Third-party Funding and E-Justice in International Dispute Resolution – Jean Monnet Module Annual Conference – 20 July 2021, Università degli Studi, Milan [live streaming]

On July 20, 2021 (14.00 – 19.00), Università degli Studi, Milan will host (in streaming) the Annual Conference of the EU-funded project Jean Monnet Module on “Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe”.

The topic of this year – “Incentives and Challenges to Transnational Access to Justice” – will be addressed by distinguished panelists in two Round-Tables on, respectively, Third-party Funding in International Dispute Resolution and E-Justice in International Dispute Resolution.

The event is organized with the support of the Eramus+Programme of the European Union, the Centre of Research on European and Transnational Dispute Settlement (EUTraDiS), the European Court of Arbitration (CEA) and the Jean Monnet Chair on EU Health Legal Framework and Competition Law (EHCL).

Please find here the complete programme.

Registration is due by 15 July 2021, by completing and submitting this registration form (also referred to in the flyer).

For any information, please contact Prof. Albert Henke (albert.henke@unimi.it)

Bonomi, Wautelet and others on matrimonial property: a brief review

Andrea Bonomi and Patrick Wautelet, with the cooperation of Ilaria Pretelli, Eva Lein, Guillaume Kessler, Sara Migliorini and Konstaninos Rokas published Le droit européen des relations patrimoniales de couple (Bruylant). This is an extensive commentary (1368 pages) on the EU Regulations on Matrimonial Property (2016/1103) and on the Property Consequences of Registered Partnerships (2016/1104). These regulations came about through the process of enhanced cooperation and are in force in eighteen of the twenty-seven EU Member States.

The book is similar to the Commentary on the EU’s Succession Regulation (650/2015), Le droit européen des successions by the same main authors.

The book starts with an elaborate introduction which sets the context and gathers information on the preparatory steps towards the regulations (the kind of thing we miss since we don’t have an official report on the Regulations). It refers the reader to various studies and opinions that were produced in the preparatory phase. The introduction further sets out the main characteristics of the Regulations, which the authors have identified as the following:

  • one single attachment;
  • unchangeability of the applicable law;
  • preference for party autonomy;
  • coordination with other EU regulations on related matters;
  • dissociation between jurisdiction and applicable law.

The authors also point out the drawbacks of some of the choices that the legislator made, such as that courts often have to apply foreign law, and that different legal systems might apply to divorce, maintenance, succession and matrimonial property if couples move across borders.

After an explanation of the scope of application (material, temporal and spatial), the commentary follows an article-by-article approach. Every article is discussed in detail, in the context of  legislation and case law (on the EU and Member State levels) and a wealth of legal literature. The reader is offered sound theory combined with practical examples in the form of (fictitious) cases. The makes the book a useful tool for practitioners, judges, notaries and academics alike.

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 4/2021: Abstracts

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

O. Remien: The European Succession Regulation and the many questions of the European court practice – five years after entry into force

After five years of application of the European Succession Regulation it is time to have a look at European court practice: The general connecting factor of habitual residence has somehow been addressed by the European Court of Justice (ECJ) in E.E., but especially national court practice shows many interesting cases of the necessary overall assessment. Choice of law by the testator is particularly important and a notary should point not only at the present situation, but also at possible developments in the future. Estate planning has become more interesting. The legacy per vindicationem (Vindikationslegat, i.e. with in rem effect) recognized in Kubicka poses specific problems. The position of the surviving spouse under § 1371 BGB in German law has become a highly debated subject and here the aspect of free movement of persons is highlighted. The European Succession Certificate also raises many questions, among them the applicability of the competence rules in case of national notarial succession certificates or court certificates, cases Oberle, WB and E.E.. The article pleads for an equilibrated multilateral approach. Donation mortis causa will have to be dealt with by the ECJ soon. Five years of application of the Succession Regulation – and many questions are open.

