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A Commentary on the EU Regulations on the Property Regimes of International Couples
The EU Regulations on the Property Regimes of International Couples – A Commentary has been published by Edward Elgar in its “Elgar Commentaries in Private International Law” series.
The publisher’s abstract reads: This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. Written by experts from a variety of European countries, it offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.
Edited by Ilaria Viarengo and Pietro Franzina, this commentary features contributions by Giacomo Biagioni, Andrea Bonomi, Beatriz Campuzano Díaz, Janeen Carruthers, Sabine Corneloup, Gilles Cuniberti, Elena D’Alessandro, Pietro Franzina, Martin Gebauer, Christian Kohler, Silvia Marino, Cristina M. Mariottini, Dieter Martiny, Csongor I. Nagy, Jacopo Re, Carola Ricci, Andres Rodríguez Benot, Lidia Sandrini, Ilaria Viarengo and Patrick Wautelet.
Further info here
CJEU on application of the law of the forum under Article 10 of the Rome III Regulation: Case C-249/19, JE
Back in February we reported on the Opinion presented by Advocate General Tanchev in case C-249/19, JE. Today the Court of Justice rendered its Judgment in which it confirms the interpretation provided in the Opinion.
As a reminder, the question referred to the Court of Justice originated in the proceedings pending before the Romanian courts dealing with a petition for divorce. The parties to these proceedings are Romanian nationals, habitually resident in Italy.
In these circumstances, under Article 8(a) of the Rome III Regulation, it is a priori Italian law that governs the grounds of divorce. According to Italian law, the dissolution of marriage can be pronounced only where there had been a legal separation of the spouses and at least three years have passed between this separation and the time at which the court have been seized by the applicant.
Seized of a petition for divorce, the first instance court considered that since no provision is made for legal separation proceedings under Romanian law, such proceedings must be conducted before the Italian courts and therefore any application to that effect made before the Romanian courts is inadmissible.
Yet, seized of an appeal lodged by the applicant, the second instance court focused on Article 10 of the Regulation that states, inter alia, ‘[w]here the law applicable […] makes no provision for divorce […], the law of the forum shall apply’. That court referred a request for a preliminary ruling to the Court asking, in essence, whether Italian law could be disapplied under Article 10.
In his Opinion presented this February, AG Tanchev held that Article 10 of the Rome III Regulation calls for a strict interpretation. The expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ relates only to situations in which the applicable foreign law does not recognize the institution of divorce. Italian law should therefore be applied by the Romanian courts. Despite the lack of procedural rules in relation to legal separation, these courts have to verify whether the requirement relating to separation was met.
The Judgment is in line with the Opinion: it confirms that a foreign law can be disapplied on the basis of Article 10 only when that law does not provide for any form of divorce.
As discussed in the initial post, at points 64 to 66, the Opinion seems to qualify the requirement provided for in the Italian law as a ‘procedural condition’. That qualification does not appear explicitly in the Judgment. At paragraph 43, the Judgment convincingly confines itself to stating that the substantive requirement at issue consists on a three years’ separation of the spouses and that the lack of procedural rules in relation to legal separation cannot prevent the Romanian court from verifying whether that requirement is met.
Against this background, at paragraph 40, the Judgment makes a point in the context of effectiveness of the Rome III Regulation. If the application of the requirement provided for in Italian law leads to the situation where the petitions for divorce are being rejected without their examination, the practical effectiveness of the uniform conflict of laws rules on divorce is undermined. I deem the references to the effectiveness/effet utile to be highly interesting. See paragraph 20 of the Judgment in Bier for one of the earliest occurrences of such reference. The Judgment in JE is yet another example: it presents a noteworthy take on the interaction between effet utile and conflict of laws rules. It will be interesting to see whether and how that specific line of argument will be developed in the future.
Call for Papers: Public International Law and Private International Law: Charting a blurry boundary – towards convergence or still divergence?
