Views
The complexity of the post Brexit era for English LLPs and foreign legal professionals in EU Member States: a French perspective
Written by Sophie Hunter, University of London (SOAS)
In light of the turmoil in the UK Parliament since the start of 2019, the only certain thing about Brexit is that everything is uncertain. The Law Society of England and Wales has warned that “if the UK’s relationship with the rest of the EU were to change as the result of significant renegotiations, or the UK choosing to give up its membership, the effects would be felt throughout the legal profession.” As a result of Brexit, British firms and professionals will no longer be subject to European directives anymore. This foreshadows a great deal of complexity. Since British legal entities occupy a central place within the European legal market, stakes are high for both British and European lawyers. A quick overview of the challenges faced by English LLPs in France and the Paris Bar demonstrates a high level of complexity that, is not and, should be considered more carefully by politicians. Read more
The Aftermath of the CJEU’s Kuhn Judgment – Hellas triumphans in Vienna. Really.
Written by Stephan Walter, Research Fellow at the Institute for German and International Civil Procedure Law, University of Bonn, Germany
Claims brought by creditors of Greek state bonds against Greece in connection with the 2012 haircut do not fall under the substantive scope of the Brussels Ibis Regulation because they stem from the exercise of public authority. Hence, they cannot be regarded as civil and commercial matters in the sense of Article 1(1) Brussels Ibis Regulation. This is the essence of the CJEU’s Kuhn judgment (of 15 November 2018, Case C-308/17, ECLI:EU:C:2018:911), which was already discussed on this blog.
In said blog post, it was rightly pointed out that the judgment could be nothing but a Pyrrhic victory for Greece. Not least the – now possible – application of national (sometimes exorbitant) jurisdictional rules was considered to have the potential to backfire. This was, however, only the case, if Greece was not granted immunity in the first place. In short: the fallout of the CJEU’s judgment was hardly predictable. Read more
Is there a need for international conventions on legal parentage (incl. international surrogacy arrangements)?
The Experts’ Group on Parentage / Surrogacy of the Hague Conference on Private International Law (HCCH) has answered in the affirmative.
At its fifth meeting earlier this year, the Experts’ Group agreed that it would be feasible to develop both:
- a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
- a separate protocol on the recognition of foreign judicial decisions on legal parentage arising from international surrogacy arrangements (abbreviated as “ISA”).
As announced on the HCCH website, the Experts’ Group will recommend to the governance body of the HCCH (i.e. Council on General Affairs and Policy) during its meeting in March 2019 that “work continue with a view to preparing proposals for inclusion in future instruments relating to the recognition of judicial decisions.” The Council will have the last word.
In my opinion, there are many reasons for drafting two separate instruments, which may range from legal to political as these are very sensitive topics. One that particularly struck me relates to the indirect grounds of jurisdiction when considering the recognition of such decisions:
“Most Experts concluded that the indirect grounds previously identified in the context of general legal parentage would not work in ISA cases, and instead supported the State of birth of the child as the primary connecting factor in an ISA case as this would provide certainty and predictability. A qualifier to that connecting factor (such as the habitual residence of the person giving birth to the child) might be necessary to guarantee sufficient proximity, as well as to prevent and combat trafficking of persons and law evasion.” See also para 25 of the Report.
Please note that these instruments would deal with the recognition and not with the enforcement of foreign judicial decisions given the nature of decisions on legal parentage. See in contrast my previous post on the HCCH draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.
The HCCH news item is available here.
The full report is available here.
News
Sustainable European private international law – the SEPIL perspective
This post was written by Jachin Van Doninck (SEPIL coordinator, Vrije Universiteit Brussels) and Jerca Kramberger Škerl (University of Ljubljana)
It is fair to say that the attention for sustainability and sustainable development has seen a steady increase. The past decade, the United Nations has set out the Sustainable Development Goals (SDGs), based on the urgent need to shift the world onto a sustainable and resilient path. These SDGs are finding their way into policy making on every level and are also inspiring research in the legal field.[i] Recent scholarship has raised awareness for the potential of private international law to strengthen the SDGs’ plan of action (e.g. the seminal work edited by R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, 2021).[ii] Private International Law is also and increasingly being classified as a governance tool[iii] of a political nature.[iv]
The SEPIL network, funded by the EUTOPIA UNIVERSITY alliance explores the sustainability of European private international law as a system, i.e. in itself. Thus, the project’s intention was to move away from existing research on how private international law can be instrumentalized for the purpose of attaining the greater good (e.g. the Shell cases in The Netherlands and in the UK, reported on the conflictoflaws blog), and to question to what extent sustainability can (or must) exert a system-building function within this area of the law. Taking into account that PIL acts as potent tool for achieving the SDGs, the research group delved into the question of the sustainability of this tool in itself, thus ‘operating’ mainly within the SDG 16 (Peace, Justice and Strong Institutions).
SEPIL organised two closed seminars in Ljubljana (29-30 September 2022) and Brussels (24-25 October 2022). The goals of the meetings were threefold:
- to catch up with the state of the art of the research on sustainability and law, both regarding the individual SDGs and the sustainability of law;
- to try to delimitate the question(s) of PIL as a tool to achieve sustainable development and sustainability as a tool to enhance PIL;
- to explore the research potential of the aforementioned SEPIL idea.
