In the last decade, the European Union has unified large segments of private international law for its Member States. However, existing treaties concluded by Member States with Third States enjoy priority over European private international law rules. This priority rule hampers the uniform application of EU law and creates friction with harmonised procedural rules. In addition, the legal relationships for large numbers of Third State citizens are not governed by EU private international law but by rules laid down in international treaties, which often dates back to the beginning of the 20th century.

The implications of this pluralism on the functioning of the rather new European private international law rules have not yet been explored in depth. The various international treaties or conventions concluded by the current Member States have neither been comprehensively collected nor has their content been analysed in a systematic manner. This book, published by Intersentia, aims to fill this gap in part. It is the fruit of a research group led by Anatol Dutta (LMU München) and Wolfgang Wurmnest (Universität Augsburg).

Focused on the area of succession law, a field of law chosen in an exemplary manner, the book analyses the scope and effect of treaties and conventions with Third States on the functioning of the European Succession Regulation (Regulation No 650/2012). There are country reports from selected EU Member States (Austria, Belgium, Croatia, Czech Republic, Finland, France, Germany, Italy and Sweden) on the treaty law and its application. To understand if and how Third States apply and interpret these treaties and conventions, there are also reports form selected Third States (Bosnia and Herzegovina, Iran, Montenegro, North Macedonia, Serbia, Switzerland and Turkey). In addition, the book contains a chapter on the competences of the EU and of the Member States to revise the treaty law. The study concludes with a comparative report, which explores the background of the treaty law and discusses various policy options at the national and the European level to ameliorate the legal framework for cross-border succession cases.

To lay the foundation for a cross-border analysis of the treaty law, the book compiles 27 bilateral treaties and multilateral conventions dealt with by the national reports in the area of succession law. The relevant rules of these sources were also translated into English. Such a comprehensive collection and translation of the treaty law thus far does not exist.

The following authors were part of the working group and contributed to the book:

Davor Babi?, Andrea Bonomi,Slavko ?or?evi?, Anatol Dutta, Stéphanie Francq, Pietro Franzina, Samuel Fulli-Lemaire, Biset Sena Güne?, Markku Helin, Tena Hoško,Dirk Looschelders, Julie Mary, Zlatan Meški?, Magdalena Pfeiffer, Walter Pintens, Claudia Rudolf, Wolfgang Wurmnest, Nadjma Yassari.

 

As my fellow editor Thalia Kruger has already signaled earlier, the final conference for the EU-funded IC²BE project on the cross-border enforcement of claims in the EU will take place in Antwerp (Belgium) on 21 and 22 November 2019. The conference will try to assess how the European framework of cross-border enforcement can be made more coherent and effective. In particular, the conference will discuss the application of the Regulations on the European Enforcement Order, the European Payment Order, the European Small Claims Procedure and the Account Preservation Order in various Member States as well as by the Court of Justice of the EU. This event brings together high-level practitioners from the European Commission, the CJEU as well as from Member State courts and authorities with distinguished scholars from across the EU.

The case law database of the IC²BE project is available here.

The current programme looks as follows:

Day 1, 21 November 2019

• 12.30-13.45 Registration and light lunch
• 13.45 Welcome (Johan Meeusen, University of Antwerp)

Section 1: Survey and Evaluation (Chair Stefania Bariatti, University of Milan)

• 14.00-14.30 IC2BE: Research Methodology, Key Findings and Best Practices (Jan von Hein, University of Freiburg)
• 14.30-15.00 CJEU case law on Cross-Border Enforcement (Veerle Van Den Eeckhout, Max Planck Institute Luxembourg)
• 15.00-15.30 Discussion
• 15.30-16.00 Coffee Break
• 16.00-17.30 Country reports Belgium (Fieke van Overbeeke, University of Antwerp), The Netherlands (Alina Ontanu, Erasmus University Rotterdam), Poland (Agnieszka Guzewicz and Agnieszka Lewestam-Rodziewicz, University of Wroc?aw), Spain (Samia Benaissa Pedriza, University of Complutense, Madrid)
• 17.30-18.00 Discussion

