A panel of the United States Court of Appeals for the Seventh Circuit last week decided a fairly routine contract case—applying French law (opinion here). In doing so, Judges Easterbrook, Posner and Wood stated their views on the best means to prove foreign law. Of course, they each noted (in separate opinions) that the Federal Rules of Civil Procedure give courts a wide berth to rely on any source or authority, including sworn statements by experts in foreign law. But Judges Easterbrook and Posner see the use of such experts as “bad practice”—in their view, it’s better for judges to consult English-language translations and treatises, which will be relatively objective, rather than the statements of experts hired by each party. According to Judge Easterbrook:

Trying to establish foreign law through experts’ declarations not only is expensive (experts must be located and paid) but also adds an adversary’s spin, which the court then must discount. Published sources such as treatises do not have the slant that characterizes the warring declarations presented in this case. Because objective, English-language descriptions of French law are readily available, we prefer them to the parties’ declarations.

Indeed, Judge Easterbrook gave more credence to a Danish Court’s resolution of a parallel case than the parties’ experts. In his view, “Denmark is a civil-law nation, and a Danish court’s understanding and application of the civil-law tradition is more likely to be accurate than are the warring declarations of the paid experts in this litigation.”
Judge Posner was even more scathing of foreign legal experts. He wrote separately “merely to express emphatic support for, and modestly to amplify, the court’s criticism of a common and authorized but unsound judicial practice. That is the practice of trying to establish the meaning of a law of a foreign country by testimony or affidavits of expert witnesses”:

Lawyers who testify to the meaning of foreign law, whether they are practitioners or professors, are paid for their testimony and selected on the basis of the convergence of their views with the litigating position of the client, or their willingness to fall in with the views urged upon them by the client. These are the banes of expert testimony. When the testimony concerns a scientific or other technical issue, it may be unreasonable to expect a judge to resolve the issue without the aid of such testimony. But judges are experts on law, and there is an abundance of published materials, in the form of treatises, law review articles, statutes, and cases, . . . to provide neutral illumination of issues of foreign law. I cannot fathom why in dealing with the meaning of laws of English-speaking countries that share our legal origins judges should prefer paid affidavits and testimony to published materials. It is only a little less perverse for judges to rely on testimony to ascertain the law of a country whose official language is not English, at least if is a major country and has a modern legal system [(because law and secondary sources are readily translated into English)]. . . . [O]ur linguistic provincialism does not excuse intellectual provincialism. It does not justify our judges in relying on paid witnesses to spoon feed them foreign law . . . . I do not criticize the district judge in this case, because he was following the common practice. But it is a bad practice, followed like so many legal practices out of habit rather than reflection. . . .

Judge Wood disagreed, arguing that judges are too likely err in interpreting foreign law, especially when it is in a foreign language:

Exercises in comparative law are notoriously difficult, because the U.S. reader is likely to miss nuances in the foreign law, to fail to appreciate the way in which one branch of the other country’s law interacts with another, or to assume erroneously that the foreign law mirrors U.S. law when it does not. . . .

There will be many times when testimony from an acknowledged expert in foreign law will be helpful, or even necessary, to ensure that the . . . U.S. judge understands the full context of the foreign provision. Some published articles or treatises, written particularly for a U.S. audience, might perform the same service, but many will not, even if they are written in English, and especially if they are translated into English from
another language. It will often be most efficient and useful for the judge to have before her an expert who can provide the needed precision on the spot, rather than have the judge wade through a number of secondary sources. In practice, the experts produced by the parties are often the authors of the leading treatises and scholarly articles in the foreign country anyway. In those cases, it is hard to see why the person’s views cannot be tested in court, to guard against the possibility that he or she is just a mouthpiece for one party.

Both Judges Easterbrook and Posner recognized a caveat. According to the latter, the use of foreign law experts was “excusable only when the foreign law is the law of a country with such an obscure or poorly developed legal system that there are no secondary materials to which the judge could turn.” The former would allow an expert to help determine the law of countries who do not “engage in extensive international commerce.” This begs a question of line-drawing. One might assume that a U.S. judge would do his own research of an English-speaking common law system, irrespective of how much “international commerce” flowed through its ports. At the other end of the spectrum, the law of the Congo might be best explained by an expert. In between, as queried by Eugene Volokh, what about a country like Saudi Arabia, which is economically quite significant, but its legal system is so different from ours in many ways that I suspect most judges would want to hear from experts? What would Judges Easterbrook and Posner say about Chinese law, which is also radically different from ours but is an economic powerhouse and is the subject of a good deal of written English-language commentary? Perhaps, in close cases, courts may be more willing to hire their own foreign law experts pursuant to Federal Rule of Evidence 706, as is sometimes done. See, e.g., Saudi Basic Indust.Corp. v. Mobil Yanbu Petrochemical Co., Inc., 866 A.2d 1, 30-32 (Del. 2005).

The last issue of the Revue critique de droit international privé was released in August. It contains two articles and several casenotes.

