The maintenance regulation, and its 11 Annexes, have been published in the Official Journal of the European Union no. L 7 of 10 January 2009. The official reference is the following: Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of  decisions and cooperation in matters relating to maintenance obligations (OJ n. L 7, p. 1 ff.)

Due to its coverage of all the conflictual aspects of maintenance obligations, and its interactions with other EU and international instruments (such as the ones adopted in the frame of the Hague Conference on Private International Law), the regulation provides a complex set of transitional provisions as regards its entry into force and application (see Articles 75 and 76). In this regard, it must be stressed that, pursuant to Art. 76, the application of the new EC regime on maintenance is made dependent, ratione temporis, upon the application in the Community of the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations, which the EC is planning to sign and conclude in the very near future (see Recital no. 20 and Council doc. no. 15226/08, p. 4-5).

The consultation procedure leading to the adoption of the regulation is summarized as follows in Council doc. n. 17102 of 15 December 2008 (external links and parts in italics added):

1. By letter of 12 January 2006, the Commission transmitted to the Council a proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, based on Articles 61(c) and 67(2) of the Treaty establishing the European Community [COM(2005) 649 fin. of 15 December 2005].

2. The European Parliament delivered its opinion on 13 December 2007. In view of the major changes made to the original Commission proposal during discussions within the Council’s subordinate bodies, a decision was taken to reconsult the European Parliament on the basis of the text approved by the Council (Justice and Home Affairs) on 24 October 2008.  The European Parliament delivered its new opinion on 4 December 2008.

3. The European Economic and Social Committee issued its opinion on 20 April 2006  following non-compulsory consultation.

4. In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland has given notice of its wish to take part in the adoption and application of the Regulation.

5. The United Kingdom is not taking part in the adoption and application of the Regulation since it did not exercise its right to take part under Article 3 of the above Protocol. However, the United Kingdom stated at the Council meeting (Justice and Home Affairs) on 28 November that it wished to take part in the application of the Regulation by accepting it after its adoption in accordance with Article 4 of the above Protocol.

6. In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation, and is not bound by it or subject to its application, without prejudice to Article 3 of the Agreement of 19 October 2005 between the Community and Denmark. [see Recital no. 48 and Art. 68(1) of the Reg.: can the new regulation, which provides derogations to the Brussels I regime insofar matters relating to maintenance obligations are concerned, be properly construed as an “amendment” to Reg. no. 44/2001, for the purposes of Art. 3 of the “parallel agreement” between the EC and Denmark?]

7. With an eye to adoption of the draft Regulation by the end of 2008 the Council (Justice and Home Affairs) endorsed on 24 October 2008 an overall compromise aimed at resolving the last outstanding issues regarding substance and at reaching agreement on the enacting terms of the Regulation. Following that compromise, the Council (Justice and Home Affairs) approved the recitals and annexes as an “A” item at its meeting on 27 and 28 November 2008.

Links to other relevant documents can be found in the OEIL page of the procedure. As usual, the whole set of Council’s preparatory documents relating to the new regulation will be shortly made available on the Council Register.

An excellent presentation of the structure and the main features of the regulation can be read in this post by our friend Federico Garau, over at the Conflictus Legum Blog.

(Many thanks to Federico for the tip-off)

A Special Commission on the practical operation of the Hague Apostille, Service, Taking of Evidence and Access to Justice Conventions will be held in The Hague from 2-12 February 2009. The meeting is open ONLY to experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status. A provisional programme for the Special Commission meeting is taking shape as follows: the first week (2-6 February) will be devoted to discussions on the Service, Evidence and Access to Justice Conventions, to be followed by a discussion of the draft Conclusions & Recommendations relating to these three Conventions (Saturday morning 7 February). The Apostille Convention will be the subject of discussions during the second week of the meeting (9 12 February), with the draft Conclusions & Recommendations relating thereto to be discussed on Thursday morning (12 February). A detailed agenda will be published in due course. On the conference website, there are links to documentation relating to the four Conventions. 

In earlier posts, I had reported how the Paris Court of Appeal had accepted to recognize Californian birth certificates after a French couple had resorted to surrogacy in San Diego. Surrogacy is illegal in France.

An appeal was lodged before the French Supreme Court for private and criminal matters (Cour de cassation). The Cour de cassation delivered its decision on December 17, 2008. It allowed the appeal and set aside the judgment of the Paris Court of Appeal, but did so on purely procedural ground (standing of French prosecutors). The case will have to be relitigated before the same Paris Court of Appeal, with different judges.

Not much to say from a conflict perspective then. The decision, as it is often the case with judgments from the Cour de cassation, is hard to interpret. There is much debate at the moment in France as to whether surrogacy should be allowed. It might be that the solution of the court is a convenient one enabling the judiciary to wait for a political decision. All this, of course, will be at the expense of the children, who might not be told who their parents are before they are teenagers, if not young adults.

The decision of the court can be found here (in French). As French cases are barely understandable, the court also had to make a press release.

In TS Production LLC v Drew Pictures Pty Ltd [2008] FCAFC 194 (19 December 2008), the Full Court of the Federal Court of Australia considered difficult issues concerning forum non conveniens and anti-suit injunctions in the context of concurrent US and Australian copyright proceedings.

