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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
Belgian Court of Cassation and Ryanair’s forum clauses
On 8 February 2019 the Belgain Court of Cassation decided the case Happy Flights v Ryanair. The Dutch version of the decision is available here.
At issue was the validity of the clause in Ryanair’s general terms and conditions that the Irish courts have jurisdiction over disputes. The Court of Cassation quashed the decision of the Commercial Court of Brussels, which had considered only the formal validity of the choice-of-court clause.
The Court of Cassation confirmed that the consumer protection provisions of Brussels Ia do not apply (the contracts concern transport). It further found that according to Art. 25(1) of Brussels Ia the substantive validity of the clause (in a non-negotiated contract) was subject to Irish law (specifically the Irish implementation in Act 27/1995 of Directive 93/13/EEG on unfair terms in consumer contracts). The Court did not explicitly refer to Irish private international law (according to Consideration 20 of Brussels Ia), but directly to Act 27/1995.
It sent the case back to the Commercial Court of Leuven for a new assessment.
News
HCCH Monthly Update: December 2023 – January 2024
Conventions & Instruments
On 1 December 2023, the 1965 Service Convention entered into force for Singapore. The Convention currently has 82 Contracting Parties. More information is available here.
On 1 January 2024, the 1965 Service Convention entered into force for Paraguay. The Convention currently has 82 Contracting Parties. More information is available here.
On 9 January 2024, Cabo Verde deposited its instrument of accession to the 2007 Child Support Convention. With the accession of Cabo Verde, 49 States and the European Union are bound by the Convention. More information is available here.
On 11 January 2024, the 1961 Apostille Convention entered into force for Canada. The Convention currently has 126 Contracting Parties. More information is available here.
On 12 January 2024, the United Kingdom signed the 2019 Judgments Convention. The Convention will enter into force for the United Kingdom only after the deposit of an instrument of ratification (pursuant to Art. 28(2) of the Convention). Currently, 29 HCCH Members are either bound by the 2019 Judgments Convention or a Contracting Party for which the Convention has not yet entered into force (Uruguay). More information is available here.
New Private International Law Article published in the Journal of the History of International Law
Yesterday, a new private international law open access article was published online in the Journal of the History of International Law. It is titled: León Castellanos-Jankiewicz, “A New History for Human Rights: Conflict of Laws as Adjacent Possibility.” The abstract reads as follows:
The pivotal contributions of private international law to the conceptual emergence of international human rights law have been largely ignored. Using the idea of adjacent possibility as a theoretical metaphor, this article shows that conflict of laws analysis and technique enabled the articulation of human rights universalism. The nineteenth-century epistemic practice of private international law was a key arena where the claims of individuals were incrementally cast as being spatially independent from their state of nationality before rights universalism became mainstream. Conflict of laws was thus a vital combinatorial ingredient contributing to the dislocation of rights from territory that underwrites international human rights today.
It is worth noting that the author states that in the acknowledgement that: “An earlier version of this article was awarded the inaugural David D. Caron Prize by the American Society of International Law during its 2019 Annual Meeting held in Washington D.C.”
25th Volume of the Japanese Yearbook of Private International Law (2023)
The Japanese Yearbook of Private International Law (kokusai shiho nenpo) (hereinafter “JYPIL”) is an annual publication of the Private International Law Association of Japan (kokusai shiho Gakkai) (hereinafter “PILAJ”). The PILAJ was founded in 1949 as an academic organization. Its main objective is to promote the study of private international law and encourage cooperation with similar academic institutions abroad, as well as coordination among private international law scholars. Since its inception, the PILAJ has organized conferences on a semi-annual basis and, since 2012, on an annual basis (see records of recent past conferences here).