The first article is authored by Sara Godechot-Patris, who is a professor of law at the University of Tours. The article purports to revisit the concept of equivalence for the purpose of coordination of legal systems (Retour sur la notion d’équivalence au service de la coordination des systèmes). The English abstract reads:

Invoked in a myriad of different situations and in a confusing number of directions within the framework of the conflict of laws, the concept of equivalence  – which guarantees the integration within the forum legal order of situations conforming to foreign legal institutions – requires its use to be subject to greater discipline. This should take place by framing the conditions in which it operates, firstly through characterisation of the legal relationship, whether in view of the selection of a choice of law rule or in order to identify the substantive rules of the governing law, and secondly by subordinating the assessment to the requirements of coherence of the forum legal order. This will regulate its effects, not only in the case where an assessement of equivalence is positive and permits a substitution-assimilation or the subsidiarity application of the law of the forum, but also when the assessement is negative. In such a case, the refusal will not necessarily lead to a rejection of the foreign legal institution, since the necessary respect of the integrity of the forum legal order may lead to adding a new legal construct or category.

The second article is from Khalid Zaher,  who is a professor of law at the university of Fes (Morocco). It present the case for the recognition of Moroccan divorces after a recent decision of the French supreme court for private matters (Plaidoyer pour la reconnaissance des divorces marocains. A propos de l’arrêt de la première chambre civile du 4 novembre 2009). Unfortunately, there is no abstract.

The full table of content of the Revue can be seen here.

François-Xavier Licari, Professor at the University of Metz (Paul-Verlaine) has posted Taking Punitive Damages Seriously: Why a French Court Did Not Recognize An American Decision Awarding Punitive Damages and Why it Should Have  on SSRN. Here is the English abstract  (the article is written in French):

Recently, a French Court of Appeal (cour d’appel) refused to recognize a California judgment (to grant an “exequatur”) that awarded punitive damages to American citizens in a breach of contract case involving the sale of a ship from French sellers. The French Court gave several reasons in refusing to grant the exequatur, particularly: French law only allows for compensatory damages and considers the principle of full compensation as fundamental; punitive damages create an unjust enrichment (a windfall) for the plaintiff. In effect, the punitive damages given by the California court were disproportionate to the actual damages. In sum, punitive damages hurt French public policy (l’ordre public international français). The author contends that none of these arguments stand up to an objective examination. For example, a close look at French case law shows the principle of full compensation has never been considered as belonging to the ordre public in the international sense of the notion. Furthermore, French private law knows “private penalties” (peines privées), and some of them resemble American punitive damages. Last but not least, two recent law reform proposals militate in favor of the introduction of punitive damages to the French Civil Code. This essay advocates for a better understanding of the notion of punitive damages and their role in American law, and urges French courts to give effect to reasonable punitive damage awards.

This article will be published in the forthcoming issue of the Journal du Droit International.

Recently, the September/October issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

Here is the contents:

•  Peter Mankowski: “Ausgewählte Einzelfragen zur Rom II-VO: Internationales Umwelthaftungsrecht, internationales Kartellrecht, renvoi, Parteiautonomie” – the English abstract reads as follows:

The Rome II Regulation is up for regular review in the near future. Some of its rules deserve closer consideration. This relates in particular to Art. 7 on environmental liability which does not address the paramount question to which extent permissions granted by one Member State influence liability. Insofar a detailed solution by way of recognition is proposed. Another field open for reform is party autonomy under Art. 14. Insofar a number of proposals is submitted generally attempting to bring Art. 14 better in line with other rules of Community law. A systematic restructuring of Art. 6 (3) on competition law is advocated for, too. In contrast, it does not appear to alter anything with regard to the exclusion of renvoi.

• Beate Gsell/Felix Netzer: “Vom grenzüberschreitenden zum potenziell grenzüberschreitenden Sachverhalt – Art. 19 EuUnterhVO als Paradigmenwechsel im Europäischen Zivilverfahrensrecht” – the English abstract reads as follows:

This article sheds light on a new development in European Civil Procedure Law caused by Article 19 Regulation (EC) No 4/2009 of 18 December 2008 on maintenance obligations. It illustrates the differences between Article 19 Regulation (EC) No 4/2009 and related Articles in the Regulations on the European enforcement order for uncontested claims, the European order for payment procedure and the European small claims procedure. The authors demonstrate that Article 19 (EC) No 4/2009 provides the defendant with an autonomous right to apply for a review of a national court’s decision in order to compensate the abolition of the exequatur. Thereby European Civil Procedure Law does not confine its scope to cross-border cases, but, on the grounds of an only potential Europe-wide recognition and enforcement of judgements, intervenes in merely national procedures as well. After discussing the consequences of this principle change in European Civil Procedure Law, the authors doubt the EU’s competence under Article 65 EC or Article 81 TFEU to intervene in national procedure law as regulated in Article 19 (EC) No 4/2009.