The Ljubljana edition was kicked off by Anna Maria Wilmot (VUB), who presented an outline of her current PhD research on the interplay between sustainability and the Belgian system of civil adjudication. She explained how any attempt at a systemic appraisal of the sustainability of European private international law would have to begin with a clear understanding of sustainability as a layered concept. Jachin Van Doninck (also at VUB) connected Anna Maria’s research with the SEPIL project by elaborating on how legal scholarship and the courts are heavily involved in instrumentalizing private international law for the purpose of attaining sustainability and sustainable development. He pointed out that a fundamental analysis of the sustainability of private international law itself is lacking, which is precisely where SEPIL’s research focus would lie. University of Ljubljana’s Jerca Kramberger Škerl continued with an overview of the UN Sustainable Development Goals and a short presentation on how private international law can, first, serve as a tool to attain those goals, and second, adapt itself to respect those goals. In the afternoon, these SDGs were made concrete through topical examples. A first one was offered by University of Gothenburg’s Anna Wallerman Ghavanini through her presentation on judicial protection for victims of discrimination in EU private international law, explaining that effective access to justice (SDG 16) for victims of discrimination (SDG 5) reveals shortcomings in the current private international law framework. Second, University of Ljubljana’s Filip Dougan focused on the interplay between the UN Sustainable Development Goal 5 (Gender Equality) and the EU private international law. Erik Björling, also from the University of Gothenburg, then challenged our thinking with the question “Can retrospective civil procedure be prospective?”. Using notions of procedural legal theory (naming, blaming, claiming, rational discourse, reduction of complexity), he touched on several core issues of private international law such as jurisdiction, choice of law and enforcement. The stage had been set for the Brussels edition.
Conference: The Law of Treaties as Applied to Private International Law, Milan, 5-6 May 2023
A conference on “The Law of Treaties as Applied to Private International Law” will take place at the Catholic University of Milan on 5 and 6 May 2023, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL).
The event aims to discuss the impact of the rules of treaty law on the formation, interpretation and implementation of international conventions laying down rules of private international law, and to assess whether, and in which way, the specific object and features of private international law have a bearing on the operation of the law of treaties in this area.
Speakers and chairs include Paul Beaumont (University of Stirling), Catherine Brölmann (University of Amsterdam), Sergio Carbone (University of Genova, Emeritus), Luigi Crema (University of Milan), Zeno Crespi Reghizzi (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid), Malgosia Fitzmaurice (Queen Mary University of London), Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), Patrick Kinsch (University of Luxembourg), Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita), Jan Klabbers (University of Helsinki, TBC), Antonio Leandro (University of Bari), Alex Mills (University College London), Etienne Pataut (University Paris I – Panthéon-Sorbonne), Andrea Schulz (German Federal Ministry of Justice), Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law), Chiara Tuo (University of Genova), Hans van Loon (former Secretary-General of the Hague Conference on Private International Law), and Jan Wouters (KU Leuven).
A roundtable on “The role of IGOs in the elaboration, implementation and coordination of private international law treaties”, chaired by Fausto Pocar (University of Milan, Emeritus), will feature interventions by Luca Castellani (Secretary of Working Group IV (Electronic Commerce) – Uncitral), Nicolas Nord (Secretary-General of the International Commission on Civil Status), Andreas Stein (Head of Unit (Civil Justice) at the European Commission Directorate-General for Justice and Consumers – Civil and commercial justice) and Ignacio Tirado (Secretary-General of the International Institute for the Unification of Private Law (Unidroit), among others.
A key-note speech will be delivered by Maciej Szpunar (Judge at the Court of Justice of the European Union, TBC). Closing remarks will be provided by Stefania Bariatti (University of Milan).
The conference, in English, will be on-site only.
See the full programme and the registration form. Early bird rates are offered to those registering before 6 March 2023.
For further information: pietro.franzina@unicatt.it.
New law on International Commercial Arbitration in Greece
A new law on international commercial arbitration was published on the 4th of February in Greece. It is the fruit of the efforts by a committee established by the Ministry of Justice. The previous law nr. 2735/1999 is abolished.
The new law nr. 5016/2023 consists of 59 articles, whereas the predecessor had only 37 articles. Both laws are based on the UNCITRAL Arbitration Rules. The main novelties of the recent law are the following:
- Article 11 covers the issue of the validity of the arbitration agreement.
- Article 16 introduces a provision for multiparty arbitration.
- Article 22 regulates the issue of the arbitrator’s liability.
- Article 24 introduces a provision for the unification of multiple arbitrations.
- Article 35 contains a special rule for the production of documents and the submission of evidence.
- Last but not least, Article 46 sets the stage for the foundation of Arbitration Centers by private companies or public law corporations, such as Bar Associations. Some of them have already established Arbitration Centers (mostly if not exclusively for purely domestic disputes) in the major cities of the country, such as Athens and Thessaloniki. The new law grants them access to international commercial disputes.