Author Archives: Marta Requejo

About Marta Requejo

Marta Requejo is a senior researcher fellow of the Max Planck Institute Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law. She obtained her law degree from the University of Santiago after spending a year at the University of Le Mans (France) as an Erasmus student; she holds a Doctorate (European Doctorate) from Santiago de Compostela University. Tenured lecturer since 2001, she qualified for access to senior professorship in September 2011. Her primary teaching and research interests are conflict of laws, international litigation, and international commercial law. She has been visitor for researching purposes at the Max Planck Institute on Foreign and Private International Law (Hamburg, Germany), the Institut Suisse de Droit Comparé (Lausanne, Switzerland), the Paris-Pantheon University and the BIICL; also visiting professor at the Paris-Panthéon University. So far she has published four monographs: "Ley local y forma de los actos en el Derecho internacional privado español", 418 pp; "Proceso en el extranjero y medidas antiproceso (antisuit injunctions)", 282 pp; "La cesión de créditos en el comercio internacional", 281 pp; "Violaciones graves de derechos humanos y responsabilidad civil", 369 pp. She is also author of several articles printed in collective works, and numerous papers in law journals, mainly Spanish ones, like the Revista Española de Derecho Internacional or Diario La Ley, but also in foreign magazins like The European Legal Forum or Era Forum. She belongs to the Group of research De Conflictu Legum.

The French Cour de cassation and the « Thalys babies »

I am glad to post this comment by F. Mailhé, Associate Professor Paris 2, Panthéon-Assas

On September 22, 2014, the French Cour de Cassation (Supreme Court for civil and criminal matters) published two prejudicial opinions on the validity, in a same-sex couple, of the adoption by a woman of a child born to her wife thanks to a foreign medically-assisted procreation (Avis n°15010 and 15011, ECLI:FR:CCASS:2014:AV15010 and ECLI:FR:CCASS:2014:AV15011).

Despite its relatively restricted purpose, the French Same-Sex Marriage Act of May 17, 2013, just starts to give its first private international law consequences (On that law and private international law, see e.g. H. Fulchiron, JDI 2013. 1055 ; P. Hammje, RCDIP 2013. 774 ; S. Godechot and J. Guillaumé, D. 2013. 1756).

Indeed, avoiding any fundamental change in French family law, the Act was only meant to enable same-sex couples to get married. As a consequence, same-sex couples are for example still not allowed to get medically-assisted procreation (MAP) techniques by Article 2141-2 of the Public Health Code (“Code de la Santé Publique”, CSP), according to which:

“The purpose of [MAP] is to remedy a couple’s infertility which pathological character was medically diagnosed or to avoid the transmission of a particularly severe disease to the child or to the other member of the couple”.

Some things changed in adoption law, though. Among other provisions, in order for lonely parents getting married to provide the child with a second parent when the other parent was unknown or deceased, the 2013 Act allowed for their husband or wife to adopt the child in those situations.

The adoption procedure has therefore been used by a number of women in situations where the father was not known… because the baby was born from an insemination with anonymous donor, an MAP, abroad, especially in Belgium. Contrary to France, Belgium had authorized MAP for lonely mothers since July 2007. Called “Thalys babies”, by the name of the train which connects Paris to Brussels, a certain number of babies were born from such travels in the last years.

In July, almost 300 files for adoption had apparently been enrolled in different courts of first instance in France, and the reaction and interpretation of the law was quite diverging. For most, the interest of the child and the evolution of the law asked for the adoption to be allowed (see e.g. TGI Nanterre, July 8, 2014, D. 2014. 1669, note Ph. Reigné). For some others, to the contrary, the situation was a plain fraud, since it was the conclusion of a procedure by which the couple simply tried to bypass different French law prohibitions (MAP by a lonely woman or same-sex couple).  After the press echoed the emotion of couples blaming a “two tier justice”, two courts (Avignon and Poitiers) decided to use a specific prejudicial procedure to ask the Cour de cassation to issue an opinion on the matter.

On Sept. 22, 2014, the Cour de cassation answered in its uniquely concise style:

“Having resort to medically-assisted procreation, in the form of artificial insemination with anonymous donor abroad, does not bar the mother’s wife from adopting the child born from this procreation, as long as the adoption’s legal conditions are fulfilled and that it is in line with the child’s interest”.