Day 2, 22 November 2019

Section 1 (continued) (Chair Agnieszka Frackowiak-Adamska, University of Wroc?aw)

• 9.00-10.00 Country Reports Germany (Tilman Imm, University of Freiburg), France and Luxembourg (Carlos Santaló Goris, Max Planck Institute Luxembourg), Italy (Valeria Giugliano, University of Milan)
• 10.00-10.15 Discussion
• 10.15-10.45 Coffee Break

Section 2: Perspectives (Chair Francesca Villata, University of Milan)

• 10.45-11.15 Towards a more coherent EU framework for cross-border enforcement (Burkhard Hess, Max Planck Institute, Luxembourg)
• 11.15-11.35 Making cross-border enforcement more effective for creditors (Gilles Cuniberti, University of Luxembourg)
• 11.35-11.55 Ensuring an adequate protection of debtors, in particular consumers, in cross-border enforcement (Fernando Gascón Inchausti, Complutense University, Madrid)
• 11.55-12.15 Third-state relations and cross-border enforcement after “Brexit” (Paul Beaumont, University of Stirling)
• 12.15-12-30 Comment by CJEU judge Camelia Toader
• 12.30-13.00  Discussion
• 13.00-14.00 Lunch
• 14.00-14.20 Technological progress and alternatives to the cross-border enforcement of small claims (Giesela Rühl, Friedrich-Schiller University Jena)
• 14.20-14.40 Improving access to information about cross-border enforcement (Xandra Kramer, Erasmus University Rotterdam)
• 14.40-15.00 Discussion

Section 3: Stakeholders’ views (Chair Carmen Otero, Complutense University, Madrid)

• 15.00-16.00 Stakeholder panel discussion
  • Ilse Couwenberg of the Belgian Court of Cassation,
  • Dr. Bartosz Sujecki, lawyer, Utrecht
  • Dr. Katarzyna Guzenda, German-Polish Center for Consumer Information, Brandenburg (Germany)
  • Patrick Gielen, huissier (Belgium)
• 16.00-16.15 Break

Section 4: Policy (Chair Marta Requejo, CJEU, Référendaire Cabinet de l’Avocat Général M. Campos Sánchez-Bordona)

• 30-17.30 Policy makers

• • Dr. Andreas Stein, European Commission, DG Justice, Head of Unit
  • Paulien van der Grinten, Ministry of Justice of The Netherlands
  • European Parliament, Legal Affairs Committee (tbc)
• 17.30-18.00 Discussion and closing remarks (Chair Thalia Kruger, University of Antwerp)

See here for further details on registration, which is free (only the dinner is to be paid by attendees). Antwerp is close to Brussels and Amsterdam and can easily be reached by train from either of those cities.

National seminars will also take place in the participating countries. See here for the dates.

A bit more than a year ago, I posted here & here about a Greek ruling on the non-recognition of an Egyptian notarized talaq divorce. The same court rendered mid-July a new judgment related to the same case; this time recognition was granted! It is the first decision of this nature in Greece, which will hopefully pave the path for the future.

Apostolos Anthimos

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THE FACTS

There is no need to repeat the facts which are already reported in my previous posts (see links above). There are however some novelties: The application for recognition concerned indeed the divorce between the same parties, as in the first case; however, this time the request referred to a judgment of the Abdeen Court of 1^st Instance, which rectified the divorce issued before the notary public. In particular, the divorce was previously registered as of a revocable nature [revocable repudiation]. Given that the waiting period had expired, and the husband did not ask for his wife’s return in the marital home, a new application was filed before the Abdeen court, aiming at the rectification of the registration, i.e. from revocable to an irrevocable divorce.

THE RULING

The court began with an analysis of the pertinent provisions, i.e. Article 780 Code of Civil Procedure, which is the rule for the recognition of foreign judgments issued in non-contentious proceedings, also covering foreign legal instruments. It first underlined the obvious difficulties in accepting a divorce by repudiation, which clearly violates the equality of sexes. However, and this is the novelty of the ruling, recognition may not be denied, if the applicant is the wife; otherwise, the public policy defence would cause unfair solutions in concreto.

