Tag Archive for: applicable law

Davì, Le renvoi en droit international privé contemporain (Recueil des cours, vol. 352)

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Prof. Angelo Davì (University of Rome “La Sapienza”) has recently published in the Recueil des cours (vol. 352) the course on renvoi held at the Hague Academy of International Law: “Le renvoi en droit international privé contemporain“.

An English presentation has been kindly provided by the author (a French version is available on the publisher’s website):

The Course deals with the modern development of scientific thinking on renvoi, examines its various functions in contemporary legal systems and assesses the importance of its current role. The different models of renvoi present in domestic legislations as well as in uniform rules on conflict of laws, of either a conventional or supra-national origin, are analysed on the basis of the fundamental distinction between models which merely take into account foreign choice of law rules and models based on a complete reconstruction of the content of foreign private international law. Ample space is accorded to developments in the EU system of private international law, as well as to an analysis of the relationship between renvoi and other methods and techniques currently employed in this area of the law, mainly for the purpose of assessing the effects their diffusion is likely to produce on the role played by renvoi as an instrument of coordination in contemporary private international law.

Title: Le renvoi en droit international privé contemporain, by Angelo Davì, Brill Academic Publishers – Martinus Nijhoff (series: Collected Courses of the Hague Academy of International Law, vol. 352), Leiden, 2012, pp. 528.

ISBN: 9789004227262. Price: EUR 145. Available at Brill.

Clearer Patrimonial Regimes for International Couples: Joint Conference of the European Commission and CNUE

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On Monday 17 October 2011 the Council of the Notariats of the European Union (CNUE) is organising, jointly with the EU Commission, a conference in Brussels on the proposals for two regulations on property rights of “international” married couples and registered partnerships: “Clearer Patrimonial Regimes for International Couples”. A dedicated section of the CNUE website has been set up for the event, for further information and registration (there are still some places left to attend the conference). Here’s the programme (interpretation will be available in English, French, German, Italian, Polish, Romanian and Spanish):

9.30 – 9.40 Opening: Rudolf Kaindl, CNUE President

9.40 – 10.20 Keynote speeches:

  • Viviane Reding, Vice-President of the European Commission
  • Frank Molitor, President of the Luxembourg Chamber of Notaries

10.20 – 10.40 Proposals for Regulations on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and regarding the property consequences of registered partnerships: Salla Saastamoinen, Head of Unit, DG Justice, European Commission

11.00 – 12.40 Panel discussion: Session 1 – The applicable law

Moderator: Prof. Katharina Boele-Woelki, University of Utrecht

Speakers:

  • Prof. Paul Lagarde, University of Paris I “Panthéon Sorbonne”
  • Prof. Brigitta Lurger, University of Graz
  • Prof. Barbara Reinhartz, University of Amsterdam
  • Franco Salerno Cardillo, Civil Law Notary in Palermo
  • Alexandra Thein, Member of the European Parliament
  • Richard Frimston, STEP, Solicitor and Notary Public in London

14.00 – 15-15 Panel discussion: Session 2 – The competent court

Moderator: Sjef van Erp, Maastricht University, Deputy-Justice, Court of Appeal, ‘s-Hertogenbosch

Speakers:

  • Ulf Bergquist, Lawyer in Stockholm
  • Prof. Patrick Wautelet, University of Liège
  • Katarzyna Lis, Judge, Polish Ministry of Justice

15.15 – 16.30 Panel discussion: Session 3 – Recognition and enforcement in cross-border cases

Moderator: Pedro Carrión García de Parada, Chair of the CNUE’s Family Law Working Group

Speakers:

  • Matthias Neumayr, Judge at the Austrian Supreme Court
  • Prof. Philippe De Page, Université Libre de Bruxelles
  • Prof. Dieter Martiny, European University Viadrina
  • Edmond Jacoby, Civil Law Notary in Forbach

16.30 – 17.00 Information session – More information and services for European citizens

  • The patrimonial property regimes website project, Harald Steinwendter, University of Graz
  • The European Directory of Notaries, Thomas Diehn, Federal Council of the German Notariat

17.00 – 17.30 Closing speech: Paraskevi Michou, Director, DG Justice, European Commission.

