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European Parliament Resolution on corporate due diligence and corporate accountability

Our blog has reported earlier on the Proposal and Report by the Committee on Legal Affairs of the European Parliament for a Resolution on corporate due diligence and corporate accountability. That proposal contained recommendations to amend the EU Regulations Brussels Ia (1215/2015) and  Rome II (864/2007). The proposals were discussed and commented on by Jan von Hein, Chris Tomale, Giesela RühlEduardo Álvarez-Armas and Geert van Calster

On 10 March 2021 the European Parliament adopted the Resolution with a large majority. However, the annexes proposing to amend the Brussels Ia and Rome II Regulations did not survive. The Resolution calls upon the European Commission to draw up a directive to ensure that undertakings active in the EU respect human rights and the environment and that they operate good governance. The European Commission has already indicated that it will work on this.

Even if the private international law instruments are not amended, the Resolution touches private international law in several ways.

*  It specifies that the “Member States shall ensure that relevant provisions of this Directive are considered overriding mandatory provisions in line with Article 16 of Regulation (EC) No 864/2007” (Art. 20). It is a bit strange that this is left to national law and not made an overriding mandatory provision of EU law in line with the CJEU’s Ingmar judgment (on the protection of commercial agents – also a Directive). Perhaps the legislator decides otherwise.

* It proposes a broad scope rule covering undertakings “operating in the internal market” and encompassing activities of these undertakings or “those directly linked to their operations, products or services by a business relationship or in their value chains” (Art 1(1)). It thus imposes duties on undertakings to have due diligence strategies and communicate these even if the undertakings do not have their seat in an EU Member State. In this way it moves away from traditional seat theories and place of activities tests.

ILA “Kyoto Guidelines on Intellectual Property and Private International Law” published with comments

Written by Toshiyuki Kono, Pedro de Miguel Asensio and Axel Metzger

The International Law Association’s Committee on “Intellectual Property and Private International Law” has finished its work with the adoption and publication of the “Kyoto Guidelines on Intellectual Property and Private International Law”. The Guidelines are the outcome of an international cooperation of a group of 36 scholars from 19 jurisdictions lasting for ten years under the auspices of ILA. The Kyoto Guidelines have been approved by the plenary of the ILA 79th Biennial Conference, held (online) in Kyoto on December 13, 2020. The Guidelines provide soft-law principles on the private international law aspects of intellectual property, which may guide the interpretation and reform of national legislation and international instruments, and may be useful as source of inspiration for courts, arbitrators and further research in the field. Different from older regional projects, the Kyoto Guidelines have been prepared by experts from different world regions. The Guidelines have now been published with extended comments as a special issue of the Open Access journal JIPITEC: https://www.jipitec.eu.

The ILA Committee on “Intellectual Property and Private International Law” was created in November 2010. Its aim was to examine the legal framework concerning civil and commercial matters involving intellectual property rights that are connected to more than one State and to address the issues that had emerged after the adoption of several legislative proposals in this field in different regions of the world. The work of the Committee was built upon the earlier projects conducted by the Hague Conference of Private International Law as well as several academic initiatives intended to develop common standards on jurisdiction, choice of law and recognition and enforcement of judgments in intellectual property matters.

In the initial stages of the activities of the Committee it was agreed that its overall objective should be to draft a set of model provisions to promote a more efficient resolution of cross-border intellectual property disputes and provide a blueprint for national and international legislative initiatives in the field. Therefore, the focus of its activities has been the drafting of a set of guidelines with a view to provide a valuable instrument of progress concerning private international law aspects raised by intellectual property. Furthermore, the Committee conducted a number of comparative studies and monitored the developments in different jurisdictions around the world. The Committee also worked in collaboration with several international organizations, particularly the World Intellectual Property Organization and the Hague Conference on Private International Law.

