Views
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
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.
News
Conference at the University of Milan: EU Private International Law: a Look into the Future 50 Years after the Entry into Force of the 1968 Brussels Convention
Michele Grassi (University of Milan) has kindly shared the following announcement with us:
The Department of Italian and Supranational Public Law of the University of Milan will host, on September 14 and 15, a conference on “EU Private International Law: a Look into the Future 50 Years after the Entry into Force of the 1968 Brussels Convention”, in cooperation with the European Group for Private International Law. The event is co-founded by the Erasmus+ Programme of the EU (Jean Monnet Module on Family and Succession Law Matters in EU Private International Law and Jean Monnet Module on EU Private International Law Rules on Obligations in a Digitalised World).
The conference will consider the relationship of EU PIL acts with third States and the new perspectives and gaps to fill in the EU judicial cooperation in civil matters. Speakers and chairs of the panels include: Fausto Pocar (University of Milan, Emeritus), Hans van Loon (former Secretary-General of the HCCH), Pietro Franzina (Catholic University of the Sacred Heart, Milan), Christian Kohler (University of Saarland, Emeritus) Zeno Crespi Reghizzi (University of Milan), Patrick Kinsch (University of Luxembourg), Etienne Pataut (University of Paris 1 Panthéon-Sorbonne), Cristina González Beilfuss (University of Barcelona), Luigi Fumagalli (University of Milan), Andrea Bonomi (University of Lausanne), Francesca Villata (University of Milan), Támas Szabados (University of Budapest), Stefania Bariatti (University of Milan), Andreas Stein (EU Commission).
Participation is free of charge, but you are kindly asked to register at the following link: https://forms.office.com/e/SYhcX0pi1e
The flyer can be found here; for further information, feel free to contact michele.grassi@unimi.it.
Out Now: “Turning away from Multilateralism – International Law in Danger?” (Proceedings of the German Society of International Law, Issue 51)
Recently, the German Society of International Law (DGIR) has published the proceedings of its 37 Biennial Conference held in Heidelberg from 9 to 11 March 2022. The volume is devoted to the – very timely – topic of “Turning away from Multilateralism – International Law in Danger?” and contains five contributions (in German) explicitly discussing issues related to Private International Law:
New Article published in the Journal of Comparative Law in Africa
A new private international law article was recently published online in the Journal of Comparative Law in Africa. The title is: MK Quartey & TE Coleman, “The Law Applicable to Tortious Liability: A Comparative Analysis of Article 4 of the Rome II Regulation and Private International Law in Ghana”
The abstract reads as follows: