MAX-PLANCK-INSTITUT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT, Die Frühehe im Rechtsvergleich: Praxis, Sachrecht, Kollisionsrecht (Early Marriage in Comparative Law: Practice, Substantive Law, Choice of Law), pp. 705–785

Early marriage is a global and ancient phenomenon; its frequency worldwide, but especially in Europe, has declined only in recent decades. Often, early marriage results from precarious situations of poverty, a lack of opportunities and education, and external threats, for example in refugee situations. However the concepts and perceptions of marriage, family, identities, and values in different societies are diverse, as the comparison of regulations and the practice of early marriage in over 40 jurisdictions shows. Even if early marriage appears generally undesirable, for some minors the alternatives are even worse. Some countries set fixed ages for marriage; others use flexible criteria such as physical or mental maturity to determine a threshold for marriage. All, however, until very recently provided for the possibility of dispensation. In Western countries, such dispensations have rarely been sought in the last decades and have consequently been abolished in some jurisdictions; elsewhere they still matter. Also, most countries bestow some legal effects to marriages entered into in violation of age requirements in the name of a favor matrimonii.

Early marriage has an international dimension when married couples cross borders. Generally, private international law around the world treats marriages celebrated by foreigners in their country of origin as valid if they comply with the respective foreign law. Such application is subject to a case-specific public policy exception with regard to age requirements, provided the marriage has some relation to the forum. Recent reforms in some countries, Germany included, have replaced this flexible public policy exception with a strict extension of the lex fori to foreign marriages, holding them to the same requirements as domestic marriages and thereby disabling both a case-by-case analysis of interests and the subsequent remediation of a violation of the forum’s age requirements. As a consequence, parties to a marriage celebrated abroad can be treated as unmarried, meaning they derive no rights and protection from their marriage, and their marriage may be limping – valid in one country, invalid in another.

The extension of domestic age requirements to foreign marriage without exception, as done in German private international law, is problematic in view of both European and German constitutional law. The refusal to recognize early marriages celebrated abroad can violate the European freedom of movement. It can violate the right to marriage and family (Art. 6 Grundgesetz) and the child’s best interests. It can violate acquired rights. It can also violate the right to equality (Art. 3 Grundgesetz) if no distinction is made between the protection of marriages validly entered into abroad and the prevention of marriages in Germany. Such violations may not be justifiable: The German rules are not always able to achieve their aims, not always necessary compared with milder measures existing in foreign laws, and not always proportional.

Edwin Cameron and Leo Boonzaier, Venturing beyond Formalism: The Constitutional Court of South Africa’s Equality Jurisprudence, pp. 786–840

[Excerpt taken from the introduction]: After long years of rightful ostracism under apartheid, great enthusiasm, worldwide, embraced South Africa’s reintegration into the international community in 1994. The political elite preponderantly responsible for the Constitution, the legal profession, and the first democratic government under President Nelson Mandela were committed to recognisablyliberal principles, founded on democratic constitutionalism and human rights.

This contribution is an expanded version of a keynote lecture given by Justice Edwin Cameron at the 37th Congress of the Gesellschaft für Rechtsvergleichung at the University of Greifswald on 19 September 2019.

Chris Thomale, Gerichtsstands– und Rechtswahl im Kapitalmarktdeliktsrecht (Choice-of-court and Choice-of-law Agreements in International Capital Market Tort Law), pp. 841–863

The treatment of antifraud provisions in international securities litigation is a salient topic of both European capital markets law and European private international law. The article sets the stage by identifying the applicable sources of international jurisdiction in this area as well as the situations in which a conflict of laws may arise. It then moves on to give a rough and ready interpretation of these rules, notably construing the “place where the damage occurred”, according to both Art. 7 Nr. 2 Brussel Ibis Regulation and Art. 4(1) Rome II Regulation, as being equivalent to the market where a financial instrument is listed or is intended to be listed. However, as the article sets out in due course, this still leaves plenty of reasonable opportunity for a contractual choice of court or choice of law. This is why the article’s main focus is on creating a possibility to utilize choice-of-court and choice-of-law agreements. This is feasible either in the issuer’s charter or, notably in the case of bonds, in the prospectus accompanying the issuance of a given financial instrument. The article shows that both arrangements satisfy the elements of Art. 25 Brussel Ibis Regulation on choice-of-court agreements and Art. 14(1) lit. b Rome II Regulation on ex ante choice-of-law agreements. 