The final text of the Guidelines consists of 35 provisions, which are divided in four sections: General Provisions (Guidelines1-2), Jurisdiction (3-18), Applicable Law (19-31) and Recognition and Enforcement of Judgments (Guidelines 32-35). As suggested by the term “Guidelines”, this instrument contains a set of provisions intended to guide the application or reform of private international laws in this field. The Guidelines restate certain well-established foundational principles such as the lex loci protectionis rule and aspire to provide concrete solutions for pressing contemporary problems, in areas such as multi-state infringements and cross-border collective copyright management. In order to make explicit the influence of the previous projects in the field and to facilitate the comparison with them, the short comments are preceded by the reference to the similar provisions adopted previously in the ALI Principles[1], CLIP Principles[2], Transparency Proposal[3] and Joint Korean-Japanese Principles[4]. As an additional instrument to facilitate the uniform interpretation of the Guidelines, the Committee has prepared a set of extended comments to all the provisions.

The Guidelies have now been published together with extended comments written by members of the ILA Committee which explain the background and application of the Guidelines.

[1]  American Law Institute, Intellectual Property: Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes, ALI Publishers, 2008.

[2] European Max Planck Group on Conflict of Laws in Intellectual Property, Conflict of Laws in Intellectual Property (Text and Commentary), OUP, 2013.

[3] Japanese Transparency Proposal on Jurisdiction, Choice of Law, Recognition and Enforcement of Foreign Judgments in Intellectual Property, see the English text in J. Basedow, T. Kono and A. Metzger (eds.), Intellectual Property in the Global Arena – Jurisdiction, Applicable  Law, and the Recognition of Judgments in Europe, Japan and the US, Mohr Siebeck, 2010, pp. 394-402.

[4]  Joint Proposal by Members of the Private International Law Association of Korea and Japan, see The Quarterly Review of Corporation Law and Society, 2011, pp. 112-163.

CJEU on the EU-third State child abduction proceedings under article 10 of the Brussels IIA Regulation

This post was written by Vito Bumbaca, PhD candidate/ Assistant Lecturer, University of Geneva

The EAPIL blog has also published a post on this topic, click here.

Introduction:

The 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 (Brussels IIA Regulation) still applies to the United Kingdom in EU cross-border proceedings dealing with parental responsibility and/ or child civil abduction commenced prior to the 31 December 2020 (date when ‘Brexit’ entered into force). Moreover, the Court of Justice of the European Union (CJEU) is entitled to exercise its jurisdiction over such proceedings involving the UK.

The decision of the High Court of England and Wales (Family Division, 6 November 2020, EWHC 2971 (Fam)), received at the CJEU on 16 November 2020 for an urgent preliminary ruling (pursuant to article 19(3)(b) of the Treaty of the European Union, art. 267 of the Treaty of the Functioning of the European Union, and art. 107 of the Rules of Procedure of the Court of Justice), and the CJEU judgment (SS v. MCP, C-603/20, 24 march 2021) are taken as reference in this analysis.

Question for a CJEU urgent preliminary ruling:

‘Does Article 10 of [Regulation No 2201/2003] retain jurisdiction, without limit of time, in a Member State if a child habitually resident in that Member State was wrongfully removed to (or retained in) a non-Member State where she, following such removal (or retention), in due course became habitually resident?’

Contents of the EWHC (Family Division) judgment:

This judgment involved an Indian unmarried couple with a British daughter, born in England (2017), aged more than three (almost four at the time of the CJEU proceedings). Both parents held parental responsibility over their daughter, the father being mentioned as such in the birth certificate. The mother and the child left England for India, where the child has lived continuously since 2019. The father applied before the courts of England and Wales seeking an order for the return of the child and a ruling on access rights. The mother contested the UK jurisdiction (EWHC 2971, § 19).

The father claimed that his consent towards the child’s relocation to India was temporary for specific purposes, mainly to visit the maternal grandmother (§ 6). The mother contended that the father was abusive towards her and the child and, on that basis, they moved to India (§ 8). Consequentially, she had requested an order (Form C100 ‘permission to change jurisdiction of the child’, § 13). allowing the child’s continuous stay in India. Accordingly, the mother wanted their daughter to remain in India with her maternal grandmother, but also to spend time in England after the end of the pandemics.

