Out Now! ‘Multi-Tier Arbitration Clauses: International Trends In Dispute Resolution’ by Anjali Chawla

 

About the Book

 Streamlining disputes has become imperative to reduce the judicial caseload. One may presume that resorting to arbitration or other forms of ADR when the parties wish to resolve their issues amicably might provide them with a speedier remedy. Considering that commercial disputes now are extensively complex and cumbersome, there arose a need for a more evolved dispute resolution mechanism that could cater to the needs of each contract or dispute in a customised manner. MTDR can aid in doing so. It entails successfully employing different kinds of ADR for the same dispute in case there is no resolution. However, MTDR comes with its fair share of issues, such as reservations amongst the parties, lack of rules governing such procedures, limitation period, lack of party cooperation and the non-binding nature of certain forms of ADR. These pertinent questions are merely the tip of the iceberg when it comes to Multi-Tiered Dispute Resolution. The objectives of Alternative Dispute Resolution are saving time and reducing costs. At the end of the day, it is imperative to answer whether Multi-Tier Dispute Resolution is viable in achieving these objectives or if it will manifold the complexities involved in the process. Yet if there is even a possibility of settling disputes or at least parts of the dispute amicably, this concept is worth a chance. Despite the United Nations’ endeavours to promote uniform interpretations of the arbitration law worldwide, several nations have taken varying stands on the enforceability of certain dispute resolution procedures, calling for a study of the varying standards in different jurisdictions. For any dispute resolution mechanism to be effective, the codified law and the jurisprudence of a particular state need to be conducive to enforcing the process adopted by the parties. Thus, in-depth analysis and critical review of this subject’s laws and judicial pronouncements have been demonstrated. This book aims to assist the reader in overcoming the issues that one might face with MTDR in a wide range of jurisdictions to make this process of dispute resolution useful, effective and fruitful. The book covers MTDR in different jurisdictions like the UK, USA, France, Canada, Australia, Singapore, Germany, Hong Kong, China, Taiwan and India. The functionality of any reform, particularly one that seeks to provide a multi-faceted solution, predominantly lies in the academic enrichment of the same. Policy and academia can only strengthen public awareness of Multi-Tier Dispute Resolution.

 

The Book is available for purchase on the Bloomsbury website using this link.

About the Author

Anjali is an Assistant Professor at Jindal Global Law School, O.P. Jindal Global University. Anjali holds an LL.M. in International Commercial Arbitration Law from Stockholm University (SU); and B.A. LL.B. (Hons.) degree from Jindal Global Law School, O.P. Jindal Global University, Sonipat (India). She is also a qualified lawyer at the Bar Council of India. She has also been advising domestic and international clients regarding commercial and civil disputes. Anjali is also acting as a Dispute Resolver (Mediator/Arbitrator/Conciliator) for various ODR platforms. Anjali sits on the Editorial Board of Legal Maxim and the Review Board of Syin & Sern. 

 

Today begins the first meeting of the Special Commission to review the practical operation of the HCCH 2000 Protection of Adults Convention

The first meeting of the Special Commission to review the practical operation of the HCCH 2000 Protection of Adults Convention will be held today in The Hague and will last until 11 November 2022. This event is remarkable given that this is the first time that the practical operation of this Convention is assessed since its entry into force on 1 January 2009.

A few topics of the agenda are worthy of note. I would like to highlight two:

The first topic deals with the tools to assist with the implementation of the 2000 Convention and is broken down as follows:

The second topic and undoubtedly fascinating to any international lawyer – if only with regard to treaty law – is the agenda item: Possible amendments to the 2000 Convention. For more information, click here. This agenda item contains the following sub-items:

  • Interest in deleting the terms “guardianship” and “curatorship” (Art. 3(c))
  • Interest in adding a new conflict rule for “ex lege representation”
  • Interest in adding a provision on “instructions given and wishes made by the adult e.g. advance directives”
  • Interest in adding final clauses allowing Regional Economic Integration Organisation to join the 2000 Convention
  • Possible mechanisms to amend the 2000 Convention

Enforcing Foreign Judgments in China and Chinese Judgments Abroad: Recent Developments and Remaining Challenges

