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Recognition and Enforcement: 30 years from the entry into force of the Brussels Convention in Greece – A practitioner’s account –

I. Introduction

It was the 3rd of March 1989, when an announcement was published in the Official Gazette of the Hellenic Republic, stating that the Brussels Convention would finally enter into force on April 1, 1989. Why finally? Because it took the state nearly a decade after the accession to the EC [1.1.1981] to activate the Brussels Convention in the country. After a long hibernation time, Law Nr. 1814/1988 was published in November 11, 1988, marking the official ratification of the Convention. In less than a year, the Convention became operative in the Greek legal order. Since that time, a great number of judgments were published in the legal press, some of them with elucidating notes and comments. Commentaries and monographs paved the path for widespread knowledge and ease of access to the new means of handling cross border cases within the EC. (more…)

The Council of the HCCH has spoken – the Conclusions & Recommendations are available

The Conclusions & Recommendations (C&R) of the governance body of the Hague Conference on Private International Law (HCCH) (i.e. the Council on General Affairs and Policy) are available in both English and French.

The conclusions that are worthy of note are the following:

The Parentage/Surrogacy Project is going ahead. The Council endorsed the continuation of the work in line with the latest report of the Experts’ Group (see my previous post here). See C&R 7-12.

The Tourist and Visitors Project is also moving forward. See C&R 14-17.

A meeting of the Experts’ Groups on these respective topics will take place in the near future.

As regards the HCCH publications, it should be noted that there were two Guides on family law, one Guide on the Evidence Convention and one WIPO-HCCH Guide on intellectual property that were submitted for approval to Council; the full titles of which are:

  • The revised draft Practical Guide on the cross-border recognition and enforcement of agreements reached in the course of family matters involving children
  • The revised draft Guide to Good Practice on Article 13(1)(b) of the 1980 Child Abduction Convention
  • The draft Guide to Good Practice on the Use of Video-link under the Evidence Convention
  • The WIPO-HCCH Guide on “When Private International Law meets Intellectual Property Law – A Guide for Judges”

See also my previous posts here (Child Abduction) and here (Evidence Convention).

The Council approved only one: the WIPO-HCCH Guide. With regard to the other three, the Council decided instead to put into place a procedure to obtain further comments from Members.  Importantly, there were concerns expressed by Members regarding the two family law guides, which means that further work is needed. An important issue that might have played a role in these decisions is the massive amount of information that was submitted this year to Council.

Because of the complexity of the conclusions, I prefer to include some excerpts below:

“19. In light of concerns expressed, Council did not approve the revised draft Practical Guide [on the cross-border recognition and enforcement of agreements reached in the course of family law matters involving children]. Council asked that the draft Practical Guide be re-circulated to Members to provide additional comments within a three-month period. All comments received will be made available to other Members on the Secure Portal of the HCCH website. The draft Practical Guide would then be revised by the Experts’ Group with a view, in particular, to increasing its readability for a wider audience. The finalised draft Practical Guide would be circulated to Members for approval. In the absence of any objection within one month, the draft Practical Guide would be taken to be approved; in the case of one or more objections, the draft Practical Guide would be put to Council at its 2020 meeting, without any further work being undertaken. Council requested that the Permanent Bureau immediately notify the Members of any objections.”

“24. Council thanked the Working Group and stressed the importance of the Guide to Good Practice on Article 13(1)(b). In light of concerns expressed, Council did not approve the revised draft Guide. Council asked that the draft Guide be re-circulated to Members to provide additional comments within a two-month period. All comments received will be made available to other Members on the Secure Portal of the HCCH website. The draft Guide would then be revised by the Working Group. The finalised draft Guide would be circulated to Members for approval. In the absence of any objection within one month, the draft Guide would be taken to be approved; in the case of one or more objections, the draft Guide would be put to Council at its 2020 meeting, without any further work being undertaken. Council requested that the Permanent Bureau immediately notify the Members of any objections.”