In the framework of article 8, Brussels IIA, the Family Division of the Court of England and Wales held that the habitual residence assessment should be fact-based. The parental intentions are not determinative and, in many circumstances, habitual residence is established against the wishes of the persons concerned by the proceedings. The Court further maintained, as general principles, that habitual residence should be stable in nature, not permanent, to be distinguished from mere temporary presence. It concluded that, apart from British citizenship, the child did not have factual connections with the UK. Therefore, according to the Court, the child was habitually resident in India at the time of the proceedings concerning access rights initiated in England (§ 16).

The Family Division extended its analysis towards article 12(3) of the Regulation concerning the prorogation of jurisdiction in respect of child arrangements, including contact rights. For the Court, there was no express parental agreement towards the UK jurisdiction, as a prerogative for the exercise of such jurisdiction, at the time of the father’s application. It was stated that the mother’s application before the UK courts seeking the child’s habitual residence declaration in India could not be used as an element conducive to the settlement of a parental agreement (§ 32).

Lastly, the Court referred to article 10 of Brussels IIA in the context of child abduction while dealing with the return application filed by the father. In practice, the said provision applies to cross-border proceedings involving the EU26 (excluding Denmark and the United Kingdom (for proceedings initiated after 31 December 2020)). Accordingly, article 10 governs the ‘competing jurisdiction’ between two Member States. The courts of the Member State prior to wrongful removal/ retention should decline jurisdiction over parental responsibility issues when: the change of the child’s habitual residence takes place in another Member State; there is proof of acquiescence or ultra-annual inaction of the left-behind parent, holding custody, since the awareness of the abduction. In these circumstances, the child’s return would not be ordered in principle as, otherwise provided, the original jurisdiction would be exercised indefinitely (§ 37).

In absence of jurisdiction under Brussels IIA, as well as under the Family Law Act 1986 for the purposes of inherent jurisdiction (§ 45), the High Court referred the above question to the CJEU.

CJEU reasoning:

The Luxembourg Court confirmed that article 10, Brussels IIA, governs intra-EU cross-border proceedings. The latter provision states that jurisdiction over parental responsibility issues should be transferred to the courts where the child has acquired a new habitual residence and one of the alternative conditions set out in the said provision is satisfied (SS v. MCP, C-603/20, § 39). In particular, the Court observed that article 10 provides a special ground of jurisdiction, which should operate in coordination with article 8 as a ground of general jurisdiction over parental responsibility (§ 43, 45).

According to the Court, when the child has established a new habitual residence in a third State, following abduction, by consequently abandoning his/ her former ‘EU habitual residence’, article 8 would not be applicable and article 10 should not be implemented (§ 46-50). This interpretation should also be considered in line with the coordinated activity sought between Brussels IIA and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (§ 56).

Ultimately, the Court maintained that article 10 should be read in accordance with recital 12 of the Regulation, which provides that, as one of its fundamental objectives, parental responsibility issues should be decided by the courts that better suit the principle of factual proximity in the child’s best interests (§ 58). Accordingly, the courts that are closest to the child’s situation should exercise general jurisdiction over parental responsibility. To such an extent, article 10 represents a balance between the return procedure, avoiding benefits in favour of the abductor parent, and the evoked proximity principle, freezing jurisdiction at the place of habitual residence.

The Court further held that if the courts of the EU Member State were to retain jurisdiction unconditionally, in case of acquiescence and without any condition allowing for account to be taken concerning the child’s welfare, such a situation would preclude child protection measures to be implemented in respect of the proximity principle founded on the child’s best interests (§ 60). In addition, indefinite jurisdiction would also disregard the principle of prompt return advocated for in the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (§ 61).

