HCCH Vacancy: (Assistant) Legal Officer

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a(n) (Assistant) Legal Officer. The successful candidate will begin work in the field of international commercial and financial law and will gradually also be expected to carry out work in other areas, including family law.

Applications should be submitted by Sunday 2 May 2021 (00:00 CEST). For more information, please visit the Recruitment section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH). 

The HCCH Child Abduction Convention and the grave risk exception: A petition for a writ of certiorari is pending before the US Supreme Court – Golan v. Saada

A petition for a writ of certiorari has been filed before the US Supreme Court in a case concerning the HCCH Child Abduction Convention and the grave risk exception (art. 13(1)(b)). The issue at stake is: Whether, upon finding that there is a grave risk that a return would expose a child to physical or psychological harm (or intolerable situation), a district court is required to consider ameliorative measures (in other words, undertakings) to facilitate the (safe) return of the child. For the exact wording of the petition, see below. 

Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition).This petition has been docketed as Golan v. Saada, No. 20-1034. This petition and other documents relating to this case have been distributed for the Conference of today – 1 April 2021.

“QUESTION PRESENTED

The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is:

Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.”

With regard to this issue, there is indeed a split in the US circuits (as well as state courts). 

According to the petition “The First, Eighth, and Eleventh Circuits have indicated that, once a district court determines that there is a  grave  risk  that  the  child  will  be  exposed  to  harm,  the  court need not consider any ameliorative measures,” whereas  “the Second, Third, and Ninth Circuits require a district court to consider a full range of ameliorative  measures  that  would  permit  return  of  the  child,  even when the court finds that there is a grave risk that a child’s return would expose that child to physical or psychological harm.” This case originated in the Second Circuit.

The split in the US circuits has been acknowledged by practitioners, see for example, James D. Garbolino, Federal Judicial Center, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, Second Edition (2015), 137-147 (see in particular p. 143. – but a few different circuits are mentioned, which attest to the confusion of practitioners). Accordingly, in my personal opinion, there is definitely merit in raising this issue before the US Supreme Court.

We will keep you informed as to whether this petition is granted or refused.

HCCH Monthly Update: March 2021

Meeting of the Council on General Affairs and Policy

The Council on General Affairs and Policy (CGAP) of the HCCH met online from 1 to 5 March 2021, with over 350 participants. Over the course of five days, HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead. More information is available here.

Several important developments relating to Membership and HCCH Conventions occurred during the meeting:

  • Thailand deposited its instrument of acceptance of the Statute, becoming the 88thMember of the HCCH.
  • El Salvador applied to become a Member of the HCCH. Following a six-month voting period and provided a majority of votes have been cast in its favour, El Salvador will be invited to become a Member by accepting the Statute of the HCCH.
  • Israel signed the HCCH 2005 Choice of Court Convention and the HCCH 2019 Judgments Convention. The 2005 Choice of Court Convention, which currently binds 31 States and the EU, will enter into force for Israel only after it deposits an instrument of accession or ratification. Although the 2019 Judgments Convention is not yet in force, Israel is the third signatory to the Convention.

More information on these developments is available here.

Finally, as customary the meeting coincided with the publication of the Annual Report of the HCCH. The 2020 Annual Report can be downloaded or ordered here.

Other Meetings & Events

On 15 and 18 March, the HCCH and the International Union of Judicial Officers co-hosted a webinar on the application of the 1965 Service Convention and the 2019 Judgments Convention aimed at judicial officers and other legal professionals. Recordings of the webinar are available here in English and here in French.

On 18 March, the HCCH and the Ministry of Foreign Affairs of Japan co-hosted a webinar on the HCCH 1980 Child Abduction Convention in the Asia Pacific, attended by judges and officials of Central Authorities from 12 countries and regions in the Asia Pacific. More information is available here.

On 30 March, the HCCH participated in the virtual High Level Conference “Protecting Vulnerable Adults across Europe – the Way Forward”, organised by the Ministry of Justice of Portugal, the European Commission and the European Union Agency for Fundamental Rights under the auspices of the Portuguese Presidency of the Council of the European Union. The recording of the conference 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.