• Anne Röthel/Evelyn Woitge: “Das ESÜ-Ausführungsgesetz – effiziente Kooperation im internationalen Erwachsenenschutz” – the English abstract reads as follows:

The coming into force of the Hague Convention on the International Protection of Adults on 1 January 2009 gives reason to examine the German Implementation Act. Its purpose is to include the regulations of the Convention into the internal German system for the protection of adults who are suffering from an impairment or an insufficiency in their personal facilities and therefore are not able to safeguard their own interests. In this article, the authors show the major content of the Implementation Act and discuss how the rules on jurisdiction, applicable law and international recognition and enforcement of protective measures laid down by the Convention fit into existing German law. Also, they highlight the concept of administrative co-operation between member states drawn up by the Convention and put into effect by national law.

• Jörn Griebel: “Einführung in den Deutschen Mustervertrag über die Förderung und den gegenseitigen Schutz von Kapitalanlagen von 2009” – the English abstract reads as follows:

The article comments on the new German Model BIT (bilateral investment treaty) of 2009. After a general description of its content, some changes of the new model in comparison to its predecessors are addressed. Against the background of various models by other states, the question will be raised as to whether some necessary changes were omitted. It is also discussed to what degree different approaches to reforming model BITs are due to political reasons and/or different approaches to treaty drafting.

•  Axel Metzger: “Zum Erfüllungsortgerichtsstand bei Kauf- und Dienstleistungsverträgen gemäß der EuGVVO” – the English abstract reads as follows:

The Car Trim decision of the ECJ puts a spotlight on two important and yet unsettled questions regarding the jurisdiction at the place of performance in sales and service contracts under Art. 5 Nr. 1 lit. b Brussels I Regulation. The author agrees with the Court’s ruling that contracts for the supply of goods to be manufactured or produced should be characterised as sales contracts as long as the purchaser has not supplied the materials. However, the ruling should not be generalised to all types of mixed contracts with service components. The Car Trim decision is also correct in localising the place of performance in case of a sale involving carriage of goods at the place where the purchaser obtained actual power of disposal over the goods at the final destination and not at the place at which the goods are handed over to the first carrier for transmission to the purchaser. Finally, the author examines some of the general questions on autonomous interpretation of Art. 5 Nr. 1 lit. b Brussels I Regulation raised by the Court.

• Ben Steinbrück: “Internationale Zuständigkeit deutscher Gerichte für selbstständige Beweisverfahren in Schiedssachen” – the English abstract reads as follows:

The author comments on a decision of the Higher Regional Court Düsseldorf (7 February 2008 – I-20 W 152/07), which deals with the competence of German courts to preserve evidence for use in foreign arbitration proceedings. The court ruled that parties who agree that their dispute shall be resolved by a foreign arbitral tribunal pursuant to a foreign law derogate the German courts’ international jurisdiction to make (interim) orders in independent proceedings for the taking of evidence (“selbständiges Beweisverfahren”). This decision is not in line with German arbitration law. According to §§ 1025 Abs. 2, 1033 of the German Code of Civil Procedure German courts arbitration agreements conferring jurisdiction on a foreign arbitral tribunal do not affect the German courts’ competence to grant interim relief. It follows that these competences, including the power to preserve evidence, can only be excluded by an explicit agreement to that effect.

• Rolf A. Schütze on the principle of reciprocity in relation to South Africa: “Zur Verbürgung der Gegenseitigkeit im Verhältnis zu Südafrika”
• Peter Kindler: “Zum Kollisionsrecht der Zahlungsverbote in der Gesellschaftsinsolvenz” – the English abstract reads as follows:

Under German law, the managing director of a company is obliged to reimburse the company any payment that has been made to a third party – e.g. a creditor or a shareholder – after the company’s insolvency or over-indebtedness (see, e.g. sec. 64 of the law pertaining to private companies ltd. by shares – GmbHG).1 The Berlin Kammergericht holds that this rule of law also applies to a managing director of a company registered abroad – in this case a British Ltd. – with its centre of main interests in Germany (sec. 3 of the EC Regulation 1346/2000 on cross border insolvency). The author welcomes this decision.

• Fabian Wall: “Enthält Art. 21 Abs. 1 AEUV eine „versteckte“ Kollisionsnorm?” – the English abstract reads as follows:

According to the judgment of the European Court of Justice in the case “Grunkin and Paul”, Article 21 TFEU (ex Article 18 TEC) awards the right to every citizen of the Union that each Member State has to recognise a surname which has been formerly determined and lawfully registrated in a civil register of another Member State. Until now, it is uncertain how the demand of the Court of Justice can be implemented in german practice. This is demonstrated by a case decided recently by the Higher Regional Court of Munich. The legal question is whether Article 21 TFEU should be interpreted as a target which leaves the national authorities the choice of form and methods of implementation or whether Article 21 TFEU should be interpreted as a “hidden” conflict of laws rule which is directly applicable in all Member States.