Council was more lenient with regard to the Video-link Guide:

“38. Council welcomed the preparation of the draft Guide to Good Practice on the Use of Video-Link under the Evidence Convention and thanked the Experts’ Group. Council asked that the draft Guide be re-circulated to Members to provide additional comments within a one-month period. All comments received will be made available to other Members on the Secure Portal of the HCCH website. The draft Guide would then be revised by the Experts’ Group. The finalised draft Guide would be circulated to Members for approval. In the absence of any objection within one month, the draft Guide would be taken to be approved; in the case of one or more objections, the draft Guide would be put to Council at its 2020 meeting, without any further work being undertaken. Council requested that the Permanent Bureau immediately notify the Members of any objections.”

All this means that these three Guides are not final and readers must await the revised versions, which might or might not need to be submitted to the next meeting of the Council in March 2020. I advise you then to be patient.

The International Business Courts saga continued: NCC First Judgment – BIBC Proposal unplugged

Written by Georgia Antonopoulou and Xandra Kramer, Erasmus University Rotterdam (PhD candidate and PI ERC consolidator project Building EU Civil Justice)

1. Mushrooming International Business Courts on the Eve of Brexit

Readers of this blog will have followed the developments on the international business courts and international commercial chambers being established around Europe and elsewhere. While many of the initiatives to set up such a court or special chamber date from before the Brexit vote, it is clear that the UK leaving the EU has boosted these and is considered to be a big game changer. It remains to be seen whether it really is, but in any case the creation of courts and procedures designed to deal with international commercial disputes efficiently is very interesting! (more…)

News

Out Now: Yves El Hage, Le droit international privé à l’épreuve de l’internet

With his thesis, which has just been published by LGDJ as part of the prestigious Bibliothèque de droit privé, Yves El Hage makes another, yet formidable addition to the ever-growing body of scholarship on the difficult relationship between private international law and the internet. In the inimitable style of French scholarship, the book consists of two main parts addressing, in turn, “the confrontation” and “the reconciliation” between private international law and the internet (with each part of course being further divided into two sections, and so on).

In the first part, the author convincingly identifies the two core challenges of the internet, i.e. its immateriality (or virtuality) and its universality (or ubiquity). For each of these, he shows how courts and legislators have struggled to find appropriate responses on the basis of traditional PIL rules and methods, with the “territorialist” response to the inherently international nature of online communication a particularly pertinent point of criticism.

In the second part, El Hage discusses two possible ways in which PIL might accommodate these challenges (both of which aim to identify a single competent jurisdiction and a single applicable law). First, he rejects proposals (including my own) that rely mainly, if not solely, on the places in which the individual parties to a litigation have initiated and/or received acts of online communication (so-called “personal” connecting factors). According to him, such criteria do not resolve the existing problems of localisation and fail to accommodate the relevant regulatory interests beyond a purely economic and/or protective logic. Instead, the author proposes, second, to maintain the existing “extrapersonal” connecting factors but to reinterpret them in a way that puts the place of the most significant impact (“l’impact le plus significatif de l’activité en ligne”) into the centre of the analysis.

The extent to which this proposition would differ in practice from proposals relying on “personal” connecting factors, especially from those that try to combine actor- and victim-centred criteria, can certainly be debated. Regardless, the book by Yves El Hage offers both an unusually rich account of the existing (general and specialised) scholarship and a well-argued proposition that flows seamlessly from his thorough analysis of the status quo.

Report: Summer School on the new Foreign Relations Law, MPIL Heidelberg, June 8-10, 2022

Report on the

Summer School on the new Foreign Relations Law

MPIL Heidelberg, June 8-10, 2022

by Zixuan Yang and Jakob Olbing*

The MPIL in Heidelberg hosted a three-day Summer School titled “Populism and the New Foreign Relations Law: Between Public International Law, ‘External Public Law’, and Conflict of Laws”, led by Anne Peters (MPI Heidelberg), Karen Knop (University of Toronto and Max Planck Law Fellow), and Ralf Michaels (MPI Hamburg). The Summer School, which brought together 20 young scholars, was also the first step in a large-scale research project that Karen Knop will lead in the coming years as one of the first Max Planck Law Fellows.

