Views
The ECtHR rules on the compatibility with the right to respect for private and family life of the refusal of registration of same-sex marriages contracted abroad
By a judgment Orlandi and Others v. Italy delivered on December 14 the ECtHR held that the lack of legal recognition of same sex unions in Italy violated the right to respect of private and family life of couples married abroad.
The case concerned the complaint of six same sex-couples married abroad (in Canada, California and the Netherlands). Italian authorities refused to register their marriages on the basis that registration would be contrary to public policy. They also refused to recognize them under any other form of union. The complaints were lodged prior to 2016, at a time when Italy did not have a legislation on same-sex unions.
The couples claimed under articles 8 (right to respect of private and family life) and 14 (prohibition of discrimination) of the Convention, taken in conjunction with article 8 and 12 (right to marry), that the refusal to register their marriages contracted abroad, and the fact that they could not marry or receive any other legal recognition of their family union in Italy, deprived them of any legal protection or associated rights. They also alleged that “the situation was discriminatory and based solely on their sexual orientation” (§137).
Recalling that States are still free to restrict access to marriage to different sex-couples, the Court indicated that nonetheless, since the Oliari and others v. Italy case, States have an obligation to grant same-sex couples “a specific legal framework providing for the recognition and the protection of their same-sex unions” (§192).
The Court noted that the “the crux of the case at hand is precisely that the applicants’ position was not provided for in domestic law, specifically the fact that the applicants could not have their relationship – be it a de facto union or a de jure union recognized under the law of a foreign state – recognized and protected in Italy under any form” (§201).
It pointed out that although legal recognition of same-sex unions had continued to develop rapidly in Europe and beyond, notably in American countries and Australia, the same could not be said about registration of same-sex marriages celebrated abroad. Giving this lack of consensus, the Court considered that the State had “a wide margin of appreciation regarding the decision as the whether to register, as marriage, such marriages contracted abroad” (§204-205).
Thus, the Court admitted that it could “accept that to prevent disorder Italy may wish to deter its nationals from having recourse in other States to particular institutions which are not accepted domestically (such as same-sex marriage) and which the State is not obliged to recognize from a Convention perspective” (§207).
However, the Court considered that the refusal to register the marriages under any form left the applicants in “a legal vacuum”. The State has failed “to take account of the social reality of the situation” (§209). Thus, the Court considered that prior to 2016, applicants were deprived from any recognition or protection. It concluded that, “in the present case, the Italian State could not reasonably disregard the situation of the applicants which correspond to a family life within the meaning of article 8 of the Convention, without offering the applicants a means to safeguard their relationship”. As a result, it ruled that the State “failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and the protection of their same-sex union” (§ 210).
Thus, the Court considered that there had been a violation of article 8. It considered that, giving the findings under article 8, there was no need to examine the case on the ground of Article 14 in conjunction with article 8 or 12. (§212).
Functioning of the ODR Platform: EU Commission Publishes First Results
Written by Emma van Gelder and Alexandre Biard, Erasmus University Rotterdam (PhD and postdoc researchers ERC project Building EU Civil Justice)
On 13 December 2017, the European Commission published a report on the functioning of the Online Dispute Resolution (ODR) Platform for consumer disputes, and the findings of a web-scraping exercise of EU traders’ websites that investigated traders’ compliance with their information obligations vis-à-vis consumers. Read more
Conference Report: Contracts for the Supply of Digital Content and Digital Services, A legal debate on the proposed directive, ERA Brussels, 22 November 2017
Written by Antonella Nolten, Research Fellow at the EBS Law School, Wiesbaden, Germany
On 22 November 2017 the Academy of European Law (ERA) hosted a conference on the recent developments on the Proposal for a Digital Content Directive in Brussels. Read more
News
Conclusions & Decisions of the Council on General Affairs and Policy (CGAP) of the HCCH now available!
The Council on General Affairs and Policy (CGAP) of the HCCH met from 7 to 10 March 2023. The meeting was attended by over 450 participants, representing 80 HCCH Members, 8 non-Member States, 7 intergovernmental organizations, 9 international non-governmental organizations, and members of the Permanent Bureau. The Conclusions & Decisions adopted by CGAP are now available in English and French.
In terms of work relating to possible new legislative instruments, CGAP mandated the establishment of a Working Group on private international law (PIL) matters related to legal parentage generally, including legal parentage resulting from an international surrogacy arrangement. Noting progress made by the Working Group on matters related to jurisdiction in transnational civil or commercial litigation in the development of provisions for a draft Convention, CGAP invited the convening of two further Working Group meetings. It also supported further exploratory work on the PIL implications of the digital economy, including, among other, by mandating the conduct of a study on the PIL implications of CBDCs and by endorsing the launch of the HCCH-UNIDROIT Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens. Across several projects, CGAP welcomed the cooperation with UNCITRAL, UNIDROIT, and WIPO, including with respect to work in the areas of digital economy, insolvency proceedings and intellectual property.