The arguments in defense of the prohibition to adopt were indeed rather weak and it is no surprise that this decision of autumn 2014 was in favor of the adoption.

First, the prohibition of Article 2141-2 CSP is of ambiguous nature. Instead of regulating MAP as a filiation issue, it is regulated as a technical one, and destined to medical professionals, not to parents. Its consequence is therefore not a civil one for the parents, but a sort of disciplinary penalty for the professionals. Designed for purely domestic matters, it is therefore not as assertive as it needs to be in international matters: Does it concern the persons getting an MAP abroad, or is it just organizing French clinics and hospitals’ life?

Second, and as a consequence, contrary to the sister question of surrogacy, the international public policy is not at stake. Its foundation in Article 2141-2 CSP is too fragile. Actually, the problem does not seem to come so much from the foreign MAP itself than from the fact that a French mother, with no ties to Belgium, went abroad to get what she could not get in France, i.e. a problem of fraud. This is a much harder question in purely philosophical and political terms. What does “forbidden in France” mean in that context? Should a person be allowed to “internationalize” the situations to bend the law to its will? One of the arguments of counsel for defense in those cases was that freedom of movement within Europe allows for such “legal optimization”. If the Court of Justice has approved the reasoning in company law since Centros (Aff. C-212/97), and has peeped into family and personal matters with cases such as Garcia-Avello (Aff. C-148/02), pure choice of law in family matters (and MAPs) does not seem the rule yet, if only because the European private international law regulations in family matters have not provided for such a complete freedom. Unfortunately for the debate, it comes at a time when France was already punished on a neighboring matter where the Cour de cassation had used the same rationale, so that, in the eyes of that Court, the door to negotiations seemed closed.

As readers of Conflictoflaws.net have noticed, in Menesson vs. France and Labassée vs. France, the European Court of Human Rights (ECHR) recently condemned France for refusing to recognize the filiation of the “parents of intent” (here an heterosexual couple) with the children born in the United States from a surrogate mother. The decisions are actually not as assertive as it has been said in the press, the ECHR judging only that the children should each get at least  recognition of their filiation with their father (who happened to be both father of intent and biological father). But the ECHR paid scant regard, in both cases, to the argument the Cour de cassation has used in more recent ones : fraud.

In 3 decisions of Sept. 13, 2013 and March 19, 2014 on another foreign surrogacy case, the Cour de cassation had preferred to argue that the parents of intent could not avoid the French interdiction of gestational surrogacy by going to get one in the United States and then ask recognition of the American decision in France (on those decisions, see e.g. L. Gannagé, RCDIP 2013. 587 ; J. Guillaumé, JDI 2014. 1 ; J. Heymann, JCP 2014. 613 ; H. Fulchiron et Ch. Bidaud-Garon, D. 2014. 905). This change of rationale (from international public order to fraud) was understood by some authors as showing a change in the strategy of the Cour de cassation to persuade the ECHR who was already seized of the Menesson and Labassée cases. But if this was the aim, it failed. Its case-law was condemned nonetheless.

The consequence of the Menesson and Labassée cases on the issue of the adoption of a child born by artificial insemination with anonymous donor was of course not obvious, but the analogy is strong. In both cases, parents had gone abroad to get a child through a medical procedure they could not get in France. How could the Cour de cassation therefore decide otherwise than for its validity, when the value argument (through international public order) was so weak, and when the political argument (fraud) had already been knocked down by the European Court of Human Rights for an analog and much stronger case?

One last word, though. This was just a prejudicial opinion. Opinions by the Cour de cassation are not issued by plenary sessions of the Court, and do not bind its judging Chambers. It is therefore possible that (as has been seen in other matters) some Chambers will not follow the Opinion and decide otherwise. But, after the EHCR decision in Menesson and Labassée, after the refusal of the French government to appeal of those decisions (the government actually seems favorable to it), after this Opinion by some members of the Cour de cassation, and if the evolution of the French society keep on the same way in the years to come, years which would be needed before the Cour de cassation may be seized in its judging formation of the matter, such a reluctance would certainly go against the tide, if not too late, after the tide.

