Views
Towards a European Commercial Court?
The prospect of Brexit has led a number of countries on the European continent to take measures designed to make their civil justice systems more attractive for international litigants: In Germany, the so-called “Justice Initiative Frankfurt”, consisting of lawyers, judges, politicians and academics, has resulted in the creation of a special chamber for commercial matters at the District Court in Frankfurt which will, if both parties agree, conduct the proceedings largely in English (see here). In France, an English-language chamber for international commercial matters was established at the Cour d’appel in Paris, adding a second instance to the English-speaking chamber of commerce at the Tribunal de commerce in Paris (see here). In the Netherlands, the Netherlands Commercial Court and the Netherlands Commercial Court of Appeal will soon begin their work as special chambers of the Rechtbank and the Gerechtshof Amsterdam (see here). And in Belgium, the government plans to establish a Brussels International Business Court (see here). Clearly: the prospect of Brexit has stirred up the European market for international litigation.
Talaq v Greek public policy: Operation successful, patient dead…
A talaq divorce is rarely knocking at the door of Greek courts. A court in Thessaloniki dismissed an application for the recognition of an Egyptian talaq, invoking the public policy clause, despite the fact that the application was filed by the wife. You can find more information about the case, and check my brief comment here.
What puzzles me though is whether there are more jurisdictions sharing the same view. Personally I don’t feel at ease with this ruling for a number of reasons. But prior to that, a couple of clarifications:
- This case bears no resemblance to the Sahyouni saga. The spouses have no double nationality: The husband is an Egyptian, the wife a Greek national.
- There was no back and forth in their lives: they got married in Cairo, and lived there until the talaq was notarized. Following that, the spouse moved to Greece, and filed the application at the place of her new residence.
- Unlike Egypt, Greece is not a signatory of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations.
- There is no bilateral agreement between the two countries in the field.
I’m coming now to the reasons of my disagreement with the judgment’s outcome.
- The result is not in line with the prevalent view in a number of European jurisdictions: From the research I was able to conduct, it is my understanding that Austria, Germany, France, Italy, Spain, the Netherlands, Norway, and Switzerland, do not see any public policy violation, when the wife takes the initiative to apply for recognition of the talaq.
- The reasoning of the court is a verbatim reiteration of an Athens Court of Appeal judgement from the ‘90s. It reads as follows: Solely the recognition of such an act would cause profound disturbance to the Greek legal order, if its effects are to be extended and applied in Greece on the basis of the Egyptian applicable rules. What is actually missing is the reason why recognition will lead to profound disturbance, and to whom. Surely not to the spouse, otherwise she wouldn’t file an application to recognize the talaq.
- It should be remembered that the public policy clause is not targeting at the foreign legislation applied in the country of origin or the judgment per se; moreover, it focuses on the repercussions caused by the extension of its effects in the country of destination. Given the consent of the spouse, I do not see who is going to feel disturbed.
- Recognition would not grant carte blanche for talaq divorces in Greece. As in other jurisdictions, Greece remains devoted to fundamental rights. What makes a difference here is the initiative of the spouse. In other words, the rule remains the same, i.e. no recognition, unless there’s consent by the wife. Consent need not be present at the time the talaq was uttered or notarized; it may be demonstrated at a later stage, either expressly or tacitly. I guess nobody would seriously argue that consent is missing in the case at hand.
- Talking about consent, one shouldn’t exclude an ex ante tacit agreement of the spouses for financial reasons. It has been already reported that all remaining options for a spouse in countries where Sharia is predominant are much more complicated, time-consuming, cumbersome, and detrimental to the wife. Take khul for example: It is indeed a solution, but at what cost for the spouse…
- Last but not least, what are the actual consequences of refusal for the spouse? She will remain in limbo for a while, until she manages to get a divorce decree in Greece. But it won’t be an easy task to accomplish, and it will come at a heavy price: New claim, translations in Arabic, service in Egypt (which means all the 1965 Hague Service Convention conditions need to be met; Egypt is very strict on the matter: no alternative methods allowed!); and a very careful preparation of the pleadings, so as to avoid a possible stay of proceedings, if the court requires additional information on Egyptian law (a legal information will most probably double the cost of litigation…).
For all the reasons aforementioned, I consider that the judgment is going to the wrong direction, and a shift in Greek case law is imperative, especially in light of the thousands of refugees from Arab countries who are now living in the country.