European Commission: Experts’ Group on the Recognition of Parenthood between EU Member States

The European Commission (EC) has issued a call for experts to join an Experts’ Group on the Recognition of Parenthood between the Member States of the European Union (EU).

Families are increasingly mobile as they move and travel between the Member States of the EU. Yet, given the differences in Member States’ substantive and conflict of laws rules on parenthood, families may face obstacles in having the parenthood of their children recognised when crossing borders within the Union.

The EC is preparing a legislative initiative on the recognition of parenthood between the Member States of the European Union. The goal of this initiative is to ensure that children will maintain their rights in cross-border situations, in particular where families travel or move within the Union.

In this context, the EC seeks experts to advise it in the preparation of this legislative initiative. Experts must have proven and relevant competence and experience at EU and / or international level in areas relevant to the recognition of parenthood between EU Member States. In particular, the members of the Expert Group must be experts in one or more of the following areas:

  • private international law on family matters;
  • Member States’ law, and comparative law, on the establishment and recognition of parenthood;
  • Union case law on free movement, name and nationality;
  • fundamental rights and related case law, in particular under the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR) on or affecting parenthood and nationality; and / or
  • the rights of the child and related case law.

The members of the Expert Group will be appointed in their personal capacity to represent the public interest. The call is not limited to experts with the nationality of one of the EU Member States.

The call for experts will run until 23 April 2021. Details about the call can be found at the following here.

this information was provided by Ms Lenka Vysoka, EC.

Virtual Workshop on April 6: Burkhard Hess on Comparative Procedural Law and Justice (in German)

On Tuesday, April 6, 2021, the Hamburg Max Planck Institute will host its ninth monthly virtual workshop in private international law at 11:00-12:30. Since January of this year, we are alternating between English and German language. Burkhard Hess (Max Planck Institute Luxemburg for Procedural Law)  will speak, in German, about the topic

„Comparative Procedural Law and Justice – neue Wege in der Prozessrechtsvergleichung
(“Comparative Procedural Law and Justice – New Avenues for Comparative Civil Procedure”

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
This is the ninth 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 February, and Horatia Muir Watt in March. In May we will again have an English language event – stay tuned!
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

Out now: the Swiss IPRG in English

Information and text provided by Niklaus Meier, co-head of the Private International Law Unit at the Swiss Federal Office of Justice

The Swiss Federal Act on Private International Law (FAPIL), adopted in 1987, has had – and still has – a huge influence throughout the world. It is “possibly the most complete codification of private international law worldwide” (Kadner Graziano, Journal of Private International Law. 2015, vol. 11, no. 3, p. 585: “Codifying European Private International Law: The Swiss Private International Law Act – A Model for a Comprehensive European Private International Law Regulation?”) and has influenced PIL codifications in many countries (Kadner Graziano, p. 589-90).

The global relevance of the Swiss Federal Act on PIL led to numerous translations, testament of its international character. Complete translations have been published by Prof. Andreas Bucher (last updated 2021): www.andreasbucher-law.ch; Umbricht attorneys (2017): www.umbricht.ch/de/schweizerisches-internationales-privatrecht-iprg; Gehri/Walther (2010): www.schulthess.com/verlag/detail/ISBN-9783280072509/Gehri-Myriam-A.-Walther-Fridolin/Swiss-Laws-on-Civil-Procedure; the Swiss-American Chamber of Commerce (2nd edition 2004, 1st edition 1989); and Karrer/Arnold/Patocchi (1994): Switzerland’s Private International Law (Schulthess/Kluwer). In addition, chapter 12 on arbitration has been translated by actors active in the field, such as the Swiss Arbitration Association (www.arbitration-ch.org/en/arbitration-in-switzerland/index.html).

Translation is a difficult task: “Mastery of the languages involved is necessary, but not sufficient, particularly where the user of a translation expects a literal translation, the legal systems of the starting languages and target language differ fundamentally and the subject matter is highly abstract.” (Walter König, 11 Mich. J. Int’. L. 1294 (1990), 1295, “Translation of Legal Texts: Three English Versions of the Swiss Federal Statute on Private International Law”). Indeed, a civil law codification usually “contains many legal terms which either do not exist in common law jurisdictions or have different connotations in the case of literal translations”.

