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Belgian Journal of Private International Law: Cautio judicatum solvi and surrogacy (among other things)
Please see the the last issue of 2018 of the Belgian Journal of Private International Law here.
Besides the latest judgments by the Court of Justice of the European Union, it also contains case law of the Belgian Constitutional Court and courts of appeal. The cases are in Dutch or French.
The judgment of the Constitutional Court (of 11 October 2018) concerned the response to a question posed to this court by the Commercial Court of Liège (p. 14 pof the issue). It involved the so-called cautio judicatum solvi. The question was whether the fact that only foreign national plaintiffs can be requested to give a warranty for costs infringes the Belgian Constitution, particularly its Articles 10 and 11 guaranteeing equality and prohibiting discrimination. The Court referred to the limitations that the Court of Justice of the EU had already set to the application of the cautio (it cannot be used against EU citizens). Moreover, the provision only applies in the absence of international conventions eliminating the cautio.The issue in this case was that Belgian plaintiffs living abroad (in Ecuador in the current instance), even if they have no assets in Belgium cannot be subjected to such warranty. The court found that the cautia juricatum solvi (Art. 851 of the Code of Civil Procedure) infringes the Constitution. The differentiation in treatment is not justifiable as it is not the plaintiff’s nationality but his or her residence outside Belgium and lack of property in Belgium that can cause the defendant to fear that he or she will not be able to recover costs. The Court left the provision intact and gave the legislator until 31 August 2019 to fix it.
* In the meantime, on 24 Januari 2019, a legislative proposal was submitted to delete the cautio judicatum solvi from the Code of Civil Procedure.
Other judgments deal with the attribution of Belgian nationality, with parentage and with the recognition of marriages.
A judgment by the Court of Appeal of Brussels (judgment of 10 August 2018) addresses the recognition of the parentage of twins born out of a surrogate mother in California (p. 15 of the issue). The Californian judgment establishing the parentage of two men (one Belgian and one French) was at issue. The Court of appeal recognised the Californian judgment, thus recognising both fathers as parents. The Court considered two grounds for refusal (under Art. 25 of the Belgian Code of Private International Law). First it found that the recognition of the judgment would not amount to a result that was manifestly contrary to public policy. The Court on the other hand found that the intending fathers did attempt to evade the law that would have been applicable, i.e. Belgian law as the intended father whose parentage was at issue had Belgian nationality (and this law governs parentage according to Art. 62 of the Belgian Code of Private International Law). However, the Court, after considering the particular situations of the children and the facts surrounding the case, found that the best interests of the children had the result that the parentage should be recognised in this case.
* See also the case note (in French) by Patrick Wautelet entitled “De l’intérêt supérieur de l’enfantcomme facteur de neutralisation de la fraude à la loi” (On the best interests of the child as a neutralising factor for evasion of the law) at p. 61 of the issue.
The U.S. Arbitration-Litigation Paradox
The U.S. Supreme Court is well-known for its liberal pro-arbitration policy. In The Arbitration-Litigation Paradox, forthcoming in the Vanderbilt Law Review, I argue that the U.S. Supreme Court’s supposedly pro-arbitration stance isn’t as pro-arbitration as it seems. This is because the Court’s hostility to litigation gets in the way of courts’ ability to support arbitration—especially international commercial arbitration.
This is the arbitration-litigation paradox in the United States: On one hand, the U.S. Supreme Court’s hostility to litigation seems to complement its pro-arbitration policy. Rising barriers to U.S. court access in general, and in particular in transnational cases (as I have explored elsewhere), seems consistent with a U.S. Supreme Court that embraces arbitration as an efficient method for enforcing disputes. Often, enforcement of arbitration clauses in these cases leads to closing off access to courts, as Myriam Gilles and others have documented.
But there’s a problem. As is perhaps obvious to experts, arbitration relies on courts—for enforcing arbitration agreements and awards, and for helping pending arbitration do what it needs to do. So closing off access to courts can close access to the litigation that supports arbitration. And indeed, recent Supreme Court cases narrowing U.S. courts’ personal jurisdiction over foreign defendants have been applied to bar arbitral award enforcement actions. Courts have also relied on forum non conveniens to dismiss award-enforcement actions.
