Views
The Centre for European Policy on the Proposal for an Assignment Regulation
The Centre for European Policy (CEP) in Freiburg (Breisgau) is the European-policy think tank of the German non-profit foundation “Stiftung Ordnungspolitik”. It has just released its policy brief on the Proposal COM(2018) 96 of 12 March 2018 for a Regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims. The CEP’s main conclusion reads as follows:
“The general rule, that the applicable law is that of the assignor’s habitual residence, strengthens legal clarity and thus legal certainty. However, it increases transaction costs and complexity. For syndicated loans, an exception to the general rule should be added to avoid the application of various laws. To avoid legal uncertainty, the Regulation must clarify what is meant by the habitual residence ‘at the material time’ and should only allow overriding mandatory provisions of the law of the Member State in which the assignment has to be or has been performed. The Regulation’s rules on conflict of laws overlap with those of other EU directives and regulations. This results in inconsistencies.”
The full text of the policy brief is available here. See also the earlier posts on this topic by Robert Freitag and by Leonhard Hübner.
The 2nd Dialogue on International Family Law
On 10 and 11 May 2019, the 2nd Dialogue on International Family Law took place at the University of Marburg (Germany). The dialogue serves as a forum for the exchange between high-level practitioners and academics active in the field of international family law; it is organised on an annual basis by Professors Christine Budzikiewicz (Marburg) and Bettina Heiderhoff (Münster), Dr. Frank Klinkhammer, a judge at the German Federal Supreme Court and an honorary professor in Marburg, and Dr. Kerstin Niethammer-Jürgens, a renowned family lawyer in Potsdam/Berlin. This year’s meeting focused on the well-being of the child in international family law, the pending revision of the Brussels IIbis Regulation and conflict of laws with regard to matrimonial property.
The conference was opened by Professor Rüdiger Ernst, a judge at the Kammergericht (Court of Appeals of Berlin), who described and analysed the various standards regarding the procedure to hear a child in international cases, with a special focus on the current state of play concerning the Brussels IIbis Regulation. The second presentation on the well-being of the child in the procedural law of the EU (the Brussels IIbis and the Maintenance Regulation) was given by Bettina Heiderhoff, who, in light of an intense scrutiny of the case-law, posed the critical question as to whether judges actually give weight to the well-being of the child in determining jurisdiction or whether they merely pay lip-service to this overarching goal. In particular, Heiderhoff focused on the question to which degree concerns for the well-being of children had an influence on determining their habitual residence. The second panel was started by Professor Anatol Dutta (University of Munich), who dealt with issues of lis pendens and annex jurisdiction in international family procedures – apparently, this is another area where more coherence between the various European regulations would be highly desirable. Then, Dr. Andrea Schulz (European Commission) analysed the new system of enforcement of judgments in the framework of the revised Brussels IIbis Regulation, which, by abolishing exequatur, shows a discernible influence of the paradigm shift already achieved by Brussels Ibis. At the moment, the English text is being finalised; it is to be expected that the revised version will be adopted by the Council of Ministers at the end of June 2019.
On the second day of the conference, Professor Dirk Looschelders (University of Düsseldorf) gave a presentation on the substantive scope of the Matrimonial Property Regulation (and the Regulation on Property Aspects of Registered Partnerships). The fact that there is no common European definition of the concept of “marriage” leads to numerous difficulties of characterisation; moreover, European courts will have to develop autonomous criteria to draw the line between matrimonial property regimes and adjacent legal areas (contracts, partnerships) not governed by the Regulation. Subsequently, Dr. Jens Scherpe (University of Cambridge) talked about forum shopping before English courts in matrimonial property cases. He focused on determining jurisdiction, calculating alimony and maintenance under English law and the thorny issue of under which circumstances English courts will accept matrimonial contracts as binding. Finally, Frank Klinkhammer gave a survey on recent case-law of the Federal Supreme Court in cases involving international agreements on surrogacy, in particular regarding the Ukraine. In a recent decision of 20 March 2019 (XII ZB 530/17), the Court had decided that a child who, after being born by a Ukrainian surrogate mother, was then brought to Germany as planned by all parties did not have its first habitual residence in the Ukraine, but in Germany, which, in effect, leads to consequence that the German designated mother has no other option but to adopt the child if she wishes to establish a family relationship. This led to an intense discussion about the principle of recognition and the determination of habitual residence (again). The conference proceedings will be published by Nomos. The next dialogue will take place on 24-25 April 2020 in Münster.