In recent years, the importance of English versions of the Swiss legal texts has grown. To give just one example: Article 4.4 of the Swiss-Chinese Free Trade Agreement (page 23) explicitly states (under the heading “transparency”) that “Each Party shall promptly publish on the Internet, and as far as practicable in English, all laws, regulations and rules of general application relevant to trade in goods between China and Switzerland.” It goes without saying that the FAPIL is relevant for international trade.

Against this background, and in view of the growing demand for the availability of Swiss legal texts in English, the official publication platform for Swiss law (Fedlex) has now released the “official non-official” translation of the FAPIL: www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en. It is up to date as per February 2021 and includes the most recent DLT-related PIL amendments.

The character of the translation is “official” because it’s published on the official publication platform for Swiss law, which speaks for itself; but it nevertheless is of “non-official” nature only because “English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.” In can perhaps best be described as “officially non-official, but unofficially official”.

The translation is in large parts based on the translation published by Prof. Andreas Bucher, with the kind permission of the author. The translation does not aim to be (and is not) better than the various existing private translations of the FAPIL, which have provided useful guidance during the past decades. The translation simply wants to render the FAPIL more accessible to the international public, and in order to do so and in order to get approval for publication on the official publication platform for Swiss law, certain adaptations were necessary:

Where several choices of wording were possible, preference was given to expressions that are already in use in other translations of Swiss legislation (e.g. translations of the Swiss Civil Procedure Code, the Swiss Civil Code, or the Swiss Code of Obligations), in order to ensure coherence and consistency.

Due account was also given to the wording used in international conventions ratified by Switzerland (such as the numerous Hague Conventions).

In addition, the translation takes into account language requirements applicable to texts published by the Swiss federal administration, such as the use of gender-neutral language where appropriate and where possible; this led to the use of the “singular-they”, applicable to both female and male persons.

People who work in different languages and who have compared the different language versions of the FAPIL will have noted some differences between the French, German and Italian versions of the texts. For example, art. 151 para. 3 in the German version, translated with deepl, states that “This jurisdiction cannot be excluded by a choice of court agreement.”, whereas the French version starts the paragraph (again according to deepl) with “Notwithstanding a choice of court, …” In such circumstances, preference was given to the wording that seemed clearer and more in line with the interpretation given to the text by the Federal Supreme Court.

Traduire c’est trahir – translation is treason. Those who coordinated the translation (the Private International Law Unit at the Swiss Federal Office of Justice) are fully aware that critics will find areas for improvement. Feedback can be sent to ipr [at] bj.admin.ch. The translation will continue to be improved and updated in the years to come, in order to respond to new developments such as the upcoming revision of the chapter on succession law.

CJEU judgment on jurisdiction for unpaid public parking ticket in Obala i lucice, C-307/19

Back in November 2020, we reported about the Opinion delivered by Advocate General Bobek in the case Obala i lucice, C-307/19, in which he revisited the case law built upon the judgment of the Court of Justice in Pula Parking, C-551/15. This Thursday, the Court rendered its judgment in the case in question.

Read more

Book published: The Development and Perfection of Chinese Inter-Regional Conflict of Laws: From the Perspective of the Achievements of Hague Conference on Private International Law

Readers of this blog may be interested in the book (in Chinese) entitled, The Development and Perfection of Chinese Inter-Regional Conflict of Laws: From the Perspective of the Achievements of Hague Conference on Private International Law. click here (angle.com.tw), written by Meirong Zhang, associate professor at UCASS (University of the Chinese Academy of Sciences) Law School, Beijing.  It should be noted that this book was published in early 2020.

The book has four Parts: 1. The development of Chinese inter-regional conflict of laws and HCCH achievements, 2. Inter-regional civil and commercial jurisdiction, 3. Interregional choice of law rules, and 4. Inter-regional judicial assistance in civil and commercial matters. From the preface (in English) by Hans van Loon (former Secretary General of the Hague Conference on Private International Law (HCCH)):   

“Mainland China, Hong Kong Special Administrative Region (SAR), Macao SAR and Taiwan not only all have their own systems of substantive civil, commercial and procedural law, they also have their own rules of private international law or conflict of laws. As a result, each region has its own rules to determine whether its courts and authorities have jurisdiction to deal with a civil or commercial issue, what law applies to such issues, whether, and under what conditions, a foreign judgment may be recognised and enforced, and how to organize administrative and judicial assistance to foreign jurisdictions. Moreover, these rules apply, in principle, not only in the relations between each region and third States, but also in the relations between the four regions.

