Sciences Po PILAGG Series, 2013-2014

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The seminars on Private International Law as Global Governance (PILAGG) at the Law School of the Paris Institute of Political Science (Sciences Po) will be conducted this year according to a slightly different format, as they will be run in part with the LSE.

This year’ series will be beginning with an informal round-table in Paris on methodological shifts in the conflict of laws. This discussion is designed to link up with last year’s reflections on the changing paradigms in (private international) legal thought.

Speakers will discuss proportionality, the impact of collective redress in individualist schemes of intelligibility, the renewal of characterization, the articulation of the conflict of laws and public policies on immigration, the access to justice paradigm, and how conceptualizing networks might be helpful in transnational settings. They were asked to focus specifically on the ways in which their area of expertise may (or not) bring methodological renewal.  Participants will be Catherine Kessedjian, Samuel Lemaire, Toni Marzal, Hélène van Lith, Sabine Corneloup, Karine Parrot, Ferderico Lenzi, Diego P. Fernández Arroyo and Horatia Muir Watt.

When: 17 October from 13:00 to 16:45.
Where: 13 rue de l’Université, 75007 Paris, salle de réunion Ecole de droit 4th floor.
The language for presentation and debate will be either French or English. 

Next will be the first London session (November 19) on PIL and legal theory and then events on the political economy of the law of investment arbitration and on the interface of PIL and civil procedure.

Gay Marriage: France Blacklists 11 Nationalities (Updated)

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In May 2013, France adopted a law allowing gay marriage.

The statute confirmed France’ traditional choice of law rule according to which the law of the nationality of each spouse applies to the substantive validity of marriage (Civil Code, Art. 202-1, para. 1). However, in order to avoid confining the new legislation to couples of nationals originating from the 14 jurisdictions or so which allow gay mariage, the statute also adopted a new rule providing that same sex marriage would still be allowed when the national law or the law of the residence of one of the spouses only allowed it (Civil Code, Art. 202-1, para. 2). I have already reported how the French Constitutional Council miraculously found this provision to be constitutional.

So, is everybody welcome to come to Paris to marry a French national? Not quite. The French ministry of justice has issued guidelines instructing French mayors not to marry couples including a national coming from a list of 11 jurisdictions. The reason why is that France concluded a bilateral treaty with each of these jurisdictions providing for the application of the law of the nationality of each spouse. As treaties are superior to statutes in France, the administration has concluded that these treaties prevail over Art. 202-1, para. 2 of the Civil Code.

La règle introduite par l’article 202-1 alinéa 2 ne peut toutefois s’appliquer pour les ressortissants de pays avec lesquels la France est liée par des conventions bilatérales qui prévoient que la loi applicable aux conditions de fond du mariage est la loi personnelle.

Dans ce cas, en raison de la hiérarchie des normes, les conventions ayant une valeur supérieure à la loi, elles devront être appliquées dans le cas d’un mariage impliquant un ou deux ressortissant(s) des pays avec lesquels ces conventions ont été conclues. En l’état du droit et de la jurisprudence, la loi personnelle ne pourra être écartée pour les ressortissants de ces pays.

Most of these treaties, however, were concluded in the 1950s and 1960s. None of them contains any express provision on same sex marriage.

The blacklisted nationalities are:

– Algeria, Tunisia and Morroco,

– the five countries which formerly constituted Yugoslavia

– Laos, Cambodia

– Poland

A French prosecutor enforced the guidelines at the beginning of September and denied the right to marry to a Franco-Morrocan couple.

UPDATE:

The decision of the prosecutor was set aside today by a first instance court of Chambery.

I could not see the judgment, but the French press has reported that the Court would have ruled that the recent French statute has modified French international public policy, and that the applicable bilateral convention should thus be avoided as it discriminates against gay people.

This would be an innovative use of the public policy exception, to avoid the law of the forum, as discussed in comments by Mr Margonski and Mr Davis.

Conflict of Laws Across the Ditch

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The Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement, signed on 24 July 2008, enters into force today. The provisions of the Agreement have been implemented by legislation in both jurisdictions (Trans-Tasman Proceedings Act 2010 (Cth), (NZ)), which also has effect from today.

Among other matters, this legislation lays down newly harmonised rules governing service of process as a basis of jurisdiction, stays of proceedings on appropriate forum grounds, a partial ban on anti-suit injunctions, proof of laws and the recognition and enforcement of judgments, ensuring that the civil justice systems in the two countries will, henceforth, be more closely integrated and aligned.

The Agreement and implementing legislation have already begun to influence the ways in which the courts of the party States approach litigation with a connection to the other party State. In Robinson v Studorp Ltd [2013] QSC 238, Jackson J of the Queensland Supreme Court examined the provisions of the Agreement and the Australian Act concerning court procedural co-operation and treated these as significant in deciding that the Queensland Court was not a “clearly inappropriate forum” for litigation between a New South Wales’ (former New Zealand’) resident and a New Zealand incorporated corporation relating to exposure to asbestos by the claimant while working with his New Zealand resident father in New Zealand. The asbestos products were manufactured by the defendant in New Zealand. True, the claimant had lived for a time in Queensland and had been diagnosed and treated for his disease within that state, but these connections seem comparatively unimportant.

This outcome is not wholly surprising given the way in which the Australian courts have applied their version of the common law forum (non) conveniens test in personal injury claims. If, however, the application had been determined under the new legislation, a different test (more favourable to the defendant) would have applied, requiring the court to ask whether a New Zealand court having jurisdiction is the “more appropriate court” to determine the matters in issue (s. 17(1); see also s. 19). In light of the spirit underlying the Agreement, the result seems topsy-turvy. It remains to be seen whether the entry into force of its provisions will effect a sea change in judicial attitudes on both sides of the Tasman Sea.

 

Riles on Regulatory Arbitrage

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Annelise Riles (Cornell Law School) has posted Managing Regulatory Arbitrage: A Conflict of Laws Approach on SSRN.

Many of the core challenges facing national financial regulators stem from a classical puzzle of international law: how to manage conduct that is beyond national jurisdiction, or conduct that is potentially subject to multiple regulatory authorities, in a context in which markets are transnational and market participants arbitrage the differences between regulatory regimes to their own advantage. The dominant approach of the G20 to this challenge has been a model borrowed from public international law and institutions. After reviewing some of the limitations of this approach, the paper considers how tools in the private international lawyer’s toolkit that might offer a very different, yet potentially more effective approach.

Coyle on Judgments Reciprocity

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John Coyle (University of North Carolina School of Law) has posted Rethinking Judgments Reciprocity on SSRN.

Scholars have long debated the criteria that U.S. courts should use when deciding whether to recognize and enforce money judgments rendered by foreign courts. One of the proposed criteria — reciprocity — would require proof that the rendering court would enforce a U.S. judgment if the situation were reversed. Advocates of reciprocity claim that it is necessary to create incentives for foreign states to recognize and enforce U.S. judgments. Critics argue that a policy of judgments reciprocity is both costly to administer and highly unlikely to bring about any change in foreign state practice.

This Article makes two original contributions to this debate. First, it draws on historical examples of successful reciprocal legislation to construct an analytical framework for determining the conditions under which such legislation is most likely to change foreign state behavior. These examples show that that a particular state’s response to such legislation will in many cases be shaped by the reaction of interest groups within that state. Second, the Article seeks to evaluate how interest groups within specific foreign states — those that currently refuse to enforce U.S. judgments — would be likely to react to a new U.S. policy of judgments reciprocity. Drawing upon a hand-collected dataset of reported cases and federal complaints, it argues that judgment creditors in many of these states are likely to suffer few, if any, economic losses as a result of such a policy. In the absence of such losses, the Article concludes that a new U.S. policy of judgments reciprocity is unlikely to prompt foreign states to change their laws and, consequently, is unlikely to achieve its goal of making it easier to enforce U.S. judgments overseas.

Gascon on Povse: a Presumption of ECHR Compliance when Applying the European Civil Procedure Rules?

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Fernando Gascón Inchausti  is Professor of Law at Universidad Complutense de Madrid

On the basis of the provisions of Articles 11(8) and 42(2) of the Brussels IIa Regulation, the Austrian courts, after a long and tortuous process, ended up ordering the Povse child’s return to Italy, considering that the enforcement system without exequatur introduced by the Regulation at this point didn’t allow them to do anything different. This «blind compliance» of the Austrian courts was, in fact, the subject of the complaint against Austria before the European Court of Human Rights (EctHR): both applicants (daughter and mother) complained that the Austrian courts had violated their right to respect for their family life, since they disregarded that the daughter’s return to Italy would constitute a serious danger to her well-being and lead to a permanent separation of mother and child.

