Views
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.
Sweden: New rules on non-recognition of underage marriages
Written by Prof. Maarit Jänterä-Jareborg, Uppsala University, Sweden
On 1 January 2019, new restrictions came into force in Sweden’s private international law legislation in respect of marriages validly concluded abroad. The revised rules are found in the Act (1904:26 p. 1) on Certain International Relationships on Marriage and Guardianship, Chapter 1 § 8a, as amended by SFS 2018:1973. The content of the new legislation is, briefly, the following: no marriage shall be recognised in Sweden if the spouses or either one of them was under the age of 18 years at the time of the marriage. By way of exception, this rule may be set aside once both parties are above 18 years of age, if there are exceptional reasons to recognise the marriage. Read more
News
German professors comment on the Commission Proposal for a Regulation on Parenthood
Discussion on the Commission Proposal for a Regulation on Parenthood is intensifying – recall the virtual workshop by Tobias Helms in February and the current regular webinars on the proposal. Now, a group of German professors (including Helms) that calls itself “the Marburg group” has published critical comments. Their verdict: “The Marburg Group welcomes the initiative of the Commission. The Group embraces the overall structure of the Parenthood Proposal. Nevertheless, it suggests some fundamental changes, apart from technical amendments.”
For details, see here.
Chinese Journal of Transnational Law Special Issue Call for Papers
The appeal of alternative dispute resolution (ADR) mechanisms is on the rise and so is also the pull to prevent international disputes from arising altogether. In the area of cross-border commercial and investment disputes, the renewed interest in the interface between dispute prevention and alternative dispute resolution springs from a growing awareness of the need to overcome the shortcomings of arbitration. This is shown by the recent setting up of a series of new ‘global labs’ in international commercial resolution provided with new diversified and integrated commercial dispute resolution mechanisms linking ‘mediation, arbitration and litigation’ in recent years. Equally indicative of this trend is the entering into force of the UN Convention on International Settlement Agreements Resulting from Mediation (The Singapore Convention) in September 2020 and that ‘dispute prevention and mitigation’ has become one of the most dynamic focal points for UNCITRAL Working Group III mandated with examining the reform of investor-state dispute settlement.
However, the contemporary move towards devising more effective preventive ‘cooling off’ mechanisms, increasing the transnational appeal of mediation and, when feasible, sidestepping altogether the need to resort to third-party judicialized processes is not unique to international commercial and investor-state dispute resolution. At a time of backlash against international courts and tribunals, prevention and alternative dispute settlement mechanisms are gaining momentum across both established and emerging areas of public, private and economic international law.
Against this background, the inaugural issue of the Chinese Journal of Transnational Law to be published in 2024 invites submissions that engage critically with the on-going transformation of the transnational dispute settlement system in an increasingly multipolar international legal order in which a paradigm shift away from the Western-model of international adversarial legalism and towards de facto de-judicialization is arguably gaining hold.
Topics on which the contributions could focus on include, but are not limited to:
*Transnational Dispute Prevention and Settlement in international trade law
*Transnational Dispute Prevention and Settlement in emerging areas: cyberspace, outerspace etc.
* Transnational Dispute Prevention and Settlement in international environmental law
* Transnational Dispute Prevention and Settlement in international commercial disputes
*Transnational Dispute Prevention and Settlement in Investor-State dispute settlement
*Transnational Inter-State Dispute Prevention and Settlement in inter-state disputes under general public international law
Contributors may choose between: Research articles (up to 11,000 words inclusive of footnotes) or short articles (up to 6,000s inclusive of footnotes). Those interested, please submit your contribution before 31 Aug 2023 through the journal homepage.
UNCCA Seminar on the New York Convention
The UNCITRAL National Coordination Committee for Australia (UNCCA) is an organisation comprised of members of the Australian legal community, dedicated to promoting the work of The United Nations Commission on International Trade Law (UNCITRAL) in Australia.
UNCCA invites you to our 8th annual May Seminar in Canberra celebrating the 75th anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Join us for a full day conference to celebrate this anniversary whilst learning about the work of UNCITRAL and its Working Groups. We welcome Justice Kevin Lyons KC (Supreme Court of Victoria) as our keynote speaker. Our panels will include presentations by Bronwyn Lincoln (Partner, , Thomson Geer), Romesh Weeramantry (Special Counsel, Clifford Chance), Drossos Stamboulakis (Barrister, Senior Lecturer, Monash University), Dr. Benjamin Hayward (Senior Lecturer, Monash Business School). The Attorney General’s Department will also provide a presentation on their work on international trade law.
This seminar promises to be an exciting full-day event hosted at the Ann Harding Centre, located at 24 University Drive South, Bruce ACT 2617 on the 26th of May 2023. The event will likely run from 8:30am until 4pm, with lunch included. Online attendance will also be available for our May Seminar, however, in-person participation is strongly encouraged.
You can register for tickets using this link.