Rivista di diritto internazionale privato e processuale (RDIPP) No 4/2019: Abstracts

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The fourth issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Costanza Honorati, 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)

  • 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.

Francesca C. Villata, Professor at the University of Milan, Predictability First! Fraus Legis, Overriding Mandatory Rules and Ordre Public under EU Regulation 650/2012 on Succession Matters (in English)

  • This paper aims at investigating: (i) how fraus legis, overriding mandatory rules and ordre public exceptions position themselves within the system of the Succession Regulation; (ii) whether they are meant to perform their traditional function or to pursue any alternative or additional objective; and (iii) which limits are imposed on Member States in the application of said exceptions and to what extent Member States can avail themselves of the same to preserve, if not to enforce, their respective legal traditions in this area, as acknowledged in Recital 6 of Regulation No 650/2012. The assumption here submitted is that the traditional notions to which those exceptions refer have been reshaped or, rather, adjusted to the specific needs of Regulation No 650/2012 and of the entire EU private international law system, which increasingly identifies in predictability the ultimate policy goal to pursue.

In addition to the foregoing, the following comments are featured:

Michele Grassi, Research Fellow at the University of Milan, Sul riconoscimento dei matrimoni contratti all’estero tra persone dello stesso sesso: il caso Coman (On the Recognition of Same-Sex Marriages Entered into Abroad: The Coman Case; in Italian)

  • With its judgment in the Coman case, the Court of Justice of the European Union has extended the scope of application of the principle of mutual recognition to the field of family law and, in particular, to same-sex marriages. In that decision the Court has ruled that the refusal by the authorities of a Member State to recognise (for the sole purpose of granting a derived right of residence) the marriage of a third-country national to a Union citizen of the same sex, concluded in accordance with the law of another Member State, during the period of their residence in that State, is incompatible with the EU freedom of movement of persons. The purpose of this paper is to analyse the private-international-law implications of the Coman decision and, more specifically, to assess the possible impact of the duty to recognise same-sex marriages on the European and Italian systems.

Francesco Pesce, Associate Professor at the University of Genoa, La nozione di «matrimonio»: diritto internazionale privato e diritto materiale a confronto (The Notion of ‘Marriage’: Private International Law and Substantive Law in Comparison; in Italian)

  • This paper tackles the topical and much debated issue of the notions of ‘marriage’ and ‘spouse’ under EU substantive and private international law. Taking the stand from the different coexisting models of family relationships and from the fragmented normative approaches developed at the domestic level, this paper (while aware of the ongoing evolutionary trends in this field) focuses on whether it is possible, at present, to infer an autonomous notion of ‘marriage’ from EU law, either in general or from some specific areas thereof. The response to this question bears significant consequences in terms of defining the scope of application of the uniform rules on the free movement of persons, on the cross-border recognition of family statuses and on the ensuing patrimonial regimes. With specific regard to the current Italian legal framework, this paper examines to which extent characterization issues are still relevant.

Carlo De Stefano, PhD, Corporate Nationality in International Investment Law: Substance over Formality (in English)

  • Since incorporation is usually codified in IIAs as sole criteria for the definition of protected corporate ‘investors’, arbitral tribunals have traditionally interpreted and applied such provisions without requiring any thresholds of substantive bond between putatively covered investors and their alleged home State. By taking issue with the current status of international investment law and arbitration, the Author’s main proposition is that States revise treaty provisions dealing with the determination of corporate nationality so as to insert real seat and (ultimate) control prongs in coexistence with the conventional test of incorporation. This proposal, which seems to be fostered in the recent state practice, is advocated on the grounds of legal and policy arguments with the aim to combat questionable phenomena of investors’ ‘treaty shopping’, including ‘round tripping’, and, consequently, to strengthen the legitimacy of investor-State dispute settlement.

