In today’s Opinion, Advocate General Bobek analyses whether the courts of a Member State in which a maintenance decision delivered by the courts of another Member State is enforced have jurisdiction to rule on an application opposing the enforcement.
More specifically, the reference for a preliminary ruling originates in a dispute between a maintenance debtor residing in Germany and a maintenance creditor residing in Poland. The latter lodged with the referring court an application requesting the recognition of a Polish maintenance decision and a declaration of its enforceability in Germany in accordance with Maintenance Regulation. The referring court delivered an order for enforcement in respect of the Polish maintenance decision. On the basis of that order, the defendant sought the enforcement of this decision against the debtor in Germany. The maintenance debtor opposed the enforcement based on Paragraph 767 of the German Code of Civil Procedure (the ZPO) and argued that the claim underlying the maintenance decision has been settled by payment. Read more...
On February 25, 2020, the U.S. Supreme Court affirmed the opinion of the U.S. Court of Appeals for the Sixth Circuit, which concluded that Italy was the habitual residence of an infant that was brought from Italy to Ohio by her mother in 2015, shortly after the child was born. This opinion resolved a circuit split over the definition of habitual residence. The 1980 Hague Child Abduction Convention is the private international law instrument that seeks to secure the prompt return of a child removed from or retained out of its habitual residence. It is not a child custody or jurisdictional determination, and not a means of enforcing existing custody orders. Instead it is designed to restore some type of status quo so that the child’s parents can pursue a custody order from the court in the appropriate jurisdiction. It discourages forum shopping and gives the child some consistency during the parents’ custody litigation. The threshold question that a court must resolve in determining whether to return a child is that child’s habitual residence, with the treaty being premised on the fact that a child cannot be returned to a location that is not her habitual residence. The U.S. circuits have had a long-standing split on the definition of this undefined treaty term, used in numerous Hague family law conventions. Read more...
fourth issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP,
published by CEDAM) was just released. It features:
Professor at the University Milan-Bicocca, La
tutela dei minori migranti e il diritto internazionale privato: quali rapporti
tra Dublino III e Bruxelles II-bis? (The Protection of Migrant Minors and
Private International Law: Which Relationship between the Dublin III and
Brussels IIa Regulations?; in Italian) Read more...
- Few studies have investigated the relation between Migration Law and PIL. Even less have focused on the interaction between Brussels IIa and Dublin III Regulations. The present study, moving from the often declared assumption that ‘a migrant minor is first of all a minor’ focuses on the coordination between the two Regulations and the possible application of Brussels IIa to migrant minors in order to adopt protection measures to be eventually recognized in all EU Member States or to possibly place a minor in another EU Member State.
Last week the German parliament approved a reform of the German adoption law. The reform was triggered by a decision of the Constitutional Court (Bundesverfassungsgericht – BVerfG) declaring provisions unconstitutional that did not allow a stepchild adoption for non-marital couples (English translation of the decision here).
The legislator took the opportunity to adapt the conflict of law provisions. The relevant rule, article 22 Introductory Act to the Civil Code (EGBGB) only applies to adoptions in Germany and those abroad that were not established by a foreign court or authority. In the latter case the rules on recognition of court decisions apply. Furthermore, the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption prevails. The new rule, thus, mainly determines the law applicable on the acceptance of an adoption by private agreement that occurred abroad. Read more...
Today (25 February 2020), the US Supreme Court delivered its Opinion in the case Monasky v. Taglieri. This decision is available here.
Two of the
main takeaways are:
child’s habitual residence depends on the totality of the circumstances
specific to the case, not on categorical requirements such as an actual
agreement between the parents.
first-instance habitual-residence determination is subject to deferential
appellate review for clear error.
appear to be in line with the case law of other Contracting Parties. We expect
to post a more detailed comment shortly. In the meantime, see our previous
posts here – #1,
the Hague Conference on Private International Law (HCCH) announced that there are
two Legal Officer vacancies and noted that their “duties will include general
assistance in various areas of the work programme of the HCCH as determined by
the Council on General Affairs and Policy (CGAP). Areas of priority include
international commercial litigation / civil procedure and child support (maintenance)
for applications is Wednesday 25 March 2020 (12.00 a.m. CET).
information is available here.
Permanent Bureau of the Hague Conference on Private International Law (HCCH, head
office in The Hague, the Netherlands) is seeking legal interns for the period
July to December 2020. Applications are now open!
deadline for applications is Friday 27
March 2020 (18:00 CET).
information is available here.
The era of globalization is characterized by the dynamic
movement of people across borders and migration in various parts of the world. The
juxtaposition and coexistence of different ethnic, cultural or religious groups
within society poses the challenge of accommodating divergent legal, religious
and customary norms. Of key concern is how far the fundamental values of the
receiving state ought to be imposed on all persons on the soil, and to what
extent the customs, beliefs and the cultural identity of individuals belonging
to minority groups should be respected. This challenge arguably requires reconsidering
and reevaluating the conventional methods of private international law that are
grounded in the territorial “localization” of legal relationships. Against this
background, Yuko Nishitani (Professor
at Kyoto University, Japan) envisaged studying various conflict of laws issues
from the viewpoint of cultural identity in private international family law and
delivered a lecture at the Hague Academy of International Law on “Identité culturelle en droit international
privé de la famille”, which has been published in Recueil des cours, Vol. 401 (2019), pp. 127-450. Read more...
Professor Ron Brand has just published a new article in the Journal of Dispute Resolution that arose from his presentation at the 2019 Annual Meeting of the American Society of Comparative Law. In it, he applies comparative method to international litigation from the perspective of a U.S.-trained lawyer, and particularly one who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters.
The article is available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3532035
It took quite some time but the news is finally here: North Macedonia has an entirely new Private International Law Act.
The Act was adopted by the Assembly on February 4th 2020 and it was just published in the Official Gazette of the Republic of North Macedonia No. 32, on 10 February 2020. The Act is not available online yet but we will make sure to share it here as soon as it or an English translation is available. Read more...