The court entered then into the facts of the case. It first considered the Egyptian decision as similar to a Greek final and conclusive judgment. It then examined whether the foreign court applied the proper law. In this context, it made reference to Article 16, in conjunction with Art. 14.2 Greek Civil Code, which enumerates three options: The law of common nationality; the law of the last common residence; and the law with which the parties are in the closest possible connection. Since Cairo was the last common residence, the application of Egyptian law was the proper solution.

Coming back to the public policy issue, the Thessaloniki Court reiterated that the general approach goes indeed towards a public policy violation, given that repudiation runs contrary to the European Convention of Human Rights. However, in the case at hand, the applicant has fully accepted the dissolution of her marriage in this fashion; moreover, she was the one seeking the rectification in Egypt, and filing for the recognition of the talaq in Greece. A dismissal of the application would lead to an absurd situation, i.e. the existence of a marriage which none of the spouses wishes to maintain. In addition, forcing the applicant to initiate divorce proceedings in Greece would be costly and time-consuming.

For all the reasons aforementioned, the Thessaloniki court granted the application.

[CFI Thessaloniki, 17/07/2019, Nr. 8458/2019, unreported].

COMMENTS

The ruling of the Thessaloniki court is very welcome for the following reasons, which I listed in my last year’s post:

1. It bypassed an Athens Court of Appeal judgement from the ‘90s, which ruled out any attempt to recognize a talaq, even if requested by the spouse.
2. It took a firm stance, triggered by a 2016 ruling of the Supreme Court’s Full Bench [Areios Pagos 9/2016], stating that the public policy clause is not targeting at the foreign legislation applied in the country of origin or the judgment per se; moreover, it focuses on the repercussions caused by the extension of its effects in the country of destination.
3. It made clear reference to the futility of fresh divorce proceedings in Greece, which would cause significant costs to the applicant and prolong the existence of a marriage no longer desired by any of the parties involved.

The publication of Hannah L. Buxbaum‘s (Professor of Law and John E. Schiller Chair at Indiana University) lecture at The Hague Academy of International Law on “Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict“ has come out as part of Volume 399 of the Collected Courses of the Academy (Recueil des cours).

Here is an overview kindly provided by the author:

The global regulatory environment has become increasingly dense. It features multiple forms of regulation, including multilateral treaties, administrative rulemaking, self-regulation, and private enforcement in domestic courts. Regulatory institutions operate on national, regional, and international scales—and in an increasing range of substantive fields. Unsurprisingly, this environment engenders frequent conflict among regulatory regimes. These conflicts involve more than just collisions of substantive legal norms. They also involve concerns about the “who” and “how” of regulation. The entity seeking to enforce a particular norm might be a public agency or a private litigant; a particular proceeding might unfold within an international treaty framework or outside it. Such factors affect the degree of resulting conflict quite significantly. Understanding that conflict, and assessing the efficacy of the tools used to resolve it, therefore requires an analysis that accounts for those factors.

The objective of these lectures is to develop a framework for examining conflicts in cross-border economic regulation, and to use it in assessing various regulatory mechanisms. The analysis employs a trans-substantive approach, providing examples from diverse areas including competition regulation, securities regulation, and data privacy. However, instead of organizing the discussion by subject matter, it classifies different categories of conflict—substantive, procedural, and political—and examines each in turn. This approach permits a nuanced analysis of cross-border regulation as it is practiced by different institutions. In particular, it uncovers the layering of different forms of conflict that makes particular modes of regulation especially problematic.

The analysis draws most heavily on the experience in the United States, which permits a special focus on one specific question of regulatory design: the role of private enforcement in transnational regulation. Historically, the United States has been an outlier in its reliance on private civil litigation as a regulatory instrument. Today, though, many other legal systems are engaged in procedural reform intended to support more robust private enforcement. That development has the potential to increase significantly the resources devoted to economic regulation. However, it also risks exacerbating conflict in cross-border cases. Accordingly, one goal of the following analysis is to use the analytical framework developed here to consider possibilities for integrating private enforcement most effectively into the transnational regulatory environment.

Highly recommended!

More information can be found here.