Both proceedings arose out of a dispute concerning a film, and a book based on the film, called The Secret.  Finkelstein J described the film as follows:

The film is a documentary-style narrative presentation of a philosophy known as the “law of attraction”.  It is told through a series of interviews with authors and inspirational speakers. The message is that positive thinking will improve one’s health, wealth and love life.  The film was reviewed in the New York Times. The reviewer said it was “the biggest thing to hit the New Age movement since the Harmonic Convergence”.  Obviously he had in mind the film’s staggering commercial success: gross revenue from the sale of the film has exceeded USD$69.9 million and book sales have brought in more than USD$215.55 million.

The film was produced by an Australian company, which claimed to have been the original copyright owner and to have assigned that copyright to TS Production.  The film was directed by an Australian citizen, Mr Drew Heriot, who claimed to have done so on behalf of his own company, Drew Pictures.  Substantial steps in the production of the film took place in Australia.  At the time of production, Mr Heriot was resident in Australia, though he subsequently moved to the US.

The Australian proceedings were brought by TS Production against Drew Pictures and Mr Heriot, seeking a declaration that it owned copyright in the film and the book under the Australian Copyright Act 1968 (Cth) (“the Australian Act”) and an injunction restraining Drew Pictures and Mr Heriot from asserting any claim to copyright under the Australian Act.  The US proceedings were instituted subsequently by Drew Pictures and Mr Heriot against TS Production and others, seeking a declaration that Drew Pictures was a joint owner of copyright in the film and the book under the US Copyright Act (17 USC §§101, 201) and the common law of Illinois (together, “US law”), an account of profits and damages.  In both proceedings, a significant factual dispute concerned the role of Mr Heriot in the production of the film.

After instituting the US proceedings, Drew Pictures and Mr Heriot sought a stay of the Australian proceedings on forum non conveniens grounds.  For such a stay to be granted, it was necessary that the Australian court be a “clearly inappropriate forum” for the resolution of the dispute, which would be so only if continuance of the Australian proceedings there amounted to “vexation” or “oppression”: see, recently, Puttick v Tenon Ltd (2008) 250 ALR 582; [2008] HCA 54, discussed here.  The primary judge granted the stay.  It was therefore not necessary for the primary judge to consider an application by TS Production for an anti-suit injunction, restraining Drew Pictures and Mr Heriot from prosecuting the US proceedings.

The Full Court unanimously concluded that the primary judge erred in granting a stay of the Australian proceedings on forum non conveniens grounds.  The key consideration, expressed in different ways by Finkelstein J on one hand and Gordon J (with whom Stone J agreed) on the other, was the distinct nature of the two proceedings, notwithstanding the common factual substratum and the common description of the rights as “copyright”.  Gordon J emphasised that the Australian proceedings concerned rights arising under the Australian Act, in respect of events which occurred at least partially in Australia between parties then resident in Australia, whereas the US proceedings concerned rights arising under US law which the parties accepted were not able to be vindicated in an Australian Court.  Finkelstein J went somewhat further.  He noted the Australian case law that, as an application of the Moçambique rule, an Australian court will not deal with questions of ownership of foreign copyright.  In the absence of evidence presented by the parties, he presumed that US law was the same on this point, and, by a brief review of US cases, satisfied himself that that presumption was well founded.  Accordingly, as between the US court and the Australian court, only the latter could resolve the claim to copyright under the Australian Act.  Finkelstein J also considered that neither any duplication of costs nor the fact that the US proceedings were more advanced justified a stay of the Australian proceedings.  In the result, it could not be said that the Australian court was a “clearly inappropriate forum” for the resolution of the Australian proceedings.

However, as to the anti-suit injunction, the Court split: Gordon J (with whom Stone J agreed) considered that an anti-suit injunction should not be granted; Finkelstein J, in dissent, considered that such an injunction should be granted.  It was accepted by all members of the Court that, since it was not suggested that the US proceedings interfered with the Australian proceedings or that they had been instituted to prevent pursuit of the Australian proceedings, an anti-suit injunction could only be granted where continuance of the US proceedings amounted to “vexation” or “oppression”.  Applying the language adopted by the High Court to explain the concepts of “vexation” and “oppression” in the context of an application for a stay on forum non conveniens grounds, all members of the Court considered that they meant “productive of serious and unjustified trouble and harassment” or “severely and unfairly burdensome, prejudicial or damaging”, and that the mere existence of simultaneous proceedings did not suffice.

Applying these principles, Gordon J considered that while maintaining the simultaneous proceedings may be burdensome, it was not “unjustified” or “unfair” to do so as they concerned different legal rights and remedies.  Her Honour considered that this “restrictive” approach was mandated by the statement of the High Court in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393; [1997] HCA 33 that an anti-suit injunction can be granted “only if there is nothing which can be gained by [the foreign proceedings] over and above what may be gained in local proceedings”, as where there is “complete correspondence” between the foreign and local proceedings.

In contrast, Finkelstein J considered that it was sufficient that the two sets of proceedings here had an overlapping factual dispute, notwithstanding the different legal rights asserted in each proceeding.  He considered that the High Court in CSR did not intend to narrow the test from that of “vexation” and “oppression”, in the relevant sense.  That test was made out here, as there was no reason to put the parties to the inconvenience of having two trials to resolve the one issue.  Since the Australian proceedings were instituted first, the Australian court should resolve the dispute and, subsequently, the US proceedings could continue.

It remains to be seen whether the parties seek special leave to appeal to the High Court.