Event date: 17 November 2022
Event time: 12:00 – 13:30
Oxford week: MT 6
Audience: Members of the University
Venue: St Catherine’s College (Room: TBA)
Speaker(s): Dr Jeanne Huang (Associate Professor, The University of Sydney)

On January 24, 2022, the Supreme People’s Court of China issued the Minutes of the National Court’s Symposium on Foreign-Related Commercial and Maritime Trials (“Minutes”), which provide rules for judgment recognition and enforcement (“JRE”) in China when no treaty exists between China and the state of origin or the treaty does not address a particular JRE issue. Later in the year, on August 29, 2022, the European Union and its member states acceded to the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The Convention will enter into force in September 2023. Given that China has not signed the Convention, this talk aims to help international business actors to plan for the ways in which JRE in China will differ and understand the prospects for China to ratify the Convention.

Dr Huang’s talk and discussion will be followed by a light sandwich lunch. Please email conflictoflaws@law.ox.ac.uk to register your attendance and any dietary requirements.

For more information see here

This event is generously supported by Twenty Essex

The French Project for a Private International Law Code – a Debate at the Comité Français

by Ilaria Pretelli 

On Friday October 21 the Comité français de droit international privé held a special session devoted to the last and possibly final version of the project of code of private international law. As such, the project consists of 207 articles divided into 6 books: general rules, special rules, procedure, recognition and enforcement of foreign acts and judgments, provisional and protective measures, transitional provisions.

The session was held “à huis clos” with the discussion among members stimulated by foreign guests specially invited to have a perspective from abroad. Not surprisingly, due weight was given to Switzerland and Belgium, as the former is considered to have a model legislation on the discipline and the latter has the “youngest” statute of continental Europe. Marc Fallon underlined the very different circumstances in which the Belgian legislation was constructed, since it came from a private initiative of Belgian academics, only at a later stage submitted to the Belgian legislator. The opposite path has led to the drafting of the French project, which stems directly from an initiative of the Ministry of Justice. In France, this project is the fourth in time after those by Niboyet (1950), Batiffol (1959) and Foyer (1967). If successful, it will bring to an end the essentially doctrinal and jurisprudential character of French private international law. These traditional characteristics of French private international law were recalled by Pierre Mayer in an already nostalgic note. Andrea Bonomi offered both a Swiss and European perspective, with laudatory remarks on the main innovations of the project: the codification of rules on procedure and on procedural measures, and the codification of the “méthode de la reconnaissance”. Reference is thereby made to the renowned French theory which has developed Picone’s observations on the opportunity of recognising the competence of a legal order (l’ordinamento competente) as a whole to decide a cross-border issue, instead of applying such a foreign order’s rules to decide the same cross-border issue within the forum. This method (or methods, according to subsequent works of the author of the theory, Pierre Mayer), is gaining importance in contemporary practice. On the one hand, the increasing mobility of citizens raises the number of conflicts of laws and creates an appetite for hard and fast solutions. A method allowing to displace the discussion from substance to competence of the authority serves this need. In addition, it is particularly welcome in the EU, where it is coherent with the prevalence of the evaluations of the “country of origin”.

Other rules applauded by the audience were those on public policy and fraude à la loi, although regret was expressed over the fact that these well-known denominations are not mentioned in the corresponding rules (Articles 11 and 12). The rule on public policy is among the many of the project that reveals a constant attention by the drafters to coordinate national rules with the European ones: it explicitly grants a role to the “European notion of public policy”.

Possibly the most controversial rules are those on filiation resulting from IVF with a donor and on surrogacy (Articles 62 and 63). In this respect, the project breaks with French precedent and adopts a solution based on the respect of the legitimate expectations of donors, intended parents and the gestational mother: the lex loci actus.