The Evolution of European Private International Law – Coherence, Common Values and Consolidation

The last decade has seen a number of important legislative developments in the field of European private international law and cross-border litigation, including the Rome I-III Regulations, the Brussels I (Recast) and Brussels II bis Regulations, the Succession Regulation, and other instruments in the area of civil procedure.

As these legislative initiatives were introduced at different stages and with different objectives, the question is whether they constitute a coherent legal framework with common legal concepts, which has fostered the development of common values and principles, or whether they need consolidation or even a new structure.

A joint conference BIICL- Queen Mary University of London taking place on the 25 and 26 of November, will addressed the abovementioned question with the aim to assess the European framework for conflict of laws and jurisdictions and to reflect on the possible directions of its future evolution.

Click here to download the event flyer; here for the program.

On Unilateral Choice-of-Court Agreements and Options to Arbitrate (article)

A topic we were discussing just a few days ago at the MPI, with especial attention to a Spanish decision. Now it’s Italian time. The article, by S. Ferrero, is to be found here.

Abstract:

In this work it is discussed the validity and the enforceability of unilateral choice-of-court agreements and options to arbitrate. Such clauses are very frequent in international contracts, particularly in loan agreements, where the provision is in favour of the lender, the stronger party to the contract. Whilst in various jurisdictions there are significant lines of authorities enforcing such agreements as perfectly valid, unilateral choice-of-court agreements and options to arbitrate have been recently questioned and struck down by the French, the Russian and the Bulgarian Supreme Courts. Recognizing in these decisions a rising general tendency, at the international level, contrary to asymmetric arbitration and choice of court agreements is, perhaps, premature. Nevertheless, the arguments put forward by the mentioned decisions naturally trigger further analysis of the matter. The legal assessment will be carried out under a twofold perspective: on the one hand, the private international law, which entails the analysis of the relevant European legislation (Regulation 44/2001 and Regulation 1215/2012) and, on the other hand, the domestic substantive law, namely Italian law. Particularly, it will be considered whether, in the light of the reasoning of the foreign case law, Italian courts may change their attitude towards one-sided jurisdiction and arbitration agreements. It is submitted that the decisions against the validity and enforceability are open to criticism and Italian courts should remain in favour of asymmetric arbitration and choice of court agreements for, it is suggested, the European legislation and Italian domestic law do not lead, expressly or implicitly, to hold them invalid and/or unenforceable, except for certain limited cases.

Foreign Judgments and Arbitral Awards – A Practical Guide

This new book by Apostolos Anthimos is a further step to record systematically the existing Greek case law in the field of International Civil Litigation. Following last year’s publication on the Service of Process Abroad the author engages in an exhaustive presentation of reported and unreported material in the field of recognition and978-960-568-179-1 enforcement of foreign judgments and arbitral awards published within the last 40 years in Greece. The methodology selected resembles to the one chosen in the author’s previous publication: Its central purpose is the direct access to key information on a state by state basis, i.e. the presentation of applicable laws and case law for each country separately. The analysis is based on the 4-level model, well known for EU Member States: Domestic provisions (Articles 323, 780, 903, 905, 906 Greek Code of Civil Procedure), (seventeen) bilateral & (nearly ten) multilateral agreements, and seven EC-Regulations are considered, and their repercussion in Greek court practice is thoroughly scrutinized.

After introducing the reader to the existing landscape of recognition and enforcement in Greece (pp. 1-20), the main part of the book (pp. 21-274) elaborates each country of origin separately. The material varies, depending on social and commercial ties and factors. For instance, German, UK, US, Italian, and French judgments emanate both from commercial and family matters, whereas Albanian, Russian, Georgian, Armenian, and Australian judgments are almost exclusively dealing with personal status matters. By way of comparison, no judgments are reported by many African, Asian and Latin American legal orders, where no conventional link or case law could be traced.

The annexes of the book (pp. 285-418) host all bilateral & multilateral conventions signed / ratified by Greece on the matter, and the respective chapters of EC-Regulations. The case law coverage is fully updated, and includes all decisionsreported until August 2014.