In this pioneering work, Meirong Zhang analyses the existing diversity of private international law systems in the four Chinese regions, and explores ways to better coordinate these rules, and improve communication and cooperation among the regions. In our days of increasing mobility of persons, goods, services, capital and information, both among the Chinese regions and in their relations with third States resulting in multiple and manifold cross-border legal issues, this is a question of eminent practical importance. Central to this study are the daily interests and concerns of individuals, families, companies and other entities in our increasingly interconnected, complex world.

The author has wisely chosen an approach to her research that is principled and pragmatic at the same time. Her starting point is the Chinese concept of “regional pluralism of legal systems”.

She points out that this principle has three dimensions: “first, equality between different legal regions; second, understanding and respect for each legal region’s characteristics and its autonomous public policy; third, mutual progress and benefits for all four legal regions based upon cooperation between the people across all four legal regions”. Therefore, mutual respect, based on the recognition of equal value of each legal system, and cooperation grounded in mutual respect should govern the future of interregional private international law in China.

Whilst “regional pluralism of legal systems” is the starting point, Meirong Zhang adds a second pillar to support her proposals: “Chinese inter-regional conflict of laws should also be the carrier of the good values and spirit of mankind”. It would be a mistake to view this as an expression of naive idealism, and to think that it would suffice to focus on the interregional situation isolated from the rest of the world. Firstly, the increase in interregional cross border contacts among the four Chinese regions is in part the result of increased global interaction. Indeed contemporary globalization blurs the boundaries between local including interregional, and global affairs as never before. Secondly, and in part as a result of globalization, people all over the world are increasingly faced with challenges common to humankind, whether one thinks of the risks to which children around the world are exposed in cross-border situations, the global financial system, or the global climate. Global issues should preferably [be] solved globally. Common global approaches based on sound values are not only desirable but in the end also more effective.

Basing her proposals on the two pillars “regional pluralism of legal systems” and “a community with a shared future for humanity”, the author turns to the work of the Hague Conference on Private International Law for inspiration for the future development of private international law among the four regions of China. She has good reasons to do so. Firstly, as she points out, to a various extent and in various ways, the private international law systems of all four regions have already been influenced by the work of the Hague Conference. Secondly, as she also reminds us, arrangements have recently been concluded between Chinese regions, namely Mainland China and Hong Kong SAR, which have borrowed provisions and language from Hague Conventions. Thirdly, and most fundamentally, the Hague instruments reflect both the spirit of the Chinese concept of “regional pluralism of legal systems” – mutual respect, based on the recognition of equal value of each legal system, and the need for close cooperation on that basis – and globally accepted values. All Hague instruments are carefully crafted texts, and the result of inclusive negotiations among experts and delegates representing States from all continents, based on sound comparative research and input from stakeholders from across the world.

Hague Conventions are primarily aimed to provide common legal frameworks for relations between States, and provide expressly that ratifying States are not bound to apply them to conflicts solely between different legal systems with such States. Therefore, when China joins a Hague Convention, the rules of that Convention do not thereby apply to the relations between Mainland China and the other three regions. However, as the arrangements between Mainland China and Hongkong SAR demonstrate, they may provide a model for a private international law regime for interregional relations. A model, not a straightjacket: Hague Conventions have always made room for specific local including regional needs.

It is on this basis that Meirong Zhang then examines whether and to what extent the work of the Hague Conference could serve as inspiration for a common private international law framework for the four Chinese regions. Successively, she deals with the issue of jurisdiction of the courts and authorities of the four regions (Chapters 2-3), interregional choice of law rules (Chapters 4-7), administrative and judicial cooperation, and recognition and enforcement of foreign judgments (Chapters 8-10). She does not advocate to slavishly copy the content of Hague Conventions into an interregional system. For example, and interestingly, she suggests that the specific characteristics of Chinese family realities may qualify or colour the notion of “the child’s best interests” (Conclusion Part II).