The Court concluded that insofar as the child’s habitual residence changes to a third State, which is thus competent over parental responsibility, and article 12 of the Regulation is not applicable, the EU courts seised of the matter should apply the rules provided in the bilateral/multilateral instruments in force between the States in question or, on a subsidiary basis, the national Private International Law rules as indicated under article 14, Brussels IIA (§ 64).

Comment:

Considering the findings of fact, the CJEU reasoning and, prior to it, the EWHC judgment, are supported in that the daughter’s habitual residence at the time of the parental de facto separation (EWHC 2971, § 6-10) was in India; and remained there at the relevant date of the father’s application for return and access rights. If we assume, as implicitly reported in the decisions, that the child was aged less than one at the time of the first relocation from England to India, and that she lived more than two years (18 months between 2017-2018 and almost fully 2019-2020, (EWHC 2971, § 25)) within the maternal family environment in India, including prior to the wrongful act, her place of personal integration should be located in India at the above relevant date. Such a conclusion would respect the factual proximity principle enshrined in recital 12 of Brussels IIA, according to which habitual residence is founded on the child’s best interests. Recital 12 constitutes a fundamental objective applicable to parental responsibility, including access rights, and child abduction proceedings. As a result, the courts of the EU26 should be bound by it as a consequence of the Brussels IIA direct implementation.

The CJEU has not dealt with specific decisive elements that, in the case under analysis, would determine the establishing of the child’s habitual residence in India at a relevant time (the seisin under art. 8 and the period before abduction under art. 10 of the Regulation). Considering the very young age (cf. CJEU, SS v. MCP, C-603/20, § 33: ‘developmentally sensitive age’) of the daughter at the time of the relocation, the child’s physical presence corresponding to the mother’s and grandmother’s one as the primary carers prior to the wrongful act (retention) and to the return application, as well as the Indian social and family environment at the time of the seisin, highlighted by the EWHC, should be considered determinative (cf. CJEU, UD v. XB, C-393/18, 17 October 2018, § 57) – the Family Division instead excluded the nationality of the child as a relevant factor. The regularity of the child’s physical presence at an appreciable period should be taken into account, not as an element of temporal permanent character, but as an indicator of factual personal stability. In this regard, the child’s presence in one Member State should not be artificially linked to a limited duration. That said, the appreciable assessment period is relevant in name of predictability and legal certainty. In particular, the child’s physical presence after the wrongful act should not be used as a factor to constitute an unlawful habitual residence (Opinion of Advocate General Rantos, 23 February 2021, § 68-69).

Again, in relation to the child’s habitual residence determination in India, the child’s best interests would also play a fundamental role. The father’s alleged abuse, prior to the relocation, and his late filing for return, following the wrongful retention, should be considered decisive elements in excluding the English family environment as suitable for the child’s best interests. This conclusion would lead us to retain India as the child-based appropriate environment for her protection both prior to the wrongful retention, for the return application, as well as at the seisin, for access rights.

In sum, we generally agree with the guidance provided by the CJEU in that factual proximity should be considered a fulfilling principle for the child’s habitual residence and best interests determination in the context of child civil abduction. In this way, the CJEU has confirmed the principle encapsulated under recital 12, Brussels IIA, overcoming the current debate, which is conversely present under the Hague Convention 1980 where the child’s best interests should not be assessed [comprehensively] for the return application (HCCH, Guide to Good Practice Child Abduction Convention: Part VI – Article 13(1)(b); a contrario, European Court of Human Rights, Michnea v. Romania, no. 10395/19, 7 October 2020). However, it is argued (partly disagreeing with the CJEU statement) that primary focus should be addressed to the mutable personal integration in a better suited social and family environment acquired within the period between the child’s birth and the return application (cf. CJEU, HR, C-512/17, 28 June 2018, § 66; L v. M, 2019, EWHC 219 (Fam), § 46). The indefinite retention of jurisdiction, following abduction, should only be a secondary element for the transfer of jurisdiction in favour of the child’s new place of settlement after the wrongful removal/ retention to a third State. In practice, it is submitted that if the child had moved to India due to forced removal/ retention by her mother, with no further personal integration established in India, or with it being maintained in England, founded on the child’s best interests, the coordinated jurisdictional framework of articles 8 and 10 (and possibly article 12.4) of the Brussels IIA Regulation might have still been retained as applicable (cf. Opinion of Advocate General Rantos, § 58-59; as a comparative practice, see also L v. M, and to some extent Cour de cassation, civile, Chambre civile 1, 17 janvier 2019, 18-23.849, 5°). That said, from now on the CJEU reasoning should be binding for the EU26 national courts. Therefore, article 10 shall only apply to intra-EU26 cross-border proceedings, unlike articles 8 and 12 governing EU26-third State scenarios.