(ISBN/ISSN: 978-960-568-179-1; available at Sakkoulas Publications)

Opinion 1/13 of the ECJ (Grand Chamber)

As you might remember, the following request was submitted to the ECJ on June 2013:

‘Does the exclusive competence of the [European] Union encompass the acceptance of the accession of a non-Union country to the Convention on the civil aspects of international child abduction [concluded in the Hague on] 25 October 1980 [(“the 1980 Hague Convention” or “the Convention”)]?’

The answer was given yesterday: “The exclusive competence of the European Union encompasses the acceptance of the accession of a third State to the Convention on the civil aspects of international child abduction concluded in The Hague on 25 October 1980″.

For the whole document click here.

Ratification of The Choice of Court Agreements Convention

(Many thanks to François Mailhé, Associate Professor Paris 2, Panthéon-Assas, for the tip)

Last Friday (10.10.2014) the EU Justice Ministers approved a decision ratifying the Choice of Court Agreements Convention, 2005 (the Convention has been signed by the US, 19.1.2009, and by the EU, 1.4.2009; and ratified by Mexico, 26.9.2007). For those who are not familiar with it: The Convention is aimed at ensuring the effectiveness of choice of court agreements (“forum selection clauses”) between parties to international commercial transactions. By doing so, the Convention provides greater certainty to businesses engaging in cross-border activities and therefore creates a legal environment more amenable to international trade and investment. In practice, ratifying the Convention will ensure that EU companies have more legal certainty when doing business with firms outside the EU: they will be able to trust that their choice of court to deal with a dispute will be respected by the courts of the countries that have ratified the Convention, and that the judgment given by the chosen court will be recognised and enforced in the countries which apply it.

Next steps: Following approval by Member States, the consent of the European Parliament will be asked. Once it gives its accord, the decision will be finally adopted by the Council and enter into force in the European Union.

Anuario Español de Derecho Internacional Privado, vol. XIII

The new volume of the AEDIPr is about to be published. It contains the usual sections: Estudios, Varia -actually, shorter studies-, Foros Internacionales -informing on the latest developments at international fora such as The Hague Conference-, Textos Legales, Jurisprudencia- ECJ and Spanish case law, sometimes annotated-, Materiales de la Práctica - reports related to PIL from several institutions like the Consejo General del Poder Judicial-, Noticias, and Bibliografía – a thorough review of Spanish books and papers on PIL published in 2013, as well as a selection of foreign literature. Exceptionally, this volume also includes a especial section focused on PIL codification in Latin America, entitled “Nuevas perspectivas de la codificación del Derecho internacional privado en América Latina”.

You will find below the table of contents of the section Estudios; for the whole ToC of vol. XIII click here. All contributions are in Spanish, with an English abstract.

Hans van Loon, El derecho internacional privado ante la corte internacional de justicia: mirando hacia atrás y mirando hacia adelante; Dário Moura Vicente, La culpa in contrahendo en el derecho internacional privado europeo; Pedro Alberto de Miguel Asensio, Tribunal unificado de patentes: competencia judicial y reconocimiento de resoluciones; Johan Erauw, Relación entre el acuerdo sobre el tribunal de la patente unificada europea y el nuevo reglamento de Bruselas I sobre competencia y reconocimiento; Matthias Lehmann, Los tratados sobre libre comercio e inversiones transfronterizas y el conflicto de leyes; Nuria Marchal Escalona, Sobre la sumisión tácita en el reglamento Bruselas I bis; Antonia Durán Ayago, Procesos pendientes ante órganos jurisdiccionales de terceros estados y reglamento (UE) nº 1215/2012: ¿brindis al sol?; Marta Requejo Isidro, La cooperación judicial en materia de insolvencia transfronteriza en la propuesta de reglamento del Parlamento Europeo y del Consejo por el que se modifica el reglamento (CE) nº 1346/2000 sobre procedimientos de insolvencia; Nicolò Nisi, La refundición del reglamento de insolvencia europeo y los grupos de empresas de terceros estados; Emmanuel Guinchard, ¿Hacia una reforma falsamente técnica del reglamento sobre el proceso europeo de escasa cuantía y superficial del reglamento sobre el proceso monitorio europeo?; Eva de Götzen, Cobro transfronterizo de deudas en materia civil y mercantil: ¿dónde estamos y hacia dónde nos dirigimos?; José Ignacio Paredes Pérez, La responsabilidad civil del prestador y la obligación general de no discriminación del artículo 20.2º de la directiva 2006/123/ce relativa a los servicios en el mercado interior; Eduardo Álvarez Armas, La aplicabilidad espacial del derecho medioambiental europeo, su interacción con la norma de conflicto europea en materia de daños al medioambiente: apuntes preliminares; Angel Espiniella Menéndez, Las operaciones de compraventa en la distribución comercial internacional; Ivana Kunda, Competencia judicial internacional sobre violaciones de derechos de autor y derechos conexos en internet; Thomas Thiede, Obituario al libel tourism; Pablo Quinzá Redondo y Jacqueline Gray, La (des) coordinación entre la propuesta de reglamento de régimen económico matrimonial y los reglamentos en materia de divorcio y sucesiones