• Martin Illmer: “La vie après Gasser, Turner et West Tankers – Die Anerkennung drittstaatlicher anti-suit injunctions in Frankreich” – the English abstract reads as follows:

The strong winds from Luxembourg blowing in the face of anti-suit injunctions have extinguished the remedy within the territorial and substantive scope of the Brussels I Regulation. Yet, anti-suit injunctions are not dead even within the European Union. Rather, the focus shifts to the remaining areas of operation. One of these areas concerns anti-suit injunctions issued by non-member state courts against parties initiating proceedings before member state courts. Since the Brussels I Regulation does not cover extra-territorial scenarios, the rationale of the ECJ’s judgments in Gasser, Turner and West Tankers does not apply. Faced with such an anti-suit injunction, it is entirely up to the national law of the respective Member State whether or not to recognize it. While the Belgian and German courts had refrained to do so in the past, the French Cour de Cassation in a recent straight forward judgment has had no difficulty in recognizing and enforcing an anti-suit injunction of a US state court (Georgia).

• Ulrich Spellenberg on Art. 23 Brussels I Regulation: “Der Konsens in Art. 23 EuGVVO – Der kassierte Kater”
• Carl Friedrich Nordmeier: “Portugal: Änderungen im internationalen Zuständigkeitsrecht” – the English abstract reads as follows:

By art. 160 of law n. 52/2008 of 28 of August 2008, Portugal reformed its autonomous rules on jurisdiction, art. 65 and 65-A of the Civil Procedure Code. This contribution gives a short overview of the new rules, focussing especially on the applicability in time.

• Christoph Benicke: “Die Neuregelung des internationalen Adoptionsrechts in Spanien” – the English abstract reads as follows:

With the law 54/2007 of 28 December 2007 the Spanish legislator has enacted a special law on international adoption which encompasses rules on jurisdiction, applicable law and the recognition of foreign adoption decisions in Spain. The new law has the advantage that it summarizes the scattered arrangements into one piece of legislation. It also represents a step forward in that the transformation of a weak foreign adoption in a strong adoption is now possible. But the reform remains half hearted as it restricts the recognition of a weak foreign adoption to cases where none of the parties has the Spanish nationality. In addition, both the conflict of laws rule and the rules on the recognition of foreign adoption decisions are substantively implausible. Most schemes have been taken over from the existing legal situation which had in great part been formed by decisions of the General Directorate of public registries and of the notary system (Dirección General de los Registros y del Notariado) without of systematic guideline. Significantly, there are many technical shortcomings in the legislation. Overall, the new law fails to create a modern, autonomous international adoption law. This is all the more striking since the motives express the aim to reach the standard of the Hague Adoption Convention of 1993.

• Viviane Reding on the European Civil Code and PIL: “Zum Europäischen Zivilgesetzbuch und IPR”
• Rolf Wagner: “Die zivil(verfahrens-)rechtlichen Komponenten des Aktionsplans zum Stockholmer Programm” – the English abstract reads as follows:

The “Stockholm Programme – An open and secure Europe serving and protecting the citizens” covering the period 2010–2014 defines strategic guidelines for legislative and operational planning within the area of freedom, security and justice. Recently the European Commission finalized an action plan. The action plan entails lists of measures with time limits implementing the Stockholm Programme. The article provides an overview on this action plan.

The second issue of 2010’s French Revue de l’arbitrage was released in July.

It contains three articles, one of which addresses an issue of private international law. It is authored by Mathias Audit, who is professor of law at the University Paris Ouest (formerly Paris 10) and discusses the influence of the recent INSERM judgment of one of French supreme courts on the regime of arbitration of disputes arising out of international administrative contracts (Le nouveau régime de l’arbitrage des contrats administratifs internationaux (à la suite de l’arrêt rendu par le Tribunal des conflits dans l’affaire INSERM)). The English abstract reads:

Pursuant to a judgment of 17 May 2010, the “Conflicts Court” (“Tribunal des conflits“) laid down the first foundations for the international arbitral regime to be applied to administrative contracts concluded by French public bodies with foreign contracting parties. The Court has in particular decided to entrust to administrative courts the review of awards issued under certain types of such contracts. Using this judgment as a starting point, this article aims to review more generally this new regime which now applies to arbitration of disputes arising under international administrative contracts.

Robert Knowles, who is a Visiting Assistant Professor at Chicago-Kent College of Law, has posted A Realist Defense of the Alien Tort Statute  on SSRN. Here is the abstract:

This Article offers a new justification for modern litigation under the Alien Tort Statute (“ATS”), a provision from the 1789 Judiciary Act that permits victims of human rights violations anywhere in the world to sue tortfeasors in U.S. courts. The ATS, moribund for nearly 200 years, has recently emerged as an important but controversial tool for the enforcement of human rights norms. “Realist” critics contend that ATS litigation exasperates U.S. allies and rivals, weakens efforts to combat terrorism, and threatens U.S. sovereignty by importing into our jurisprudence undemocratic international law norms. Defenders of the statute, largely because they do not share the critics’ realist assumptions about international relations, have so far declined to engage with the cost-benefit critique of ATS litigation and instead justify the ATS as a key component in a global human rights regime.