 

P. Hay: Product Liability: Specific Jurisdiction over Out-of-State Defendants in the United States

“Stream of commerce” jurisdiction in American law describes the exercise of jurisdiction in product liability cases over an out-of-state enterprise when a product produced and first sold by it in another American state or a foreign country reached the forum state and caused injury there. The enterprise cannot be reached under modern American rules applicable to “general” (claim unrelated) jurisdiction. Can it be reached by exercise of “specific” (claim related) jurisdiction even though it did not itself introduce the product into the forum state? This is an important question for interstate American as well as for foreign companies engaged in international commerce. The applicable federal constitutional limits on the exercise of such “stream of commerce” jurisdiction have long been nuanced and uncertain. It was often assumed that the claim must have “arisen out of” the defendant’s forum contacts: what did that mean? The long-awaited U.S. Supreme Court decision in March 2021 in Ford vs. Montana now permits the exercise of specific jurisdiction when the claim arises out of or is (sufficiently) “related” to the defendant’s in-state contacts and activities. This comment raises the question whether the decision reduces or in effect continues the previous uncertainty.

 

W. Wurmnest: International Jurisdiction in Abuse of Dominance Cases

The CJEU (Grand Chamber) has issued a landmark ruling on the borderline between contract and tort disputes under Article 7(1) and (2) of the Brussels I-bis Regulation. Wikingerhof concerned a claim against a dominant firm for violation of Art. 102 TFEU and/or national competition law rules. This article analyses the scope of the ruling and its impact on actions brought against dominant firms for violation of European and/or national competition law and also touches upon the salient question as to what extent such disputes are covered by choice of court agreements.

 

C.F. Nordmeier: The waiver of succession according to Art. 13 Regulation (EU) 650/2012 and § 31 IntErbRVG in cases with reference to third countries

According to Art. 13 Regulation (EU) 650/2012, a waiver of succession can be declared before the courts of the state in which the declarant has his habitual residence. The present article discusses a decision of the Cologne Higher Regional Court on the acceptance of such a declaration. The decision also deals with questions of German procedural law. The article shows that – mainly due to the wording and history of origin – Art. 13 Regulation (EU) 650/2012 presupposes the jurisdiction of a member state bound to the Regulation (EU) 650/2012 to rule on the succession as a whole. Details for establishing such a jurisdiction are examined. According to German procedural law, the reception of a waiver of succession is an estate matter. If Section 31 of the IntErbRVG is applicable, a rejection of the acceptance demands a judicial decree which is subject to appeal.

 

P. Mankowski: The location of global certificates – New world greets old world

New kinds of assets and modern developments in contracting and technology pose new challenges concerning the methods how to locate assets. In many instances, the rules challenged are old or rooted in traditional thinking. Section 23 of the German Code of Civil Procedure (ZPO) is a good example for such confrontation. For instance, locating global certificates requires quite some reconsideration. Could arguments derived from modern legislation like the Hague Intermediated Securities Convention, Art. 2 pt. (9) EIR 2015 or § 17a DepotG offer a helping hand in interpreting such older rules?

 

S. Zwirlein-Forschner: All in One Star Limited – Registration of a UK Company in Germany after the End of the Brexit Transition Period

Since 1 January 2021, Brexit has been fully effective as the transition period for the UK has ended. In a recent decision, the Federal Court of Justice (BGH) has taken this into account in a referral procedure to the Court of Justice of the European Union (CJEU). The decision raises interesting questions on the demarcation between register law and company law, on conflict of laws and on the interpretation of norms implementing EU law. This article comments on these questions.

 

K. Sendlmeier: Informal Binding of Third Parties – Relativising the Voluntary Nature of International Commercial Arbitration?

The two decisions from the US and Switzerland deal with the formless binding of third parties to arbitration agreements that have been formally concluded between other parties. They thus address one of the most controversial issues in international commercial arbitration. Both courts interpret what is arguably the most important international agreement on commercial arbitration, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The Supreme Court has ruled that the Convention does not preclude non-signatories from being bound by arbitration based on equitable estoppel in US arbitration law. In the Swiss decision, the binding nature of a non-signatory is based on its interference in the performance of the main contract of other parties. According to the established case law of the Swiss Federal Tribunal, this binding approach does not conflict with the New York Convention either.