Obviously, an innovative work like this can only lay the foundation for more detailed reflections and research. But because the study is both principled and pragmatic, the groundwork it lays is strong. One senses the firm commitment of the author to the good causes of removing outdated and parochial obstacles to cross-border relationships and transactions, of facilitating the life of citizens in a complex mobile world, of safeguarding their civil interest and rights, of protecting weaker parties and vulnerable people and vital public interests and common global goods. Meirong Zhang has written a seminal study that will inspire many readers. It deserves a wide readership.” (Our emphasis)

 

UNCITRAL Model Law on Cross-Border Insolvency: No recognition for a US reorganization order in Greece

by Apostolos Anthimos

By virtue of Law Nr. 3858/2010, Greece has adapted its legislation to the UNCITRAL Model Law on Cross-Border Insolvency. The appearance of the law in practice is scarce; so is the case with respect to legal scholarship. A recent judgment by the Chamber of the Piraeus 1st Instance court [date of publication: 15/12/2020] demonstrates the pitfalls in the field of recognition.

THE FACTS

The applicant is a foreign company registered in the USA. It requested the recognition of an order issued by the United States Bankruptcy Court for the Southern District of New York. The order was issued in accordance with Chapter 11 of the United States Bankruptcy Code, following a motion for entry of an order authorising rejection of certain unexpired leases and granting related relief. The motion was submitted by the applicant and a number of subsidiary companies. The applicant clarified that it acts as a trustee of the business, in his capacity as debtor in possession. There’s no direct reference in the judgment’s text, but I presume that the applicable provision must have been § 1107, 11 U.S. Code [Rights, powers, and duties of debtor in possession].

THE RULING

The Greek court confirmed its jurisdiction by a simple reference to the Law 3858/2010 and domestic procedural rules. Despite the lack of reasoning, the court was indeed competent: all subsidiary companies were apparently registered in Greece. In addition, the applicant had presumably assets in the jurisdiction.

Moving ahead however, the court dismissed the request as inadmissible, referring to Articles 9 and 15(1) of the Law (same numbering with the Model Law). In particular, the court considered that the application was not filed by a foreign representative for the purposes of Article 15(1). The applicant failed to furnish the documents provided for in Article 15(2), or any other documents which would prove the above. The sole documents submitted were the US order and its notification (does not explain to whom); the latter do not suffice for proving the capacity of the applicant to act as a trustee in bankruptcy (= foreign representative).

In addition, the request was also unfounded and contrary to Greek public policy. In accordance with Greek perceptions, it is not admissible to request jointly recognition for the entire group of companies (as the court notes). Hence, the request contravenes Article 6, and is to be dismissed.

SHORT NOTE

The judgment of the court proves that the subject matter needs extensive elaboration in Greece. First, a sheer reference to the US statutes would have convinced the Greek court to overcome the first hurdle. § 1107, 11 U.S. Code reads as follows: (a) Subject to any limitations on a trustee serving in a case under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, and shall perform all the functions and duties, except the duties specified in sections 1106(a)(2), (3), and (4) of this title, of a trustee serving in a case under this chapter.

Second, the dismissal of the request by clinging to public policy is a recipe often followed when a court is faced with a different approach compared to domestic legislation. Unfortunately, the exceptional nature of the provision (see Article 6: …if the action would be manifestly contrary to the public policy of this State) did not convince the court to delve into the matter, and  discover some useful material tackling with the issue in question [see the UNCITRAL Legislative Guide on Insolvency Law – Part three: Treatment of enterprise groups in insolvency, p. 88: Although the Model Law has limited application in the enterprise group context, it is desirable that the access to courts and recognition of foreign proceedings it provides with respect to individual debtors also be provided with respect to insolvency proceedings involving members of the same enterprise group].

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2/2021: Abstracts

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

 

H.-P. Mansel/K. Thorn/R. Wagner: European Conflict of Law 2020: EU in crisis mode!

