On 3 September 2020, the Court of Justice delivered its Judgment in the case that had sparked considerable scholarly interest in recent months, namely in the case Supreme Site and Others, C-186/19.
Back in June, due to the courtesy of María Barral Martínez, we presented an analysis of the case itself and of the Opinion issued by AG Saugmandsgaard Øe.
As mentioned earlier this summer, the Max Planck Institute for Comparative and International Private Law in Hamburg will host the third conference for young German-speaking scholars in private international law (“IPR-Nachwuchstagung”) in March 2021. The conference will focus on the theme of PIL for a better world: Vision – Reality – Aberration? and will include a keynote by Angelika Nußberger, former judge at the European Court of Human Rights, and a panel discussion between Roxana Banu, Hans van Loon, and Ralf Michaels.
The organisers are inviting contributions that explore any aspect of the conference theme, which can be submitted until 20 September 2020. The call for papers and further information can be found on the conference website.
Although the conference will mainly be held in German, English proposals and presentations are also most welcome.
Of course, the organizers are mindful of the current Corona pandemic and will adjust the planning accordingly.
The DIRECTORATE-GENERAL JUSTICE AND CONSUMERS of the Commission has recently published a further notice on the EU-Brexit saga in the field of civil justice and private international law.
The notice covers core aspects, such as international jurisdiction, applicable law, recognition and enforcement, specific European procedures (EPO, ESCP), judicial cooperation instruments (Service and Evidence Regulations), insolvency, ans other pertinent issues (public documents, legal aid, mediation).
The full text of the notice may be retrieved here.
Readers previously obtained a preview of the 13 principles which make up the Asian Principles for the Recognition and Enforcement of Foreign Judgments, a publication by the Asian Business Law Institute (ABLI). I am delighted to be informed by ABLI that the Asian Principles has been formally released today.
The blurb is below:
“Authored by leading academics and practitioners with extensive regional exposure, the Asian Principles is a set of 13 overarching principles that underpin the recognition and enforcement of foreign judgments in the Asia Pacific. Each principle comes with a detailed commentary fully supported by citations, distills the commonalities and differences of the law on foreign judgments recognition and enforcement in 15 countries (all ten ASEAN member states, plus Australia, China India, Japan and South Korea) for its readers, and where appropriate, suggests ways forward for the development of the law in this area.
The first of any such publication in the world, the Asian Principles is available here where you can download the first chapter free of charge. The table of contents and a detailed FAQ list are also available at the link. It is hoped that the release of the Asian Principles can serve to promote convergence in this area of the law by facilitating greater portability of judgments within ASEAN and its major trading partners, which can in turn facilitate cross-border transactions by reducing legal uncertainties, lowering transaction costs and minimizing associated legal frictions.”
The contributors to the Asian Principles are:
ABLI has kindly offered readers of ConflictofLaws. net an exclusive discount of 10% off for the Asian Principles. Please write to catherine_shen@abli.asia to get your unique coupon code.
The European Law Institute informs us that the ELI-UNIDROIT Model European Rules of Civil Procedure were approved by the ELI bodies on 15 July and 5 August 2020. The UNIDROIT Governing Council will vote upon the Model European Rules of Civil Procedure soon at its meeting on 23–25 September 2020.
If adopted as well there, the ELI/UNIDROIT Rules may contribute harmonising the national procedural rules of the EU Member States and as such broaden the basis for mutual trust in the Member States’ judicial cooperation in civil matters. The Rules may be taken as a kind of minimum standard or best practice, as the case may be in the respective issue in question, and the more a national rule of civil procedure deviates from these standards, the more justifications and explanations are invited, if not expected (see e.g. Matthias Weller, in Matthias Weller/Christoph Althammer, Mindeststandards im europäischen Zivilprozessrecht – Grundvoraussetzung für gegenseitiges Vertrauen, Mohr Siebeck, Tübingen 2015, Vorwort, p. VI, comparing this mechanism to some extent with the control of standard terms).
The full text of the ELI announcement and further information can be found here.
Gilles Cuniberti (University of Luxembourg) and Manuel Segovia (European Law Institute, formerly University of Monterrey) will soon publish an empirical study of choice of law in Latin American arbitration in the THEMIS-Revista de Derecho (Choice of law in Latin American Arbitration: Some Empirical Evidence and Reflections on the Latin American Market for Contracts).