 

K. Bälz: Can a State Company be held liable for State Debt? Piercing of the Corporate Veil vs. attribution pursuant to Public International Law – Cour d’appel de Paris of 5 September 2019, No. 18/17592

The question of whether the creditor of a foreign state can enforce against the assets of public authorities and state enterprises of that state is of significant practical importance, particularly in view of the increasing number of investment arbitrations. In a decision of 5 September 2019, the Paris Court of Appeal has confirmed that a creditor of the Libyan State can enforce an arbitral award against the assets of the Libyan Investment Authority (LIA), arguing that – although the LIA enjoys separate legal personality under Libyan law – it was in fact an organ (émanation) of the Libyan State, that was functionally integrated into the state apparatus without clearly separated assets of its own. This approach is based on public international law concepts of state liability and diverges from corporate law principles, according to which a shareholder cannot generally be held liable for the corporation’s debts.

 

O.L. Knöfel: Liability of Officials for Sovereign Acts (acta iure imperii) as a Challenge for EU and Austrian Private International Law

The article reviews a decision of the Supreme Court of the Republic of Austria (Case 1 Ob 33/19p). The Court held that a civil action for compensation brought in Austria, by the victim of a downhill skiing accident, against a German school teacher on account of alleged negligence during a reconnaissance ride down an Austrian ski slope, does not constitute a “civil and commercial matter” under the Rome II Regulation, as it involves an actum iure imperii (Art. 1 cl. 1 Rome II Regulation). As a consequence, the Court applied German Law, relying on an alleged customary conflicts rule (lex officii principle), according to which indemnity claims against officials who act on behalf of the State are inevitably and invariably governed by the law of the liable State. Finally, the Court held that an action brought directly against a foreign official in Austria is not barred by sec. 9 cl. 5 of the Austrian Act of State Liability (Amtshaftungsgesetz). The Court’s decision is clearly wrong as being at variance with many well-established principles of the conflict of laws in general and of cross-border State liability in particular.

 

E. Piovesani: Italian Ex Lege Qualified Overriding Mandatory Provisions as a Response to the “COVID-19 Epidemiological Emergency”

Art. 88-bis Decree-Law 18/2020 (converted, with modifications, by Law 27/2020) is headed “Reimbursement of Travel and Accommodation Contracts and Package Travel”. This provision is only one of the several provisions adopted by the Italian legislator as a response to the so-called “COVID- 19 epidemiological emergency”. What makes Art. 88-bis Decree-Law 18/2020 “special” is that its para. 13 qualifies the provisions contained in the same article as overriding mandatory provisions.

 

ISS Publication: The Kafalah in comparative and transnational perspective

The General Secretariat of the International Social Service (ISS) in Geneva has published an important bilingual study in English and French entitled:  “KAFALAH – Preliminary analysis of national and cross-border practices” – “La KAFALAH: analyse préliminaire de pratiques nationales et transfrontières” (2020).

For a general overview of the ISS and its relationship with PIL, see our previous post “The Role of the International Social Service in the History of Private International Law,” written by Roxana Banu.

Below is a summary of the publication “KAFALAH – Preliminary analysis of national and cross-border practices” based on the foreword drawn up by Hans van Loon, Member of the Institut de Droit International and Former Secretary General of the Hague Conference on Private International Law, and Hynd Ayoubi Idrissi, Professor of Law at the Université Mohammed V and Member of the United Nations Committee on the Rights of the Child. 