As I mentioned in the beginning, any information on the treatment of similar cases in your jurisdictions is most welcome.
From the editors’ desk: Relaunch of conflictoflaws.net!
Dear readers,
Conflictoflaws.net has been around for 12 years by now. It has developed into one of the most relevant platforms for the exchange of information and the discussion of topics relating to conflict of laws in a broad sense. And while the world has changed a lot during the past 12 years the look of conflictoflaws.net has basically remained the same. Today this is going to change: Read more
News
Summer school on Consumer’s Rights and Market Regulation in the EU invites applicants
We can feel it in the air but also in the incoming announcements – the summer is approaching. One of the great ways to spend a part of it is at a summer school. The University of Uidne (Italy) is the host to the 16th edition of the summer school Consumer’s Rights and Market Regulation in the European Union, to be held on 12-21 July 2023.
The programme addresses aspects of legal protection of consumers and market regulation, including the private international law topics, and a moot court. The full schedule is available here. The course accepts undergraduate students, graduates (who graduated no more than five years ago), PhD students from faculties of law, economics, political science or international relations., and limited amount of posts are available on the academic qualifications bases. The early bird is until 30 April 12:00 pm GMT, and the enrollment closes on 31 May 12:00 pm GMT. For details, please consult the Call for applications Udine Summer School 2023.
The summer school is organised within the Jean Monnet Module “CoRiMaR” (Consumer’s Rights and Market Regulation in the European Union) by the Department of Legal Sciences of the University of Udine (Italy), together with a consortium of European universities including University of Essex (UK), De Montfort University (UK), Universitatea de Vest din Timisoara (Romania), East Anglia University (UK), University of Belgrade (Serbia), University of Rijeka (Croatia) and University of Szeged (Hungary).
Eulogy for Professor GUO Yujun
Written by Yan WANG, Huaqiao University
It was with great sadness that we received word from her family that Professor GUO Yujun passed away at 1:50 am GMT+8 on 22 April 2023, at the age of 59.
Professor GUO was a distinguished professor of private international law, art law, and cultural heritage law at the Wuhan University International Law Institute in China. She is the Vice-President and Secretary-General of China Society of Private International Law. During her 30 years at Wuhan University, she taught and mentored hundreds of students, inspiring many of them to work under her supervision from the undergraduate to doctoral level.
She published more than 100 academic articles and works in Chinese, English and Japanese with a wide range of domestic and international influence. She had been to Hokkaido University Law Faculty as a Japanese Government (MEXT) Scholarship student from the October 1991 to April 1993. During her academic career, she went to Harvard University, Osnabrück University, and Max Planck Institute for Comparative and International Private Law as a visiting scholar.
Professor GUO earned the affection from her family, friends, colleagues, and students. A list of her representative private international law publications can be found here.
One Small Step Forward: The Mainland China Is Trying to Differentiate Inter-regional Private Cases From Those Foreign-related Ones
For quite a long time, what China had been doing for its interregional private laws was modelling their solutions on international conventions such as the Hague Service Convention, the Hague Evidence Convention and the Hague Judgments Convention etc. Normally they eventually got a slimmed-down Arrangement for the corresponding matter. This was quite different from what happed in the EU where the enhanced versions of the Hague Conventions could be seen and something extra could even be achieved. Also different from the EU where the ECJ could give answers when many questions at national law level were elevated and tested in the context of Regulations at the EU level, there has been no common court for interregional instruments within China so far. Apart from those bilateral Arrangements, all regions within China are basically treating one another as a ‘foreign country’ in terms of private laws.
The situation is, however, changing, at least from the Mainland side. Yesterday, I was invited to attend a conference which was under the support of the Supreme People’s Court of PRC and organized by the High Court of Guangdong Province that is geographically the closest one to Hong Kong and Macau. The purpose of the conference was to read the Draft Interpretation prepared by a research team of the Guangdong High Court and to be formally adopted and issued by the Supreme People’s Court later on. This Draft Interpretation is, again, an unilateral act of the Mainland China who wants to better its civil procedural rules regarding cases related to Hong Kong and Macau (possibly also Taiwan included). Indeed, different from the past experience for the past decades where inter-regional private cases were generally handled in analogy with foreign-related ones, the Mainland China is now trying to differentiate them. It wants to have more advanced and enhanced rules for interregional private cases. Keep an eye on the development of Chinese interregional private laws ……