News

AMEDIP’s upcoming webinar: The Construction of Private International Law – 27 April 2023 (at 14:30 Mexico City time) (in Spanish)

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 27 April 2023 at 14:30 (Mexico City time – CST), 22:30 (CEST time). The topic of the webinar is the Construction of Private International Law and will be presented by Prof. Jorge Alberto Silva (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/85789687012?pwd=aXlKWFpzb2Qyb2VoNklwMWxyQ082UT09

Meeting ID: 857 8968 7012

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

The University of Bologna Summer School on Transnational Litigation: what you should know about its 2023 edition

[This post has been prepared by Ms. Francesca Albi, J.D. Candidate | Università degli Studi di Verona]

The Summer School on Transnational Litigation has been organized since 2019 within the Ravenna Program on Cross-Border Disputes by the University of Bologna, Department of Juridical Sciences – Ravenna Campus (Italy), under the direction of Prof. Michele Angelo Lupoi.

The organization of its 2023 edition confirms the success this projects continues to enjoy among participants from all over the world, who, over the years, are contributing to build a promising network of Private International Law enthusiasts. Indeed, this project has proven to be a building-bridges catalyst to connect people with the same interests in Private International Law issues: in this sense, this multi-year Summer School actively contributes to the sharing and spread of knowledges and views, which go beyond borders in every possible sense.

In 2023, the Summer School will take place from Monday 17 to Saturday 22 July, both in person at the Faculty of Law (Via Oberdan 1/2) in Ravenna – Italy, and online.

The title, which summarises the hot topics of the courses of this year’s edition, is “Cross-border litigation and international arbitration”. As a matter of fact, the themes dealt with will concern, on one hand, transnational litigation from a wide perspective (i.e., involving climate litigation, cross-border maritime litigation, family and succession Private International Law, civil and commercial litigation), and, on the other hand, the increasingly interesting matter of international arbitration. The full schedule of classes is available and may be downloaded at https://site.unibo.it/transnational-litigation/en/program.

Participants will have the outstanding opportunity to acquire specialised knowledges on these relevant topics of growing importance directly from experts in such matters. In fact, the faculty consists of renowned scholars and legal practitioners, who will offer their experience involving diverse professional backgrounds developed in different States over the world. In detail, the lecturers in this edition are (in alphabetical order) Apostolos Anthimos, Giovanni Chiapponi, Elena D’Alessandro, David Estrin, Marco Farina, Francesca Ferrari, Chris Helmer, Albert Henke, Emma Roberts, Marco Torsello, Stefano Alberto Villata and Anna Wysocka-Bar. Their biographies and professional experience may be consulted at https://site.unibo.it/transnational-litigation/en/faculty.

Registration to the School are now open!

In order to participate, some requirements should be met: applicants must be students or graduate students of a Bachelor (three-years) or Master (five-years) Degree (or equivalent under previous systems) in Law (LMG/01), Legal Services Science (L-14), Political and International Relationships Science (L-36), International Relationships (LM52), or Political Sciences (LM62). Other candidates may also be accepted upon the presentation of the CV which should be show a connection to the topics of the Summer School. Alongside students and post-grad students, also practitioners in legal matters are invited to participate. In this regard, it must be noticed that the Ravenna Bar Association will grant 20 formative credits to Italian lawyers who attend the Summer School.