According to the drafters, legal certainty for all parties involved points to the application of the law of the country in which assisted reproductive technology (ART) was performed or surrogacy was agreed by contract and implemented. These rules represent an exception to the general ones (Article 59), which point to the law of the child’s citizenship at the moment of birth. Article 62 seems to be of limited utility, since it merely confirms that French clinics need to follow French law and vice versa. However, as regards the filiation of children born with the employment of a donor by means of an IVF performed in a foreign fertility clinics, the applicable law will depend on the place of birth. If the latter is in France, the presumptions of paternity of French domestic law will apply in the first place. The scope of application of the foreign law of the country in which the clinic is based will thus be limited to the aspects related to the right of the child to have access to information regarding the donor. In addition, the lex loci actus would open the French border to reproductive tourism and, in so doing, would create the conditions to prevent the need of further strategic litigation before the ECHR in order to decriminalise surrogacy. Some critical voices have observed that the present domestic and international context are too fragile for such a solution to be welcome. The inherent risk is that the advancement in a wider recognition of “a right to parenthood”, including “parenthood for all” may increase existing divisions and undermine the credibility of the universal character of the principle of non-discrimination.

Divisions also exist as regards the timeliness of the code. Paul Lagarde raised his authoritative voice, in the columns of the last issue of the Revue critique, against the very idea of devoting energies to a national code of private international law. The engagement for the French code reveals, he argued, the availability of resources that could have been better employed to contribute to the drafting of a comprehensive code of European private international law based on the numerous existing regulations.

The four panels of the debate allowed a comprehensive analysis:

  1. structure of the code, articulation of sources, general rules of choice of law (chaired by Marie-Laure Niboyet)
  2. Procedure, Effect of foreign judgments and public acts (chaired by Jean-Pierre Rémery)
  3. Roundtable on family law
  4. Ccompany law – collective labor law ( chaired by Etienne Pataut).

All distinguished participants engaged in the rich and deep discussion triggered by the analysis of the project are looking forward to future arenas where the debate can continue.

“Third-Party Funding: Trends, Developments and the Future” – 7 December 2022, Erasmus School of Law (online)

In the context of the Vici project ‘Affordable Access to Justice’ conducted by the Erasmus School of Law (Rotterdam) and financed by the Dutch Research Council – NWO, the project team is organizing a seminar titled ‘Third-Party Funding: Trends, Developments, and the Future’ (online).

The seminar is scheduled for Wednesday, 7 December 2022 (10:00-12:15 CET) and it will feature presentations by: Xandra Kramer (Erasmus University Rotterdam/Utrecht University, Netherlands), Stefaan Voet (KU Leuven, Belgium), Masood Ahmed (University of Leicester, UK), Adrian Cordina (Erasmus University Rotterdam, Netherlands), Michael Legg (UNSW Sydney, Australia), David Capper (Queen’s University Belfast, UK).

The complete program and information for the online registration are available here.

For updated information on the project, you may follow the Project’s LinkedIn page.

Series of webinars in Argentina every Thursday in November 2022: A new agenda for a post-pandemic world?

A series of webinars will be held every Thursday in November 2022 at 5 pm (Argentina time, 9 pm CET time) in Spanish. The topics range from international family law to environmental justice to the consequences of the conflict in Ukraine for Private International Law.

Registration is free of charge. To register, click here.

The program is available below:

 

Call for papers: Rethinking Law’s Families & Family Law

CALL FOR PAPERS

The International Society of Family Law is holding its 18th (Golden Jubilee) World Conference in Antwerp on 12-15 July 2023. The topic is “Rethinking Law’s Families & Family Law?”

The call for papers is now open. Interested persons are invited to submit abstracts for individual presentations or collective panels by 16 November 2022  by email to conveners@isfl2023.org.

Among other themes, panels may cover legal aspects of reproduction, (minor and adult) siblings, migration, and juvenile law. These of course also include matters of private international law.

The conference will be on-site in Antwerp and in English; proposals for limited French or Dutch panels are also welcome.

More information is available on the website of the University of Antwerp.

HCCH Monthly Update: October 2022

Conventions & Instruments

On 1 October 2022, the 2007 Child Support Convention entered into force for the Philippines. At present, 44 States and the European Union are bound by the Convention. More information is available here.