Moritz Hennemann, Wettbewerb der Datenschutzrechtsordnungen – Zur Rezeption der Datenschutz-Grundverordnung (The Competition Between Data Protection Laws –  The Reception of theGeneral Data Protection Regulation), pp. 864–895

The General Data Protection Regulation (GDPR) has granted the European Union an excellent position in the “competition” between data protection laws. This competition goes along with a gradual convergence of data protection laws worldwide, initiated and promoted by the European Union. In this competition, the European Union benefits not only from the so-called Brussels Effect (Bradford), but also from distinct legal instruments: The GDPR rules on the scope of application and on data transfer to non-EU countries are of legal importance in this competition, and the adequacy decision under Art. 45 GDPR creates further de facto leverage for negotiations on free trade agreements with non-EU countries. The European Union has already been able to use this tool as a catalyst for European data protection law approaches. The European Union should, however, refrain from “abusing” its strong position and not press for extensive “copies” of the GDPR worldwide – and thereby create legislative lock-in-effects. Alternative regulatory approaches – potentially even more innovative and appropriate – are to be evaluated carefully by means of a functional and/or contextual comparative approach.

The University of Zurich, Switzerland, has asked CoL to publish the following:

The University of Zurich is seeking applications for a Professorship in civil procedure and private law to take effect from the beginning of the Fall Semester 2021 (1 August 2021), or by arrangement.

We are seeking a candidate with an excellent legal track record who is committed to carrying out teaching and research across the whole spectrum of civil procedure law, including from an international and comparative law perspective. Experience in arbitration as well as restructuring and insolvency law is an advantage. This should be reflected in an outstanding dissertation, a habilitation thesis (or equivalent academic achievement) that is complete or at an advanced stage, and additional publications. Depending on the successful candidate’s qualifications, the professorship will take the form of a full or associate professorship. A temporary position as assistant professor with tenure track is possible provided that the candidate’s habilitation thesis is at an advanced stage. In all cases, the professorship will be a full-time position. If an excellent application is submitted, particularly from countries or regions (such as French-speaking Switzerland) that do not require a habilitation thesis to be completed, the requirement for habilitation can be waived if comparable achievements are demonstrated. Applicants must be able to teach in English and, ideally, in French. Applicants without a Swiss background must be willing to familiarise themselves with Swiss civil procedure and private law within a reasonable amount of time and, if necessary, attain the level of German required for teaching and examination. The University of Zurich strives to increase the proportion of under-represented groups – in particular women – in its teaching and research staff, and therefore explicitly encourages applications from these candidates. Further information relating to this job profile can be found below. Please submit your application documents as specified in the following job profile by 9 December 2020 via www.recruiting.ius.uzh.ch. You may be requested to submit hard-copy documents separately at a later point. The relevant member of the appointment committee, Professor Tanja Domej (tanja.domej@rwi.uzh.ch), is available to answer any questions and provide further information.

Further information is here.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

 

C. Wendehorst: Digital Assets in Private International Law

Rights with third party effect (erga omnes rights, rights in rem) in digital assets may exist at four levels: (a) the level of physical manifestation of data on a medium; (b) the level of data as encoded information; (c) the functional level of data as digital content or services; and (d) the level of data as representation of rival assets. As yet, recognized conflict-of-law rules exist only for level (c), which has always been dealt with under international intellectual property law.

As to rights in physical manifestations of data, these may be dealt with under Art. 43 EGBGB where data is stored and accessed only locally. In the case of remote access to data, especially in the case of data stored in the cloud, the law of the state where the controller is located should apply. In the case of two or more controllers located in different states, the location of the server operator (cloud provider) may decide instead, but neither of these connecting factors applies if the facts of the case indicate a closer connection with the law of another state.

Data as encoded information is a non-rival resource. Should a foreign jurisdiction recognise exclusive data ownership rights, these would have to be dealt with under international intellectual property law. For data access rights, portability rights and similar rights the rules on the territorial scope of the GDPR may provide some helpful indications as to the applicable law. However, where such rights arise within a contractual relationship or other specific framework the law applicable to this framework may prevail.

As to crypto assets, uniform conflict-of-law rules would be highly desirable. Subject to further integration of crypto assets into the existing system for intermediated securities, rights in tokens should primarily be governed by the law referred to by conflict-of-law rules specifically addressing crypto assets, including appropriate analogies to such rules. Where no such rules exist, the closest connection must be ascertained by a connecting factor that is sufficiently certain and clearly visible to third parties, such as the law that has visibly been chosen as the applicable law for the whole ledger (elective situs), the location of the issuer (LIMA), or the place of the central administrator (PROPA) or of the sole holder of a private master key (PREMA).