Patience is a virtue – The third party effects of assignments in European Private International Law
Written by Leonhard Huebner, Institute for Comparative Law, Conflict of Laws and International Business Law (Heidelberg University)
The third-party effects of the assignment are one of the “most discussed questions of international contract law” as it concerns the “most important gap of the Rome I Regulation”. This gap is regrettable not only for dogmatic reasons, but above all for practical reasons. The factoring industry has provided more than 217 billion euros of working capital to finance more than 200,000 companies in the EU in 2017 alone. After a long struggle in March of 2018, the European Commission, therefore, published a corresponding draft regulation (COM(2018)0096; in the following Draft Regulation). Based on a recent article (ZEuP 2019, 41) the following post explores whether the Draft Regulation creates the necessary legal certainty in this economically important area of law and thus contributes to the further development of European private international law (see also this post by Robert Freitag). Read more
News
HCCH Monthly Update: October 2023
Conventions & Instruments
On 6 October 2023, Rwanda deposited its instrument of accession to the HCCH 1961 Apostille Convention and applied to become a Member of the HCCH. Following a six-month voting period, and provided a majority of votes have been cast in its favour, Rwanda will be invited to become a Member by accepting the Statute of the HCCH. With the accession of Rwanda, the 1961 Apostille Convention now has 126 Contracting Parties. It will enter into force for Rwanda on 5 June 2024. More information is available here.
On 27 October 2023, Canada deposited its instrument of ratification of, and Kyrgyzstan its instrument of accession to, the HCCH 2007 Child Support Convention. With the ratification of Canada and the accession of Kyrgyzstan, 48 States and the European Union are bound by the 2007 Child Support Convention. It will enter into force for Canada on 1 February 2024 and for Kyrgyzstan on 1 November 2024. The application of the Convention in Canada will extend to the provinces of Manitoba and Ontario. More information is available here.
Foreign law in the Draft Code of French Private International Law: New volume in French
Gustavo Cerqueira and Hugues Fulchiron have recently edited a new volume (in French) on the appliation of foreign law in the draft code of French private international law (Le droit étranger dans le projet de code de droit international privé – Connaissance et applicationdroit). They have kindly provided us with the following English summary:
On the occasion of the public consultation on the draft code of French private international law launched by the Ministry of Justice on 8 June 2022, the Société de législation comparée organized a debate in Paris on 13 September of the same year on the provisions relating to the knowledge and application of foreign law – Articles 13 and 14 of the draft.
Between consolidation of case law, methodological clarification, new procedural perspectives and recourse to institutional cooperation, the choices made by the drafters of the proposed Code offered a great opportunity for collective reflection, bringing together the key players in the field. This reflection was all the timelier given that these provisions were not given particular attention either in the explanatory memorandum to the draft code or in the commentaries on the draft code by academic writers.
The purpose of this book is therefore to bring to public debate the most salient issues relating to this often-neglected chapter of conflict of laws, while at the same time putting forward singular proposals to ensure that the content of foreign law in France is established as accurate as possible.
In recent years, the Société de législation comparée has taken an interest in the issue of understanding and applying foreign law. Through this new initiative, the Société works to enhance French private international law, in line with the goals set out in Article 1 of its Articles of Association.
Certificat de coutume: New volume in French
Gustavo Cerqueira, Nicolas Nord, and Cyril Nourissat have recently edited a new volume on the “Certificat de coutume – Pratiques en droit des affaires internationales” (in French). The editors have kindly provided us with an English translation of the blurb available on the publisher’s website:
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