The basic argument of the Austrian Government against the complaint was to argue that its authorities had merely complied with their obligations under Brussels IIa Regulation and, in accordance with its provisions, they were not entitled to refuse to enforce the return decision nor to rule on its possible negative effects on the child. The Court’s decision by majority accepts this argument and declares the application inadmissible. In the opinion of the Court a presumption exists that when a State is limited to meet its obligations as a member of an international organization (in this case, those arising from EU membership), it is also complying with the European Convention on Human Rights (ECHR) if the international organization provides fundamental rights a protection degree equivalent to that derived from the European Convention itself (as with the European Union).

The ECtHR applies to this case the doctrine of “presumption of compliance”, which it had previously used in Bosphorus v. Ireland (30 June 2005, in a case involving the implementation of Council Regulation No 990/93 concerning trade with the Federal Republic of Yugoslavia), M.S.S. v. Belgium and Greece (21 January 2011, in a case regarding the Dublin II Regulation on asylum) and Michaud v. France (6 December 2012, final 6 March 2013, concerning the implementation of EU legislation on money laundering and the obligation of lawyers to report suspicious transactions of their clients). In Povse v. Austria the focus turns to European Civil Procedure and, more specifically, to Brussels IIa Regulation and the abolition of exequatur in international child abduction matters.

Through this doctrine, the ECtHR seeks to establish an appropriate balance between control and respect for the activities of other international organizations; the Court has stated, in fact, that “the Court may, in the interests of international cooperation, reduces the intensity of its supervisory role” (Michaud decision, § 104). In order to decide whether this “presumption of compliance” is applicable, the ECtHR can check three different sets of questions:

a) Check that the international organization, as such, is respectful of fundamental rights in an equivalent way as these are defined in the ECHR. In the case of the EU, this first requirement is recognized without difficulty by the ECtHR, for reasons that need no further explanation here.

b) Check if the specific rule approved by the international organization and that States have the obligation to fulfill is also respectful of the fundamental rights standard set by the ECHR.

In Povse v. Austria the ECtHR (§ 80) performs this control when it ascertains that the Brussels IIa Regulation has sufficient mechanisms to control that potential risk to the child has been taken into account at the time of ordering his or her return. The ECtHR does not verify the legitimacy of the return system established by the Regulation from a substantive perspective: in other words, it doesn’t check compliance with the right to family life of the rule according to which, if the child’s removal is held to be wrongful, he or she must return to the State where he was habitually resident immediately before. But the ECtHR controls indeed that the Brussels IIa Regulation ensures that the decision ordering the return of the child is to be taken after verifying its impact on family and private life of the child, i.e. on his or her fundamental rights. There is, hence, a control on the existence of internal mechanisms to ensure respect for fundamental rights, even if that control is made in the State of origin and can not be made in the requested State. The legislative decision –taken by the European Union when approving the Brussels IIa Regulation– to place those controls exclusively with the court of origin could not in any way be regarded as infringing the right to private and family life, as it is justified by the need to effectively combat international child abduction in the EU context.

c) Check, although in a limited manner, how State authorities have applied the specific rule approved by the international organization. In particular, the ECtHR feels empowered to check whether the rule grants discretion to the national authority, for then the use of such discretion itself may be detrimental to fundamental rights and could be criticized by the EctHR.

In Povse v. Austria the ECtHR concluded that Articles 11(8) and 42(2) of the Brussels IIa Regulation granted no margin for discretion to the Austrian courts required to enforce the Venetian court decision, since the system of the Regulation at this point only allows the law and the courts of the requested State to determine the best way to comply with the order, but does not entitle them to take any decision that may prevent or suspend it, although allegedly it could had the aim of safeguarding fundamental rights.

With or without the Povse decision, it is obvious that the implementation of the European civil procedural rules can determine the filing of applications to the EctHR. After the Povse decision, it seems clear that these complaints will be resolved by the ECtHR applying the presumption of compliance doctrine. The Povse decision may thus serve as a basis for thinking about the control the ECtHR can exercise on the rules integrating the corpus of European Civil Procedure Law and on their implementation by national courts.

a) The ECtHR could control, of course, if European civil procedural rules provide for the affected fundamental rights a level of substantive and procedural protection that can be assumed by the ECHR system. As a rule the European legislator is always very careful with these issues, making it difficult to estimate a priori the detrimental nature to the fundamental rights of the rules that comprise European civil procedural law. However, casuistry always overflows legislator’s forecasts…

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Povse v. Austria: Taking Direct Effect Seriously?

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Dr. Rafael Arenas García is Professor of Private International Law at Universitat Autònoma de Barcelona

Perhaps one of the most difficult questions in International Law is the relationship between international conventions. States must comply with the obligations established in the treaties they are bound by. All the parties to the treaty are entitled to require the application of the treaty, which is compulsory for them. A problem arises when a State is bound by more than one treaty, and compliance with of one of them implies the violation of another one. Art. 30 of the Vienna Convention on the Law of the Treaties sets rules to avoid the problems linked to the coexistence of treaties, but these rules do not suffice to solve all the difficulties which may arise. Let’s take the case of two conventions to which only a few States are simultaneously parties. According to the Vienna Convention, when the parties to the later treaty do not include all the parties to the earlier one, “as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations”. In other words, if State “A” is bound by treaty “1” with State “B”, and by treaty “2” with State “C”, “A” must apply treaty “1” in its relations with State “B” and treaty “2” in its relations with State “C”. However, sometimes this is simply not possible; both treaties apply simultaneously, and compliance with one of them implies the immediate breach of the other.

At first sight, this was the situation in Povse. The enforcement in Austria of the Venice Youth Court’s return orders allegedly violated art. 8 of the ECHR; at the same time, it had to be granted according the EU Regulation 2201/2003. The conflict between the international obligations arising from EU law and from the European Convention seemed unavoidable; Austria had to decide between two international obligations. It was not possible to correctly apply both the European Convention and the European Union Regulation.

Of course, as the ECtHR decision in Povse shows, this is not completely true. The ECtHR has interpreted the Convention on Human Rights in a way that resolves the contradiction between the Convention and EU Law; according to the Court, a Contracting State fulfils its obligations as a member of the Convention when it simply complies with its obligation as member of an international organisation to which it has transferred a part of its sovereignty, provided that the international organisation “protects fundamental rights (…) in a manner which can be considered at least equivalent (…) to that for which the Convention provides”. However, I am still interested in showing how the contradiction between the Convention on Human Rights and EU law works, in order to fully understand the meaning of the case law of the ECtHR.

There are cases in which compliance with European Union law implies a breach of the European Convention. From a pure Public International Law perspective, the breaching State incurs in international responsibility. There is also an internal perspective. International treaties are part of the internal law of the State, and judges, authorities, and the public in general must observe, respect and apply them. How do they deal with the contradiction between different treaties? How do judges, authorities, etc., comply with EU law and with the ECHR in case of a conflict? This is not an easy question. If we only take into consideration the internal law of the States and international law, the answer is that each State decides in which way international law is implemented by its authorities and courts; national courts are bound by the domestic provisions on the internal effect of international law. However, the answer is not exactly the same when it comes to EU Law: at least, if we take the direct effect of EU Law seriously. As the ECJ has already held, EU law confers rights to individuals which the courts of Member States of the European Union must directly recognise and enforce. This means that the courts of the Member States are directly bound by EU law. State law is not needed for the direct application of EU law to be achieved. That is the reason why some academics have held that the courts of the Member States should be seen as Courts of the European Union when they apply EU law (see A. Barav, “La plenitude de competénce du juge national en sa qualité de juge communautaire”, L’Europe et le Droit. Mélanges en homage à Jean Boulouis, Paris, Dalloz, 1991, pp. 93-103, pp. 97-98 and 103; D. Ruiz-Jarabo Colomer, El juez nacional como juez comunitario, Madrid, Civitas, 1993).

If Member State courts are to be considered not as national courts, but as EU courts, when they apply Union law, a breach of the ECHR arising out of the application of EU law by a national court should not be attributed to the State, but to the EU itself. It would not be coherent to admit the direct effect of EU Law and, at the same time, to hold that Member States are liable for a breach of the ECHR arising out of the application of EU Law by their national courts.