That’s one way in which trends that limit litigation can have negative effects on the system of arbitration. But there’s another way that the Court’s hostility to litigation interacts with its pro-arbitration stance, and that’s in the arbitration cases themselves.
The Supreme Court has a busy arbitration docket, but rarely hears international commercial arbitration cases. Instead, it hears domestic arbitration cases in which it often states that the “essence” of arbitration is that it is speedy, inexpensive, individualized, and efficient—everything that litigation is not.
(As an aside, this description of the stark distinction between arbitration and litigation is widely stated, but it’s a caricature. The increasingly judicialized example of international commercial arbitration shows this is demonstrably false. As practiced today, international commercial arbitration can be neither fast, nor cheap, nor informal.)
But in the United States, arbitration law is mostly trans-substantive. That means that decisions involving consumer or employment contracts often apply equally to the next case involving insurance contracts or international commercial contracts.
In the paper, I argue that the Court’s tendency to focus on arbitration’s “essential” characteristics, and to enforce these artificial distinctions between arbitration and litigation, can be harmful for the next case involving international commercial arbitration. It could undermine the likelihood of enforcement of arbitration awards where the arbitral procedure resembled litigation or deviated from the Court’s vision of the “essential virtues” of arbitration.
To prevent this result, I argue that any revisions of the U.S. Federal Arbitration Act should pay special attention not only to fixing the rules about consumer and employment arbitration, but also to making sure that international commercial arbitration is properly supported. In the meantime, lower federal courts should pay no heed to the Supreme Court’s seeming devotion to enforcing false distinctions between arbitration and litigation, particularly in the international commercial context.
In 2018, the Dutch Supreme Court found a Spanish judgment applicable in the Netherlands, based on the Hague Convention on the International Protection of Adults. Minor detail: neither the Netherlands nor Spain is a party to this Convention.
Written by Dr. Anneloes Kuiper, Assistant Professor at Utrecht University, the Netherlands
In 2018, the Dutch Supreme Court found a Spanish judgment applicable in the Netherlands, based on the Hague Convention on the International Protection of Adults. Minor detail: neither the Netherlands nor Spain is a party to this Convention.
Applicant in this case filed legal claims before a Dutch court of first instance in 2012. In 2013, a Spanish Court put Applicant under ‘tutela’ and appointed her son (and applicant in appeal) as her ‘tutor’. Defendants claimed that, from that moment on, Applicant was incompetent to (further) appeal the case and that the tutor was not (timely) authorized by the Dutch courts to act on Applicant’s behalf. One of the questions before the Supreme Court was whether the decision by the Spanish Court must be acknowledged in the Netherlands.
In its judgment, the Dutch Supreme Court points out that the Convention was signed, but not ratified by the Netherlands. Nevertheless, article 10:115 in the Dutch Civil Code is (already) reserved for the application of the Convention. Furthermore, the Secretary of the Department of Justice has explained that the reasons for not ratifying the Convention are of a financial nature: execution of the Convention requires time and resources, while encouraging the ‘anticipatory application’ of the HCIPA seems to be working just as well. Because legislator and government seem to support the (anticipatory) application of the Convention, the Supreme Court does as well and, for the same reasons, has no objection to applying the Convention when the State whose ruling is under discussion is not a party to the treaty either (i.e. Spain).
This ‘anticipatory application’ was – although as such unknown in the Vienna Convention on the Law of Treaties – used before in the Netherlands. While in 1986 the Rome Convention was not yet into force, the Dutch Supreme Court applied article 4 Rome Convention in an anticipatory way to determine the applicable law in a French-Dutch purchase-agreement. In this case, the Supreme Court established two criteria for anticipatory application, presuming it concerns a multilateral treaty with the purpose of establishing uniform rules of international private law:
- No essential difference exists between the international treaty rule and the customary law that has been developed under Dutch law;
- the treaty is to be expected to come into force in the near future.