A Conference to Celebrate the 50th Anniversary of the Rivista di diritto internazionale privato e processuale

(I am grateful to Prof. Francesca C. Villata – University of Milan – for the tip)

On October 23, 2014, the University of Milan will Rivista di diritto internazionale privato e processualecelebrate the Rivista’s 50th anniversary by hosting a conference addressing the prospective reform of the Italian private international law system.
With some exceptions, the conference language will be Italian.

The conference program reads as follows:

9:00-9:30 Welcoming remarks
Provost of the University of Milan
Director of the Department of International, Legal, Historical and Political Studies
Director of the Department of Italian and Supranational Public Law

9:30-11:00 I Session – Law No 218/1995: Defining Features and General Problems
Chair: Fausto Pocar (University of Milan)
Roberto Baratta (University of Macerata), Marc Fallon (Université catholique de Louvain), Hans van Loon (Former Secretary-General, Hague Conference on Private International Law)
Concluding Remarks: Tullio Treves (University of Milan)

11:00-12:30 II Session – Personal Status
Chair: Roberta Clerici (University of Milan)
Alegría Borrás (Universitat de Barcelona), Luigi Fumagalli (University of Milan), Costanza Honorati (University of Milan-Bicocca), Carlo Rimini (University of Milan), Ilaria Viarengo (University of Milan)
Discussion and Concluding Remarks: Franco Mosconi (University of Pavia)

14:30-16:00 III Session – Corporations, Contractual and Non-Contractual Obligations
Chair: Riccardo Luzzatto (University of Milan)
Ruggiero Cafari Panico (University of Milan), Cristina Campiglio (University of Pavia), Domenico Damascelli (University of Salento), Paola Ivaldi (University of Genoa), Peter Kindler (Universität München)
Discussion and Concluding Remarks: Andrea Giardina (University of Rome “La Sapienza”)

16:30-18:00 IV Session – International Civil Procedure Law
Chair: Sergio Maria Carbone (University of Genoa)
Mario Dusi (President CRINT), Alberto Malatesta (University Carlo cattaneo-LIUC), Francesco Salerno (University of Ferrara), Lidia Sandrini (University of Milan), Francesca C. Villata (University of Milan)
Discussion and Concluding Remarks: Stefania Bariatti (University of Milan)

Final Remarks: Fausto Pocar (University of Milan)

Registration is open here.

Call for Papers: ‘Privacy under International and European Law’

Utrecht Journal of International and European Law is issuing a call for papers in relation to its forthcoming 80th edition on ‘Privacy under International and European Law’.

With information gathering and sharing techniques becoming ever more advanced, States are being forced to take a stand on their permissible cost for individual privacy. As the international legal system struggles to keep up with the irreversible process of globalisation, its role in regulating these competing interests is coming under increasing discussion. That’s why the Board of Editors are inviting scholars to submit papers addressing any legal issues relating to privacy and international law from an international or European law perspective. While this edition is primarily concerned with privacy and international law, relevant issues may have broader implications, including: the responsibility of private actors under international law; privacy as a human right; the conflict between State interests and individual rights; the internet and territorial limits; data protection; diverging national approaches to the protection of privacy and the rise of cybercrime. All types of manuscripts, from socio-legal to legal-technical to comparative will be considered.

The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online and conform to the journal style guide. For further information please consult the website, or send an email to utrechtjournal@urios.org.

(Deadline for Submissions: 14 November 2014)