Of course, the point of view I have just explained is far from being the common understanding of the relationship between EU Law and the ECHR. Nevertheless, maybe the way in which the European Court of Human Rights has dealt with the contradiction between EU law and the European Convention on Human Rights in Povse is nothing but a consequence of the impossibility to put the blame on the State for the “mistakes” of EU law. Perhaps when the EU becomes a member of the European Convention on Human Rights this will be more evident – maybe then we will realise that, in cases like Povse, the complaint ought to be addressed to the EU and not to the Member States.

Muir Watt on Abolition of Exequatur and Human Rights

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Horatia Muir Watt is Professor of Law at Sciences Po Law School

I. Framing the child-return issue. Several recent cases handed down by the two European Courts appear to be opening new vistas for conflicts of laws, in which human rights play a large part.  The cases are well-known (ECJ/CJUE Aguirre v Pelz 2010; ECtHR Sneersone & Sneersone & Kampanella v. Italy 2011, Povse v. Austria 2013). They concern cross-border child abduction, and, more specifically, “fast-track” orders for the return of the abducted child, made by the (national) court of the child’s pre-abduction residence under article 11 (8) of Regulation Brussels II bis. This provision was designed to avoid the effect of delaying tactics by the abducting parent, which were progressively becoming systematic by virtue of article 13(b) of the 1980 Hague Convention (allowing the authorities of the country to which the child has been abducted, to refuse exceptionally to order the return if to do so would be to expose that child to a serious risk of harm). To this end, the fast-track return order is immediately enforceable, notwithstanding the resistance of that local court (hereafter, the court of the “country of refuge”). The difficulty, addressed partially by each of the cases above, concerns potential collision between the “notwithstanding” provision of article 11 (8) and with both procedural (6-1 ECHR, including the right of the child to be heard; article 24 EU Charter) and substantive (article 8 ECHR) human rights requirements.

This situation is particularly complex because it involves the articulation, in an identical dispute arising out of the same set of facts, of the two European legal orders. While both guarantee fundamental rights on the basis of constitutional provisions (EU Charter and ECHR), among which the rights of the child are accorded the utmost supremacy, they may not share a methodology in the assessment of the existence of a violation, nor give exactly the same weight to the various factors which weigh into the process. This is the context in which the “Bosphorus presumption” (ECtHR Bosphorus v. Ireland 2005), which allows an overlapping consensus between the two universes, is now brought into the equation (Povse). Meanwhile, back down among the national courts, local judges – sometimes “siding” with the parent who is the national or domiciliary of their jurisdiction and who prefers to litigate to the bitter end rather than let the other win on the (theoretically) preliminary issue of where the merits of the custody dispute is to be decided – have to decide this mega-conflict between two supra-national regimes which both purport to promote the interests of the child! The child is often the prime victim of all this. To my mind, the real problem may well lie with the whole design of the cross-border child-return system, which focuses on the restitution of the abducted child before the custody dispute can be decided on the merits.  While a highly creative idea at the outset, its undoubted potential to absorb tension when the parents are cooperative is as great as the risk of amplification of conflict it carries with it when they are not. See the sheer length and number of procedural incidents in the Povse case (which led to a first preliminary ruling under Brussels II bis by the ECJ before the case was lodged with the ECtHR).

However, although Gilles Cuniberti mentions the Povse case in his opening lines to this symposium, the question for debate is framed in more general terms as concerning the abolition of exequatur (within the EU) and human rights. Therefore, beyond child return issues, it can be understood to be about the primacy either of the new, highly efficient, nuclear missile which has emerged progressively in recent EU secondary legislation (direct cross-border enforceability of a court order without intermediary enforcement proceedings), or of the ultimate joker of fundamental rights (which will be invoked in the very forum that has been by-passed by direct cross-border enforcement). So I’ll start with the larger picture, which, in addition to Brussels II bis, extends to Brussels I recast, and various other instruments that have abolished the formality of exequatur or enforcement proceedings (alimentary obligations, TEE, small claims…). Thoughts on the circulation of debt may be helpful for reflecting upon the more sensitive issues relating to children. 

