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21

‘Legal identity’, statelessness, and private international law

Guest post by Bronwen Manby, Senior Policy Fellow and Guest Teacher, LSE Human Rights, London School of Economics.

In 2014, UNHCR launched a ten-year campaign to end statelessness by 2024. A ten-point global action plan called, among other things, for universal birth registration.  One year later, in September 2015, the UN General Assembly adopted the Sustainable Development Goals (SDGs), an ambitious set of objectives for international development to replace and expand upon the 15-year-old Millennium Development Goals.  Target 16.9 under Goal 16 requires that states shall, by 2030, ‘provide legal identity for all, including birth registration’. The SDG target reflects a recently consolidated consensus among development professionals on the importance of robust government identification systems.

Birth registration, the protection of identity, and the right to a nationality are already firmly established as rights in international human rights law – with most universal effect by the 1989 Convention on the Rights of the Child, to which every state in the world apart from the USA is a party. Universal birth registration, ‘the continuous, permanent, compulsory and universal recording within the civil registry of the occurrence and characteristics of birth, in accordance with the national legal requirements’, is already a long-standing objective of UNICEF and other agencies concerned with child welfare. There is extensive international guidance on the implementation of birth registration, within a broader framework of civil registration.

In a recent article published in the Statelessness and Citizenship Review I explore the potential impact of SDG ‘legal identity’ target on the resolution of statelessness. Like the UNHCR global action plan to end statelessness, the paper emphasises the important contribution that universal birth registration would make to ensuring respect for the right to a nationality. Although birth registration does not (usually) record nationality or legal status in a country, it is the most authoritative record of the information on the basis of which nationality, and many other rights based on family connections, may be claimed.

22

Out now: RabelsZ 1/2021

Issue 1/2021 of RabelsZ is now available online! It contains the following articles:

 

Reinhard Zimmermann (Hamburg): Zwingender Angehörigenschutz im Erbrecht ­- Entwicklungslinien jenseits der westeuropäischen Kodifikationen (Mandatory Family Protection in the Law of Succession), RabelsZ 85 (2021) 1–75 – DOI: 10.1628/rabelsz-2020-0092

23

HCCH Monthly Update: December 2020

Membership

On 4 December 2020, Mongolia was issued with a certificate confirming an affirmative vote in favour of its admission as a Member of the HCCH, following a six-month voting period which ended on 3 December 2020. Mongolia has now been invited to deposit an instrument of acceptance of the HCCH Statute to become a Member of the HCCH.

Meetings & Events

On 2 December 2020, the HCCH and the German Presidency of the Council of the European Union co-hosted the HCCH a|Bridged – Edition 2020, the focus of which was the Golden Anniversary of the HCCH 1970 Evidence Convention. More information about the event is available here.

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HCCH Monthly Update: September 2020

Membership

On 7 September 2020, Nicaragua and Thailand were issued with certificates confirming an affirmative vote in favour of their respective admissions as Members of the HCCH, following a six-month voting period which ended on 4 September 2020. Both Nicaragua and Thailand are now each invited to deposit an instrument of acceptance of the HCCH Statute to become a Member of the HCCH.

Conventions & Instruments

On 12 September 2020, the HCCH 1965 Service Convention entered into force for Austria. It currently has 78 Contracting Parties. More information is available here.

On 16 September 2020, Serbia signed the HCCH 2007 Child Support Convention. The next step for it to enter into force is for Serbia to deposit its instrument of ratification. More information is available here.

25

Job Offer at the University of Bayreuth

by Professor Dr Robert Magnus

The chair of civil law III at the Faculty of law and economics of the University of Bayreuth offers a position as a

Doctoral researcher / PhD Student (m/w/d)

which should be filled as soon as possible. The position is limited for a period of two years and is preferably granted for the purpose of preparing a doctoral thesis. The position is part-time (50 % of regular working hours) with the salary and the benefits of a public service position in the state of Bayern, Germany (TV-L E13, 50 %).

26

CJEU on the deceased’s habitual residence

Written by Vito Bumbaca, University of Geneva

On 16 July the CJEU issued its preliminary ruling in case E.E. & K.-D. E. (CJEU, C-80/19, ECLI:EU:C:2020:569, not yet available in English). The case concerned, inter alia, the assessment of the deceased’s habitual residence under the EU Succession Regulation No. 650/2012. Given the novelty of the ruling, which represents the very first CJEU assessment of the deceased’s habitual residence under the EU Succession Regulation, we will focus on this particular aspect only.

Facts:

A Lithuanian mother and her son moved to Germany to live with the mother’s husband. Prior to her death in Germany, she drew up a testament in Lithuania, naming her son as her sole heir. The mother owned an apartment in Lithuania and when she died (in Germany), her son approached a notary in Lithuania concerning the apartment and in order to obtain a Certificate of Succession. This notary refused both requests based on their interpretation of the EU Succession Regulation according to which the deceased’s last habitual residence was in Germany at the time of death. The deceased’s son appealed against such a decision; subsequently the proceedings reached the Lithuanian Supreme Court (Lietuvos Aukš?iausiasis Teismas), which decided to stay proceedings and ask the preliminary ruling of the CJEU. The CJEU found that a person can have only one habitual residence.

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The Hague Academy of International Law Advanced Course in Hong Kong: First Edition: Current Trends on International Commercial Dispute Settlement

In cooperation with the Asian Academy of International Law, the Hague Academy of International Law will hold its first edition of its Advanced Courses in Hong Kong from 7 to 11 December 2020.  The topic will be: “Current Trends on International Commercial Dispute Settlement“.

For this special programme, the Secretary-General of The Hague Academy of International Law has invited leading academics and practitioners from Paris (Professor Diego P. Fernández Arroyo), New York (Professor Franco Ferrari), Bonn (Professor Matthias Weller), Singapore (Ms Natalie Morris-Sharma), and Beijing (Judge Zhang Yongjian) to present expert lectures on the United Nations Convention on International Settlement Agreements Resulting from Mediation, Investor-State Dispute Settlement, international commercial arbitration, settlement of international commercial disputes before domestic courts, and the developments of the International Commercial Court. Registered participants will have pre-course access to an e-learning platform that provides reading documents prepared by the lecturers. At the end of the course, a certificate of attendance will be awarded.

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The Artist, the Actor and the EEO Regulation; or, how the English Courts and the Spanish Constitutional Court prevented a cross-border injustice threatened via the EEO Regulation in the litigation concerning Gerardo Moreno de la Hija and Christopher Frank Carandini Lee

Written by Jonathan Fitchen, University of Aberdeen

Introduction

The EEO Regulation (805/2004) was mooted in the mid-1990’s to combat perceived failings of the Brussels Convention that were feared to obstruct or prevent ‘good’ judgment creditors from enforcing ‘uncontested’ (i.e. undisputable) debts as cross-border debt judgments within what is now the EU. The characterisations ‘good’ and ‘bad’ are not employed facetiously; the unreasonable obstruction of a creditor who was assumed to pursue a meritorious debt claim was and remains a central plank of the EEO project: hence the Regulation offers an alternative exequatur and public policy free procedure for the cross-border enforcement of such uncontested monetary civil and commercial claims that, until 2002, fell under the quite different enforcement procedures of the Brussels Convention. The 2004 EEO Regulation covers money enforcement titles (judgments, settlements and authentic instruments) that are already enforceable in the Member State of origin and hence are offered an alternative route to cross-border enforcement in the Member State addressed via the successors to the Brussels Convention, first the Brussels I Regulation and now the Brussels Ia Regulation, on an expedited basis due to omitting both an exequatur stage and the ability of the Member State addressed to refuse enforcement because of public policy infringements.

As the EEO Regulation was introduced some years after the cross-border enforcement provisions of the Brussels Convention had been replaced by those of the Brussels I Regulation, many of the EEO’s ‘innovations’ to remedy ‘unnecessary’ or abusive delays, caused by either a ‘bad’ debtor or by an overly cautious enforcement venue, had already been mitigated three years before it came into force in 2005. This fact and other issues (e.g. a preference among lawyers for the familiar and now streamlined Brussels I Regulation enforcement procedure, the issue of ignorance of the EEO procedures, and a greater than expected willingness for creditors to litigate debt claims directly in foreign venues) contributed to a lower than expected take up of the EEO Regulation in the context of contentious legal proceedings.

29

From anti-suit injunctions to ‘quasi’ anti-suit injunctions and declaratory relief for breach of a choice of court agreement: a whiter shade of pale?

Nearly a year ago I reported on a Greek judgment refusing execution of two English orders issued on the basis of a High Court judgment which granted declaratory relief to the applicants. This came as a result of proceedings initiated in Greece, in breach of the settlement agreements and the exclusive jurisdiction clauses in favor of English courts. A recent judgment rendered by the same court confirmed the incidental recognition of the same High Court judgment, which resulted in the dismissal of the claim filed before Greek courts due to lack of jurisdiction.

Piraeus Court of Appeal Nr. 89/31.01.2020

THE FACTS

The facts of the case are clearly presented in the case Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] EWHC 3068 (Comm) (26 September 2014. The UK defendants invoked before the Piraeus first instance court the judgment aforementioned, and requested incidental recognition in Greece. The Piraeus court granted recognition, and dismissed the claim. The plaintiffs appealed, seeking reversal on two grounds: Lack of res iudicata and violation of Article 34 (1) Brussels I Regulation.

THE RULING

The Piraeus CoA founded its ruling on point 39 of the English judgment:

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Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 4/2020: Abstracts

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

E. Schollmeyer: The effect of the entry in the domestic register is governed by foreign law: Will the new rules on cross-border divisions work?

One of the most inventive conflict-of-law rules that secondary law of the European Union has come up with, can be discovered at a hidden place in the new Mobility Directive. Article 160q of the Directive assigns the determination of the effective date of a cross-border division to the law of the departure Member State. The provision appears as an attempted clearance of the complicated brushwood of the registration steps of a cross-border division of a company. This article explores whether the clearance has been successful.