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Is “la réserve héréditaire” part of French international public policy ?

Through two decisions (Civ. 1ère, 27 sept. 2017, n° 16-17198 et 16-13151) both issued on September 27th, The French Cour de cassation finally gave an answer to one of the most discussed question of French Succession law: Is la réserve héréditaire part of French international public policy?

The circumstances of both cases are very similar. Two French composers living in California, where they had most of their assets, got married respectively in 1984 and 1990. They put their assets in a trust and designated their wives as beneficiaries. In both cases, the settlers did not designate the children they had from previous relationships as beneficiaries of the trust. After the death of their fathers, the latter turned to French courts in order to obtain part of the inheritance. They argued that the Californian law applicable to the succession should be declared contrary to French international public policy for not including a réserve héréditaire for certain heirs.

According to Article 912 §1 of the French Civil Code, la réserve hérédiataire or the reserved portion « is that part of the assets and rights of the succession whose devolution, free of charge, the law assures to certain heirs, called forced heirs, if they are called to the succession and if they accept it ». In other words, under French succession law, a person cannot freely dispose of all of his or her assets. French law set boundaries by putting aside a reserved portion of the deceased’s property. However, he or she can freely dispose of the disposable portion (quotité disponible) which is defined as « that part of the assets and rights of the succession that is not reserved by law and of which the deceased can freely dispose by liberalities » (Article 912 § 2).

Freedom of establishment after Polbud: Free transfer of the registered office

Bastian Brunk, research assistant and doctoral student at the Institute for Comparative and Private International Law at the University of Freiburg (Germany), has provided us with the following first thoughts on the CJEU’s groundbreaking Polbud judgment.

The Judgment

In its judgment in Polbud (C-106/16), the CJEU again took the work out of the EU legislature’s hands while further developing the freedom of establishment provided for in Articles 49 and 54 TFEU. The case was heard following a request for a preliminary ruling under Article 267 TFEU by the Sad Najwyzszy (Supreme Court of Poland). In short, the CJEU had to decide on the following questions:

(1) Are Articles 49 and 54 TFEU applicable to a transfer of the registered office of a company incorporated under the law of one Member State to the territory of another Member State with the purpose of converting its legal form, when the company has no intention to change the location of its real head office or to conduct real economic activity in the latter Member State?

Court of Appeal allows in England claims against English-based multinational for overseas human rights violations

Written by Ekaterina AristovaPhD in Law Candidate, University of Cambridge

On 14 October 2017, the London’s Court of Appeal passed its long awaited decision in Lungowe v Vedanta confirming that foreign citizens can pursue in England legal claims against English-based multinationals for their overseas activities.

In 2015, Zambian villagers commenced proceedings against Vedanta, an English-based mining corporation, and its indirect Zambian subsidiary, KCM, alleging responsibility of both companies for the environmental pollution arising out of the operation in Zambia of the Nchanga Copper Mine by KCM. In 2016, the High Court allowed claims against both companies to be heard in England. The overall analysis of the judgement (see the author’s earlier post on this blog) suggested that (1) claims against the parent company on the breach of duty of care in relation to the overseas operations of the foreign subsidiary can be heard in the English courts and (2) the existence of an arguable claim against the English-domiciled parent company also establishes jurisdiction of the English courts over the subsidiary even if the factual basis of the case occurs almost exclusively in the foreign state. The Court of Appeal has entirely upheld a High Court ruling.

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Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 5/2020: Abstracts

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

D. Coester-Waltjen: Some Thoughts on Recital 7 Rome I Regulation and a Consistent and Systematic Interpretation of Jurisdictional and Choice of Law Rules.

Decisions of the ECJ in recent years have cast some new light on recital 7 of the Rome I Regulation. These decisions will be analysed regarding the limits of and the guiding principles for a consistent and systematic interpretation of the rules in the Brussels Ibis Regulation on the one hand and the Rome I Regulation on the other. The analysis proves that the understanding of a term in the jurisdictional framework need not necessarily influence the interpretation for private international purposes.

Out now: Zeitschrift für vergleichende Rechtswissenschaft (ZVglRWiss) 119 (2020) No. 3

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features three articles on private international and comparative law.

The abstracts read:

  • Katharina Beckemper: Bestechung und Bestechlichkeit im geschäftlichen Verkehr – Die gegenläufige Umsetzung des EU-Rahmenbeschlusses 2003/568/JI in Spanien und Deutschland, ZVglRWiss 119 (2020), 277-313

Criminal law on corruption is largely determined by Union law. This can make a comparison of the national law of two Member States interesting if there have been different implementations in detail as Union law leaves room for interpretation. However, the German legislator did not see any such room for interpretation when, in 2015, it reorganized the facts of bribery and corruption in business dealings. Rather, he felt compelled to introduce the so-called business owner model. Meanwhile, Spain removed a comparable regulation from the relevant facts in the same year. This raises the question of whether European law offers more scope for implementation than the German legislator assumed or whether the Spanish legislator violated the requirements.

The Rohingya Conflict and the interface between public international law and private international law

By Francisco Javier Zamora Cabot

Despite the progress made towards its prevention and resolution, contemporary history continues to show us examples of human-induced catastrophes, such as the genocides in Rwanda and the Balkans or, in our days, the one that afflicts the Rohingya ethnicity.

These are events that impact the conscience of humanity and that, unlike linear explanations, are usually based on a set of causes that are not always easily discernible. For instance, this is the case of the Rohingya Conflict, which, in its various phases, has generated a great deal of information and evidence, among which it is necessary to glean with a critical spirit, so as to fix the problem and, consequently, proceed to its much-needed denounce and to the pursuit of a path to a solution. To this end, and from the performance of the sciences, interdisciplinary approaches are required, the only ones that can give a full measure of the magnitude of such conflicts and of the means that must be prepared to address them.