In relation to post-Convention work, CGAP approved the Toolkit to Prevent and Address Illicit Practices on Intercountry Adoption and the Model Forms for use under the 1993 Adoption Convention, mandated the development of a Template for Country Fact Sheets on available post-adoption services relating to search for origins, and mandated the establishment of a Working Group on financial aspects of intercountry adoption. CGAP also agreed upon the extension of the scope of the International Hague Network of Judges (IHNJ) to matters relating to the 2000 Protection of Adults Convention. CGAP endorsed the Conclusions & Recommendations of the recent meetings of the Special Commissions (SCs) on the practical operation of the 1993 Adoption, 2000 Protection of Adults, and 2007 Child Support Conventions, and welcomed the preparations for the upcoming meetings of the SCs on the practical operation of the 1980 Child Abduction and 1996 Child Protection Conventions, to be held in the second half of 2023, and on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions. Finally, CGAP mandated the PB to continue work, in partnership with relevant subject-matter experts, and subject to available resources, to study the 2006 Securities Convention and digital developments in respect of securities markets; the interpretation of analogous institutions for the purpose of Article 2 of the 1985 Trusts Convention; and, in relation to the 2015 Choice of Law Principles, the feasibility, desirability and necessity of developing guidance on applicable law in international contracts providing protection to weaker parties.
From a good governance perspective, CGAP approved the HCCH Strategic Plan for 2023-2028. It also decided to adopt Spanish as an official language of the HCCH as of 1 July 2024. Finally, CGAP decided to recommend Dr Christophe Bernasconi to the Netherlands Standing Government Committee on Private International Law for the position of Secretary General of the HCCH for another five-year mandate.
Out now: Chong and Yip, Singapore Private International Law: Commercial Issues and Practice
This book, by Adeline Chong and Man Yip, faculty members at the Yong Pung How School of Law at the Singapore Management University, is part of the Oxford Private International Law Series. There is a 30% discount for purchases made through the OUP website using the promotion code AUFLY30. The publisher’s blurb is as follows:
“There has been significant reform in Singapore private international law in recent years. Developments such as the establishment of the Singapore International Commercial Court, the incorporation of the Hague Convention on Choice of Court Agreements into Singapore law, and the enactment of the Insolvency, Restructuring and Dissolution Act 2018, have all thrown the country into a period of rapid growth.
Singapore Private International Law: Commercial Issues and Practice provides a roadmap to assist readers in navigating this changing landscape. In it, Chong and Yip offer an overview of Singapore’s legal system, exploring how governmental and judicial efforts have capitalised on Singapore’s location at the heart of Asia, its status as a leading financial centre globally, and its modern infrastructure, to make it the hub of choice for cross-border disputes and insolvency and restructuring efforts. Practical guidance is given to matters such as changes to jurisdiction, protective measures, the recognition and enforcement of foreign judgments, general choice of law issues, and issues specific to contract, tort, unjust enrichment, equitable obligations, trusts, property, corporations, and international insolvency and corporate restructuring. The book also looks at how the English common law principles have been implemented and developed in Singapore, with relevant cases, legislation, and foreign sources used to offer a comparative perspective.”
Further information can be found at this link: https://global.oup.com/academic/product/singapore-private-international-law-9780198837596?cc=sg&lang=en&#
ICC Institute Prize | 9th Edition | Deadline: 3 April 2023
For more than 40 years, the ICC Institute of World Business Law has been enhancing ties between the academic world and practising lawyers.
Launched in 2007, the Institute created the Institute Prize as a means to encourage focused research on legal issues affecting international business. Contributing to the understanding and progress of international commercial law around the world, the Institute Prize recognises legal writing excellence.
The Institute Prize is open to anyone 40 years of age or under as of deadline date who submits a doctoral dissertation or long essay (minimum of 150 pages) drafted in French or English on the subject of international commercial law, including arbitration.
Rules and deadlines concerning the next Prize edition in 2023 are finally out. The works submitted for the Prize should be sent to the Secretariat of the Institute at the contact address indicated below: iccprize@iccwbo.org by 3 April 2023 at the latest.
It goes without saying that CoL is proud that one of its former editors, Brooke Marshall, was named laureate of the 2021 ICC Institute of World Business Law Prize for her thesis on ‘Asymmetric Jurisdiction Clauses’. And the round before, it was our current editor Tobias Lutzi who won the Prize for his thesis on ‘Regulating the Internet through Private International Law’. We keep our fingers crossed that perhaps again someone from the global CoL community will be successful.