This Article addresses the realists’ critique on its own terms, offering the first defense of ATS litigation that is itself rooted in realism – the view that nations are unitary, rational actors pursuing their security in an anarchic world and obeying international law only when it suits their interests. In particular, this Article identifies three flaws in the current realist ATS critique: First, critics rely on speculation about catastrophic future costs without giving sufficient weight to the actual history of ATS litigation and to the prudential and substantive limits courts have already imposed on it.

Second, critics’ fears about the sovereignty costs that will arise when federal courts incorporate international-law norms into domes-tic law are overblown because U.S. law already reflects the limited set of universal norms, such as torture and genocide, that are actionable under the ATS. Finally, this realist critique fails to overcome the incoherence created by contending that the exercise of jurisdiction by the courts may harm U.S. interests while also assuming that nations are unitary, rational actors.

Moving beyond the critique, this Article offers a new, positive realist argument for ATS litigation. This Article suggests that, in practice, the U.S. government as a whole pursues its security and economic interests in ATS litigation by signaling cooperativeness through respect for human rights while also ensuring that the law is developed on U.S. terms. This realist understanding, offered here for the first time, both explains the persistence of ATS litigation and bridges the gap that has frustrated efforts to weigh the ATS’s true costs and benefits.

The article is forthcoming in the Washington University Law Review, Vol. 88, 2011.

The third issue of French Journal du droit international (Clunet) for 2010 was just released.

It includes four articles and several casenotes. Two of the articles deal with conflict issues.

The first one is authored by Nabil Ferjani and Véronique Huet and discusses the impact of embargo United Nation decisions on the performance of international contracts (L’impact de la décision onusienne d’embargo sur l’exécution des contrats internationaux). The English abstract reads:

Generally, an international contract has to been studied in a very large context, in relation with political, juridical and economic circumstances in what it takes place. This is all right if we consider the juridical order to the conclusion of this form of contract during all its existence. The international doctrine gives a good place to contractual clauses and to their interprÉtation by arbiters of international commerce. Defined as a temporary measure, the pre-juridical decision of embargo, adopted as by UNI, as unilaterally, as by regional organizations, ended as soon as the infractions of a State have been finished, in period of armed or post-conflict, in the only goal to end the violation of the international legality. The smart sanctions adopted by Security Council of the United Nations these last years have to been considered as a just and proportionate appreciation of humanitarian situations of suffering people.

The second one is authored by Bernard Haftel, who lectures at the University of Orleans, and discusses the uniform interpretation of the Rome I Regulation (Entre Rome II et Bruxelles I. L’interprétation communautaire uniforme du Règlement Rome I). The English abstract reads:

Last-born among European Union Private International Law, the « Rome I » Regulation establishes rules concerning the law applicable to contracts. Thus, some of its notions and terms are also in use in other European Union Regulations concerning Private International Law such as the « Brussels I » and the « Rome II » Regulations. « Rome I » and « Rome II » deal with the same legal issue – i.e. choice of Law – but one focuses on the contractual side while the other considers the non-contractual side of obligations. « Rome I » and « Brussels I » both deal with matters relating to contracts, the former establishing the Choice of Law rules while the latter deals with Jurisdiction. Therefore, a study of these regulations seems necessary in order to determine to what extent the interpretations adopted by the Court of Justice for one of these Regulations should, or shouldn’t, be used for the others.

On 3 May 2010, the Oberster Gerichsthof (Austria) referred to the ECJ for a preliminary ruling five questions concerning Regulation (EC) nº 2210/2003 .  At the national court request, the reference was dealt  with under the urgent procedure provided for in Article 104b of the Rules of Procedure; the reason for doing so was that contact between the child and her father had been broken, and that a delayed decision on enforcement of the judgment of the Tribunale per i Minorenni di Venezia of 10 July 2009 ordering return of the child to Italy would exacerbate the deterioration of the relationship between father and child, and thereby increase the risk of psychological harm if the child were sent back to Italy.

The ECJ’s judgment in case C- 211/10 PPU was pronounced on 1 July 2010; it has been published today (OJ C 234, 28 August 2010).

The facts of the case

Ms Povse and Mr Alpago lived together as an unmarried couple in Vittorio Veneto, Italy, until the end of January 2008 with their daughter Sofia, born 6 December 2006. In accordance with Article 317a of the Italian Civil Code, the parents had joint custody of the child. At the end of January 2008, the couple separated and Ms Povse left the family home taking her daughter Sofia with her. Although the Tribunale per i Minorenni di Venezia (Court for matters concerning minors in Venice), by a provisional and urgent decision of 8 February 2008 at the father’s request, prohibited the mother from leaving Italy with the child, Ms Povse and her daughter travelled in February 2008 to Austria, where they have lived since that date.