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from December 2019 until December 2020. It provides an overview of newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

 

C. Kranz: International private law aspects of taking security over membership rights in international financing transactions

In international financing transactions, pledges of membership rights play an important role. The private international law question, pursuant to which law the pledge is determined in the case of companies with a cross-border connection, cannot be answered in a generalised manner, but confronts those applying the law with some differentiations, in particular where membership rights have been certified in share certificates. The following analysis undertakes the attempt to clarify the key aspects from the perspective of German international private law.

 

F. Eichel: Choice of Court Agreements and Rules of Interpretation in the Context of Tort or Anti-trust Claims

In its rulings CDC (C-352/13) and Apple Sales (C-595/17) the ECJ gave a boost to the discussion on the range of choice of court agreements vis-à-vis antitrust claims. The article discusses a decision of the OLG München (Higher Regional Court of Munich, Germany) which has decided on this topic. In spite of a choice of court agreement pointing to Irish courts for “all suits to enforce this contract” (translation), the OLG München has held itself competent for antitrust claims, as – according to the reasons given – no interpretation of the contract was necessary. In the opinion of the author, this decision will no longer be relevant in Germany because it is not consistent with the decision Apple Sales, which has been rendered almost a year later. However, the reasons given by the OLG München are of particular interest, as it has made reference to the ECJ’s decision Brogsitter (C-548/12). Brogsitter is a decision on the range of the contractual jurisdiction of Art. 7 No. 1 Brussels Ia Regulation/Art. 5 No. 1 Lugano Convention 2007 vis-à-vis claims in tort. The present article has taken this as a reason to examine if the Brogsitter ruling can be understood as a “rule of interpretation” which comes into play once the intention of the parties of a choice of court agreement remains unclear. The article argues that in general the interpretation of choice of court agreements is subject to the lex causae of the main contract. However, with regard to torts and antitrust claims there are rules of interpretation arising from Art. 25 Brussels Ia Regulation itself. They are effective throughout the EU and are not influenced by the peculiarities of the national substantive law of the member states.

 

A. Kronenberg: Yet again: Negative consequences of the discrepancy between forum and ius in direct lawsuits after traffic accidents abroad

The Higher Regional Court (OLG) Saarbrücken had to decide upon appeal by a German-based limited liability company (GmbH) against a French motor vehicle liability insurer on various questions of French indemnity law and its interaction with German procedural law. The case once again highlights both well-known and less prominent disadvantages of the discrepancy between international jurisdiction and applicable law in actions which accident victims can bring directly against the insurer of the foreign party responsible for the accident at their place of residence.

 

M. Andrae: Once Again: On Jurisdiction when the Child’s Usual Residence Changes to Another Contracting Member State of the Hague Convention 1996

The discussed decision deals with the jurisdiction for a decision when it comes to a parent’s right of access. If at the time of the decision of the court of appeal the child has their habitual residence in a contracting state of the Hague Convention 1996 for the Protection of Children that is not a member state of the European Union, the Convention shall apply. For the solution it cannot be left open at which date the change of habitual residence occurred. If the change took place before the family court made the decision on the matter, the court of appeal must overturn this due to a lack of jurisdiction. This is done afterwards, the court of appeal lacks international jurisdiction to make a decision on the matter. The decision of the family court that has become effective remains in force in accordance with Art. 14 (1) Hague Convention 1996 until an amended decision by the authorities of the new habitual state of residence is made.

 

D. Stefer: Third-Party Effects of Assignment of Claims – Not a Case for Rome I

While an assignment of claims primarily involves the assignor, the assignee and the debtor of the assigned claim, it may nevertheless concern third parties that, though not directly involved in the transfer of the claim itself, may still be subjected to its effects. Such third parties can be creditors of the assignor, a liquidator or another potential assignee of the same claim. From a conflict of laws perspective, it is of particular relevance to determine which law applies to these thirdparty effects, since the outcome may differ depending on the jurisdiction. For instance, in case of multiple assignments of the same claim, German law gives priority to the assignment that was first validly concluded. Contrary to that, under Italian or English law priority will be given to that assignee who first notifies the debtor of the assignment. Yet, Article 14 of the Rome I Regulation does not contain an explicit rule governing the law applicable to third-party effects of an assignment. It is for that reason that the issue has been subject to constant debates. In particular, it was controversial to what extent the Rome I Regulation applied at all to the issue of third-party effects.