On 4 October 2022, Cabo Verde deposited its instrument of accession to the 1980 Child Abduction Convention and 1996 Child Protection Convention. With the accession of Cabo Verde, the Child Abduction Convention now has 102 Contracting Parties. It will enter into force for Cabo Verde on 1 January 2023. For the Child Protection Convention, with the accession of Cabo Verde it now has 54 Contracting Parties. The Convention will enter into force for Cabo Verde on 1 August 2023. More information is available here.

 

Meetings & Events

From 18 to 20 October 2022, HCCH Asia Pacific Week was held in Manila in hybrid format. The conference provided the opportunity for the exchange of ideas and viewpoints from across Asia and the Pacific on some of the most prominent HCCH Conventions and instruments, as well as on the HCCH’s ongoing normative projects and possible future work, in the areas of transnational litigation and legal cooperation, international family and child protection law, and commercial, digital, and financial law. More information is available here.

From 17 to 21 October 2022, the Experts’ Group on Parentage / Surrogacy met for the twelfth time. The Group discussed the content of the final report that is to be presented to the Council on General Affairs and Policy at its 2023 meeting, in which the Group will present its assessment of the feasibility of one or more private international law instruments on legal parentage. More information is available here.

 

Upcoming Events

To celebrate the tenth anniversary of the HCCH Regional Office for Asia and the Pacific, a workshop on the HCCH Conventions in the area of transnational litigation in civil or commercial matters will be held on 8 November, as part of Hong Kong Legal Week 2022. Participation is free of charge, although advance registration is required. 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.

Accountability of Transnational Organisations

On Wednesday, 16 November 2022, Professor Philippa Webb and Associate Professor Rishi Gulati will host a (hybrid) conference on “Accountability of Transnational ORgnisations” at King’s College London.

The conference will bring together academics, practitioners, and international organisation officials to discuss key developments around the legal accountability of transnational institutions.

The use of the term ‘transnational’ is deliberate. The aim is not just to consider accountability concerns relating to public international organisations (IOs), but also ones relevant to multinational corporations (MNCs) and non-governmental organisations (NGOs). The focus is on legal accountability, including the notion of access to justice for alleged victims of institutional conduct and due diligence obligations increasingly imposed on transnational institutions.

If interested, please register below:

https://www.eventbrite.co.uk/e/accountability-of-transnational-organisations-conference-tickets-441537238767?aff=ebdssbdestsearch

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 6/2022: Abstracts

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

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

U. Janzen/R. Wagner: The German implementing rules for the Brussels II ter Regulation

When the original version of the Brussels II Regulation was adopted in 2000, it was not certain whether this regulation would be such a success. In the meantime, the regulation has become one of the most important legal instruments for judicial cooperation in civil matters. The regulation has recently been revised for the second time. The following article presents the German implementing rules for this recast.

 

R. Magnus: A new Private International Law and new Procedural Rules for Adoptions in Germany

As a result of two recent reforms the German private international and procedural laws applicable to adoptions have changed quite substantively. Article 22 (1) sentence 1 of the Introductory Act to the German Civil Code (EG-BGB) now refers to the lex fori as the law applicable for all domestic procedures, and section 1 (2) of the Adoption effects Act (AdWirkG) introduces an obligatory recognition procedure for many foreign adoptions. The effects of these and other innovations are examined and evaluated in detail in this article.

 

H.-P. Mansel: Liberalization of the Private International Law of Marriage and Registered Civil Partnership: Remarks on the Place of Marriage and Registration as Connecting Factors

According to the new proposal of the German Council for Private International Law, the law of the “place of marriage” is to govern the establishment of a marriage or registered civil partnership. The article deals with this proposal and explores the question of how this place is to be determined in the case of an online marriage. It argues for the application of the law of the state where the register is kept.

