Developments in PIL Journals

Special Issue of Polski Proces Cywilny on the Brussels II ter Regulation

The periodical Polski Proces Cywilny [Polish Civil Procedure] devoted a whole issue (2021/4) to the Brussels II ter Regulation. The issue is published in open access. Below are the abstracts of (and the links to) the various contributions.

D. Martiny, New efforts in judicial cooperation in European child abduction cases

Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (Recast) contains new and extensive provisions on international child abduction. The 1980 Hague Convention on International Child Abduction is complemented mainly by chapter III (Arts. 22 to 29). The paper examines the interplay of these two legal sources in the closer intra-EU cooperation that is intended. The author analyses jurisdiction and the procedure for the return of a child in the case of wrongful removal or retention. Amendments in recognition and enforcement of ‘privileged’ decisions ordering the return of a child are also addressed.

B. Hess, Towards a Uniform Concept of Habitual Residence in European Procedural and Private International Law?

In the private international and procedural laws of the European Union, habitual residence has become an often-used concept to determine jurisdiction and applicable law. However, its broad usage does not entail that the concept is based on a uniform understanding. The paper explores the different areas where the principle is being applied. It concludes that a uniform concept of habitual residence does not exist in European law although the concept is primarily based on objective factors. Furthermore, from a regulatory perspective, it does not seem desirable to develop this concept in a uniform way. In this regard, the case law of the European Court of Justice, distinguishing different applications of the concept, appears to be balanced.

M.A. Lupoi, Between parties’ consent and judicial discretion: joinder of claims and transfer of cases in Regulation (EU) 2019/1111

Regulation no. 2019/1111 has introduced new rules and mechanisms in order to ensure that a parental responsibility case is decided by the court more conveniently placed to protect the best interest of the child. Thus, while no general provision on the joinder of related claims is provided for, the recast regulation grants the interested parties a limited possibility to choose the competent forum. More significantly, the judge is granted discretionary powers as concerns the exercise of its jurisdicton and the decision to transfer the case to a more appropriate forum. These new powers and procedural mechanisms enforce the European space of justice and implement cooperation and collaboration between the Courts of different Member States.

M. Szpunar, K. Pacuła, Forum of necessity in family law matters within the framework of EU and international law

The forum of necessity revolves around the idea that a court may be called upon to hear a case, though it lacks jurisdiction under the normally applicable rules. The justification of its jurisdiction lies in the fact that the claimant cannot bring the proceedings before another forum or cannot be reasonably required to do so in a given situation. The present paper constitutes an attempt to contextualize and to position the forum of necessity within the framework in which it operates in the Member States, namely the framework of EU and international law. It juxtapositions three legal concepts (forum of necessity, forum non conveniens and universal civil jurisdiction) in order to determine the boundaries of necessity jurisdiction as it is known under EU law. It also benchmarks the necessity jurisdiction against international law and takes into account the influences of human and/or fundamental rights in an attempt to determine whether international law places on the Member States any constraints or obligations as to ensuring a forum of necessity. Taking into account those findings, the paper presents the spectrum of influences that the doctrine of forum of necessity may produce across various instruments of EU private international law, in particular those pertaining to family law matters.

O. Bobrzyńska, Brussels II ter Regulation and the 1996 Hague Convention on Child Protection – the interplay of the European and Hague regimes in the matters of parental responsibility

The article discusses the issue of the application of the conflict-of-laws rules contained in the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in matters of parental responsibility heard by the courts of EU Member States when jurisdiction is based on the provisions of EU Regulations. This issue is discussed in the context of the relationship between the 1996 Hague Convention and the new Brussels II ter Regulation (Council Regulation (EU) 2019/1111 of 25 June 2019 on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility, and on International Child Abduction), including the demarcation of the application of the jurisdictional norms of the Convention and the Regulation. The new Regulation seeks to address the problems that arose in this regard under the Brussels II bis Regulation.

F. Gascón Inchausti, P. Peiteado Mariscal, International child abduction in the case law of the Court of Justice of the European Union: learning from the past and looking to the future 

Council Regulation (EU) 2019/1111 of 25 June 2019 on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility, and on International Child Abduction (Recast) sets up the basis for the treatment of international child abduction among Member States and, for the last fifteen years, some of its most complex elements have been interpreted and developed by the Court of Justice of the European Union. This paper aims to explain this approach and the case law, focusing on the changes and on the challenges that the forthcoming entry into force of Council Regulation (EU) 2019/1111 brings to this delicate issue. 

Z. Kubicka-Grupa, A review of the Polish Supreme Court case law in international family law matters (from January 2015 to April 2021)

 The powers of the Polish Supreme Court include, inter alia, hearing cassation appeals and issuing resolutions. However, in matrimonial matters and matters regarding parental responsibility the jurisdiction of the Supreme Court is strongly limited by law. This also applies to cases with a cross-border element. In the period from January 2015 to April 2021, the Supreme Court issued eleven decisions concerning jurisdiction in matters of parental responsibility under the Brussels II bis Regulation, the civil aspects of international child abduction as well as the recognition and enforcement of judgments in family law matters. The article provides a review of this case law. It contains a concise description of the facts of the cases, the legal assessment expressed by the Supreme Court and a brief commentary by the author.

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