In BNP Paribas ./. Teambank AG, the Court of Justice recently held that no direct or implicit rule in that respect could be inferred from the Regulation. In the Court’s view, it was a deliberate choice of the EU legislature not to include rules governing the third-party effects of assignments of claims into the Regulation. Consequently, de lege lata the issue is subject to the national rules of private international law. Hence, under the rules of German private international law, the law applicable to the third-party effects of an assignment is the law that applies to the assigned claim.

 

F. Rieländer: The displacement of the applicable law on divorce by the law of the forum under Article 10 Rome III Regulation

In its judgment (C-249/19) the ECJ provided clarification on the interpretation of Article 10 of Regulation No 1259/2010 in a twofold respect. Firstly, Article 10 of Regulation No 1259/2010 does not lead to the application of the law of the forum if the applicable foreign law permits divorce, but subjects it to more stringent conditions than the law of the forum. Since Article 10 of Regulation No 1259/2010 applies only in situations in which the lex causae does not foresee divorce under any form, it is immaterial whether in the specific case the individual marriage can already be divorced or can still be divorced according to the applicable foreign law. Secondly, the ECJ held that the court seised must examine and establish the existence of the substantive conditions for a mandatory prior legal separation of the couple under the applicable foreign law, but is not obliged to order a legal separation. Unfortunately, the ECJ missed the opportunity to give a clear guidance on distinguishing substantive conditions foreseen by the applicable law from procedural questions falling within the law of the forum. Apart from this, it remains uncertain whether recourse to the law of the forum according to Article 10 of Regulation No 1259/2010 is possible if the lex causae knows the institution of divorce as such but does not make it available for the concrete type of marriage, be it a same-sex marriage or a polygamous marriage.

 

M. Scherer/O. Jensen: The Law Governing the Arbitration Agreement: A Comparative Analysis of the United Kingdom Supreme Court’s Decision in Enka v Chubb

On 9 October 2020 the Supreme Court of the United Kingdom rendered its much-anticipated decision in Enka Insaat Ve Sanayi A.S. v OOO Insurance Company Chubb (Enka v Chubb). In an extensive judgment, the Supreme Court engaged in a detailed review of the different approaches to determining the law applicable to the arbitration agreement and set out the relevant test under English law. The present case note analyses the judgment, explains why the majority’s decision is well-reasoned but its conclusion not inevitable and provides a comparative analysis of the English approach. The result: the age-old question of which law governs the arbitration agreement (and why) has not lost in complexity and continues to engage courts and scholars around the world.

 

D. Otto: In-/validity of unconscionable arbitration clauses

Impecunious parties occasionally are an issue in international arbitration. The Canadian Supreme Court had to decide a case involving a – nominally self-employed – driver of Uber, who commenced a class action in a Canadian court to have Uber drivers declared as employees and to challenge violations of Canadian employment laws. His standard-term service agreement with Uber provided for the application of Dutch law and for mediation and arbitration in the Netherlands, which would have required the driver to advance mediation and arbitration fees in an amount of over 70 % of his total annual income from Uber. Uber requested the court to stay proceedings in favour of arbitration in the Netherlands. The Supreme Court held that the arbitration clause was unconscionable and void. The court opined that in general parties should adhere to agreed arbitration clauses. However, the court found that in this case the driver was not made aware of the high costs of arbitration in the Netherlands, that Uber had no legitimate interest to have such disputes decided in far away countries and that the unusual high costs of such proceedings (amounting to over 70 % of the drivers total annual income) effectively made it impossible for him to enforce his rights before the foreign arbitration tribunal. The court dodged the other issue (affirmed by the lower court) whether a dispute involving alleged violation of Ontario’s Employee Standards Act was arbitrable at all.