Ferdinando Emanuele, Lawyer in Rome, Milo Molfa, Lawyer in London, and Rebekka Monico, LL.M. Candidate, The Impact of Brexit on International Arbitration (in English)

  • This article considers the effects of the United Kingdom’s withdrawal from the EU on international arbitration. In principle, Brexit will not have a significant impact on commercial arbitration, with the exception of the re-expansion of anti-suit injunctions, given that the West Tankers judgment will no longer be binding. With respect to investment arbitration, because the BITs between the United Kingdom and EU Member States will become extra-EU BITs, the Achmea judgment will no longer be applicable following Brexit. Furthermore, English courts will enforce intra-EU BIT arbitration awards pursuant to the 1958 New York Convention. Investment treaties between the EU and third countries will not be applicable to the United Kingdom.

Finally, the issue features the following case notes:

Cinzia Peraro, Research Fellow at the University of Verona, Legittimazione ad agire di un’associazione a tutela dei consumatori e diritto alla protezione dei dati personali a margine della sentenza Fashion ID (A Consumer-Protection Association’s Legal Standing to Bring Proceedings and Protection of Personal Data in the Aftermath of the Fashion ID Judgment; in Italian)

Gaetano Vitellino, Research Fellow at Università Cattaneo LIUC of Castellanza, Litispendenza e accordi confliggenti di scelta del foro nel caso BNP Paribas c. Trattamento Rifiuti Metropolitani (Lis Pendens and Conflicting Choice of Court Agreements in BNP Paribas v. Trattamento Rifiuti Metropolitani; in Italian)

Gaetano Vitellino, Research Fellow at Università Cattaneo LIUC of Castellanza, Note a margine di una pronuncia del Tribunale di Torino in materia societaria (Remarks on a Decision of the Turin Tribunal on Corporate Matters; in Italian)



Change in German International Adoption Law

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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.

The former relevant provision, Article 22 para 1 EGBGB stated, cited after the translation made by Juliana Mörsdorf for the Federal Office of Justice:

Article 22 Adoption

(1) The adoption of a child is governed by the law of the country of which the adopter is a national at the time of the adoption. The adoption by one or both spouses is governed by the law which applies to the general effects of the marriage under article 14 subarticle 1. The adoption by a life partner is governed by the law which applies to the general effects of the life partnership under article 17b subarticle 1 sentence 1.

[…]

The new Article 22 para. 1 states that

“the adoption of a child in Germany is governed by German law. In all other cases the adoption is governed by the law of the country in which the adoptee has his habitual residence at the time of the adoption.“ [my translation – German federal law in general is not very aware of the use of a gender neutral wording. Of course, also female and non-binary adoptees and their habitual residences are included.]

Due to the Constitutional Court’s ruling, all references to an adoption by somebody living in a marriage or registered civil partnership were eliminated. Furthermore, the rule is a good example for some general general shifts in the German International Family law system regarding connecting factors:

  • First, in the name of procedural efficiency (according to the travaux préparatoires, BT-Drs. 19/15618, p. 8, 16), there is the tendency to distinguish between legal situations occurring in Germany or abroad and use conflict of laws more often to accept legal situations established abroad. Adoptions in Germany are always governed by German law and always require a court proceeding (sec 1752 German Civil Code for minors and sec 1767 para. 2 for adults). With the new provision, the legislative confirmed that an adoption that occurred abroad will be accepted in German according to the so-called method of “recognition by conflict of laws”, as article 22 para 1 phrase 2 exclusively provides a rule for adoptions that took place outside of Germany.
  • Second, by determining the law applicable, the German rule no longer focuses on the adopter(s) but the adoptee. This change is in accordance with the general awareness to put the child’s best interest in the centre of attention in cases involving fundamental changes to a child. While, of course, there can be adoptions of adults, the adoption of a minor is the most common (see also the travaux préparatoires, BT-Drs. 19/15618, p. 16).
  • Third, the rule also includes a temporal connecting factor. Traditionally, German conflict of laws rules do not state the temporal connection factor, thus, the rules always refer to the moment of the closure of the court hearing. This can create uncertainty as it allows a change of connecting factors over time and even in the course of a proceeding.
  • Last but not least, and maybe even more interesting, the main connecting factor changed from nationality to habitual residence. Traditionally in German International Family Law, nationality was the central connecting factor, as it is still in article 13 (law governing the conclusion of a marriage). In article 22, instead, connecting factor is the habitual residence (of the adoptee). This shows a general tendency in German conflict of laws which was mainly triggered by the harmonization of conflict of laws in the EU. Last year the central rule regarding international marriage law (article 14, losing the importance to the latest EU regulations, though) changed the “rungs” of its famous “Kegel’s ladder”: Traditionally, the first “rung” of said ladder was the spouses shared nationality or last shared nationality during marriage. Only in case there was neither, applicable was the law of the spouses’ habitual residence. Since January 2019, main connecting factor (“first rung”) is the spouses’ habitual residence, the second the spouses’ habitual residence during the marriage if one spouse has maintained that habitual residence. Only the third step refers to the shared nationality.

The new law will come into force 31 March 2020. The new provisions apply to international adoptions that were not completed before that date (article 229 § 51 EGBGB).

The US Supreme Court case on the determination of habitual residence under the Child Abduction Convention has been decided – the judgment of Monasky v. Taglieri is now available!

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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:

  • A 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.
  • A first-instance habitual-residence determination is subject to deferential appellate review for clear error.

This would 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, #2 and #3.

Two Legal Officer positions are open at HCCH

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This week 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) matters.”

The deadline for applications is Wednesday 25 March 2020 (12.00 a.m. CET).

More information is available here.

Internship applications are now open at HCCH

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The 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!

The deadline for applications is Friday 27 March 2020 (18:00 CET).

More information is available here.

Cultural Identity in Private International Family Law

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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.

In her lecture, Nishitani first analyzes the notion and meaning of cultural identity in private international law, after comparatively delineating legal developments in major legal systems (Chapter I). The author posits that, while the notion of cultural identity should not be understood as its own legal category, it serves as a guiding principle and theoretical foundation in justifying certain solutions in private international law (Chapter II).

In multiethnic and multicultural societies, the belonging of individuals to states, regions, communities or other groups is gradually relativised and redefined. In light of the recent effects of globalization, the author contemplates the appropriate methods for determining the personal law to cater for the cultural identity of individuals, overcoming the conventional dichotomy between the principle of nationality and the principle of habitual residence (Chapter III). Considering the multiplication of relevant legal and social norms, the author also considers the interaction between state law and customary, religious or cultural non-state norms to seek solutions for “conflict of norms” in a broader sense (Chapter IV).

On the other hand, for the sake of coherence and security of the legal system, the state exercises control, where necessary, to preclude effects of foreign legal institutions. It is essential to define the functioning of public policy and fundamental rights so as to set limits to respect for cultural identity (Chapter V). Finally, the author reflects on alternative conflict of laws methods geared toward administrative and judicial cooperation between sovereign states, with a view to accommodating the cultural identity of individuals (Chapter VI).

At the end of her lecture, the author highlights the importance of constructive dialogue between different cultures, given that humanity has a long history of success in mutually developing, exchanging and enriching its diverse cultures.

More information about the author and the book are available here (in French).

Comparative Method and International Litigation, by Ronald A. Brand

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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

The most modern PIL act in the Western Balkans: North Macedonia

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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.

The first draft of the Act was completed in 2015 and was much welcomed by experts and scholars in the region as it ensured compatibility with all relevant EU Regulations, including Rome I, Rome II, Rome III, Brussels I bis, Brussels II bis, Succession Regulation etc. Since then, the Draft Law had been waiting for discussion and adoption by the Assembly until recently. The wait was worth it since the law has been passed without any amendments which is even more groundbreaking given that the new Act is quite a departure from the previous PIL Act in force.

Until now, the Republic of North Macedonia had been applying the PIL Act enacted in 2007 (Official Gazette of Republic of Macedonia No 87/2007). An amendment of this act was made in 2010 specifically to provisions on choice of law (Official Gazette of the Republic of Macedonia, No. 87/2007, 156/2010). While the rules on choice of law in contractual and non-contractual matters were updated to match the EU Conventions (and later Regulations), the Act of 2007 had stayed quite true to its predecessor – the Yugoslav PIL Act of 1982.

This new PIL Act of 2020 makes North Macedonia now the bearer of the most modern PIL Act in the Region of the Western Balkans. The last adopted PIL Act in this region was the Act of Montenegro, in force since 2014. Although other reforms of PIL Acts are underway in Serbia (since 2014) and Kosovo (since 2018) these countries and Bosnia and Herzegovina continue applying the Yugoslav PIL Act of 1982, while Albania’s PIL Act in force is that of 2011.

A more detailed report of the PIL developments in the region of the Western Balkans will be posted soon.

For queries about the Act, please contact Prof. Toni Deskoski at t.deskoski@pf.ukim.edu.mk, or Prof. Vangel Dokovski at v.dokovski@pf.ukim.edu.mk, or me at donike.qerimi@uni-pr.edu.

Munich Dispute Resolution Day 2020: Human Rights Lawsuits before Civil and Arbitral Courts in Germany

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A spectre is haunting Europe – the spectre of human rights lawsuits. Striking human rights cases have always enjoyed high media attention. But lately, they appear in a new dimension in Europe. The headline-grabbing “KiK” trial before the Regional Court of Dortmund and the current discussion about the adoption of a German Supply Chain Law are proof of this: It has long ceased to be a mere thought that German companies could be held liable in Germany for damage that occurred somewhere in their global supply or value chain. But are civil courts and arbitral tribunals suited at all for enforcing international human rights obligations of business enterprises, which are already highly controversial under substantive law?

On 4 May 2020, the Munich Center of Dispute Resolution (MuCDR) will host a conference that will be dedicated to this phenomenon. It will shed light on fundamental theoretical and dogmatic questions of civil human rights lawsuits as well as their consequences for the legal system, the legal profession, the German economy as well as for potential plaintiffs.

The full conference programme is available  here (in German).

Date: Monday, 4 May 2020

Registration: Participation in the conference is free of charge. Registration is required. Please find the registration form online.

 Venue: Ludwig Maximilians University, Main Building, Senatssaal E 106, Geschwister-Scholl-Platz 1, 80539 Munich, Germany

Conference language: German

Same-sex parentage and surrogacy and their practical implications in Poland

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Written by Anna Wysocka-Bar, Senior Lecturer at Jagiellonian University (Poland)

On 2 December 2019 Supreme Administrative Court of Poland (Naczelny S?d Administracyjny) adopted a resolution of seven judges (signature: II OPS 1/19), in which it stated that it is not possible – due to public policy – to transcribe into the domestic register of civil status a foreign birth certificate indicating two persons of the same sex as parents. The Ombudsman joined arguing that the refusal of transcription infringes the child’s right to nationality and identity, and as a result may lead to infringement of the right to protection of health, the right to education, the right to personal security and the right to free movement and choice of place of residence. Interestingly, the Ombudsman for Children and public prosecutor suggested non-transcription. The background of the case concerns a child whose birth certificate indicated two women of Polish nationality as parents, a biological mother and her partner to a de facto union. Parents applied for such transcription in order to apply subsequently for the issuance of the passport for the child. 

The Supreme Administrative Court stated that in accordance with the law on civil status register, the transcription must be refused if contrary to ordre public in Poland. The public policy clause protects the domestic legal order against its violation. Such violation would result from the “recognition” of a birth certificate irreconcilable with fundamental principles of public policy. It was underlined that in accordance with Article 18 of the Constitution of Poland marriage is understood as a union between a man and a woman; family, motherhood and parenthood are under protection and guardianship of the State. In accordance with those principles and the whole system of family law, only one mother and one father might be treated as parents of a child. Any other category of “parent” is unknown. The Court underlined, at the same time, that transcription of the birth certificate into the domestic register should not be indispensable for a child to obtain a passport, as the child has, by operation of law, already acquired Polish nationality as inherited from the mother. However, in practical terms this would require challenging administrative authorities’ approach (requesting domestic birth certificate) in another court procedure. 

It should be explained here that the resolution was taken on the request of the panel of judges of the Supreme Administrative Court reviewing the cassation appeal brought by the parents, and therefore, in this particular case is binding. In other, similar cases panels of judges should, in general, follow the standpoint presented in such resolution. If the panel of judges is of a different view, it should request another resolution, instead of presenting a view contrary to the previous one. As a result, it might happen that there are two resolutions of seven judges presenting different views. Given the above, it can be said that the question of transcription is not as definitively answered as might seem at first glance. 

A similar justification based on the public policy clause in conjunction with Article 18 of the Constitution has already been presented before in other cases, for example one concerning children born in the US out of surrogacy arrangements with a married woman, whose birth certificates indicated two men as parents, a (biological) father and his partner (identical judgments of 6 May 2015, signature: II OSK 2372/13 and II OSK 2419/13). The implications of these judgments were quite different as the Court refused to confirm that children acquired Polish nationality by birth from their father. In the eyes of the Court and according to fundamental principles of Polish family law, children born out of surrogacy (which is not regulated in Poland) by operation of law have filiation links only with the (biological, surrogate) mother and her husband. The paternity of the biological father (only) might be (at least theoretically) established, once the paternity of the surrogate mother’s husband is successfully disavowed in a court proceeding. 

Here it should be added that opposite views were presented by the Supreme Administrative Court in other judgments. One of the cases concerned transcription of the birth certificate of a child born in India out of surrogacy arrangement. Such birth certificate indicates only the father (in this case a biological father) and do not contain any information about the (surrogate) mother. This was perceived as contrary to public policy by the administrative authorities, which underlined that in the Polish legal order establishing paternity is always dependent on the establishment of maternity. As a result, the lack of information about the mother raises doubts as to paternity of the man indicated on the birth certificate as father. Interestingly, based on the same birth certificate the acquisition of Polish nationality of the child was earlier confirmed by administrative authorities. In its judgment of 29 August 2018 (signature: II OSK 2129/16), Supreme Administrative Court criticized the way the public policy clause was so far understood. The Court (which hears the case after the refusal of administrative authorities of two instances and administrative court of the first instance – just as in all of the mentioned cases) underlined that this clause must be interpreted having regard to a broader context of the legal issue at hand, in particular it should take into account constitutional values (always prevailing best interest of a child) and international standards on protection of children’s rights and human rights. This allows for the transcription of the birth certificate into civil status records in Poland. 

Another interesting case concerned again the question of confirmation that the children acquired Polish nationality by birth after their father (four identical judgments of 30 October 2018, signatures: II OSK 1868/16, II OSK 1869/16, II OSK 1870/16, II OSK 1871/16). Four girls were born in US through surrogacy. The US birth certificates indicated two men as parents, one of them being a Polish national. The Supreme Administrative Court underlined that for the legal status of a child, including the possibility of confirming acquisition of Polish nationality, it should not matter that the child was born to a surrogate mother. What should matter is that a human being with inherent and inalienable dignity was born and this human being has a right to Polish nationality, as long as one of the parents is a Polish national.  

The above mentioned cases, where the Supreme Administrative Court presented a conservative approach and approved the refusal of the confirmation that children born out of surrogacy acquired Polish nationality by birth is now pending before European Court of Human Rights (Schlittner-Hay v. Poland). The applications raise violation by Poland of Article 8 (respect for private and family life) and Article 14 (discrimination on grounds of parents’ sexual orientation) of the European Convention on Human Rights. 

This shows that practical implications for children to same-sex parents and from surrogacy arrangements are of growing interest and importance also in Poland. The approaches of domestic authorities and courts seems to be evolving, but are still quite divergent. The view on the issue from the European Court of Human Rights is awaited.