 

R. de Barros Fritz: The new legal tech business model of mass action litigation from the choice of law perspective

In recent years, courts had to increasingly deal with questions of substantive law concerning a new, but in practice already well-established business model of mass action litigation, which is offered by companies such as Financialright Claims and Myright. These are often cases that have links to foreign countries. The present article has therefore taken this opportunity to examine the question of the law applicable to this business model in more detail.

 

P. Hay: Forum Selection Clauses – Procedural Tools or Contractual Obligations? Conceptualization and Remedies in American and German Law

German and American law differ methodologically in treating exclusive forum selection clauses. German law permits parties, subject to limitations, to derogate the jurisdiction of courts and, in the interest of predictability, to select a specific court for any future disputes. The German Supreme Court emphasized in 2019 that, as a contract provision, the clause also gives rise to damages in case of breach. American law historically does not permit parties to “oust” the jurisdiction a court has by law. But the parties’ wishes may be given effect by granting a party’s motion to dismiss for forum non conveniens (FNC) when sued in a different court in breach of the agreement. FNC dismissals are granted upon a “weighing of interests” and in the court’s discretion. The clause, even when otherwise valid, is therefore not the kind of binding obligation, enforced by contract remedies, as in German law. The case law does not give effect to its “dual nature,” as characterized by the German Supreme Court. The latter’s decision correctly awarded attorneys’ fees for expenses incurred by the plaintiff when the defendant had sued (and lost) in the United States in breach of a forum selection clause, especially since German jurisdiction and German law had been stipulated. Application of the “American Rule” of costs most probably would not have shifted fees to the losing party had American law been applied, although the rule is far less stringent today than often assumed.

 

A. Stadler/C. Krüger: International jurisdiction and the place where the damage occurred in VW dieselgate cases

Once again the European Court of Justice had to deal with the question of where to locate the place where the harm or damage occurred (“Erfolgsort”, Article 7 no. 2 Brussels Ibis Regulation) which is particularly difficult to define in case of pure economic loss tort cases. Previous case law of the ECJ resulted in a series of very specific judgments and a high unpredictability of the international jurisdiction. In the Austrian “Dieselgate” case the referring court had doubts whether the Austrian car purchasers who had bought and received their cars in Austria suffered a “primary loss” or only an irrelevant “secondary loss”. The ECJ rightly rejects the idea of a secondary loss and concludes that the place where the (primary) damage occurred is to be located in Austria. The authors criticise that the ECJ – without an obvious reason – emphasises that the case at hand is not about pure economic loss. Although they agree with the court’s finding that the place where the damage occurred was in Austria as the place of acquisition of the cars, they discuss whether in future cases one might have to distinguish between the place where the sales contract was entered into or the place where the defective object became part of the purchasers’ property. The authors reject any detailed approach and advocate in favour of abandoning the principle of ubiquity in cases of pure economic loss. Alternatively, the only acceptable solution is an entire consideration of all relevant facts of the individual case.

 

P.F. Schlosser: Jurisdiction agreements binding also third beneficiaries in contracts?

Even in the context of jurisdiction agreements, the European Court applies the rules protecting the policy holder for the benefit of the “insured”. In this respect the Court’s methodology and result must be approved of. The restriction of the holding as to the consent of the insured and the qualification of the insured as an insurance company are of no practical impact and due to the narrow question referred to the Court. The holding may, however, not be transferred by a reverse argumentation to assignments of rights against consumers or employees to commercial entities.

 

B. Heiderhoff: Article 15 Brussels IIbis Regulation, the Child’s best interests, and the recast

Article 15 Brussels IIbis Regulation provides that the court competent under Article 8 et seq Brussels IIbis Regulation may, under certain prerequisites, transfer the case to a court in another Member State. In the matter of EP./. FO (ECJ C-530/18) the ECJ once more explains the central notion of this rule, being the best interest of the child. The ECJ holds that the competent court must not initiate the transfer on the basis that the substantive law applied by the foreign court is more child friendly – which is, by the way, a rather unrealistic scenario for various reasons. Concerning procedural law, the ECJ points out that different rules may only be taken into account if they “provide added value to the resolution of the case in the interests of the child”. Notwithstanding the ECJ’s fundamental and recurrent statement that the transfer is never mandatory, it still seems reasonable for the competent court to apply a well-balanced, comprehensive approach towards the transfer. Should it deny the transfer to a court that is “better placed to hear the case” on the grounds that the foreign law is “different” or maybe that it even seems to be less in the interest of the child? According to the principle of mutual trust, the author suggests to use the public policy standard and to ignore any differences in the substantive and procedural law, as long as they do not threaten to add up to a public policy infringement. The paper also points out some changes in the new Articles 12 and 13 Brussels IIbis Recast which aim at further specifying the transfer mechanism. The resulting deletion of the comprehensive evaluation of the child’s best interests by the transferring court in para 1 seems unintentional. Thus, the author recommends to keep up the current handling.