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Requejo on Povse

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Introduction

The accession of the European Union (EU) to the European Convention on Human Rights is proving difficult. PIL has not been spared.

In the field of recognition the biggest concern was not long ago represented by the conflict between the ECtHR decision in Pellegrini, and the European will to eliminate the intermediate procedure to declare the enforceability of foreign judgments – replacing the conditions usually required at the State where enforcement is sought by some controls operated in the Member State of origin. If Pellegrini was to be followed, the unconditional system of recognition set in Art. 42 of the Brussels II bis Regulation would be incompatible with the ECHR. That the ECtHR decision in Pellegrini has been put forward as an argument against the abolition of the exequatur in the Commission proposal to recast Council Regulation (EC) no 44/2001 does therefore not come as a surprise; nor do the efforts by Member States designed to limit the effects of Pellegrini case (for instance by way of considering the decision of the ECtHR limited to cases where the State of origin is not a contracting State of the ECHR).

At first sight, the ECtHR decision to the application nº 3890/11, Povse v. Austria, based on the Bosphorus test, is the bridge to reconcile the positions.

Bosphorus test as applied to Povse

The so called Bosphorus test is based on the following premise: contracting States transferring sovereign powers to an international organization retain responsibility for the acts of their organs, “regardless whether the act or omission was a consequence of domestic law or of the necessity to comply with international obligations”. However, in as far as the international organization “is considered to protect fundamental rights (…) in a manner which can be considered at least equivalent to that for which the Convention provides”, a presumption that the contracting State has complied with the ECHR enters into play, if he lacked discretion in relation to the obligations derived from his membership to the international organization. Therefore, a three-step exam in needed in order to determine whether there is equivalence between the protection offered by the Convention and the international organization at stake (step 1), and the degree of freedom of the concerned State (step 2); finally, the arguments against the presumption of equivalence in the specific case must be discarded (step 3).

Step1 in Povse: Whether the relevant organization is considered to protect fundamental rights. In the Povse decision this point is dealt with exclusively in par. 77, in such a manner that it is not only superficial, but inexistent (see the Bosphorus decision, num. 159-165, remitting to 73-81). This is not only striking, but disappointing. First, because as of today, i.e. at the relevant time of the analysis, the existence of truly “substantive guarantees” offered by the EU as a unit (instead of as a bunch of diverse systems striving for coherence), is not self-evident. Second, because the real issue at stake is precisely that of the compatibility between the ECHR and the guarantee’s system provided by the EU in Regulation Brussels II bis: a system where the protection of the fundamental rights rests exclusively on the Member State of origin. By considering the ECJ as single key element of the control mechanism, the ECtHR avoids the issue; at the same time, it narrows the reach of its pronouncement. The ECtHR’s approach may be explained in different ways, starting with the actual submission of the applicants: they contested the “equivalent protection” only by reference to the role of the ECJ in the present case. It should be added that the Bosphorus test has been used by the ECtHR on several occasions, in a way that may be considered consistent but not necessarily uniform, precisely because the different degrees of depth of the ECtHR’s exam in order to affirm or to deny the equivalence of the protection offered by the international organization under review.

Step2 in Povse: Discretion. There was no discussion as regards Austria’s lack of discretion under Art. 42 of the Brussles II bis Regulation.

Step3: Whether the presumption has been rebutted in the present case. In contrasts to step 1, the analysis here was performed extensively. Two elements seem to be essential: the role of the ECJ defining the applicability and interpretation of the relevant legal provisions (par. 85); and the status quo before the court of origin (the opportunity open to the applicants to still rely on their Conventions rights there: par. 86). The importance given to those issues legitimates further questions. To start with, what would happen in the absence of consultation of the ECJ? On the one hand, the stress put by the ECtHR in the ECJ’s role suggests that the answer would have been different in the absence of a preliminary ruling (or at least, of a referral by the national court, even if rejected by the ECJ).On the other hand, the ECJ’s ruling in the aff. C-211/10, stating that any change in the situation of the abducted child with consequences on the return order must be pleaded before the competent court in the Member State of origin, creates a legal precedent for all member States, therefore exempting them from referring new queries on the same subject.