By way of background, please note the difference between adoption and kafalah. As stated in this publication: “the very essence of adoption is the creation of a stable legal and social filiation bond between the adoptee and his/her adoptive  parent(s)  and  (in  full  adoption)  the  cessation  of  the biological bond with the family of origin. From a Western perspective,  this  is  the  main  criterion  for  differentiating  between  adoption  and  kafalah.  From the perspective of countries whose legal systems are based on or influenced by Sharia, despite the specificities of each country, reference is often made to a common approach to adoption – that is, its prohibition.”  (p.15). As to its meaning, “Kafalah is a child protection measure in countries whose legal systems are based on or influenced by Islamic law (Sharia […]). Its effects vary greatly from one country to the next” (p. 4).

***

Despite its modest title, this publication covering 222 pages is a unique and undoubtedly one of the most extensive studies carried out on the institution of the kafalah (also spelled kafala). The kafalah is widely applied in countries whose legal system is based on or influenced by Sharia law. For those countries (except for a minority that also recognise adoption) kafalah is the preeminent child care measure for children without a family environment or with one that is at risk of breakdown. Although the kafalah increasingly interacts with the legal systems of Western countries, it is not well-known or understood in Europe, the Americas, Australia and New Zealand. The impetus of this study came from the practical experience of ISS’s International Reference Centre for the Rights of Children Deprived of the Family at the International Social Service (ISS/IRC), which showed that this lack of understanding can seriously affect children deprived of parental care in cross-border situations.

Following the introduction, Part I sets the international scene of kafalah. An important step to greater international recognition of this institution as an alternative care measure for children deprived of their families was the specific reference to kafalah in the Convention on the Rights of the Child (1989), followed by its inclusion as a child protection measure in the Hague Child Protection Convention (1996) and the UN Guidelines on the Alternative Care of Children (2009). Part I then continues analyzing the various forms, structures and functions of kafalah, comparing it to other protection measures such as adoption, and noting the Western perspective on kafalah.

Part II provides an extensive and detailed overview of the implementation of kafalah and analogous institutions in countries whose legal system is based on or inspired by Sharia law, with in-depth studies on Egypt, Iran, Iraq, Jordan, Morocco, Pakistan, Sudan, Djibouti, Lebanon, Malaysia, and Tunisia, and practical comments and suggestions by ISS/IRC for each State.  It analyses the many social problems surrounding kafalah in these States, several of which have very large populations (e.g., Indonesia, Pakistan, Egypt, Iran) or must deal with large numbers of displaced or refugee families and children (e.g., Iraq, Lebanon). Many of these countries are facing poverty, lack of adequate infrastructures for the protection of children and families, stigmatization of single mothers, child abandonment, and child labour, among others. A Technical Note provided by ISS/IRC mentions many ongoing efforts to regulate kafalah in order to better protect children’s rights, and suggests a number of issues to consider, offering practical tools to national stakeholders, including a compelling case study on “Preventing unjustified family separation”.

Part III addresses the recognition of kafalah and analogous institutions in “receiving States”. It starts with a Case Study on “The crucial questions to ask oneself as a professional in a receiving State”, when confronted with a kafalah issue, with alternative suggestions for possible approaches. Then follow: a discussion of the principle of subsidiarity in cross-border kafalah placements; “Considerations about the (non)-applicability of the 1993 Hague Convention to cross-border kafalah placements” by Laura Martínez-Mora (Secretary at the Hague Conference); and a discussion of the 1996 Hague Convention on Child Protection as an international framework for cross-border kafalah. See in particular the interview with Hans van Loon “4. The 1996 Hague Convention on Child Protection: An international framework for cross-border kafalah?,” which provides an insight into the interaction between Kafalah and the modern Hague Children Conventions (pp. 135-137).

Part III concludes with a comprehensive analysis of the treatment of kafalah in several receiving States: Australia, Belgium, Denmark, France, Germany, Italy, New Zealand, Norway, Spain, Switzerland, and the United States of America. Like Part II, Part III concludes with a Technical Note with a summary of positive trends as well as common challenges regarding the kafalah in receiving States, during the four different stages of (1) the pre-placement process; (2) the decision to establish a Kafalah; (3) the transfer of the child and immigration considerations; and (4) the treatment of the kafalah in the receiving State and post-placement considerations.