 

F. Koechel: Article 26 of the Brussels Ibis Regulation as a Subsidiary Ground of Jurisdiction and Submission to Jurisdiction Through Eloquent Silence

According to the CJEU’s decision, a court may assume jurisdiction based on the entering of an appearance of the defendant only if Articles 4 ff. of the Brussels Ibis Regulation do not already provide for a concurrent ground of jurisdiction in the forum state. This restrictive interpretation complicates the assessment of jurisdiction and limits the scope of the Brussels Ibis Regulation without any substantial justification. On the contrary, a subsidiary application of Article 26 of the Brussels Ibis Regulation is systematically inconsistent with Article 25, which generally privileges the jurisdiction agreed by the parties over any concurrent ground of jurisdiction. In this decision, the CJEU confirms its previous interpretation according to which Article 26 Brussels Ibis Regulation may not be employed as a ground of jurisdiction vis-à-vis a defendant who chooses not to enter an appearance. However, the CJEU does not sufficiently take into account that in the main proceedings the court had requested the defendant to state whether or not he wanted to challenge jurisdiction. The question therefore was not simply if a defendant submits to a court’s jurisdiction by not reacting at all after having been served with the claim. Rather, the CJEU would have had to answer whether a defendant enters an appearance within the sense of Article 26 of the Brussels Ibis Regulation if he does not comply with the court’s express request to accept or challenge jurisdiction. The article argues that the passivity of the defendant may only exceptionally be qualified as a submission to jurisdiction if he can be deemed to have implicitly accepted the court’s jurisdiction.

 

C. Lasthaus: The Transitional Provisions of Article 83 of the European Commission’s Succession Regulation

The European Commission’s Succession Regulation 650/2012 aims to facilitate cross-border successions and intends to enable European citizens to easily organise their succession in advance. In order to achieve this goal, the regulation – inter alia – facilitates the establishment of bilateral agreements as to succession. This is the case not only for agreements made after 17/8/2015 but – under the condition that the testator dies after this date – according to the transitional provisions in Article 83 also for those made prior. Due to these transitional provisions, some formerly invalid agreements made prior to the effective date of the regulation turned valid once the regulation applied. In its judgment, the German Federal Court of Justice (“BGH“) ruled on the legal validity of a formerly invalid bilateral agreement as to succession between a German testator and her Italian partner. This legal review inter alia deals with the distinction between Article 83 para. 2 and Article 83 para. 3 of the Regulation as well as legal aspects concerning the retroactive effect of the transitional provisions.

 

P. Kindler: The obligation to restore or account for gifts and advancements under Italian inheritance law: questions of applicable law and international civil procedure, including jurisdiction and the law applicable to pre-judgment interest

The present decision of the Higher Regional Court of Munich deals with the obligation to restore or account for gifts and advancements when determining the shares of different heirs under Italian law (Article 724 of the Italian Civil Code). Specifically, it addresses a direct debit from the bank account held by husband and wife and payed to the wife alone a few days before the husband’s death. The husband was succeeded on intestacy by his wife and three descendants one of which sued the deceased’s wife in order to obtain a declaratory judgment establishing that half of the amount payed to the wife by the bank is an advancement, received from the deceased during his lifetime, and that such advancement has to be adjusted in the partitioning between the heirs. The article presents the related questions of applicable law under both the European Succession Regulation and the previous conflict rules in Germany and Italy. Side aspects regard, inter alia, the law applicable to interest relating to the judicial proceedings (Prozesszinsen) and how the Court determined the content of the foreign substantive law.

 

P. Mankowski: Securing mortgages and the system of direct enforcement under the Brussels Ibis Regulation

On paper, the Brussels Ibis Regulation’s turn away from exequatur to a system of direct enforcement in the Member State addressed was a revolution. In practice, its consequences have still to transpire to their full extent. The interface between that system and every-day enforcement practice is about to become a fascinating area. As so often, the devil might be in the detail, and in the minute detail at that. The Sicherungshypothek (securing mortgage) of German law now stars amongst the first test cases.