The abstract reads as follows:
The aim of this Article is to assess the preferences of parties to Latin American international business transactions when they choose the law governing their contracts. For that purpose, we have conducted an empirical analysis of data that we were able to gather from arbitral institutions active in Latin America, with a focus on years 2011 and 2012. We then offer some reflections on the results and assess whether they can be explained by the territorial approach of choice of law in Latin America, the importance of the United States as a trading partner for Latin American countries and the extent to which Anglo-American lawyers are present on Latin American markets.
The Article is a follow-up of similar studies conducted by G. Cuniberti, including one on Choice of Law in Asian Arbitration.
On Tuesday, Sep 1, the Hamburg Max Planck Institute will host its third monthly virtual workshop in private international law, again in German. Giesela Rühl (Jena, soon Humboldt University Berlin) will speak in German about private international law and comparative law aspects of distribution chains, followed by open discussion. All are welcome. More information and sign-up here.
Applications are now open for three- to six-month legal internships at the HCCH Permanent Bureau in The Hague, for the period from January to June 2021.
Interns work with our legal teams in the areas of family & child protection law, legal cooperation, dispute resolution, and commercial & financial law. It’s a great way to gain practical experience, deepen your knowledge of private international law, and to understand how the HCCH functions.
Due to the current global situation and the associated travel limitations and restrictions, the Permanent Bureau of the HCCH may consider the possibility that internships be carried out remotely. Interns may also be eligible for a monthly stipend.
We encourage you to share this opportunity with law students and graduates within your networks.
Applications close on 30 September 2020. For more information, please visit the Internships page of the HCCH website.
This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).
As indicated in a previous post, the Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLIII Seminar entitled “Private International Law in the current international climate” from 18 to 20 November 2020 for the first time online. See here.
The deadline for the submission of papers was today (16 August 2020). Due to the difficult times we are all facing with the Covid-19 pandemic, the deadline has been extended to Sunday 6 September 2020.
AMEDIP is looking forward to receiving your contributions!
by Achim Czubaiko, Research Fellow at the Institute for German and Foreign Civil Procedural Law at the University of Bonn, Germany
In a decision of 22nd July 2020, the German Federal Supreme Court (Bundesgerichtshof) rendered its second opinion on the German Law to Combat Child Marriage of 2017,[1] which established a special ordre public-clause (public policy) for marriages concluded outside Germany.[2]
I. Facts of the Case[3]
The spouses, Lebanese citizens at the time, married in Lebanon in September 2001. At this moment, the bride was 16, nearly 17 years old, and the groom had recently turned 21. She had been living in Germany and acquired the German citizenship in 2002. In August 2002, the groom followed to Germany, where the spouses lived together from April 2003 to 2016 and got four children (born 2005, 2008, 2009, 2013). After separation the four children lived with her mother who had a new partner. The spouses were divorced according to Islamic law. On the occasion of a registration at the civil registry (Standesamt) in October 2018, the wife declared that she did not want to continue the marriage. Thereupon, the competent authorities filed a motion for the annulment of the marriage to the local court, as the wife had been a minor at the conclusion of her marriage. This motion was dismissed by the Local Court (Amtsgericht) Tempelhof-Kreuzberg as well as at the Higher Regional Court (Kammergericht) Berlin. The authorities lodged an appeal with the Federal Supreme Court (Bundesgerichtshof).
II. Decision of the German Federal Supreme Court
The Federal Supreme Court held that the decision to annul a marriage concluded by a minor, who has reached the age of 16, is subject to the (restricted) discretion of the court. Thereby, confirming the decision of the lower courts and upholding the marriage, it makes clear that the appropriate legal instrument for the wife to dissolve her marriage is divorce law.
This opinion is comprised by the general principles of legal interpretation underpinned by guiding constitutional considerations.
