to reaching a first reading agreement in the framework of the co-decision procedure. The European Parliament adopted its report on 29 November 2007.
As regards the JHA “External Relations” issues, the Presidency will inform on the outcome of the diplomatic conference on the new Convention on the international recovery of child support and other forms of family maintenance. The Convention, that was drafted in the frame of the Hague Conference on Private International Law (of which the EC is a member since April 2007), was finalised at the end of the twenty-first session of the diplomatic conference, held in The Hague from 5 to 23 November 2007, along with a Protocol on the Law Applicable to Maintenance Obligations (see the HCCH’s press release). It was signed on the same day by the United States of America. The text of the Convention and Protocol, and the preliminary documents, are available on the HCCH website.
The European Parliament released on 26 November 2007 its tabled legislative report, 1st reading or single reading (download the report from the OEIL page and see the status of the procedure). This report is expected to be debated or examined by the Council on 6 December 2007 after which a probable part-session is scheduled by the DG of the Presidency, 1st reading on 12 December 2007. See our earlier posts on the maintenance obligations regulation here, here and here.
Today, the ECJ delivered its second judgment on the Brussels II bis Regulation (C-68/07, Sundelind Lopez).
The case was referred to the ECJ by the Swedish Supreme Court (Högsta Domstolen) asking for a preliminary ruling on the following question:
The respondent in a case concerning divorce is neither resident in a Member State nor a citizen of a Member State. May the case be heard by a court in a Member State which does not have jurisdiction under Article 3 [of the Brussels II Regulation], even though a court in another Member State may have jurisdiction by application of one of the rules on jurisdiction set out in Article 3?
The ECJ now held:
Articles 6 and 7 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, as regards treaties with the Holy See, are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation.
See for the full judgment the website of the ECJ. See further also our previous post on the reference which can be found here.
German professor Jurgen Basedow and German scholar Simon Schwarz have reported in English on the new site of the Section of Private International Law of the Society of Comparative Legislation on a statutory intervention amending the German choice of law rule with regard to name.
The new provision (art. 47 of the Introductory Law to the German Civil Code - EGBGB) and the report can be found here.