Views
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
HCCH Revised Draft Explanatory Report (version of December 2018) on the Judgments Convention is available on the HCCH website
A revised Draft Explanatory Report (version of December 2018) on the HCCH Draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is available in both English and French on the Hague Conference website.
In my opinion, particularly complex topics in this Draft Explanatory Report include intellectual property (IP) rights (in particular, Art. 5(3) of the draft Convention– there are several provisions dealing with IP rights in addition to this Article) and the relationship of the draft Convention with other international instruments (Art. 24 of the Draft Convention). Some of the text is in square brackets, which means that such text has tentatively been inserted due perhaps to a lack of consensus at the Special Commission meetings, and thus a final decision will be taken at the Diplomatic Session scheduled for the summer 2019.
With regard to intellectual property rights, the draft Convention distinguishes between IP rights that require to be granted or registered (such as patents, registered trademarks, registered industrial designs and granted plant breeders’ rights) and those that do not require grant or registration (i.e. copyrights and related rights, unregistered trademarks, and unregistered industrial designs – this is a closed list for these specific rights). See paragraph 238 of the Draft Explanatory Report.
The draft Convention’s approach to IP rights, which is based on the territoriality principle, is set out very clearly in paragraph 235 of the Draft Explanatory Report. In particular, the draft Convention reflects a compromise according to which the State of Origin of the judgment will coincide with the lex loci protectionis i.e., the law of the State for which protection is sought, so as to avoid the application of foreign law to these rights (see also paragraph 236).
With respect to the relationship of the draft Convention with other international instruments, it is important to note that this draft Convention will cover, among many other things, non-exclusive choice of court agreements so as to give preference to the application of the HCCH Hague Convention of 30 June 2005 on Choice of Court Agreements to exclusive choice of court agreements. See paragraphs 220-225 and 410-430 of the Draft Explanatory Report.
The latest information about the Judgments Project is available here.
After the Romans: Private International Law Post Brexit
Written by Michael McParland, QC, 39 Essex Chambers, London
On 10 December 2018 the Ministry of Justice published a draft statutory instrument with the pithy title of “The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2018”. This indicates the current intended changes to retained EU private international law of obligations post Brexit. Read more
News
Private International Law and the Voices of Children
Written by Christina Shin, University of Sydney Law School
On 1 June 2023, International Children’s Day, an online webinar discussing the issue of children’s protection in private international law (PIL) was organized in collaboration with conflictoflaw.net and American Society of International Law Private International Interest Group at the Sydney Law School Centre for Asian and Pacific Law (CAPLUS). In the first part of the webinar, five experts were invited to share their views on the status quo, challenges, and potential solutions to protect the welfare of children in the international and transnational context. The second part of the webinar involved a roundtable discussion among the experts. This event was moderated by Dr. Jeanne Huang, Associate Professor at the Sydney Law School and CAPLUS co-director. The guest speakers were as follows:
Today the Mexican National Code of Civil and Family Procedure has been published in the Official Gazette
On 6 June 2023, the Mexican National Code of Civil and Family Procedure has been passed by decree issued by the Mexican president Andrés Manuel López Obrador. Indeed, after many years of stagnation, the National Code has finally been published today in the Mexican Federal Official Gazette. See here. It will enter into force tomorrow (see article 1 of the transitory articles).
This is a groundbreaking development because it will gradually replace the states codes of civil and family procedure in Mexico, harmonising procedural law in all 32 Mexican states. A specific procedure has been foreseen for the way in which it will be adopted in the Mexican states (see article 2 of the transitory articles).
There are many interesting provisions for Private International Law lawyers, we will be preparing a brief summary, which will be published here. By way of example, see the provisions on international child abduction: articles 1150-1161.
HCCH Monthly Update: May 2023
Conventions & Instruments
On 12 May 2023, Canada deposited its instrument of accession to the 1961 Apostille Convention. This accession marked a historical milestone: the 1000th treaty action relating to an HCCH Convention or Protocol. The 1961 Apostille Convention, which now has 125 Contracting Parties, will enter into force for Canada on 11 January 2024. More information is available here.
On 16 May 2023, North Macedonia signed the 2019 Judgments Convention. The Convention, which currently has 28 Contracting Parties, will enter into force in September 2023, and for North Macedonia only after the deposit of an instrument of ratification (pursuant to Art. 28(2) of the Convention). More information is available here.
On 16 May 2023, Singapore deposited its instrument of accession to the 1965 Service Convention. The Convention, which now has 81 Contracting Parties, will enter into force for Singapore on 1 December 2023 subject to the Article 28 procedure. More information is available here.