The aim of the Summer School was to familiarize the participants with foreign relations law, a field which is known in only a few countries, and to examine its relationship to conflict of laws and international law. Led by the three hosts, the participants engaged in lively discussions on the presented topics, thus bringing together their diverse professional and national backgrounds. The results of the Summer School will not be published as such but will instead fuel and direct the joint research project within the Max Planck Law Fellowship Program. Karen Knop is one of the first five Fellows of the Program and is going to collaborate with Anne Peters, director at the MPI Heidelberg and Ralf Michaels, director at the MPI Hamburg on the project for the next few years.

Foreign Relations Law as a law in between

The Summer School began with the observation that few of the many nations represented identified foreign relations law as a distinct area of law. In Germany, one of the few countries having such a field of law, it is known as Staatsrecht III. From a comparative law perspective, however, it is difficult to define this new field of law in a general way. This also generates questions of whether such a field of law is needed at all or which particular issues it should govern, as the possible area of regulation is to a large extent covered by other areas of law, namely international law, conflict of laws, constitutional law, and administrative law as well as by the field of diplomacy. However, there is a variety of situations that cannot be assigned clearly to any of these established areas of law, thus highlighting the question if they should be assembled in a new field. Why, for instance, is the legality of a demonstration in front of an embassy often subjected to different rules and standards than other demonstrations? May South Korean “comfort women” compel the South Korean government to negotiate with Japan for compensation for their suffering during the war? Why is a claim for compensation for a death caused by the exercise of excessive police force dismissed when the fatal shooting occurred across an international border? Do such cases even fall under a court’s jurisdiction or is it rather a task of diplomacy to find a solution?

These and many other cases clearly show that there is room for a new field of law which should be explored with closer attention. However, the field’s further development should not – as has been the case so far – be left to a few Western countries; rather, the perspectives of other countries should also be included. Precisely this creation of new perspectives was one of the core aims of the Summer School. According to Karen Knop, the still young field of law is in danger of falling victim to populist politics. She understands populism not as an ideology but as a method for the demarcation and devaluation of all things “international” vis-à-vis what is deemed national. This concern was illustrated by the “take back control” slogan of the Brexit campaign, alleging that the EU institutions have little or no democratic legitimacy. The withdrawal from international treaties and organizations is a phenomenon that can, indeed, be observed in many countries. This dynamic should not be encouraged by foreign relations law through its establishment as a substitute for international law.

But are general concerns against international law as undemocratic justified or is the opposite the case? Case studies presented by Anne Peters illustrated how the ratification of international public law treaties – or the withdrawal from such treaties – may or may not be democratically legitimized. Can the executive of a state withdraw from the International Criminal Court without involving the legislative?

Foreign Relation Law as international or domestic law?

On the one hand, one can try to find a solution in public international law, but most treaties or conventions don’t entail provisions on withdrawal. Until Brexit, the sentiment rather was that more and more states will join a treaty or convention, not leave. On the other hand, national law could give an answer, when adopting a foreign relations law perspective. Though, in many countries public international law is, in some way or another, incorporated into the national law, legislatives have little opportunities to influence its content, since most treaties are negotiated between the state’s representatives. Also, judicial review is very limited concerning public international law. When developing foreign relations law, one could and should address these concerns. As Anne Peters put it: one has to normalize foreign relations law, by subjecting it to judicial review, providing stronger democratic legitimation and figuring out if and when a foreign set of facts should be treated different to a domestic, and when not.

Foreign Relations Law as a voice for unheard actors

It was highlighted throughout the three days that especially in smaller less economically strong countries, the recognition of foreign relations law as an independent field of law next to public international law could be very important. It could provide additional funding to a notoriously underfunded field of law. Normally those countries, mostly members of the global south, have only little chance in being heard, for example when treaties are negotiated. This is even more important as public international law has a long and controversial colonial legacy dating back to the history of imperial politics until the mid-20th century. To move from the colonial global north/south hierarchy and reframe foreign relations law, it is important to reflect whether there is a universal model and criteria for foreign relations law on a global level. In this sense, voices from different sides should all contribute to the formation of this new field of law.

Foreign relations law should also give a voice to actors who have never been heard in international law. Taking a historical and comparative perspective it should be a Post-Colonial foreign relations laws, encouraging non-state participants such as indigenous people to have a say. From a post-colonial perspective, it is also necessary to open up foreign relations to indigenous peoples to facilitate other forms of cross-border disputes and cooperation. Karen Knop raised the example of the Arctic Council, in which both states and indigenous peoples of the polar region are represented and participate in sustainable development and environmental protection.