 

V. Bumbaca: Remarks on the judgment of the US Supreme Court “Monasky v. Taglieri”

The decision of the US Supreme Court in Monasky v. Taglieri confirms that the determination of the newborn/infant’s habitual residence should focus on the intention and habitual residence of his/her parents or caregiver – the analytical approach is parent-centered. The US Supreme Court ruling, in affirming the decision of the Sixth Circuit Court of Appeals, also clarifies that the determination of the habitual residence of the adolescent/older child should focus on his/her own acclimatization – the analytical approach is child-centered. According to the Supreme Court, the determination of the habitual residence of the child found to be within a transnational family conflict, such as that contemplating an international abduction or an international marital dispute concerning, inter alia, parental authority, must take into account the specific circumstances and facts of each individual case – fact-intensive determination. Based on the practice of other States and of the CJEU, this judgment considers that a predetermined formula applied to the analysis of the child’s habitual residence cannot be deemed to be in conformity with the objectives of the 1980 Hague Convention (applicable to the United States and Italy, both of which are involved in this case) – in particular, by virtue of the fact-based approach followed by this notion, unlike other connecting factors such as domicile and nationality. Regrettably, in affirming the decision the Supreme Court upheld the reasoning of the Court of Appeal as a whole. Thus, it set aside two elements which were not considered in depth by the Court and which in the author’s opinion it should have retained, regardless of the child’s age and given the child’s development within a potentially disruptive family context: The principle of the best interests of the child and the degree of instability attributed to the child’s physical presence before the wrongful removal.

 

E. Jayme: Canada: Export restriction for cultural property of national importance: The Federal Court of Appeal – Attorney General of Canada and Heffel Gallery Limited, 2019 FCA 82 (April 16, 2019) – restores the decision of the Canadian Cultural Export Review Board which rejected the export permit for a painting by the French artist Gustave Caillebotte

Canada: The case decided by the Federal Court of Appeal (Attorney General of Canada, Appellant, and Heffel Gallery Limited, Respondent, and 10 Canadian cultural institutions as interveners, 2019 FCA 82 [April 16, 2019]) involved the following facts: A Toronto based auction house sold a painting by the French impressionist Gustave Caillebotte (“Iris bleus”) to a commercial gallery based in London, and applied to the Department of Canadian Heritage for a cultural export permit, which was refused following the recommendation of an expert examiner. Then, the auction house requested a review of that decision before the Canadian Cultural Export Review Board which rejected the export permit application. Then, the auction house asked for a judicial review of that decision: The Federal Court held that the Board’s decision was unreasonable and remitted the case to another panel for reconsideration. This decision of the Federal Court was appealed by the Attorney General of Canada. Thus, the case passed to the Canadian Federal Court of Appeal which allowed the appeal, dismissed the application for judicial review and restored the decision of the Board, i.e. the refusal to issue an export permit for the painting, in the words of the court: “I am of the view that the Federal Court erred in failing to properly apply the standard of reasonableness. The Board’s interpretation of its home statute was entitled to deference, and the Federal Court’s failure to defer to the Board’s decision was a function of a disguised correctness review.”

The case involves important questions of international commercial law regarding art objects, questions which arise in situations where art objects have a close connection to the national identity of a State. The Canadian decision shows the importance of experts for the decision of whether a work of art is part of the national cultural heritage. The Canadian cultural tradition is based on English and French roots. In addition, the Canadian impressionism has been widely influenced by the development of French art. Thus, it is convincing that the painting by Caillebotte which had been owned and held by a private Canadian collector for 60 years forms part of the Canadian cultural heritage, even if the painter never visited Canada. In addition, the case is interesting for the general question, who is entitled to decide that question: art experts, other boards or judges. The court applied the standards of reasonableness and deference to the opinion of the art experts.

 

A. Kampf: International Insolvency Law of Liechtenstein

Due to various crises, the International Insolvency Law increasingly comes into the focus of currently discussed juridical issues. With reference to this fact, the essay gives an overview of the corresponding legal situation in Liechtenstein, considering that the EU regulation 2015/848 on insolvency proceedings is not applicable. In particular, the author concerns himself with the complex of recognition and the insofar existing necessity of reciprocity. In comparison to the regulation mentioned above, the author comes to identical or at least similar results. He votes for necessity to be abolished and argues for recognition not only of movable assets being located in Liechtenstein.