The study concludes with four Annexes and an extensive bibliography (see in particular Annex IV).

Annex I: Historical and contemporary considerations on Sharia Law, by M. Keshavje Mohammed, a renowned international specialist on cross cultural mediation, offers helpful background insights on the legal systems where kafalah is practiced.

Annex II: International case law relating to kafalah provides an overview and analysis of cases dealt with by the European Court of Human Rights and the UN Committee on the Rights of the Child.

Annex III: EU l instruments applicable to kafalah, deals with the European Union Directives on Family Reunification Directive and the Citizens’ Rights Directive and presents case law of the Court of Justice of the European Union.

Annex IV: Tools to foster strengthened cross-border cooperation. This Annex suggests and develops the possibility of strengthening cooperation between kafalah and non-kafalah States through a bilateral agreement. To that end it presents (1) a Checklist for the establishment of such a bilateral agreement: how to ensure better protection of children placed abroad under a kafalah in (and beyond) the context of the 1996 Hague Convention, and (2) a Model for the establishment of such an agreement regarding the cross-border placement of children in a foster family or institution, or their provision of care by kafalah or an analogous institution. It offers one Model for States that are both bound by the 1996 Hague Convention, and another, more extensive, one for States that are not both bound by the 1996 Hague Convention.

Annex IV concludes with a brief overview, written by Justice V. Bennett and M. MacRitchie, on the benefits of direct judicial communication and sharing the Australian experience on how direct judicial communication could be applied to cross-border kafalah placements

Virtual Workshop (in English) on July 6: Hannah Buxbaum on Equivalence Regimes in Transnational Regulation: From Comparability to Convergence

Hannah Buxbaum
On Tuesday, July 6, 2021, the Hamburg Max Planck Institute will host its twelfth monthly virtual workshop in private international law at, exceptionally, 15:00-16:30. Since January of this year, we have been alternating between English and German language. Hannah Buxbaum (Indiana University) will speak, in English, about the topic

Equivalence Regimes in Transnational Regulation: From Comparability to Convergence

The presentation will be followed by open discussion. All are welcome. More information and sign-uphere
This is the twelfth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in JulyGiesela Rühl in SeptemberAnatol Dutta in OctoberSusanne Gössl in November, Marc-Philippe Weller in DecemberMacjiej Szpunar in January, Dagmar Coester-Waltjen in FebruaryHoratia Muir Watt in MarchBurkhard Hess in April, Marta Pertegas in May, and Tania Domej in June. The series will take a summer break in August and return in September. Stay tuned!
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

 

 

 

 

Video Recording of the Nigeria Group on Private International Law Inaugural Lecture

The Nigeria Group on Private International Law held its inaugural lecture on June 21, 2021. The video recording of the event is now available on the Group’s website: here
 

CJEU on the effects of European Certificate of Succession and its certified copy in the case Vorarlberger Landes- und Hypotheken-Bank, C-301/20

Back in April we reported about the Opinion delivered by AG Campos Sánchez-Bordona in the case Vorarlberger Landes- und Hypotheken-Bank, C-301/20, which revolves around the effects produced by an European Certificate of Succession and its certified copy, time-wise (first and third questions) as well as ratione personae, by reason of the person concerned (second question). At the request of the Court, the Opinion covered only the third preliminary question. In today’s judgment, the Court addresses all three questions.

Read more

HCCH Monthly Update: June 2021

Conventions & Instruments  

On 31 May 2021, Georgia deposited its instrument of accession to the HCCH 1965 Service Convention and the HCCH 1970 Evidence Convention. With the accession of Georgia, the Service Convention now has 79 Contracting Parties. It will enter into force for Georgia on 1 January 2022, subject to the Article 28 procedure. For the Evidence Convention, with the accession of Georgia it now has 64 Contracting Parties. The Convention will enter into force for Georgia on 30 July 2021. More information is available here.