In 2018, the Supreme Court seems to follow these criteria. These criteria have pro’s and con’s, I’ll name one of each. The application of a signed international treaty is off course to be encouraged, and the Vienna Convention states that after signature, no actions should be taken that go against the subject and purpose of the treaty. Problem is, if every State applies a treaty ‘anticipatory’ in a way that is not too much different from its own national law – criterion 1 – the treaty will be applied in as many different ways as there are States party to it. Should it take some time before the treaty comes into force, there won’t be much ‘uniform rules’ left.
The decision ECLI:NL:HR:2018:147 (in Dutch) is available here.
News
Dutch Journal of PIL (NIPR) – issue 2023/2
The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.
NIPR 2023 issue 2
Editorial
C.G. van der Plas / p. 197
Articles
K.C. Henckel, Issues of conflicting laws – a closer look at the EU’s approach to artificial intelligence / p. 199-226
Abstract
While newly emerging technologies, such as Artificial intelligence (AI), have a huge potential for improving our daily lives, they also possess the ability to cause harm. As part of its AI approach, the European Union has proposed several legislative acts aiming to accommodate and ensure the trustworthiness of AI. This article discusses the potential private international law impact of these legislative proposals. In doing so, it – inter alia – addresses how the newly proposed legislative acts interact with existing private international law instruments, such as the Rome II Regulation. In addition, it questions whether there is a need for specific rules on the private international law of AI.
Out Now: Interim Measures in Cross-Border Civil and Commercial Disputes
A new volume by Deyan Draguiev on Interim Measures in Cross-Border Civil and Commercial Disputes, based on his PhD thesis supervised by Peter Mankowski, has just been published with Springer.
The blurb reads as follows:
The book focusses on applying a holistic overview of interim measures and associated procedures in the context of cross-border private law (civil and commercial) disputes that are the subject of international litigation and arbitration proceedings. It reexamines key features of said problem and outlines novel findings on interim relief in the area of international dispute resolution. The book analyses the rules of EU law (EU law regulations such as the Regulation Brussels Ibis and the rest of the Brussels regime) as the single system of cross-border jurisdictional rules, as well as the rules of international arbitration (both commercial and investment). In the process, it conducts a complete mapping of interim measures problems and explores the criteria for granting relief under national laws. For this purpose, it includes an extensive comparative law overview of many jurisdictions in Europe, Asia, Africa, the Americas, etc., to reveal common standards for granting interim relief.
Interim relief is a salient problem in dispute resolution, and serious international disputes usually require requests for such measures. This makes a more complete understanding all the more important. For scholars and practitioners alike, there are various ways to seek relief; precisely this complexity calls for a more complex and multilayered analysis, which does not (as is usually the case) adopt the perspective of either litigation or arbitration, but instead weighs the pros and cons and considers the viability and reliability of the different options, viewed from all angles.
Law Matters—Less Than We Thought, by Holger Spamann & Daniel M. Klerman
Holger Spamann and Daniel Klerman recently conducted a most interesting experiment on judicial behavior in the context of conflict of laws, the results of which have been pre-published by the Journal of Law, Economics, and Organization. They have kindly provided the following summary for the readers of this blog (who may access the full paper here):
Modern American choice of law has been much criticized for giving judges too much discretion. In particular, Brilmayer and others predict that the use of open-ended standards, such as the Restatement Second’s “most significant relationship” test, will enable judges to decide disputes in biased ways, including a bias in favor of plaintiffs. In contrast, critics argue that the more rules-based approach – such as the lex loci delicti principle that prevailed in America before the 1960s and that, in large part, continues to apply in much of the world – would be more predictable and less subject to bias. We designed an experiment involving US federal judges to test whether the modern American, standards-based approach is, in fact, less predictable and more subject to bias. We find that the rules-based approach may constrain more than the modern standards-based approach, although even under seemingly clear rules judicial decisions were less predictable than we expected. Judges under neither the lex loci rule nor that “most significant relationship” standard exhibited a bias towards the more sympathetic party, although we did detect some pro-plaintiff bias under both the rule and the standard. Somewhat surprisingly, we also found that judges who were supposed to apply the modern “most significant relationship” standard tended to decide according to lex loci delicti rule.