 

Commission’s Proposals On Matrimonial Property Regimes and Property Consequences of Registered Partnerships

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As announced in the past months, on 16 March 2011 the Commission presented the proposals for two regulations on property rights of “international” married couples and registered partnerships:

  • Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, COM(2011) 126 of 16 March 2011;
  • Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships, COM(2011) 127 of 16 March 2011.

The proposals are accompanied by a Communication from the Commission “Bringing legal clarity to property rights for international couples” –  COM(2011) 125 of 16 March 2011 – which describes the difficulties faced by international couples in the current framework of EU legislation and national rules of the 27 Member States (see also the figures presented in the press release and the related FAQs).

The origin of the initiative dates back to the early days of the “communitarisation” of the conflict of laws. According to the Explanatory Memorandum to doc. COM(2011) 126:

The adoption of European legislation on matrimonial property regimes was among the priorities identified in the 1998 Vienna Action Plan. The programme on mutual recognition of decisions in civil and commercial matters adopted by the Council on 30 November 2001 provided for the drafting of an instrument on jurisdiction and the recognition and enforcement of decisions as regards ‘rights in property arising out of a matrimonial relationship and the property consequences of the separation of an unmarried couple’. The Hague programme, which was adopted by the European Council on 4 and 5 November 2004, set the implementation of the mutual recognition programme as a top priority and called on the Commission to submit a Green Paper on ‘the conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition’, and stressed the need to adopt legislation by 2011.

A thorough research on the matter was previously carried in 2003 at an academic level, on behalf of the Commission, by the TMC Asser Instituut and the Département de droit international of the Catholic University of Leuven (UCL) (the whole study  – Final Report in French and Country Reports on the legislation of Member States – can be downloaded from the Documentation Centre of the DG Justice, Freedom and Security). The Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition, was published on 17 July 2006, and received nearly forty replies in the public consultation launched by the Commission.

The 2009 Stockholm Programme came back to the need of European legislation in the field, stating that mutual recognition should be extended to matrimonial property regimes and the property consequences of the separation of unmarried couples. The need was further stressed in the ‘EU Citizenship Report 2010: Dismantling the obstacles to EU citizens’ rights‘ (p. 5 ff.), adopted on 27 October 2010, where the Commission announced for 2011 an official legislative initiative. The drafting of the proposals is summarised as follows in the Explanatory memorandum:

A group of experts, PRM/III, was set up by the Commission to draw up the proposal. The group was made up of experts representing the range of professions concerned and the different European legal traditions; it met five times between 2008 and 2010. The Commission also held a public hearing on 28 September 2009 involving some hundred participants; the debates confirmed the need for an EU instrument for matrimonial property regimes that covered in particular applicable law, jurisdiction and the recognition and enforcement of decisions. A meeting with national experts was held on 23 March 2010 to discuss the thrust of the proposal being drafted.
Finally, the Commission conducted a joint impact study on the proposals for Regulations on matrimonial property regimes and the property consequences of registered partnerships. [see doc. n. SEC(2011) 327 fin. and SEC(2011)328 fin. of 16 March 2011]

Pursuant to Art. 81(3) TFEU the proposed regulations, as “measures concerning family law with cross-border implications”, are subject to a special legislative procedure: the Council shall act unanimously, after consulting the European Parliament. The second subparagraph of Art. 81(3), however, provides a “passerelle-clause”, under which “the Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure”. The third subparagraph of the provision grants to national Parliaments of the Member States a veto power, to be exercised within six months of the notification of the Commission’s proposal to enact the “passerelle”.

Rome III Reg.: Council Adopts Decision Authorising Enhanced Cooperation on the Law Applicable to Divorce

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On Monday, 12 July 2010, the Council adopted a decision authorising 14 Member States (Spain, Italy, Hungary, Luxembourg, Austria, Romania, Slovenia, Bulgaria, France, Germany, Belgium, Latvia, Malta and Portugal) to participate in the first enhanced cooperation in the history of the European Union, on the law applicable to divorce and legal separation (see the provisional version of the Council’s press release, doc. no. 12077/10, at p. 15).

As we reported in our previous posts, the initiative for an enhanced cooperation in the field originated in 2008, when the Council noted that there were insurmountable difficulties in reaching the required unanimity in order to adopt the Commission’s proposal amending the Brussels IIa Regulation and introducing rules concerning applicable law in matrimonial matters (Rome III reg.).