On 16 April 2008 Mr Alpago brought an action before the Bezirksgericht Leoben (Austria) to obtain the return of his child to Italy on the basis of Article 12 of the 1980 Hague Convention.

On 23 May 2008 the Tribunale per i Minorenni di Venezia issued a judgment in which it revoked the prohibition on the mother leaving Italy with the child and awarded, provisionally, custody to both parents, while stating that the child could reside, pending final judgment, in Austria with her mother, to whom the court granted authority to make ‘decisions of day to day organisation’. In the same provisional judgment, the Italian court ordered the father to share the costs of supporting the child, established conditions and times for the father to have access to the child and instructed an expert report from a social worker in order to determine the nature of the relationship between the child and the two parents.

 Notwithstanding that judgment, a report drawn up on 15 May 2009 by the appointed social worker stated that the access permitted to the father by the mother was minimal and insufficient to allow the father’s relationship with his daughter to be assessed, particularly with regard to his parental abilities. Accordingly the social worker concerned considered that he (the father) was unable to carry out his task fully and in the interests of the child.

 On 3 July 2008 the Bezirksgericht Leoben dismissed Mr Alpago’s action of 16 April 2008, but on 1 September 2008 that decision was set aside by the Landesgericht Leoben (Austria) on the ground that Mr Alpago had not been heard in accordance with Article 11(5) of the regulation.

 On 21 November 2008 the Bezirksgericht Leoben again dismissed Mr Alpago’s action, on the basis of the judgment of Tribunale per i Minorenni di Venezia of 23 May 2008, according to which the child could reside provisionally with her mother.

On 7 January 2009 the Landesgericht Leoben upheld the decision to dismiss Mr Alpago’s action on the ground that there was a grave risk of psychological harm to the child, within the meaning of Article 13(b) of the 1980 Hague Convention.

Ms Povse brought an action before the Bezirksgericht Judenburg (Austria), which had local jurisdiction, requesting that custody of the child be granted to her. On 26 May 2009 that court, without allowing Mr Alpago the opportunity to state his case in accordance with the principle that both parties must be heard, declared that it had jurisdiction on the basis of Article 15(5) of Regulation 2201/2003, and asked the Tribunale per i Minorenni di Venezia to decline its jurisdiction.

However, Mr Alpago had already applied, on 9 April 2009, to the Tribunale per i Minorenni di Venezia, as part of the pending custody proceedings, for an order requiring the return of his child to Italy under Article 11(8) of the regulation. At a hearing arranged before that court on 19 May 2009, Ms Povse declared that she was willing to comply with the programme of meetings between father and daughter drawn up by the social worker. Ms Povse did not disclose her own legal action before the Bezirksgericht Judenburg, which led to the above mentioned decision of 26 May 2009.

On 10 July 2009 the Tribunale per i Minorenni di Venezia declared that it retained jurisdiction since, in its opinion, the conditions governing transfer of jurisdiction as provided for in Article 10 of the Regulation were not satisfied, and held that the inability of the social worker to complete his expert report as instructed by the court was due to the mother’s failure to comply with the schedule which the social worker had drawn up in relation to access.

Moreover, by the same judgment of 10 July 2009, the Tribunale per i Minorenni di Venezia ordered the immediate return of the child to Italy and instructed the social services department of the town of Vittorio Veneto, in the event that the mother returned with the child, to make accommodation available to them and to establish an access schedule for the father. The return order was made on the ground that it was desirable to reestablish contact between the child and her father which had been broken because of the mother’s attitude. For that purpose, the Tribunale per i Minorenni di Venezia issued a certificate under Article 42 of the regulation.

On 25 August 2009 the Bezirksgericht Judenburg issued an interim order, awarding provisional custody of the child to Ms Povse. That court sent a copy of that order by mail to the father in Italy, without any information on his right to refuse acceptance of service and without any translation. On 23 September 2009 that order became final and enforceable under Austrian law.

On 22 September 2009 Mr Alpago submitted an application to the Bezirksgericht Leoben for enforcement of the judgment of the Tribunale per i Minorenni di Venezia of 10 July 2009 ordering the return of his child to Italy. The Bezirksgericht Leoben dismissed that application on the ground that enforcement of the judgment of the Italian court represented a grave risk of psychological danger to the child. On an appeal brought by Mr Alpago against that decision, the Landesgericht Leoben quashed the decision, on the basis of Case C-195/08 PPU Rinau [2008] ECR I-5271, and ordered return of the child.

Ms Povse brought an appeal against the decision of the Landesgericht Leoben seeking dismissal of the application for enforcement.Having doubts as to the interpretation of the regulation the Oberster Gerichtshof decided to stay proceedings and to refer to the Court five questions for a preliminary ruling.

The questions

‘1.      Is a “judgment on custody that does not entail the return of the child” within the meaning of Article 10(b)(iv) of [the Regulation] also to be understood as meaning a provisional measure by which “parental decision-making power” and in particular the right to determine the place of residence is awarded to the abducting parent pending the final judgment on custody?