 

B. Laukemann: Protecting procedural confidence against the insolvency estate?

According to Union law, the effects of insolvency proceedings on a pending lawsuit are governed by the lex fori – and thus not by the law of the opening Member State (s. Art. 18 European Insolvency Regulation [EIR], Art. 292 Directive 2009/138, Art. 32 Directive 2001/24). At first glance, the distinction between the lex fori and the lex concursus raised here does not cause any major problems of interpretation. But can the lex fori and its regulatory purpose, which is to guarantee protection of confidence and legal certainty in civil proceedings, also be brought into position against the liability regime of foreign insolvency proceedings? A look at Art. 7(2)(c) EIR, which, in turn, allocates procedural powers of a debtor and insolvency practitioner to the lex fori concursus, reveals the difficulties of a clear-cut demarcation between the law of the forum and the law governing insolvency proceedings. The present contribution seeks to pursue this classification problem, equally relevant in legal and practical terms, for the relevant pieces of secondary EU legislation. Recently, this legal question was submitted to the CJEU – due to the liquidation of an insurance company within the scope of the Solvency II Directive. The decision gives rise to critically examine the delimitation approach of the CJEU and to ask in general how the protection of procedural confidence, on the one hand, and insolvency-related liability interests of the creditors, on the other, can be brought into an appropriate balance.

 

J. Kondring: International Service by WhatsApp: Reflections on the Hague Service Convention and the 1928 Anglo-German Convention in Judgement and Recognition Proceedings

In times of electronic communication, the question arises whether cross-border service by means of electronic communication is possible. The Higher Regional Court (OLG) of Frankfurt a.M. had to decide this question in recognition proceedings for a Canadian-German service by WhatsApp. Neither the Hague Service Convention nor bilateral agreements such as the Anglo-German Convention of 1928 allow service by WhatsApp. In this respect, the article also ex-amines the interaction of section 189 German Code of Civil Procedure (ZPO) and Art. 15 of the Hague Service Convention in both judgment and recognition proceedings, including the relationship to the parallel Anglo-German Convention of 1928. In certain cases, Art. 15 of the Hague Service Convention moves aside and “neutralises” section 189 German Code of Civil Procedure and its legal consequences. For the recognition proceedings, Art. 15 of the Hague Service Convention will also have to be taken into account in the context of the examination of the regularity of service of the document instituting the proceedings.

 

S. Arnold: Applicability of Article 15(1)(c) Lugano II in cases of subsequent relocation of consumers

In its judgment (C-296/20), the ECJ follows the consumer-friendly course already taken in the mBank decision. It interpreted Article 15(1)(c) Lugano II (and by doing so also the corresponding Article 17(1)(c) Brussels Ibis Regulation). The court clarified that the provision governs the jurisdiction of a court also in such cases where a consumer who has contracted with a professional counterparty subsequently relocates to another contracting State. Thus, it is not necessary for the cross-border activities of the professional party to have already existed at the time the contract was concluded. Rather, the subsequent move of the consumer also constitutes the “pursuit” of the professional or commercial activity in the consumer’s member state. Consequently, the court strengthens the position of consumers. Even in the event of a subsequent move, they can rely on the (passive) forum of protection of Article 16(2) Lugano II and the (active) forum of Article 16(1) Lugano II at their place of residence. The burden that this decision places on the professional counterparty – the risk of foreign litigation even if the matter was purely domestic at the time the contract was concluded – seems reasonable, as choice of forum agreements (Art. 17 No. 3 Lugano II) remain possible as a means of protection.

 

A. Staudinger/F. Scharnetzki: The applicable law for the internal settlement between two liability insurances of a tractor-trailer combination – Karlsruhe locuta, causa non finita.

If in a tractor-trailer combination the owners of the tractor unit and the trailer are not the same person and two different liability insurers cover the respective operating risk, the question arises as to the internal settlement between the two liability insurances. Here, first the conflict-of-law issue to be dealt with is the source of law that is to be used to determine the relevant statute for recourse. In its decision of 3 March 2021, the Federal Court of Justice endorsed an alternative approach based on Article 19 of the Rome II Regulation and Article 7 para. 4 lit. b) of the Rome I Regulation in conjunction with Article 46d para. 2 of the Introductory Act to the German Civil Code (EGBGB) for a situation in which a German liability insurer of the tractor seeks half compensation from a Czech trailer insurer. In the opinion of the authors, the IV. Civil Senate had, in light of the European Court of Justice’s decision of 21 January 2016 in the joined cases C-359/14 and C-475/14, an obligation to refer to the Court in Luxembourg under Article 267 para. 1 lit. b), para. 3 TFEU. So, the solution via Art. 19 Rome II Regulation seems hardly convincing, at most a special rule on conflict of laws like Art. 7 para. 4 lit. b) Rome I Regulation. Whether and to what extent Article 7 para. 4 lit. b) Rome I Regulation can be instrumentalized to enforce § 78 para. 2 VVG old version via Article 46d para. 2 EGBGB, however, should have been finally clarified by the European Court of Justice. In particular, it seems doubtful whether Article 46d para. 2 EGBGB as a national rule, which goes back to Art. 7 para. 4 lit. b) Rome I Regulation, allows a provision such as § 78 para. 2 VVG old version to be applied as a mere recourse rule between two insurers. This applies all the more since no special public interests or interests of injured parties worthy of protection are affected here.

 

C. Mayer: Relevance of the place of marriage for determining the applicable law in relation to the formal requirements of proxy marriage and online marriage

The decisions of the Federal Court of Justice and the Düsseldorf Administrative Court concern a double proxy marriage in Mexico and an online marriage via live video conference with an official from the US state of Utah. In both cases, the spouses were themselves in Germany. Both decisions focus on the conflict of law determination of the applicable law in relation to the formal requirements of marriage. Due to the German conflict of law rules in Art. 11 and Art. 13 Para. 4 EGBGB, the place of marriage is decisive. The Federal Court of Justice concludes that the double proxy marriage took place in Mexico, which is why the marriage was formally valid under the applicable local law. The Dusseldorf Administrative Court rules that the online marriage was concluded in Germany, so that only German law is applicable and the marriage is therefore formally invalid due to the lack of participation of a registrar. Both cases reveal inconsistencies in German conflict of laws.

 

S. Deuring: The Purchase of Trees Growing in Brazil: Not a Contract Relating to a Right in rem in Immovable Property or a Tenancy of Immovable Property

ShareWood, a company established in Switzerland, and a consumer resident in Austria had entered into a framework agreement and four purchase contracts for the acquisition of teak and balsa trees in Brazil. When the consumer demanded the termination of the purchase contracts, the question arose of whether this demand could be based on Austrian law, even though the parties had agreed that Swiss law should apply. Siding with the consumer, the ECJ ruled that contractual arrangements such as the present one cannot be considered contracts relating to a right in rem in immovable property or tenancy of immovable property pursuant to Art. 6(4)(c) of the Rome I Regulation. The non-applicability of this provision entails the applicability of Art. 6(2) cl. 2 of the Rome I Regulation. According to the latter, a choice of law may not have the result of depriving consumers of the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence. In consequence, the consumer could, in fact, base his action on Austrian law.

 

C. Benicke/N. Suchocki: Judicial approval for disclaimer of interests given by parents for their minor children – Polish cases of succession at German courts and the role of the special escape clause in Art. 15 (2) CPC 1996

Polish probate courts demand for judicial approval of any disclaimer of interest given by parents for their minor children, even if such an approval is not required under the law applicable according to Art. 17 of the Child Protection Convention 1996. If German law is applicable due to Art. 17 CPC 1996, in most cases a judicial approval for the disclaimer of interest is not required according to § 1643 (2) p. 2 BGB. As a consequence, German family courts having jurisdiction to issue a judicial approval according to Art. 5 (1) CPC 1996 cannot do so, because under German law, applicable according to Art. 15 (1) CPC 1996 no judicial approval can be issued if not required by the substantive law applicable according to Art. 17 CPC 1996. This leads to the situation that no valid disclaimer of interest can be made, even though both jurisdictions would allow it in a purely domestic case. Therefore, the question arises as to whether in such cases a German family court may issue a judicial approval due to Art. 15 (2) CPC 1996, which exceptionally allows to apply or take into consideration the law of another State with which the situation has a substantial connection. One of the various regulatory purposes of the special escape clause in Art. 15 (2) CPC 1996 consists in allowing the court to adjust the lex fori in order to solve an adaptation problem as it is in this case. The Higher Regional Court Hamm issued such a judicial approval in taking into consideration that the Polish law requires a judicial approval for the disclaimer of interest. We agree with the OLG Hamm in the result, but not in the justification. As Art. 15 (2) CPC 1996 refers only to Art. 15 (1) CPC 1996 the taking into consideration of Polish law cannot overrule that the law applicable according to Art. 17 CPC 1996 does not require a judicial approval. To solve the adaptation problem, it suffices that German law applicable according to Art. 15 (1) CPC 1996 is modified in so far that it allows the formal issuance of a judicial approval even though such an approval is not required by the substantive law applicable according to Art. 17 CPC 1996.