The first formal steps of the procedure are summarised as follows in Council document no. 10288/10 of 1 June 2010:

[…] Greece, Spain, Italy, Hungary, Luxembourg, Austria, Romania and Slovenia addressed a request to the Commission by letters dated 28 July 2008 indicating that they wished to establish enhanced cooperation between them in the area of applicable law in matrimonial matters and that they expected the Commission to submit a proposal to the Council to that end. Bulgaria addressed an identical request to the Commission by a letter dated 12 August 2008 and France by a letter dated 12 January 2009. On 3 March 2010, Greece withdrew its request. Germany, Belgium, Latvia and Malta joined the request by letters dated respectively 15 April 2010, 22 April 2010, 17 May 2010 and 31 May 2010. In total, thirteen Member States have thus requested enhanced cooperation.

On 31 March 2010 the Commission presented to the Council:

(a) a proposal for a Council Decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation [COM(2010)104 fin./2 of 30 March 2010]; and

(b) a proposal for a Council Regulation (EU) implementing enhanced cooperation in the area of the law applicable to divorce and legal separation [COM(2010)105 fin./2 of 30 March 2010: the proposed “Rome III” reg.].

The Commission assessed the legal conditions for enhanced cooperation in the explanatory memorandum to the proposal for a Council Decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation.

On 1 June 2010 the Legal Affairs (JURI) Committee of the European Parliament voted unanimously for the proposal for a Council Decision authorising enhanced cooperation in the area of the law applicable to divorce and legal separation.

The JHA Council, on 3-4 June 2010, reached a political agreement on the matter, and transmitted the draft decision to the Parliament, in order to obtain its consent to the enhanced cooperation,  pursuant to Art. 329(1) of the Treaty on the Functioning of the European Union (see JHA Council’s press release, doc. no. 10630/10).

On 16 June 2010 the plenary session of the European Parliament approved a legislative resolution giving its consent to the draft decision, that was finally adopted by the Council on 12 July 2010.

It is interesting to note that the Parliament in its resolution has called on the Council to adopt a decision pursuant to Article 333(2) of the Treaty on the Functioning of the European Union stipulating that, when it comes to the proposal for a Council Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, it will act under the ordinary legislative procedure (formerly known as codecision), and not under the special legislative procedure provided for in Article 81(3) of the TFEU, under which EP is merely consulted.

As regards the text of the Rome III reg., it is currently under discussion in the Council, on the basis of the Commission’s March proposal. The latest available text is contained in Council document no. 10153/10 of 1 June 2010: at their latest meeting on 4 June 2010, Justice ministers agreed on a general approach on key elements (see Council Secretariat’s factsheet of  4 June 2010).

Quebec Court Stays Palestinian Claim Against West Bank Builders

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Things have certainly been quiet on the Canadian front over the past few months.  Ending the lull, in a decision filled with different conflict of laws issues, the Quebec Superior Court held, in Bil’In Village Council and Yassin v. Green Park International Inc. (available here), that Israel is the most appropriate forum for the dispute and therefore it stayed the proceedings in Quebec.

The plaintiffs, resident in the occupied West Bank, sued two corporations incorporated in Quebec for their involvement in building housing for Israelis in the West Bank.  The plaintiffs alleged violation of several international law principles.

The reasons address several interesting issues: 1. whether the defendants are protected by state immunity as agents of Israel [no], 2. whether decisions of the High Court of Justice in Israel in which the plaintiffs participated were recognizable in Quebec [yes], 3. whether these judgments statisfied the test for res judicata [no], 4. whether the plaintiffs had the necessary legal interest required under Quebec law to bring the proceedings [yes for one, no for the other], 5. whether the cause of action had no reasonable hope of succeeding [no], 6. whether the court should stay the proceedings [yes].

On the appropriate forum issue, the factual connections massively pointed away from Quebec.  The defendants were incorporated there, but largely for tax purposes – they did no business there – and that was the only connection to Quebec.  A key issue was whether the issues raised in the proceedings could be fairly resolved by an Israeli court, but the court found the expert evidence on this point favoured the defendants, not the plaintiffs.  This may be the most controversial aspect of the decision.

The decision also contains lengthy analysis of the applicable law and some comments on the absence of proof of foreign law.

It is not common for Canadian courts to mention, as a factor in the forum non conveniens analysis, the state of access to the local courts for local plaintiffs (the docket-crowding issue American courts do consider).  In this case, however, this factor is noted by the court in its reasons for staying the proceedings.