2.      Does a return order fall within the scope of Article 11(8) of [the Regulation] only where the court orders return on the basis of a judgment on custody delivered by that court?

3.      If Question 1 or 2 is answered in the affirmative:

(a)      Can the lack of jurisdiction of the court of origin (Question 1) or the inapplicability of Article 11(8) of [the Regulation] (Question 2) be relied on in the second State as against the enforcement of a judgment in respect of which the court of origin has issued a certificate in accordance with Article 42(2) of [the Regulation]?

(b)      Or, in such circumstances, must the opposing party apply for that certificate to be revoked in the State of origin, thereby allowing enforcement in the second State to be stayed pending the decision in the State of origin?

4.      If Questions 1 and 2 or Question 3(a) are/is answered in the negative:

Does a judgment delivered by a court in the second State and regarded as enforceable under the law of that State, by which provisional custody was awarded to the abducting parent, preclude the enforcement of an earlier return order made in the State of origin under Article 11(8) of [the Regulation], in accordance with Article 47(2) of [the Regulation], even if it would not prevent the enforcement of a return order made in the second State under the Hague Convention?

5.      If Question 4 is also answered in the negative:

(a)      Can the second State refuse to enforce a judgment in respect of which the court of origin has issued a certificate under Article 42(2) of [the regulation] if, since its delivery, the circumstances have changed in such a way that enforcement would now constitute a serious risk to the best interests of the child?

(b)      Or must the opposing party invoke that change of circumstances in the State of origin, thereby allowing enforcement in the second State to be stayed pending the judgment in the State of origin?

AG’s opinion

The view of Advocate General Sharspton was delivered on 16 June 2010. After a quite long reasoning she concludes that:

‘1)      A provisional measure awarding custody of a child to the abducting parent pending the final (or lasting) judgment on custody is not a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b)(iv) of Council Regulation (EC) No 2201/2003 .

2)      A return order falls within the scope of Article 11(8) of Regulation No 2201/2003 irrespective of whether or not the court orders return on the basis of a judgment on custody delivered by that court.

3)      Where a judgment certified by a court of a Member State in accordance with Article 42(2) of Regulation No 2201/2003 is challenged on the ground of the lack of jurisdiction of the court of origin or of the inapplicability of Article 11(8) of that regulation, the only possible legal remedy is to appeal against the judgment itself (and not against the certificate) before the courts of that Member State. The courts of the Member State of enforcement have no jurisdiction to refuse or stay enforcement.

4)      A judgment delivered by a court in the State of enforcement, awarding provisional custody to the abducting parent, does not preclude the enforcement of an earlier return order made by the State of origin under Article 11(8) of Regulation No 2201/2003.

5)      Where a judgment certified by a court of a Member State in accordance with Article 42(2) of Regulation No 2201/2003 is challenged on the ground that its enforcement would constitute a serious risk to the best interests of the child, because the circumstances have changed since that judgment was delivered, the only possible legal remedy is to appeal against the judgment itself (and not against the certificate) before the courts of that Member State. The courts of the Member State of enforcement have no jurisdiction to refuse or stay enforcement.’

The judgment

Quite close to the view of the Advocate General, the ECJ stated that

1.    Article 10(b)(iv) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that a provisional measure does not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of that provision, and cannot be the basis of a transfer of jurisdiction to the courts of the Member State to which the child has been unlawfully removed.

2.    Article 11(8) of Regulation No 2201/2003 must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child.

3.    The second sub-paragraph of Article 47(2) of Regulation No 2201/2003 must be interpreted as meaning that a judgment delivered subsequently by a court in the Member State of enforcement which awards provisional rights of custody and is deemed to be enforceable under the law of that State cannot preclude enforcement of a certified judgment delivered previously by the court which has jurisdiction in the Member State of origin and ordering the return of the child.

4.    Enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change must be pleaded before the court which has jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment.

The XI volume (2009) of the Yearbook of Private International Law (YPIL), published by Sellier – European Law Publishers in association with the Swiss Institute of Comparative Law (ISDC), is out. The Yearbook, edited by Andrea Bonomi and Paul Volken, contains a huge number of articles, national reports, commentaries on court decisions and other materials, up to nearly 650 pages.

Here’s the full list of contributions (available as .pdf on the publisher’s website, where the volume can be purchased, also in electronic format):

Doctrine

• Erik Jayme, Party Autonomy in International Family and Succession Law: New Tendencies;
• Ralf Michaels, After the Revolution – Decline and Return of U.S. Conflict of Laws;
• Diego P. Fernández Arroyo, Private International Law and Comparative Law: A Relationship Challenged by International and Supranational Law;
• Koji Takahashi, Damages for Breach of a Choice-of-Court Agreement: Remaining Issues;
• Eva Lein, A Further Step Towards a European Code of Private International Law: The Commission Proposal for a Regulation on Succession;
• Giulia Rossolillo, Personal Identity at a Crossroads between Private International Law, International Protection of Human Rights and EU Law;
• Urs Peter Gruber / Ivo Bach, The Application of Foreign Law: A Progress Report on a New European Project;
• Juan José Alvarez Rubio, Contracts for the International Carriage of Goods: Jurisdiction and Arbitration under the New UNCITRAL Convention 2008.

