While some countries, like the U.S.A., accept surrogate pregnancy among permitted techniques of assisted reproduction, Spanish law considers it illegal. That is why a certificate issued in the U.S.A. establishing the parenthood of a baby born in this country to a surrogate mother would not be registered in Spain; accordingly the baby would not have Spanish nationality; and consequently, he would need a visa to come to Spain.

This apparently neutral facts may not describe a theoretical situation but correspond whit a quite real one. A Spanish homosexual married couple from Valencia decided to try surrogate pregnancy after several failed attempts of international adoption; as for a national adoption, they feared they would not be awarded the “certificado de idoneidad” due to their homosexual condition. They therefore moved to the USA looking for better chances. Today, the intended parents and (their?) two twin babies born in the USA to a surrogate mother are the major figures of a complicated situation. The couple is in the U.S. since the Spanish embassy has denied the babies the visa to enter Spain. So far, the twins bear American nationality to prevent them from being stateless.

According to press reports, the couple has ruled out the option of returning to Spain by registering the babies as born to a Spanish female mother; they want them to be acknowledged as their children, and them to be granted the Spanish nationality. Faced with the Spanish refusal they might decide to remain (to exile?) in the U.S.A., where they have been offered a residence permit. They have warned the Spanish government that they will start a legal battle both in the U.S.A. and before the European Court of Human Rights, claiming violation of the Declaration of the Rights of the Child. Considering the importance of their aim, how much it is worth; but also knowing how exhausting such processes will be, we can only wish them courage and luck.

Professor Martin Davies, co-author of the leading text on Australian private international law (Nygh and Davies, Conflict of Laws in Australia, now in its 7th edition (2002)), has an article in the most recent Torts Law Journal.  It concerns the choice of law issues which have been created by the various Acts passed by the Australian states and territories to reform aspects of Australian tort law.  As the abstract explains:

The civil liability legislation passed by the states and territories in the early part of this decade was not uniform in form or effect. As a result, choice of law in intra-Australian torts cases has been given a new lease of life. The lex loci delicti (law of the place of the wrong) choice of law test adopted by the High Court in John Pfeiffer Pty Ltd v Rogerson applies only to questions of substance. Thus, it is now necessary to ask whether the statutory reforms made by the civil liability legislation are substantive or procedural. This article suggests some tentative characterisations. No generalisations are possible because each statutory rule must be characterised individually. Because some of the statutory reforms seem clearly to be procedural, they create a new incentive for plaintiffs to go forum-shopping for a jurisdiction that provides a more favourable environment for their claims.  Defendants can only protect themselves against that forum-shopping by applying for a venue transfer under the cross-vesting legislation.  There is uncertainty about the operation of that legislation, too.  Thus, a new set of unsettled questions has been melded to an existing area of uncertainty.  The result is a fertile source of disagreement and future litigation.

The article is both interesting and of use to practitioners.  The citation is Martin Davies, “Choice of Law after the Civil Liability legislation” (2008) 16 Torts Law Journal 10.

The report of the 18th meeting of the European Group for Private International Law, which was held in Bergen in September 2008, is now available in French on the site of the EGPIL.

The Group makes several propositions regarding a possible extension of the Brussels I Regulation to relations with third states. 

The Group also discussed other topics, including the law applicable to maritime torts.

The High Court of Australia has handed down judgment in Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited) [2008] HCA 54 (12 November 2008), the most recent High Court case to consider stay of proceedings and choice of law in an international tort case. The High Court unanimously reversed the Victorian Court of Appeal and held in two joint judgments (French CJ, Gummow, Hayne and Kiefel JJ; and Heydon and Crennan JJ) that the Supreme Court of Victoria was not a clearly inappropriate forum, the test in Australia for forum non conveniens.

The suit was brought by a man who was exposed to asbestos while visiting factories in Belgium and Malaysia in the course of his employment by a New Zealand-based company. At the time, the man was resident in New Zealand. The man subsequently moved to Victoria, and he sued in the Supreme Court of Victoria after contracting mesothelioma. After his death, his wife was substituted as plaintiff. The Supreme Court and the Court of Appeal (by majority) concluded that Victoria was a clearly inappropriate forum and stayed the proceedings (see Perry Herzfeld’s earlier post here).  The Court of Appeal majority had concluded that the applicable law was that of New Zealand and that this, combined with other factors such as the location of witnesses and defendants, rendered Victoria a clearly inappropriate forum. This conclusion was then reversed by the High Court on the plaintiff’s appeal.

French CJ, Gummow, Hayne and Kiefel JJ held that, in light of the state of the pleadings and the evidence,

“the Court of Appeal (and the primary judge) erred in deciding that the material available in this matter was sufficient to decide what law (or laws) govern the rights and duties of the parties. Rather, each should have held only that it was arguable that the law of New Zealand was the law that governed the determination of those rights and duties. Each should have further held, that assuming, without deciding, that the respondent was right to say that the parties’ rights and duties are governed by the law of New Zealand, the respondent did not establish that Victoria is a clearly inappropriate forum.” At [2]

Their Honours added that:

“The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction.  Moreover, considerations of geographical proximity and essential similarities between legal systems, as well as the legislative provisions now made for the determination of some trans-Tasman litigation, all point against treating the identification of New Zealand law as the lex causae as a sufficient basis on which to conclude that an Australian court is a clearly inappropriate forum to try a dispute.” At [31]

By contrast, Heydon and Crennan JJ appear to have taken a less absolute approach to the relevance of a foreign lex causae:

“The question of the lex causae can be relevant to the question whether Victoria is a clearly inappropriate forum. If the lex causae were New Zealand law, that would make a stay more likely, though not inevitable. But the question of what the lex causae is ceases to be relevant if it is impossible to say what it is. And the question remains irrelevant even if New Zealand law “might be” a candidate, or is “a very strong candidate”, for ex hypothesi it is impossible to say whether New Zealand law is in truth the lex causae.” At [49]

Their Honours concluded that, even though “New Zealand is an appropriate forum, … other factors indicate that Victoria is not clearly inappropriate.” At [51]

Although the course of argument in Puttick may not have been quite what the parties and some commentators were expecting — the decisive issues were not raised by the Court until after the conclusion of oral argument — on one level the result is unsurprising considering the High Court’s previous decisions in the area of tort and private international law: as cases like Oceanic Sun, Zhang, Neilson and Puttick demonstrate, it is almost impossible for a defendant to succeed in a forum non conveniens application against an Australian-resident plaintiff in a torts case, regardless of how slight the case’s connection to Australia, and regardless of how compelling the apparent factual connection to an overseas jurisdiction may be. After all, the plurality in Puttick concluded that “even if the lex causae was later shown to be the law of New Zealand, that circumstance, coupled with the fact that most evidence relating to the issues in the case would be found in New Zealand, did not demonstrate that the Supreme Court of Victoria was a clearly inappropriate forum.” At [32].

The more troubling aspect of the decision in Puttick is the practical interrelationship between the test for forum non conveniens and the rules about pleading and proving foreign law. Because plaintiffs in Australia have no obligations to allege, plead or prove foreign law — and because Australian choice of law rules are not mandatory — they have no incentive to draft a pleading that clearly discloses a foreign lex causae (whether expressly or by factual implication). To the contrary, they have every incentive to draft bland and incomplete pleadings that avoid clear references to a foreign lex causae.

Defendants are thereby placed in an invidious position: if they do nothing in response to such an unclear pleading, a successful forum non conveniens application will be precluded because of the plaintiff’s lack of clarity; but if they elucidate the foreign lex causae by putting on a defence, they will have submitted to the jurisdiction, thereby rendering any jurisdictional challenge nugatory.

Heydon and Crennan JJ seem to have been alive to this difficulty and, citing Buttigeig v Universal Terminal & Stevedoring Corporation [1972] VR 626, observed that it will sometimes be possible to look through an artificial pleading to see the underlying substance:

“A conclusion reached on a stay application about what the proper law of a tort is will normally only be a provisional conclusion: it will be a conclusion open to alteration in the light of further evidence called at the trial. A judge considering a stay application may be able to determine the location of the alleged tort despite somewhat unreal or artificial contentions in the pleadings.” At [36].

By contrast, no such statement appears in the plurality judgment, which appears very much to focus on the literal words of a plaintiff’s pleading.

Puttick therefore represents one more step in the slow death of forum non conveniens in Australia. The references in both judgments to vexation and oppression suggest the likely direction of future cases: under the general law of civil procedure, a vexatious or oppressive pleading can be struck out independently of any jurisdictional complaint; but unless a pleading is so manifestly defective as to fall foul of the general tests of vexation and oppression it is now unlikely that a court will ever issue a stay on jurisdictional grounds.

Whether this state of affairs is desirable — and whether it is consistent with the decision in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 — is a topic on which minds may disagree. French CJ, Gummow, Hayne and Kiefel JJ flatly rejected the respondent’s invitation to restate the test in Voth, but Heydon and Crennan JJ appeared to be more receptive to an invitation to reconsider Voth were it to arise in an appropriate case.

Likewise, unlike the plurality, Heydon and Crennan JJ seem to have recognised the apparent inconsistency between the Voth test and its subsequent treatment in Regie National des Usines Renault  SA v  Zhang  (2002) 210 CLR 491, particularly the difference between a balancing exercise and a bright-line rule about vexation. Their Honours implicitly favoured the test as expressed in Voth (and not its reinterpretation in Zhang) by engaging in the very sort of contextual balancing exercise that had been disapproved of so strongly by the majority in Zhang.

If the High Court is presented with a case that squarely raises the issue of the correctness or desirability of the Voth test, it may be that these apparent differences of opinion will be highlighted more clearly.

The very successful Private International Law Series by Oxford University Press adds yet another book to its impressive line-up with Jonathan Hill’s Cross-Border Consumer Contracts. Here’s the blurb:

Until relatively recently, almost all contracts were domestic: both the consumer and the supplier were from the same country and the situation involved no substantial foreign elements. Technological changes (in terms of international travel, means of communication and information technology) have meant that it is a more frequent occurrence for consumer contracts to involve a cross-border dimension.

This book explores the legal regimes which seek to deal with disputes which arise out of such cross-border consumer contracts. In terms of private international law, English law traditionally treated consumer contracts no differently from commercial contracts. However, at European level, jurisdictional and choice of law issues arising out of certain consumer contracts are subject to specific rules. The first part of the book focuses on these European developments and seeks to explain why the private litigation model for the resolution of disputes arising out of cross-border consumer contracts has failed to deal adequately with the problems generated by such contracts. Subsequent to these failures, alternative mechanisms for resolving contractual disputes have a particular significance in the consumer context. The second part of the book focuses on an evaluation of these alternative dispute resolution mechanisms, including online dispute resolution.

A table of contents can be found on the OUP website. ISBN: 978-0-19-927654-7. Price: £95. Available for £90.25 from the Conflict of Laws .net bookshop (powered by Amazon) or for £95 from OUP.