First of all, section 13 (3) n. 2 of the Introductory Law of the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB) states that a marriage of a minor older than 16 years is voidable under German Law, even if the capacity of that particular fiancé to enter into marriage is governed by a different foreign law. As a result, non-German spouses must comply with at least two different legal systems concerning age limits. That points directly to the substantive provisions of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
Secondly, the court refers to the possibility of confirmation by the minor spouse after reaching full age according to section 1315 (1) n. 1 lit. a) BGB. However, such confirmation needs at least some basic awareness of the respective defects of the marriage to be effective. Since the wife, until her religious divorce, had no reason to doubt the validity of her marital status, none of her acts can be reasonably interpreted to constitute such a confirmation. The same goes for the hardship clause of section 1315 (1) n. 1 lit. b) BGB, because the court sees no proof of any exceptional circumstances resulting in hardship for the wife, if the decision were to uphold the marriage. Consequently, the annulment of the marriage is not prima facie precluded by the substantive law provisions of the German Civil Code.
Finally, the ratio decidendi of the opinion focuses on the question, whether the annulment of “child marriages” is mandatory if no exception applies. Section 1314 (1) n. 1 BGB provides that a marriage “may” (“kann”) be dissolved, if concluded contrary to the provision of section 1303 cl. 1 BGB, which basically reproduces the text set out in section 13 (3) n. 2 EGBGB. Apparently, the wording is not clear as to whether the court has discretion in the decision. In order to overcome that ambiguity, the Federal Supreme Court resorts to the doctrine of an interpretation in light of the constitution (verfassungskonforme Auslegung) as developed by the German Federal Constitutional Court (Bundesverfassungsgericht). This doctrine requires the courts to construe the existing law as far as possible in conformity with the German Basic Law (Grundgesetz). For the case in hand the Federal Supreme Court explained that a mandatory annulment would treat foreign marriages differently than marriages concluded solely under German Law and foreign marriages involving minors younger than 16 years, thereby resulting in a violation of Article 3 Basic Law (principle of equal treatment). Furthermore, the Court stressed that a mandatory annulment of the marriage is not always in the best interest of the minor spouse, who is protected by Art. 6 Basic Law.[4] Therefore, the court argues that in the light of the Constitution some leeway has to be reserved for the courts to deal with the particular circumstances in individual cases. Nevertheless, the application of judicial discretion must take in account the objective of the Law to Combat Child Marriage. As a consequence, annulment must be the “default” rule, while only in exceptional cases the judge may uphold a marriage. Within this margin, the law grants the court (a limited measure of) discretion.
III. Conclusion
The decision of the German Federal Court (Bundesgerichtshof) is in line with the efforts of German courts to mitigate the harsh effects of the Law to Combat Child Marriage.[5] The former status quo allowed a case-by-case analysis by the instrument of ordre-public. In this context, special attention should be given to the decision of 14th November 2018, Case No. XII ZB 292/16,[6] in which the court considered the parallel section 13 (3) n. 1 EGBGB unconstitutional, because it renders any marriage with a minor younger than 16 years void without reference to the individual situation and circumstances. Both decisions illustrate a consistent approach of the German Federal Supreme Court to the issue of Child Marriages.
The Press Release (available in German only) for the judgment can be found here (the full text is not yet published).
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[1] Law to Combat Child Marriages (Gesetz zur Bekämpfung von Kinderehen) of 17 July 2017, BGBl. I 2017, 2429; see also von Hein, “Germany: Legal Consequences of the Draft Legislation on Child Marriage” on Conflict-of-Law.net of 24th March 2017, https://conflictoflaws.net/2017/germany-legal-consequences-of-the-draft-legislation-on-child-marriage/.
[2] See Antomo, ZRP 2017, 79 (82); Majer, NZFam 2017, 537 (541).
[3] As reported by the recent press release of the Federal German Supreme Court n. 108/2020 of 14th August 2018, https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2020/2020108.html?nn=10690868.
[4] One might think of situations in that the social status of the minor depends on being a married person or regarding non-beneficial matrimonial property issues, see Rath, “Underage, married, separated” on mpg.de of 9th March 2019, https://www.mpg.de/12797223/childmarriage-legislation-germany.
[5] See e.g. Antomo, ZRP 2017, 79 (82); Hüßtege, FamRZ 2017, 1374 (1380); Schwab, FamRZ 2017, 1369 (1373); for a more positive perception compare Majer, NZFam 2017, 537 (541).
[6] Press release of the Federal German Supreme Court n. 186/2018 of 14th December 2018, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&pm_nummer=0186/18.