As for the second element retained by the ECtHR (the status quo in Italy), would its decision have been the same had the applicants exhausted their resources before the Italian courts without success? In the light of par. 86, the likely answer is yes. Presumably, this would also be the answer in the case of a complaint addressed, either simultaneously or consecutively, against two respondent States –the State of origin, and the Stated where enforcement is sought-, even if the ECtHR declares the first one in breach of the Convention when applying Art. 11 (8) the Brussels II bis Regulation (which is not a hypothetical situation: see Sneersone and Kampanella v. Italy).

Consequences

An interpretation of Povse in the sense that it sanctifies the Regulation mechanism of fundamental rights protection would result in the immunity of the State where enforcement is sought. In return, it places the ECtHR applicants in an uncomfortable situation when formulating their complaints: they must be very be cautious and select the correct respondent State. Special care and legal knowledge, improbable in the average individual applicant (representation before the ECtHR is not compulsory), will be required.

Bosphorus+Povse applied to Regulation 44/01 (and Regulation 1215/2012)

What would be the likely outcome of the Bosphorus test if applied to other UE PIL instruments, such as the Regulation 44/01 or the Brussels I recast Regulation? According to both instruments (albeit following different ways) the requested State is allowed to refuse the declaration of enforceability if specific, restricted grounds provided by the Regulations themselves are present; in particular, if such declaration is manifestly contrary to public policy. Thus at first glance, the answer is that these cases are not eligible for the Bosphorus presumption (However, it is so to the extent that the States have discretion when implementing the legal obligations steaming from their membership; whether this is the case as regards public policy may be discussed in the light of Krombach and Gambazzi).

UE accession to ECHR

EU accession to the ECHR means the end of the Bosphorus test. Admittedly, the equivalence presumption in favor of the EU itself is no longer justified. However, it is worth considering whether it should not survive in the context of the analysis of a Member State compliance with the Convention, if he had to blindly obey a mandate of the EU; indeed, the presumption of equivalence makes more sense because the UE accession to the ECHR. In this context, provided that no ECtHR’s decision has yet been pronounced against the EU, maintaining a rebuttable presumption of equivalence would simplify the applicant’s choice of the correct respondent (see 3).

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (5/2013)

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Recently, the September/October  issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

  •  Robert Magnus: “Choice of court agreements in succession law”

The EU Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (Succession Regulation), most recently adopted by the European Parliament and the Council of the European Union introduces the possibility for parties of a probate dispute to conclude a jurisdiction agreement. This article compares the new rules on jurisdiction agreements with the current legal situation in Germany, where such agreements in succession matters have not been much in use. As the Succession Regulation is for several reasons rather unsatisfactory the article further discusses more convincing alternatives (e.g. prorogation by the deceased in testamentary dispositions, arbitration agreements).

  •  Maximilian Eßer: “The adoption of more far-reaching formal requirements by the EU Member States under the Hague Protocol on the Law applicable to Maintenance Obligations”

 Art. 15 of Regulation (EC) No 4/2009 refers to the Hague Protocol of 2007 for the determination of the law applicable to maintenance obligations. The Protocol was ratified by the EU as a “Regional Economic Integration Organisation”. The formal requirements in Art. 7 (2) and Art. 8 (2) of the Protocol have to be considered as minimum standards. In order to protect the weaker party from a hasty and heedless choice of applicable law on maintenance obligations, the choice-of-law agreement should from this perspective be recorded in an authentic instrument. In his essay, Eßer illustrates that neither public international law nor European Union law prevent the EU Member States from adopting more farreaching formal requirements.

  •  Herbert Roth: “Der Einwand der Nichtzustellung des verfahrenseinleitenden Schriftstücks (Art. 34 Nr. 2, 54 EuGVVO) und die Anforderungen an Versäumnisurteile im Lichte des Art. 34 Nr. 1 EuGVVO” – the English abstract reads as follows:

 The European Court of Justice has correctly decided, that the Court of the Member State in which enforcement is sought may lawfully review the effective delivery of the initial trial document even if the exact date of service is specified in the certificate referred in Article 54 of the COUNCIL REGULATION (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters. The Court also held convincingly, that the recognition and therefore enforcement of a default judgement is normally not manifestly contrary to public policy in the sense of Article 34 No 1 of the Council Regulation 44/2001 despite the fact that the default judgement itself does not provide any legal reasoning. Exceptions are necessary if the defendant had no effective remedy against the decision in the Member State of origin.

