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In Memoriam – Alegría Borrás Rodríguez (1943-2020)
written by Cristina González Beilfuss and Marta Pertegás Sender
It is with deep sadness that we write these lines to honour the memory of our dear mentor Alegría Borrás. Alegría unexpectedly passed away at the end of last year and, although she had been battling cancer for a while, she continued working as always. For Alegría was a hardworking fighter who sought and found her notorious place in life with determination, courage and borderless efforts. We believe we speak here for so many of Alegría’s alumni who miss her deeply and are determined to pay tribute to her memory with our work and memories.
We both had the great privilege of Alegría’s support for years and decades, from the moment she taught us at the “barracones” of the Law Faculty of the University of Barcelona until the very last day of Alegría’s life. Her death surprised us all on one of those typical “Alegría’s days” of frantic activity and unconditional support to the projects and institutions she believed in.
With this homage, we by no means pretend to recap all her merits and achievements. We are thankful that, while still alive, Alegría received many distinctions and exceptional prizes for all she meant to the (international legal) community.
All those who once met Alegría may inevitably think of her characteristic high voice and strong presence while remembering her. To us, it is her unique insight, tireless professionalism and devoted expertise that made Alegría the exceptional mentor she was.
In every assignment Alegría carried out – regardless the size of the task or its specific context -, Alegría showed profound dedication and daily perseverance. Behind a joie de vivre – how can one by the name of Alegría otherwise come across? – there was an exemplary academic rigor and uncountable hours of day and night work.
Alegría will always be remembered as someone who transformed our discipline in recent years. She did so, from her Chair in Barcelona, where many of us first discovered private international law thanks to her teaching. Her classes were enriched by the many anecdotes of places (Brussels, The Hague…) and instances (the GEDIP, l’Institut, the Academy, …) that, back then, sounded like remote laboratories of private international law. Little did we know that we would marvel around the privilege of sharing missions and tasks with Alegría in such venues in the years to follow.
We have indeed witnessed how Alegría contributed, to the approximation of Spain to such poles of uniform private international law. For decades, Alegría wisely brought Spain to any negotiation table on private international law, and she proudly brought the results of such international work back home. We think it is fair to say that, without Alegría, international and European private international law might not have the right channels to permeate into the Spanish legal system. This is not a sporadic success; it requires titanic efforts and perseverance for decades. Actually, for Alegría, her international work was much more than the daily sessions at the Peace Palace or at the Council, the overnight work in committees and working groups or the taxi rides from and to the airport in rainy and grey weather. There was so much more… She made time for beautifully written and detailed reports to the relevant Ministries, for influential contacts with diplomatic posts and, not to forget, for raising awareness among the academic community. Her regular contributions to the Revista Jurídica de Catalunya , to the Revista Española de derecho internacional or to the Anuario español de Derecho internacional privado guided Spanish lawyers eager to keep track on “what was going on in Brussels or The Hague”. Alegría knew how the machinery of international relations works and used these insights brilliantly to connect Spain to the international legal community, and vice versa.
The readers of Conflictsoflaws.net may associate the name of Alegría Borrás with significant milestones in the development of private international law over the past decades: Alegría was a key delegate of the Hague’s Children Conventions, the Co-Rapporteur of the Child Support Convention, the Rapporteur of the Brussels II Convention, the author of influential work on conflicts of instruments (perhaps we should refer to the “Borrás clause” as shortcut for the “clauses de déconnection”). We are also aware that there is so much more, because, no matter how important her international projects were, Alegría remained truly anchored at home, in her city and her University as a member of the Acadèmia de Legislació i Jurisprudència de Catalunya for example, where she joined efforts with her very good friend Encarna Roca Trias.
Home, for Alegría, was Barcelona, no matter how often her international work took her away from them. Her family was her greatest pride and her unconditional top priority. A loving wife, mother and grandmother and an example to so many of us who juggle balls in all these roles…
And the University of Barcelona was not only her academic home but also our meeting point. The private international community has lost a great scholar and a formidable person. Alegría, we thoroughly miss you and thank you so much for all you did for us and so many other alumni of yours. Together, we will persevere in our efforts the way you taught us. Rest in peace.
‘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.
The paper also agrees with UNHCR that universal birth registration will not end statelessness without the minimum legal reforms to provide a right to nationality based on place of birth or descent. These will not be effective, however, unless there are simultaneous efforts to address the conflicts of law affecting recognition of civil status and nationality more generally. UNHCR and its allies in the global campaign must also master private international law.
In most legal systems, birth registration must be accompanied by registration of other life events – adoption, marriage, divorce, changes of name, death – for a person to be able to claim rights based on family connections, including nationality. This is the case in principle even in countries where birth registration reaches less than half of all births, and registration of marriages or deaths a small fraction of that number. Fulfilling these obligations for paperwork can be difficult enough even if they all take place in one country, and is fanciful in many states of the global South; but the difficulties are multiplied many times once these civil status events have to be recognised across borders.
Depending on the country, an assortment of official copies of parental birth, death or marriage certificates may be required to register a child’s birth. If the child’s birth is in a different country from the one where these documents were issued, the official copies must be obtained from the country of origin, presented in a form accepted by the host country and usually transcribed into its national records. Non-recognition of a foreign-registered civil status event means that it lacks legal effect, leaving (for example) marriages invalid in one country or the other, or still in place despite a registered divorce. If a person’s civil status documents are not recognised in another jurisdiction, the rights that depend on these documents may also be unrecognised: the same child may therefore be born in wedlock for the authorities of one country and out-of-wedlock for another. On top of these challenges related to registration in the country of birth, consular registration and/or transcription into the records of the state of origin is in many cases necessary if the child’s right to the nationality of one or both parents is to be recognised. It is also likely that the parents will need a valid identity document, and if neither is a national of the country where their child is born, a passport with visa showing legal presence in the country. A finding of an error at any stage in these processes can sometimes result in the retroactive loss of nationality apparently held legitimately over many years. Already exhausting for legal migrants in the formal sector, for refugees and irregular migrants of few resources (financial or social) these games of paperchase make the recognition of legal identity and nationality ever more fragile.
These challenges of conflicts of law are greatest for refugees and irregular migrants, but have proved difficult to resolve even within the European Union, with the presumption of legal residence that follows from citizenship of another member state. The Hague Conference on Private International Law has a project to consider transnational recognition of parentage (filiation), especially in the context of surrogacy arrangements, but has hardly engaged with the broader issues.
The paper urges greater urgency in seeking harmonisation of civil registration practices, not only by The Hague Conference, but also by the UN as it develops its newly adopted ‘Legal Identity Agenda’, and by the UN human rights machinery. Finally, the paper highlights the danger that the SDG target will rather encourage short cuts that seek to bypass the often politically sensitive task of determining the nationality of those whose legal status is currently in doubt: new biometric technologies provide a powerful draw to the language of technological fix, as well as the strengthening of surveillance and control rather than empowerment and rights. These risks – and their mitigation – are further explored in a twinned article in World Development.
Álvarez-Armas on potential human-rights-related amendments to the Rome II Regulation (I): The law applicable to SLAPPs
Eduardo Álvarez-Armas is Lecturer in Law at Brunel University London and Affiliated Researcher at the Université Catholique de Louvain. He has kindly provided us with his thoughts on recent proposals for amending the Rome II Regulation. This is the first part of his contribution; a second one on corporate social responsibility will follow in the next days.
On December the 3rd, 2020, the EU commission published a call for applications, with a view to putting forward, by late 2021, a (legislative or non-legislative) initiative to curtail “abusive litigation targeting journalists and civil society”. As defined in the call, strategic lawsuits against public participation (commonly abbreviated as SLAPPs) “are groundless or exaggerated lawsuits, initiated by state organs, business corporations or powerful individuals against weaker parties who express, on a matter of public interest, criticism or communicate messages which are uncomfortable to the litigants”. As their core objective is to silence critical voices, SLAPPs are frequently grounded on defamation claims, but they may be articulated through other legal bases (as “data protection, blasphemy, tax laws, copyright, trade secret breaches”, etc) (p. 1).
The stakes at play are major: beyond an immediate limitation or suppression of open debate and public awareness over matters that are of significant societal interest, the economic pressure arising from SLAPPs can “drown” defendants, whose financial resources are oftentimes very limited. Just to name but a few recent SLAPP examples (For further review of cases throughout the EU see: Greenpeace European Unit [O. Reyes, rapporteur], “Sued into silence – How the rich and powerful use legal tactics to shut critics up”, Brussels, July 2020, p. 18ff): at the time of her murder in 2017, Maltese journalist Daphne Caruana Galizia was facing over 40 civil and criminal defamation lawsuits, including a 40-million US dollar lawsuit in Arizona filed by Pilatus Bank (Greenpeace European Unit [O. Reyes, rapporteur], pp. 9-12); in 2020, a one million euros lawsuit was introduced against Spanish activist Manuel García for stating in a TV program that the poor livestock waste management of meat-producing company “Coren” was the cause for the pollution of the As Conchas reservoir in the Galicia region.
In light of the situation, several European civil-society entities have put forward a model “EU anti-SLAPP Directive”, identifying substantive protections they would expect from the European-level response announced in point 3.2 of the EU Commission´s “European democracy action plan”. If it crystallized, an EU anti-SLAPP directive would follow anti-SLAPP legislation already enacted, for instance, in Ontario, and certain parts of the US.
