Just published in Recueil Dalloz: a “cri d’alarme” by Professors Lagarde, Gaudemet-Tallon, Kessedjian, Jault-Seseke and Pataut concerning the fate of the useful International Commission on Civil Status. Here is a translation of their call to action:

The International Commission on Civil Status in Danger[1]

POINT de Vue Recueil Dalloz issue N° 42 of 3 December 2020,  p. 2355 by Paul Lagarde, Professor emeritus Paris I University, Hélène Gaudemet-Tallon, Professor emeritus Paris II University, Catherine Kessedjian, Professor emeritus Paris II University, Fabienne Jault-Seseke, Professor at  Paris Saclay University, and Étienne Pataut, Professor at the Sorbonne Law School

Civil status issues are a crucial element of a person’s identity. Solving these issues is an essential component of the protection of the right to private and family life, and a gateway to everyone’s recognition as a person before the law. This is why many efforts are made, for instance, to promote birth registration[2]. From birth to death, the legal existence of a person is conditioned by civil status.

Recognition of civil status documents from one State to another is fundamental to ensure the continuity of personhood when people cross international borders. International cooperation is essential to allow a correct understanding and interpretation of civil status documents and facilitate their circulation (both regarding their form (instrumentum) and their content (negotium)).

This is the purpose of the International Commission on Civil Status (CIEC/ICSS), an intergovernmental organization created in the aftermath of the Second World War. The five founding States are Belgium, France, Luxembourg, The Netherlands and Switzerland. Although not operating in the spotlights, this organisation has a most respectable track record. It has enabled the adoption of thirty-four conventions and eleven recommendations on birth, name, nationality, gender change, marriage, partnership, refugees, civil status services, among others. Many of these instruments provide for cooperation of competent authorities or facilitate the understanding of civil status acts, in particular by establishing multilingual forms and allowing their electronic transmission. They have been successful and proved to be very useful. Convention No. 16 is a convincing example[3]. It binds twenty-four States, including States that are not members of the ICCS. It abolishes both legalisation and apostille requirements.

At some point, the ICCS had up to seventeen members (including States outside the EU such as Mexico and Turkey). But despite the undoubted success of the ICCS, Member States have withdrawn from the Organisation one after the other. The withdrawal by the Netherlands in 2018 and France in 2019 may deliver the final blow to the ICCS.

These withdrawals are incomprehensible.

It has been suggested that they have budgetary reasons. This seems hardly credible since the annual budgetary contribution of France to the CIEC amounted to € 33,000, whilst a further reduction to € 15,000 had already been agreed. Moreover, the ICCS has recently decided to dispense with the contribution of its members until 2025. So, this, hardly convincing, argument does not hold.

No more convincing is the idea that the European Union, because of EU regulation 2016/1191 ensuring the circulation of civil status documents in the Union (inspired by ICCS’s work), would have taken over ICCS’s mission. EU regulations do not bind third States; yet, due to migration flows, the EU Member States are often faced with questions concerning the civil status of nationals from countries in the Middle East, Africa, Asia, among others.

Moreover, by signing the Global Compact for Migration in 2019, France has committed itself to promote cooperation in the field of international migration. As the Global Compact itself reminds us, this commitment draws from actions to “Improve civil registry systems, with a particular focus on reaching unregistered persons and our nationals residing in other countries, including by providing relevant identity and civil registry documents, strengthening capacities, and investing in information and communications technology solutions, while upholding the right to privacy and protecting personal data…”.

This is precisely the role of the ICCS, currently launched in ambitious electronic communication projects on civil status documents – supported, moreover, by the European Union.  Now is the time for States (and for the European Union, which is now in a position to become itself an ICCS member) to reinvest in the ICCS – and definitely not to give up!

[1] For a detailed argument, see H. van Loon, Requiem or transformation? Perspectives for the CIEC / ICCS and its work, Yearbook of private international law, vol. 20 (2018/2019), p. 73-93 (this article predates France’s withdrawal).

[2] See Art 7 (1) of the United Nations Convention on the Rights of the Child.

[3] Convention on the issue of multilingual extracts from civil-status records, signed in Vienna, 8 September 1976. This Convention has, moreover, been reviewed and modernized by Convention No 34, signed in Strasbourg, 14 March 2014.

The British Institute of International and Comparative Law (BIICL) (in consortium with Civic Consulting) has been selected by the European Commission to conduct a study supporting the preparation of a report on the application of the Rome II Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations (JUST/2019/JCOO/FW/CIVI/0167).

The study assesses the 10-year application of the Rome II Regulation in the Member States and will support the Commission in the future review of the Regulation. It analyses all areas covered and looks into specific, cutting-edge questions, such as cross-border corporate violations of businesses against human rights and the potential impact of the development of artificial intelligence.

To gather views of practitioners and academics from all Member States, BIICL conducts a survey which is available here: https://www.surveymonkey.com/r/JLWQ8XQ

Please contribute your experience to the study, if you have a particular expertise in the Rome II Regulation, or in one of the above-mentioned areas – namely cross-border torts related to artificial intelligence, corporate abuses against human rights, or defamation.
BIICL invites interested colleagues from all Member States to participate in the survey, but seeks in particular more contributions from: Bulgaria, Croatia, Cyprus, Finland, Luxembourg, Romania and Slovenia.