 

E. Jayme: Registration of cultural goods as stolen art: Tensions between property rights and claims of restitution – effects in the field of international jurisdiction and private international law

In 1999, the plaintiff, a German art collector had acquired a painting by the German painter Andreas Achenbach in London. In 2016 the painting was registered in the Madgeburg Lost Art Database according to the request of the defendant, a (probably) Canadian foundation. The painting was owned, between 1931 and 1937, by a German art dealer who had to leave Germany and was forced to close his art gallery in Düsseldorf. The plaintiff based his action on a violation of his property rights. The court dismissed the action: the registration, according to the court, did not violate the plaintiff’s property rights. The case, at first, involves questions of international civil procedure. The court based jurisdiction, according to para. 32 of the German Code of Civil Procedure, on the place of the pretended violation of property, i.e. the seat of the German foundation, which had registered the painting in its lost art register. The European rules were not applicable to a defendant having its seat outside the European community. The author follows the Magdeburg court as to the question of jurisdiction, but criticises the outcome of the case and the arguments of the court for generally excluding the violation of property rights. A painting registered as lost art loses its value on the art market, it cannot be sold. In addition, the registration of a painting as lost art may perhaps violate property rights of the German plaintiff in situations where there has been, after the Second World War, a compensation according to German public law, or where the persons asking for the registration did not sufficiently prove the legal basis of their claim. However, the Magdeburg registration board has developed some rules for cancelling registration based on objective arguments. Thus, the question is still open.

 

I. Bach/H. Tippner: The penalty payment of § 89 FamFG: a wanderer between two worlds

For the second time within only a few years, the German Federal Supreme Court (BGH) had to decide on a German court’s jurisdiction for the enforcement of a (German) judgment regarding parental visitation rights. In 2015, the BGH held that under German law the rule regarding the main proceedings (§ 99 FamFG) is to be applied, because of the factual and procedural proximity between main and enforcement proceedings. Now, in 2019, the BGH held that under European law the opposite is true: The provisions in Articles 3 et seq. Brussels IIbis Regulation are not applicable to enforcement proceedings. Therefore, the question of jurisdiction for enforcement proceedings is to be answered according to the national rules, i.e. in the present case: according to § 99 FamFG.

 

D.P. Fernández Arroyo:Flaws and Uncer tain Effectiveness of an Anti-Arbitration Injunction à l’argentine

This article deals with a decision issued by an Argentine court in the course of a dispute between an Argentine subsidiary of a foreign company and an Argentine governmental agency. The court ordered the Argentine company to refrain from initiating investment treaty arbitration against Argentina. This article addresses the conformity of the decision with the current legal framework, as well as its potential impact on the ongoing local dispute. Additionally, it briefly introduces some contextual data related to the evolution of Argentine policies concerning arbitration and foreign investment legal regime.

Membership

On 21 October 2020, Nicaragua deposited its instrument of acceptance of the Statute, becoming the 86th Member of the HCCH. More information is available here.

Conventions & Instruments

On 1 October 2020, the HCCH 1965 Service Convention entered into force for the Philippines. It currently has 78 Contracting Parties. More information is available here.

On 23 October 2020, Serbia deposited its instrument of ratification of the HCCH 2007 Child Support Convention. With this ratification, 41 States and the European Union are now bound by the Convention, which will enter into force for Serbia on 1 February 2021. More information is available here.

On 25 October 2020, the HCCH 1980 Child Abduction Convention and HCCH 1980 Access to Justice Convention celebrated their respective 40th anniversaries, having been adopted at the Fourteenth Session. More information is available here.

On 29 October 2020, Costa Rica deposited its instrument of accession to the HCCH 1996 Child Protection Convention. It now has 53 Contracting Parties and will enter into force for Costa Rica on 1 August 2021. More information is available here.

Meetings & Events

From 6 to 9 October 2020, the Experts’ Group on the Tourists and Visitors (ODR) Project met for the third time, via videoconference. The meeting focused on the necessity, desirability, and feasibility of a soft law instrument on matters relating to online dispute resolution (ODR). More information is available here.

From 12 to 16 October 2020, the Experts’ Group on Parentage / Surrogacy met for the seventh time, via videoconference. The meeting focused on developing possible provisions for a general private international law instrument on the recognition of foreign judicial decisions on legal parentage and a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement. More information is available here.

On 29 October 2020, the HCCH, together with the University of Bonn, co-hosted an online roundtable discussion of the prospects for judicial cooperation in civil and commercial matters between the EU and third countries. This event was a precursor to the conference ‘The HCCH 2019 Judgments Convention’ which is being held in September 2021, jointly organised by the University of Bonn and HCCH. More information is available here.

Publications & Documentation

Following its approval last month, the Permanent Bureau has released the official publication of the Explanatory Report on the HCCH 2019 Judgments Convention. An electronic copy of the Report is now available for download, in English and French, and hard copies are available for purchase from our website. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.