Meetings & Events 

On 1 June 2021, the HCCH and the Asian Business Law Institute co-hosted the webinar “HCCH 1970 Evidence Convention and Remote Taking of Evidence by Video-link”, part of the ongoing celebrations of the Evidence Convention’s golden anniversary. More information is available here.

On 1 June 2021, the HCCH participated in a virtual Regional Discussion on Children’s Rights and Alternative Care, organised by the Council of Europe in preparation to the United Nations Committee on the Rights of the Child Day of General Discussion on this theme. More information is available here.

On 21 June 2021, the HCCH participated in the virtual inaugural event of the Nigeria Group on Private International Law. The recording of the event is available here.

 

Vacancy: The HCCH is currently seeking an Assistant Legal Officer. The deadline for the submission of applications is 23 July 2021 (00:00 CEST). 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.

Series: Webinar climate change litigation – 1 July

The ERC Building EU Civil Justice team in Rotterdam is running a series of seminars, covering a variety of topics in the field of European civil justice and international litigation.

On Thursday 1 July, 16-18 hrs CET, the webinar is dedicated to the topic Representing Future Generations: Private Law aspects of Climate Change Litigation. Speakers are Chantal Mak, Geert Van Calster and Sanne Biesmans, and the panel is moderated by Jos Hoevenaars. They will address the relationship between climate litigation, fundamental rights and the role of European judges; private international law aspects of climate litigation and strategic aspects; and liability aspects of climate litigation and implications of the recent Dutch Shell judgment (see our earlier blogpost).

Participation is free of charge. You can register here at Eventbrite.

The two remaining sessions of the series are dedicated to:
  • The Arbitralization of Courts – Friday, 2 July (09:30-11:30 CET), with Georgia Antonopoulou and Masood Ahmed as speakers and moderated by Xandra Kramer (register)
  • European Civil Justice in Transition: Past, Present & Future Thursday 15 July  (15.30-17.30 CET) with Alan Uzelac, Burkhard Hess, John Sorabji and Eva Storskrubb, moderated by Alexandre Biard and Xandra Kramer (register)

Just published: Cerqueira’s article on “International Commission on Civil Status. A unique, exemplary and necessary International Organization” translated into German

The summary below has been kindly provided by the author:

The International Commission on Civil Status has been working for seventy years for international cooperation in the field of civil status. In this period, 34 Conventions and 11 Recommendations were adopted. Notably, the Commission developed innovative methods, for example, multilingual Forms and Coding of entries in order to overcome translation problems related to civil status documents. Its results are remarkable to a point that some of its instruments serve as a model specially for the European Union.

Despite all the work already accomplished and the many projects still existing, the International Commission on Civil Status is now in risk of vanishing, mainly because of France and Germany’s recent withdrawal.

Still, its know-how is vital in the face of the new challenges posed by changes in the civil status of persons: same-sex marriage, medically assisted reproduction, surrogate motherhood, etc. In this context and for the common interest of present and future generations, rather than abandoning the Commission and the question of civil status in the international arena, it is more than ever time to get involved, by joining it and actively participating in its work.

In that perspective, the article constitutes a plea intended to convince the German authorities of course, but also those of other States, former members of the International Commission on Civil Status or not, to invest in it in order to save an institution which works in an essential field for private relations of an international character.

Such an investment would be all the more appropriate given that the International Commission on Civil Status has fundamentally changed its statutes and its mode of operation in recent years. For example, English is now the second official language of the Commission beside French.

These efforts must henceforth be accompanied. If this were not the case, the risk of losing all the patiently drawn up normative acquis which goes well beyond civil status in the strict sense but also affects family and nationality law exists.

The article is part of an awareness campaign carried out by eminent Authors for several months now.

 

Source: G. Cerqueira, « Internationale Kommission für das Zivilstandswesen. Eine einzigartige, beispielhafte und notwendige internationale Organisation», StAZ Das Standesamt, n. 6, Juni, 2021, p. 169-170.