Registration to the Summer School is possible upon the payment of a fee, whose amount is €250,00 and which does not cover expenses for the accommodation and meals (please, note that registration is considered completed only when the payment of the fee is fulfilled). Applications are open until 6 July 2023 (h 23.59 CET); it is not possible to apply beyond this deadline. The application procedure is described at https://site.unibo.it/transnational-litigation/en/fees-and-forms.

In this regard, it is worth mentioning that, in order to give to one deserving law student or law graduate, who meets specific age requirements, the opportunity to attend the Summer School online free of charge, a call for papers has been launched. It consists in the submission of an originally and previously unpublished paper on a topic concerning transnational litigation and international arbitration. A selection committee, composed by staff and faculty members of the Summer School, will evaluate the papers and will reward the author of the best one through the possibility to attend the full Summer School online without paying the ordinary registration fee. Moreover, the best three papers will be published in the Linkedin Newsletter of the Summer School on Transnational Litigation “Transnational litigation pills”. Every submission is truly appreciated. Detailed information on this call for papers may be found on the website of the Summer School, especially in the section “Fees and forms”.

For any question regarding the application process or logistics, the contact person is Dr. Cinzia Cortesi, Manager of Fondazione Flaminia (master@fondazioneflaminia.it; +39 0544 34345). Otherwise, in order to acquire further information on the project, courses and call for papers, it is possible to contact Prof. Michele Angelo Lupoi, Director of the Summer School (micheleangelo.lupoi@unibo.it) or Francesca Albi, Tutor (francesca.albi@unibo.it).

Further information may be found in the official website of the Summer School at https://site.unibo.it/transnational-litigation/en.

The organization team of the Summer School warmly invites everyone who meets the requirements listed above to apply for the 2023 edition courses, in order to allow as many people as possible the exciting chance to become part of a group of colleagues and friends with the common interest in Private International Law, that is larger and larger every year.

New Journal Announcement: the Chinese Journal of Transnational Law

Wuhan University Institute of International Law, in partnership with global research leader SAGE, is delighted to announce the launch of a new journal “Chinese Journal of Transnational Law”.

The Chinese Journal of Transnational Law is a double-blind peer-reviewed journal that aims to address global challenges from the perspective of transnational law, which is broadly defined to cover international law (public and private), international economic law, comparative law, the interaction between domestic and international law, and any other legal field possessing a cross-border element. This journal embraces relevant submissions from different cultures and regions and attracts readers from the global, regional and Chinese markets. The journal shall be open to not only traditional doctrinal and theoretical legal research on transnational law, but also contextual and inter-disciplinary research. Although focused on contemporary matters in its aspiration to be a forum for the latest debates on transnational legal studies, it also considers submissions inspired by in-depth historical perspectives that cast new light on present developments. The CJTL covers broad topics including but not limited to:

  • Innovative transnational dispute resolution, including both state-to-state and private dispute resolution mechanisms and the impact of culture, psychology, language and geopolitics on dispute resolution;
  • Transnational trade, investment and economic governance;
  • Transnational family law and the wellbeing of children, including surrogacy, child abduction and same sex marriage in the cross-border context;
  • Transnational regulation of technology;
  • Transnational corporate responsibility and governance;
  • Transnational protection of private rights in tort and transactions;
  • Transnational law and development;
  • Transnational law and global health governance;
  • Transnational environment protection and climate change;
  • Transnational criminal law;
  • Unilateral sanctions, extraterritorial regulations and blocking law.

The Chinese Journal of Transnational Law accepts submissions year round on any topic covered in the journal scope. In the meantime, the journal will publish calls for special issues occasionally. A call for the first special issue is going to be announced soon. You can find more information about this journal and submit your paper here.