Deadline: December 31^st, 2020

More information about the Study is available on BIICL’s website (https://www.biicl.org/projects/com-study-on-the-rome-ii-regulation).

By Dr Sarah McKibbin

In the recent decision of RCD Holdings Ltd v LT Game International (Australia) Ltd,[1] Davis J of the Supreme Court of Queensland dismissed proceedings brought in breach of an exclusive jurisdiction clause that had been expressed in ‘an arm’s length agreement reached between commercial entities’.[2] In deciding whether to exercise his discretion not to stay or dismiss proceedings, Davis J examined whether procedural disadvantages and ‘inconvenience’ in the jurisdiction nominated in the clause were relevant considerations.

In 2013, the parties entered a contract setting up a scheme to promote a computer betting game at casinos in Melbourne, Nevada and Melbourne.[3] The contract, which was signed and to be partially performed in Australia, included a clause entitled ‘Governing Law’ by which the parties agreed that:[4]

any dispute or issue arising hereunder, including an alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.

A dispute arose and, notwithstanding the clause, the plaintiffs commenced proceedings in Queensland alleging breaches of the contract in connection with the scheme’s implementation at Crown Casino in Melbourne. The defendant, LT, entered a conditional appearance seeking to strike out the claim or, alternatively, have it stayed based on the exclusive jurisdiction clause. The plaintiffs’ submissions focused on the inconvenience of having to litigate in Macau and the perceived procedural advantages secured by LT in doing so.[5] The plaintiffs further submitted that the COVID-19 pandemic prevented them from commencing proceedings in Macau.[6]

The decision reinforces that ‘strong reasons’[7] are required to enliven the court’s discretion not to grant a stay of proceedings brought in breach of an exclusive jurisdiction clause. This reflects a fundamental policy consideration that ‘“parties who have made a contract should be kept to it”’.[8] Here, the parties differed on the circumstances relevant to the exercise of this discretion.[9] The plaintiffs relied upon the list of circumstances identified by Brandon J in The Eleftheria, which included ‘the relative convenience and expense of the trial’ and ‘[w]hether the plaintiffs would be prejudiced by having to sue in the foreign court’.[10]  As Davis J marked, subsequent English and Australian decisions have questioned the role of procedural disadvantages and inconvenience in the nominated jurisdiction, ‘at least when they are factors which should have been known at the time the exclusive jurisdiction clause was agreed.’[11]

In that respect, Davis J followed the judgment of Bell P in the recent New South Wales Court of Appeal decision of Australian Health & Nutrition Association Ltd v Hive Marketing Group,[12] which endorsed the critical observations of Allsop J in Incitec Ltd v Alkimos Shipping Corp[13] and Waller J in British Aerospace plc v Dee Howard Co.[14] In Incitec, Allsop J perceived ‘financial and forensic inconvenience’ to the party bound by the clause to be the direct consequence of the bargain entered.[15] In a similar vein, Waller J in British Aerospace considered that these factors ‘would have been eminently foreseeable at the time that [the parties] entered into the contract’.[16]

Setting issues of ‘inconvenience’ to one side, however, Davis J attached greater significance to the fact that the parties upon contracting presumably ‘considered the commercial wisdom of agreeing’ to the inclusion of the clause.[17] The factors relied upon by the plaintiffs were in existence and could have been taken into account by the parties at the time of contracting.[18] Indeed, evidence demonstrated that the courts of Macau: (1) could deal with the claim; (2) could provide the remedy sought by the plaintiffs; and (3) would accept court documents in the English language.[19] Issues of inconvenience ‘can hardly be weighty in the exercise of discretion where one party seeks to deny the other the benefit of the covenant.’[20] Finally, Davis J observed that ‘there is little, if any, evidence at all as to the impact of the pandemic upon any litigation in Macau’.[21] Yet, ‘if the pandemic developed so as to effectively prevent, or unduly frustrate’ litigation in Macau, this discretionary consideration would be taken into account together with ‘any other relevant considerations’ in a subsequent application.[22]

[1] [2020] QSC 318.

[2] Ibid, [56].

[3] Davis J observes that ‘[t]he scheme is clearly to be targeted at casinos throughout the world’: at para [7].

[4] RCD Holdings (n 1) [8].

[5] Ibid, [54].

[6] Ibid, [33].

[7] Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 259 (Gaudron J). Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418, 429 (Dawson and McHugh JJ), 445 (Toohey, Gaudron and Gummow JJ).

[8] Ibid, quoted in RCD Holdings (n 1) [57].

[9] Ibid, [58].

[10] Ibid.

[11] See, eg, British Aerospace plc v Dee Howard Co [1993] 1 Lloyd’s Rep 368; Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496, 506; Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419.

[12] Australian Health & Nutrition (n 7).

[13] (2004) 138 FCR 496, 506 [49].

[14] [1993] 1 Lloyd’s Rep 368, 376.

[15] Incitec Ltd v Alkimos Shipping Corp (n 11) 506 [49].

[16] British Aerospace plc v Dee Howard Co (n 12) 376.

[17] RCD Holdings (n 1), [65].

[18] Ibid.

[19] Ibid, [32].

[20] Ibid, [65].

[21] Ibid, [70].

[22] Ibid.