 

R. Hüßtege: German procedural law for obtaining a decision that the removal or retention of a child was wrongful – present and future

Art. 15 of the Hague Convention on the civil aspects of international child abduction requests that the applicant should obtain from the authorities of the State of the habitual residence of the child a decision that the removal or retention was wrongful within the meaning of Article 3 of the Convention. The procedure for obtaining the decision is regulated incomplete in the German implementation law. Most of the problems raised will, however, be remedied by the reform of the German implementing act.

 

P. Schlosser: Recognition even if service of the document initiating the proceedings had not taken place?

The author is submitting that Art. 22 of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides only one alternative for refusing recognition to a maintenance Judgment (“may be refused”) and that, therefore, more liberal provisions in national Law are upheld. The German code of civil procedure, § 328, seems not to be more liberal, but must be seen in the light of the overwhelming principle of safeguarding the right to be heard in court. Yet, this principle is well safeguarded, if the proposed victim in the subsequent proceedings of exequatur gets a chance to assert what he would have asserted in the original litigation but, thereby, he had no chance to achieve a different result. Under these circumstances the contrary solution would amount to a refusal of justice to the other party.

 

B. Heiderhoff: Refugees and the Hague Child Abduction Convention:

The ECJ held that the removal of a child cannot be wrong ful in the sense of Article 2(11) of Regulation No 2201/2003 (now Article 2 sec 2(11) of Regulation No 2019/1111), if the parent has complied with a decision to transfer under Regulation (EU) No 604/2013 by leaving the country. This decision makes a valid point, but seems too general and reaches too far. The contribution shows that the integration of family law and migration law is insufficient and urges better coordination between the actors to achieve better protection of the child.

 

T. Frantzen: Norwegian International Law of Inheritance

Norway adopted a new act on inheritance and the administration of estates in 2019. The act came into force on 1 January 2021. The new act is based on the principles of the act on inheritance from 1972 and the act on administration of estates from 1930. This means that descendants may claim a forced share of 2/3 of the estate, however with a limitation of approximately 150,000 Euro. With the new act the amount has been increased, and it is regulated each year. A surviving spouse may, as before, claim a legal share. The spouse may alternatively choose to take over the so-called undivided estate. This means that the division of the estate is postponed.

Until the new succession act was adopted, Norwegian choice of law rules on succession were based on customary law. The general principle was that succession was governed by the law of the State in which the deceased had her/his last domicile, and that there was no, or a very limited space, for party autonomy.

The new act decides that the administration of estates may take place in Norway if the deceased had her/his last habitual residence in Norway. When it comes to succession, the main rule is that succession is governed by the law of the State where the deceased had her/his last habitual residence. Party autonomy is introduced in the new act, as a person may choose that succession shall be governed by the law of a State of which he or she was a national. The decision on the choice of law is however not valid if the person was a Norwegian citizen by the time of death. The few provisions on choice of law are based on the EuErbVO.

 

C. Jessel-Holst: Private international law reform in North Macedonia

In 2020, North Macedonia adopted a new Private International Law Act which replaces the 2007 Act of the same name and applies from 18.2.2021. The new Act amounts to a fundamental reform which is mainly inspired by the Acquis communautaire. It also refers to a number of Hague Conventions. The Act contains conflict-of-law rules as well as rules on procedure. Many issues are regulated for the first time. The concept of renvoi is maintained but the scope of application has been significantly reduced. As a requirement for the recognition of foreign judgments the Act introduces the mirror principle. As was previously the case, reciprocity does not constitute a prerequisite for recognition and enforcement.