Despite being frequently conducted within national contexts, it is acknowledged that SLAPPs may be “deliberately brought in another jurisdiction and enforced across borders”, or may “exploit other aspects of national procedural and private international law” in order to increase complexities which will render them “more costly to defend” (Call for applications, note 1, p. 1) Therefore, in addition to a substantive-law intervention, the involvement of private international law in SLAPPs is required. Amongst core private-international-law issues to be considered is the law applicable to SLAPPs.
De lege lata, due to the referred frequent resort to defamation, and the fact that this subject-matter was excluded from the material scope of application of the Rome II Regulation, domestic choice-of-law provisions on the former, as available, will become relevant. This entails a significant incentive for forum shopping (which may only be partially counteracted, at the jurisdictional level, by the “Mosaic theory”).
De lege ferenda, while the risk of forum shopping would justify by itself the insertion of a choice-of-law rule on SLAPPs in Rome II, the EU Commission´s explicit objective of shielding journalists and NGOs against these practices moreover pleads for providing a content-oriented character to the rule. Specifically, the above-mentioned “gagging” purpose of SLAPPs and their interference with fundamental values as freedom of expression sufficiently justify departing from the neutral choice-of-law paradigm. Furthermore, as equally mentioned, SLAPP targets will generally have (relatively) modest financial means. This will frequently make them “weak parties” in asymmetric relationships with (allegedly) libeled claimants.
In the light of all of this, beyond conventional suggestions explored over the last 15 years in respect of a potential rule on defamation in Rome II (see, amongst other sources: Rome II and Defamation: Online Symposium), several thought-provoking options could be explored, amongst which the following two:
1st Option: Reverse mirroring Article 7 Rome II
A first creative approach to the law applicable to SLAPPs would be to introduce an Article 7-resembling rule, with an inverted structure. Article 7 Rome II on the law applicable to non-contractual obligations arising from environmental damage embodies the so-called “theory of ubiquity” and confers the prerogative of the election of the applicable law to the “weaker” party (the environmental victim). In the suggested rule on SLAPPs, the choice should be “reversed”, and be given to the defendant, provided they correspond with a carefully drafted set of criteria identifying appropriate recipients for anti-SLAPP protection.
However, this relatively straightforward adaptation of a choice-of-law configuration already present in the Rome II Regulation could be problematic in certain respects. Amongst others, for example, as regards the procedural moment for performing the choice-of-law operation in those domestic systems where procedural law establishes (somewhat) “succinct” proceedings (i.e. with limited amounts of submissions from the parties, and/or limited possibilities to amend them): where a claimant needs to fully argue their case on the merits from the very first written submission made, which starts the proceedings, how are they meant to do so before the defendant has chosen the applicable law? While, arguably, procedural adaptations could be enacted at EU-level to avoid a “catch-22” situation, other options may entail less legislative burden.
2nd option: a post-Brexit conceptual loan from English private international law = double actionability
A more extravagant (yet potentially very effective) approach for private-international-law protection would be to “borrow” the English choice-of-law rule on the law applicable to defamation: the so-called double actionability rule. As it is well-known, one of the core reasons why “non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation” were excluded from the material scope of the Rome II Regulation was the lobbying of publishing groups and press and media associations during the Rome II legislative process (see A. Warshaw, “Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims”). With that exclusion, specifically, the English media sector succeeded in retaining the application by English courts of the referred rule, which despite being “an oddity” in the history of English law (Vid. D. McLean & V. Ruiz Abou-Nigm, The Conflict of Laws, 9th ed., Swett & Maxwell, 2016, p. 479), is highly protective for defendants of alleged libels and slanders. The double actionability rule, roughly century and a half old, (as it originated from Philips v. Eyre [Philips v. Eyre (1870) L.R. 6 Q.B. 1.] despite being tempered by subsequent case law) is complex to interpret and does not resemble (structurally or linguistically) modern choice-of-law rules. It states that:
“As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England … Secondly, the act must not have been justifiable by the law of the place where it was done” (Philips v. Eyre, p. 28-29).
The first of the cumulative conditions contained in the excerpt is usually understood as the need to verify that the claim is viable under English law (Lex fori). The second condition is usually understood as the need to verify that the facts would give rise to liability also under foreign law. Various interpretations of the rule can be found in academia, ranging from considering that once the two cumulative requirements have been met English law applies (Vid. Dicey, Morris & Collins, The Conflict of Laws, vol. II, 15th ed., Swett & Maxwell, 2012, pp. 2252-2270, para. 35-111), to considering that only those rules that exist simultaneously in both laws (English and foreign) apply, or that exemptions from liability from either legal system free the alleged tortfeasor (Vid. Cheshire, North & Fawcett, Private International Law, 15th ed., OUP, 2017, p. 885. Similarly, Dicey, Morris & Collins, The Conflict of Laws, vol. II, 15th ed., Swett & Maxwell, 2012, pp. 2252-2270, para. 35-128). Insofar as it is restrictive, and protective of the defendant, double actionability is usually understood as a “double hurdle” (Vid. Cheshire, North & Fawcett, Private International Law, 15th ed., OUP, 2017, p. 885; D. McLean & V. Ruiz Abou-Nigm, The Conflict of Laws, 9th ed., Swett & Maxwell, 2016, p. 479) to obtaining reparation by the victim, or, in other words, as having to win the case “twice in order to win [only] once” (Vid. A. Briggs, The Conflict of Laws, 4th ed., Clarendon Law Series, OUP, 2019, p. 274). Thus, the practical outcome is that the freedom of speech of the defendant is preserved.