Foreign Relations Law and Private International Law

But how to proceed? How can all these voices come together in a new area of law? Ralf Michaels introduced private international law methodology as an example for how to accommodate the different actors. He illustrated the already existing interdependency between foreign relations law and private international law through a series of cases of the U.S. Supreme Court. This interdependency should be further discussed and can offer new perspectives and has a future potential for both sides.

The traditional methodology of private international law is considered to be apolitical and neutral. However, it can also be influenced by diplomatic or policy considerations when certain public elements are involved. In a cross-border shooting case, Hernandez et al. v. MESA, a Mexican national assumed to have illegally crossed the border was shot to death on Mexican soil by a U.S. Border Patrol Agent who stood on U.S. soil. The claim for compensation was dismissed by the U.S. court. The agent’s duty to protect the border from illegal crossings was an act of foreign relations and therefore is ‘exclusively entrusted to the political branches’ and should be immune from judicial inquiry. Based on the separation of power, the court refrained itself from arbitrating on diplomatic matters. Granting such ‘private’ claims would also have the risk of undermining national security, the court said. There are other tension between national security and private international law. A recent general ban on Sharia and International law in several U.S. States Courts demonstrates populist arguments influence into public policy and against the application or recognition  of foreign laws, values and beliefs.

When it comes to the determination of the content of foreign law, ‘comity’ in foreign relations provide a basis for the forum’s treatment of foreign law. In Animal Science Products, the U.S. Supreme Court ruled that respectful considerations should be given to the foreign government’s submission on its own law, however, the federal court is not bound to accord conclusive effect to it. Furthermore, comity also plays an important role for the court to determine the territorial reach of domestic law in international cases. The Supreme Court’s decision in Empagran concerned an antitrust class-suit alleging the application of the Sherman Act even though the alleged conduct and harm were occurred significantly on foreign territory. Justice Breyer’s statutory interpretation and justification for limiting the scope of U.S. antitrust law in this case was discussed to rethink the nature of the U.S. federal court’s long standing Charming Betsy principle, also known as the presumption against extraterritoriality.

Foreign Relations Law as a Law of opportunities

It might seem an impossible task to accommodate all these interests and participants into a new foreign relations law and at the same time follow a coherent methodology. But a new field of law gives the opportunity to address issues, which long have been left aside or completely ignored despite the factual relevance and to find creative answers. Indigenous people have been interacting with another across borders since borders where put in place. States where entering into treaties all the time, policemen are shooting everywhere and anyone (in the US) and occasionally across a border and after a war, victims are (sometimes) compensated for their losses by the alien. All the cases have a foreign element, so maybe private international law can provide one solution, as it is his task to provide clear answers to international complex cases, and its methods are designed to accommodate international cases. Its aims of uniformity and certainty of results could also benefit foreign relations law. Another solution could be provided within the framework of global constitutionalism, as Anne Peters suggested. Developing a foreign relations law within the global institutions of public international law, such as the United Nations, by means of diplomacy and treaty making to create a uniform body of law.

After three days filled with sessions, discussions, and lively conversations, the participants departed with the strong sense that the foundation for the further development of foreign relations law had been laid together. As a parting gift, the three hosts wished for a further development of the learned and encouraged the participants to publish the newly made findings. Given the many newly made contacts – woven diligently after the long break due to the Covid-19 pandemic – it is merely a question of time that co-authored publications will appear.

* Zixuan Yang and Jakob Olbing are PhD students under Ralf Michaels at the Max Planck Institute for Comparative and International Private Law, Hamburg.

PhD position at the University of Antwerp

The University of Antwerp has a vacancy for a PhD researcher in EU private international law, with a particular emphasis on Union citizenship and its interaction with conflict of laws. The university offers a doctoral scholarship for a period of two years. Following a positive evaluation, the scholarship can be renewed once for another two-year period. Interested persons can apply up until 8 August 2022, and the successful candidate will start on 1 October 2022.