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Rivista di diritto internazionale privato e processuale (RDIPP) No 2/2020: Abstracts
The second issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:
Fernando Gascón Inchausti, Professor at Universidad Complutense de Madrid, Does EU Law Ensure an Adequate Protection of Debtors in Cross-Border Enforcement? (in English)
- From a general perspective, cross-border enforcement of judicial decisions – and of authentic instruments – entails the need to coordinate different procedural systems, interacting with each other. From a practical point of view, however, cross-border enforcement is also a context of dialectic between opposing parties, typical of any judicial process. Its regulation, therefore, must be developed and interpreted taking into account the rights and powers attributed to the creditor and to the debtor, so that the promotion of efficiency – favourable to the creditor – is not detrimental to the debtor’s right of defense. This article assesses the extent to which the civil procedural law of the European Union adequately protects the debtor in cross-border enforcement and, where appropriate, what could be the most reasonable measures to improve it without unduly harming the right of the creditor to a prompt satisfaction of his right. Special attention shall be given in this framework to the legal position of consumers, due to their vulnerability and their special legal status according to EU protective law.
Maria Caterina Baruffi, Professor at the University of Verona, Gli effetti della maternità surrogata al vaglio della Corte di Cassazione italiana e di altre corti (‘Effects of Surrogacy in the Jurisprudence of the Italian Corte di Cassazione? and Other Courts’, in Italian)
- This paper examines the decision by means of which the Italian Supreme Court, in plenary session, on 8 May 2019 dealt with the issue of surrogacy, with particular regard to the notion of international public policy. The Court concluded that the ban on surrogacy constitutes a principle of public order aimed at protecting fundamental values, such as the surrogate mother’s human dignity. This decision is consistent with the advisory opinion given in April 2019 by the European Court of Human Rights, that, upon request of the French Supreme Court in the context of the Mennesson case, ruled that each State can discretionarily determine the modalities by which it guarantees the recognition of the parent-child relationship, including the possibility to adopt. Nonetheless, the difficulties in the application of public policy are apparent and the situations that may arise as a result of such application are equally complex, for instance as a result of genetic ties being established with different persons. Therefore, this paper puts forth new proposals, also in the light of the most recent French case law.
The following comment is also featured:
Roberto Ruoppo, Doctor in Law, Lo status giuridico di Taiwan e i suoi riflessi sul piano internazionalprivatistico (‘Taiwan’s Legal Status and Its Consequences from a Private International Law Perspective’, in Italian)
- This paper focuses on the consequences brought in the field of private international law by the lack of recognition of a State. In particular, the paper aims to understand if it is possible that actors of the international community give effect to the acts and decisions adopted by the authorities of an entity not recognized as a State. Notably, this work addresses the case of Taiwan which, despite the lack of recognition from the others States, owns all the factual requirements to be considered as an autonomous subject in accordance with international law. Relying to the principle of effectiveness and the analysis of precedent case-law – such as those involving the Soviet Union and the German Democratic Republic – this paper aims to demonstrate that the response to this question should be premised on the consideration of the interests involved in the specific case. The conclusion reached is that the acts of an entity which lacks recognition should be given effects in the other States when this is more consistent with the principle of legal certainty and the legitimate expectations of the individuals involved.
In addition to the foregoing, this issue features the following book review by Roberta Clerici, Professor at the University of Milan: J. von Hein, E.-M. Kieninger, G. Rühl (eds.), How European is European Private International Law? Sources, Court Practice, Academic Discourse, Intersentia, Cambridge, 2019, pp. XXVI-373.
Monograph on international surrogacy with emphasis on Bosnia and Herzegovina
Anita Durakovic, Associate Professor at the University Dzemal Bijedic Mostar, and Jasmina Alihodzic, Professor at the University of Tuzla, co-authored a monograph titled International Surrogate Motherhood – Account of the Legislation in Bosnia and Herzegovina (in the original: Medunarodno surogat materinstvo – osvrt na zakonodavstvo u Bosni i Hercegovini). The book was published earlier in 2020 by the Faculty of Law of the University Dzemal Bijedic in Mostar.
The book’s first pages are devoted to interdisciplinary approaches to the surrogacy phenomenon followed by the comparative perspective over substantive laws. The central part of the book is focused on the legislation in Bosnia and Herzegovina, where particularly interesting for the readers of this blog are the sections devoted to recognition of cross-border surrogacy arrangements there at three distinct levels: within the proceedings on the merits before the competent authorities in Bosnia and Herzegovina, as part of the recognition of the status certified by the foreign authentic document, and as part of the recognition of the foreign judgment in which the decision is made concerning the personal status. In evaluating the difficulties which incoming intended parents would be faced with in Bosnia and Herzegovina, especially against the background of the prohibition of surrogate motherhood in force in one of the territorial units there, the authors differentiate between situations where surrogate parents request issuing of the travel documents in order to enter Bosnia and Herzegovina with the child, and where subsequent to entering the country they attempt to regulate the child’s civil status. Further chapters are glancing through human rights aspects of the surrogate arrangements and efforts on international level to regulate these matters, particularly within the Hague Conference on Private International Law. The conclusion favours recognition of foreign authentic documents and judgments concerning the legal parenthood deriving from a surrogate arrangement as opposed to the long and costly family law proceedings to obtain decisions establishing fatherhood and adoption on the part of the mother. The authors also stress that the competent authorities need to take account of the best interest of the child when deciding in recognition proceedings and assessing whether to apply the public policy clause.
While this book offers some discussion on theoretical level, it is primarily intended to serve as a reference point for the competent authorities and potential intended parents as well as to advise legislator or the need to adjust legal framework. It would have been much more convincing if the actual cases rated to the Bosnia and Herzegovina could have been discussed. However, according to the authors, there are no official cases although it is known to have happened in practice. Perhaps this book will contribute to raising awareness not only among legal professionals but also in the local community about important interests at stake in surrogate parenting arrangements, especially that of the child.
Austria and the HCCH Service Convention: the last EU Member State to join and an interesting declaration on service upon States
On 17 July 2020, the Depositary (i.e. the Ministry of Foreign Affairs of the Netherlands) notified that Austria ratified the HCCH Service Convention, which will enter into force for Austria on 12 September 2020. With this ratification, the HCCH Service Convention continues to attest itself as an important instrument of judicial co-operation given that all EU Member States are now a party to it.
The ratification of Austria was made pursuant to Council Decision (EU) 2016/414 of 10 March 2016 authorising the Republic of Austria to sign and ratify, and Malta to accede to, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, in the interest of the European Union. As indicated in a previous post, this decision required that such ratification be made by 31 December 2017 so it was long overdue.
Among the declarations/reservations made by Austria features an important reservation on service upon the Republic of Austria, which reads as follows: “The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965 shall not apply to the service of documents addressed to the Republic of Austria, including its political subdivisions, its authorities and persons acting on its behalf; such service shall be effected through diplomatic channels.” Although this reservation is not so common among the Contracting States to the HCCH Service Convention, and by the way it’s not contemplated explicitly in this treaty (but see art. 9(2)), it dispels any doubt as to the procedure to follow when suing a State.
All the declarations/reservations of Austria are available here.
The HCCH news item is available here.