A plethora of reasons make this choice-of-law approach controversial, complex to implement, and difficult to adopt at an EU level: from a continental perspective, it would be perceived as very difficult to grasp by private parties, as well as going against the fundamental dogma of EU private international law: foreseeability. This does not, nevertheless, undermine the fact that it would be the most effective protection that could be provided from a private-international-law perspective. Even more so than the protection potentially provided by rules based on various “classic” connecting factors pointing towards the defendant´s “native” legal system/where they are established (as their domicile, habitual residence, etc).
Truth be told, whichever approach is chosen, a core element which will certainly become problematic will be the definition of the personal scope of application of the rule, i.e. how to precisely identify subjects deserving access to the protection provided by a content-oriented choice-of-law provision of the sort suggested (and/or by substantive anti-SLAPP legislation, for that matter). This is a very delicate issue in an era of “fake news”.
News
Giustizia consensuale No 1/2023: Abstracts
The first issue of 2023 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released, and it features:
Annalisa Ciampi (Professor at the University of Verona), La giustizia consensuale internazionale (International Consensual Justice; in Italian)
All means of dispute settlement between States, including adjudication, are based on the consent of the parties concerned. The post-Cold War era saw an unprecedented growth of third-party (judge or arbitrator) dispute resolution systems. In more recent years, however, we are witnessing a weakening of the international judicial function. This paper analyses and explains similarities and differences between dispute settlement between States and dispute resolution between private parties at the national level. Whilst doing so, it makes a contribution to the question of whether the de-judicialisation taking place in Italy and elsewhere, as well as in the international legal system, can be considered a step in the right direction.
Preliminary contract but not a ‘contract for the provision of services’ under Article 7(1)(b) of the Bru I bis Reg., CJEU in EXTÉRIA, C-393/22
Does a preliminary contract obliging the parties to conclude a future ‘contract for the provisions of services’ within the meaning of Article 7(1)(b) of the Brussels I bis Regulation borrow its characterisation from such a future contract and, as a consequence, the claims resulting from this preliminary contract can be brought before the courts for the place where the services were or should have been provided? This is the question that the Court of Justice answered in the negative in its judgment handed down this morning in the case EXTÉRIA, C-393/22.
New Volume of the Japan Commercial Arbitration Journal
The Japan Commercial Arbitration Association (JCAA), one of the oldest international arbitration institutions in the world, founded in 1950, has started to publish its annual journal on commercial arbitration – “Japan Commercial Arbitration Journal” – entirely in English. The Journal’s Volume 4, which has been published recently, features the following articles:
Miriam Rose Ivan L. Pereira
Combining Interactive Arbitration with Mediation: A Hybrid Solution under the Interactive Arbitration Rules
Masaru Suzuki, Shinya Sakuragi
The Use of Technology in the International Commercial Arbitration and the Consideration of Rulemaking
Kazuhisa Fujita
Current Status of International Arbitration from the Perspective of Corporate Law and Japan as the Place of Arbitration
Dai Yokomizo
International Commercial Arbitration and Public Interests: Focusing on the Treatment of Overriding Mandatory Rules
Yuji Yasunaga
Extending the Application of an Arbitration Agreement Involving a Corporation to Include its Representative
Kazuhiro Kobayashi
Scope, Amount and Sharing of Arbitration Expenses and Court Costs in Japan
Leon Ryan, Shunsuke Domon
Disputes in India ? Lessons from Mittal v Westbridge
Junya Naito, Motomu Wake
Potential for a New Arb-Med in Japan
Yoshihiro (Yoshi) Takatori
Arbitrator Training and Assessment ? How to Increase and Strengthen Resource of Arbitrators and ADR Practitioners
Shuji Yanase
On Dual Conciliation by Two Conciliators
Takeshi Ueda
Discussions and Challenges in Promoting Online Dispute Resolution
Shinji Kusakabe
Civil Litigation after the Introduction of IT, as Suggested by Scheduled Proceedings in Commercial Arbitration
All volumes can also be freely consulted and downloaded here.