This Call for Paper is for an edited volume, the working title of which is: Public International Law and Private International Law: Charting a blurry boundary – towards convergence or still divergence?
The editors, Dr Poomintr Sooksripaisarnkit (of the University of Tasmania) and Dharmita Prasad (of Jindal Global Law School), are in negotiation with Springer Nature Pte Ltd for this edited volume.
Both editors would like to invite you to contribute a chapter in this edited volume focusing on addressing intersectionality between public international law and private international law. Further details are provided in the concept note below.
Tentative Timeline:
- 5 August 2020 – A proposed title of your paper along with a 300-word abstract are to be sent to editors – sooksripaisarnkit@utas.edu.au; dprasad@jgu.edu.in
- 10 August 2020 – Editors will be in touch with selected authors advising each of them of the decision that their proposed paper is accepted for this edited volume.
- 31 August 2020 – Editors will finalise their proposal to Springer Pte Ltd
- 17 July 2021 – First draft of the chapter to be sent to editors
- August 2021 – Editors review all drafts and provide comments / request respective authors to review their chapter
- September 2021 – Editors are to submit manuscript to Springer
- December 2021 / January 2022 – Tentative release of the book
Editors:
Dr Poomintr Sooksripaisarnkit – Lecturer in Maritime Law, Australian Maritime College, University of Tasmania, E-mail: poomintr.sooksripaisarnkit@utas.edu.au
Dharmita Prasad – Lecturer, Jindal Global Law School, E-mail: dprasad@jgu.edu.in
Concept Note
International law has a long history which can be traced back to over thousands of years ago with developments of modern international law took their starting point from the consequence of the Peace of Westphalia in 1648 whereby the concept of nation state emerged. Along with the rise of legal positivism, international law became perceived as the body of law dealing with external aspects of States or, in other words, with relationships between States. Private disputes with foreign elements were gradually taken out of the scope of international law and students of private international law subject have since been taught of it as a domestic private law dealing with cases or disputes involving foreign elements. Public international law and private international law seemingly diverge.
Still, relationships and interactions between public international law and private international law have led to endless debates. Courts in considering what seemingly private international law cases from time to time have to touch on public international law issues. For example, the Court of Final Appeal of the Hong Kong Special Administrative Region in Democratic Republic of Congo and Others v FG Hemisphere Associates LLC [2011] HKCFA 41; (2011) HKCFAR 95 had to deal with the concept of sovereign immunity in a case which was essentially an enforcement of foreign arbitral awards. Likewise, the issue of sovereign immunity is likely to come up again in a class action lawsuit brought against the People’s Republic of China by thousands of American citizens claiming damages following the COVID-19 outbreak. Relevant to the COVID-19 outbreak, different countries have adopted different measures in an attempt to contain the virus, including closing borders, travel bans, compulsory quarantine, etc. Applying some or all of these measures will bring further complication in terms of potential issues or arguments involving possible frustration of international contracts. Within the scope of the United Nations Convention on Contracts for the International Sale of Goods (CISG), this involves the consideration of the scope of the force majeure and hardship provision in Article 79. Indeed, international instruments like the CISG present examples of attempts at avoiding private international law issues via public international law instruments. European experiences in negotiating instruments such as the Brussels Regime or wider international experiences in negotiating instruments under the auspices of international organisations such as the Hague Conference on Private International Law only point to the turning of conflict of law matters into international relations. These are some of the issues which highlight the blurry line between public international law and private international law.
This book seeks to contribute to existing debates by focusing its study on the boundary / intersectionality between pubic international law and private international law. In doing so, it seeks contribution for any work which falls within one of the following themes:
- Historical and Theoretical consideration of the boundary between public international law and private international law
- Harmonisation of private international law by public international law instruments – evaluation of process, problems, and effectiveness
- Practical consideration / Case Study of public international law consideration in private international law cases
- Future trends on relationships and interactions between public international law and private international law: towards convergence or still divergence?