Private International Law in China – Selected Topics

• Yongping Xiao / Weidi Long, Contractual Party Autonomy in Chinese Private International Law;
• Qisheng He, Recent Developments with Regards to Choice of Law in Tort in China;
• Renshan Liu, Recent Judicial Cooperation in Civil and Commercial Matters between Mainland China and Taiwan, the Hong Kong S.A.R. and the Macao S.A.R.;
• Weidong Zhu, Law Applicable to Arbitration Agreements in China;
• Yongping Xiao, Foreign Precedents in Chinese Courts;
• Guoqiang Luo (Steel Rometius), Crime of Law-Bending Arbitration in Chinese Criminal Law and Its Effects on International Commercial Arbitration;
• Fang Xiao, Law Applicable to Arbitration Clauses in China: Comments on the Chinese People’s Supreme Court’s Decision in the Hengji Company Case.

National Reports

• Didier Opertti Badán / Cecilia Fresnedo de Aguirre, The Latest Trends in Latin American Private International Law: the Uruguayan 2009 General Law on Private International Law;
• Jeffrey Talpis / Gerald Goldstein, The Influence of Swiss Law on Quebec’s 1994 Codification of Private International Law;
• Yasuhiro Okuda, Initial Ownership of Copyright in a Cinematographic Work under Japanese Private International Law;
• Elisabeth Meurling, Less Surprises for Spouses Moving Within the Nordic Countries? Amendments to the 1931 Nordic Convention on Marriage;
• Andreas Fötschl, The Common Optional Matrimonial Property Regime of Germany and France – Epoch-Making in the Unification of Law.

News from UNCITRAL

• Jenny Clift, International Insolvency Law: the UNCITRAL Experience with Harmonisation and Modernisation Techniques.

Court Decisions

• Zeno Crespi Reghizzi, ‘Mutual Trust’ and ‘Arbitration Exception’ in the European Judicial Area: The West Tankers Judgment of the ECJ;
• Mary-Rose McGuire, Jurisdiction in Cases Related to a Licence Contract Under Art. 5(1) Brussels Regulation: Case-Note on Judgment ECJ Case C-533/07 – Falco Privatstiftung and Thomas Rabitsch v. Gisela Weller-Lindhorst;
• Antonio Leandro, Effet Utile of the Regulation No. 1346 and Vis Attractiva Concursus. Some Remarks on the Deko Marty Judgment;
• Ben Steinbrück, Jurisdiction to Set Aside Foreign Arbitral Awards in India: Some Remarks on an Erroneous Rule of Law;
• Gilberto Boutin, Forum non conveniens and Lis alibi pendens in International Litigation in Panama.

Forum

• Fabrizio Marongiu Buonaiuti, Lis Alibi Pendens and Related Actions in Civil and Commercial Matters Within the European Judicial Area;
• Caroline Kleiner, Money in Private International Law: What Are the Problems? What Are the Solutions?;
• Benedetta Ubertazzi, Intellectual Property and State Immunity from Jurisdiction in the New York Convention of 2004.

See also our previous posts on the 2006, 2007 and 2008 volumes of the YPIL.

(Many thanks to Gian Paolo Romano, Production Editor of the YPIL)

John H. Knox, who is a professor at Wake Forest University Law School, has posted A Presumption against Extrajurisdictionality on SSRN.

This article describes the Supreme Court’s jurisprudence on the geographic reach of federal statutes. It argues that the Court’s decisions are a parade of inconsistencies that fail to give clear guidance to lower courts, the executive branch, and Congress. The result is that no one can know with any certainty whether a statute of general application will be construed to extend to places outside U.S. boundaries but under U.S. control, such as Guantanamo Bay, or to foreign activities with domestic effects, or to foreign ships within U.S. territory.

The article proposes that the Court return its jurisprudence to coherence by adopting a new canon: a presumption against extrajurisdictionality. Under the proposal, the Court would look for guidance to the body of international law that allocates legislative jurisdiction among countries. If that law provides the United States with sole or primary legislative jurisdiction over a situation, the Court would have a green light to construe the statute without any presumption against its application. If the United States has no basis for jurisdiction, the light would be red. There would be a strict presumption against application of the statute, which could be overcome only by a clear statement in the law itself. Finally, situations in neither of these categories would fall under a yellow light: if the United States has some basis for jurisdiction, but not the sole or primary basis, then the Court would employ a soft presumption against application of the statute, which could be overcome by any indication of legislative intent to do so.

The paper is forthcoming in the American Journal of International Law.