  •  Jörg Pirrung: “Procedural conditions for compulsory placement of a child at risk of suicide in a secure care institution in another EU Member State”

 Judgment and View in case S.C. clarify important questions of judicial cooperation within the EU in child protection matters. According to the ECJ, a judgment ordering compulsory placement of a 17 year old child in a secure care institution in another Member State according to Article 56 of the Brussels IIa regulation N 2201/2003 must, before its enforcement there against the will of the child, be declared to be enforceable/registered in that State. Appeals brought against such a registration do not have suspensive effect. Further activity of the EU and/or national legislators should ensure, by developing concrete rules, that the decision of the court of the requested State on the application for such a declaration of enforceability shall be made with particular expedition. Though there may be differences of opinion as to certain aspects regarding the answer given by the ECJ in point 3 of the operative part of its decision, – one might have preferred the way via enforcement of a provisional protective measure taken, on the basis of the recognition of the decision of the State of origin, by the State requested, such as the English decision of 24 February 2012 – the outcome of the procedure confirms the general impression that the ECJ has developed an effective way of interpretation and application of the regulation. After the entry into force for 25 EU States of the Hague Convention of 19 October 1996 on the Protection of Children, courts in EU States should, as far as possible, try to apply the EU regulation in conformity with the principles of this international treaty.

  •  Urs Peter Gruber: “Die perpetuatio fori im Spannungsfeld von EuEheVO und den Haager Kinderschutzabkommen” – the English abstract reads as follows:

 In a case on the visiting rights of one parent to see the children in the custody of the other parent, the OLG Stuttgart was confronted with an intricate question of jurisdiction. Right after the commencement of the trial in Germany, the child had moved from Germany to Turkey and had acquired a new habitual residence there. The court had to decide whether this change of habitual residence was of relevance for its jurisdiction.

Pursuant to the Brussels IIa Regulation, which adheres to the principle of “perpetuatio fori”, such a change does not affect jurisdiction of the court seised. However pursuant to the Convention of 5 October 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, in such a case, jurisdiction shifts automatically to the state in which the new habitual residence of the child is located.

Therefore, the OLG Stuttgart had to decide whether jurisdiction was governed by the Brussels IIa Regulation or rather by the above mentioned convention on the protection of minors which both Germany and Turkey are parties of. The OLG Stuttgart held that when defining the exact scope of application of the Brussels IIa Regulation, one should consider the rights and obligations of member states arising from agreements with non-member states. Therefore, in the case at hand, the court held that the jurisdictional issue was not governed by the Brussels IIa Regulation; in order to ensure that Germany complied with its contractual duties in relation to Turkey, it applied the convention on the protection of minors. Consequently, it declined jurisdiction in favour of the competent Turkish courts.

  •  Fritz Sturm: “Handschuhehe und Selbstbestimmung” – the English abstract reads as follows:

For centuries, the aristocracy used proxy marriages to anticipate the ceremony before the bride and the groom had met. Today proxy marriages are utilized for immigration purposes.

In many countries, such as Germany, Austria, Switzerland and the UK, this form of marriage is not permitted. Nevertheless, those countries recognize proxy marriages performed in a state where such marriages are permitted, if the representative has been given precise instructions. The US also apply the lex loci celebrationis, whereas French conflict of laws always requires the physical presence of the French spouse (Art. 146-1 C.civ.).

It is interesting to note that in cases where the representative did not receive precise instructions, certain German judges refer to the ordre public. Indeed, the prevailing German doctrine refuses to view the question of the validity of a marriage solemnised by a representative with such unlimited power as a question of form, but sees it as a problem of substantive validity, and infers from the lack of the spouses’ consent that such a marriage is null and void according to Art. 13 EGBGB.

However, as this paper shows, the prevailing doctrine has to be rejected in this respect. It goes astray as it does not reflect the fact that a marriage concluded through a representative authorized to independently choose the bride or groom himself may in fact later be approved by the spouse represented by him. This power of approval has to be qualified as a question of form and is therefore subject to the lex loci celebrationis.

An additional argument against this doctrine is that, if the representative has the aforementioned freedom of choice, Art. 13 EGBGB does not lead to a void marriage, but to a relationship which can only be dissolved by divorce.

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