Developments of PIL beyond the EU

Revue Critique de Droit International Privé – Issue 3 of 2023

Developments in PIL, Developments of PIL beyond the EU, Journals, Scholarship

by Marion Ho-Dac
7 December 2023

The third issue of the Revue critique de droit international privé of 2023 will be released shortly. It focuses on notarial practice in international family property law in the Ukrainian context, but contains also numerous case notes on private international law.

In the first article, Pierre Boisseau (University of Tours) examines the contours of the legal framework applied to receive and protect Ukrainians fleeing the fighting in their country of origin (Du droit d’asile classique à l’accueil des déplacés ukrainiens: réflexion sur la complémentarité des dispositifs de protection des réfugiés).

The abstract reads:

In Europe in general, and in France in particular, the reception of refugees is based on three complementary systems. In addition to the traditional right of asylum and subsidiary protection, there is now temporary protection. In very simplified terms, political asylum concerns those fighting for freedom; subsidiary protection protects people who have been victims of abuse by nonstate groups; and temporary protection, which stems from the geopolitical context in Europe, is currently used to receive and protect Ukrainians fleeing the fighting. Many have benefited from this, although part of them have now returned to Ukraine. But this surge of generosity towards Europeans does not seem to inspire the draft Pact on Asylum and Immigration of Thursday 8 June 2023 concerning refugees from other continents.

In the second article, Ambra Marignani (University of Tours) and Svitlana Yaroslavovna Fursa (Honored Lawyer of Ukraine & Center for Legal Research of Kyiv) study the question of property rights for couples displaced from Ukraine, under a conflict-of-laws perspective (Les pouvoirs des époux sur leurs biens : quelles problématiques pour les déplacés d’Ukraine ? Regards issus d’une comparaison franco-ukrainienne).

The abstract reads:

Displaced spouses from Ukraine may not imagine that, in some cases, French law is applicable to their rights to own, manage, enjoy and dispose of property. Notaries will be in the front line in containing this risk by informing and advising them. This work will be essential, particularly with regard to the rights that differ in content between French and Ukrainian law, which has been highlighted by the comparison of laws.

In the third article, Audrey Damiens (University of Tours) and Svitlana Yaroslavovna Fursa (Center for Legal Research of Kyiv) explore the role of notaries in dealing with the sensitive issue of cross-border separation of couples between France and Ukraine (La pratique notariale et les divorces en droit international privé : réflexion entre la France et l’Ukraine en temps de guerre).

The abstract reads:

The situation in Ukraine has led to population movements, particularly towards France. Married couples or one of their members now find themselves in a situation that comes under private international law. In their practice, French notaries are and will be faced with an increasing number of international situations relating to Ukraine, including divorce. This article looks at the practical difficulties that French notaries may encounter in divorce cases in Ukraine, and suggests some possible solutions. On the one hand, it looks at divorces in Ukraine that would come before a French notary. Secondly, it is proposed to consider divorce by mutual consent in France in an international situation linked to Ukraine.

In a fourth article, Alina Goncharova (State University of Soumy, Ukraine & Invited Fellow, University of Tours) and Fabienne Labelle (University of Tours) examine the law applicable to inheritance from a French-Ukrainian comparative perspective (Dévolution successorale et réserve héréditaire: comparaison entre la France et l’Ukraine).

The abstract reads:

The purpose of this study is to compare French and Ukrainian inheritance law. This study is particularly interesting in the event that Ukrainian law is applicable to the succession submitted to the French notary, as it provides some useful benchmarks in Ukrainian law. By studying the hypotheses of shares reserved for certain heirs, it also highlights significant differences in the internal public policy of each country. These differences could give rise to practical difficulties and discussions in both doctrine and case law.

Finally, a fifth article from the same authors, Alina Goncharova & Fabienne Labelle, deals with the question of drawing up wills in international French-Ukrainian context (Le testament, outil de planification de la succession internationale Le cas des Ukrainiens protégés temporairement en France).

The full table of contents is available here.

SCOTUS Holds that Lanham Act Does Not Apply to Trademark Infringement Abroad

Case law, Developments in PIL, Developments of PIL beyond the EU

by The Editors of the EAPIL blog
12 July 2023

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at Stockholm University.

The United States has long differed from other countries by applying its trademark law (Lanham Act) to acts of infringement in foreign countries. Indeed, in the seminal case, Steele v. Bulova Watch Co., Inc., 344 U.S. 280 (1952), the Supreme Court of the United States (SCOTUS or Court) upheld the application of the Lanham Act to acts of infringement in Mexico when a U.S. defendant took essential steps in the U.S. and caused consumer confusion in the U.S. and injured the right holder’s reputation in the U.S. and abroad. In Abitron Austria GmbH v. Hetronic International, decided on 29 June 2023, the Court put an end to this and held that § 1114(1)(a) and §1125(a)(1) (the infringement provisions) of the Lanham Act are not extraterritorial and apply only to infringing uses of protected marks in U.S. commerce.

Facts

Hetronic International, Inc (Hetronic), a U.S. company, manufactures radio remote controls for heavy-duty construction equipment. For many years Hetronic had a distributorship agreement with six foreign related parties (collectively Abitron) to distribute Hetronic’s products in Europe. The relationship soured when Abitron claimed ownership to much of Hetronic’s intellectual property rights and began manufacturing their own products—identical to Hetronic’s—and selling them using Hetronic’s trademarks. Abitron mostly sold its products in Europe, but it also made some sales to buyers in the U.S. Hetronic sued Abitron alleging infringement under the Lanham Act seeking worldwide damages and a global injunction. Abitron argued that the Act could not apply to its foreign sales. The district court rejected this argument and Hetronic was awarded approximately 96 million dollars in damages. Abitron was also enjoined from using Hetronic’s trademarks anywhere in the world. The Court of Appeals affirmed the judgment, apart for narrowing the injunction to the countries in which Hetronic actually markets or sells its products. Abitron appealed to SCOTUS.

SCOTUS

The Court applied its longstanding presumption against extraterritoriality, which holds that, unless the U.S. Congress has clearly instructed otherwise, U.S. legislation applies only within the U.S. territory. The Court recalled that this presumption serves to avoid international discord with foreign countries and recognizes that Congress generally legislates with domestic concerns in mind.

The Court’s modern extraterritoriality framework consists of two steps. First, the Court determines whether there is a clear indication that Congress intended to rebut the presumption with respect to the provision at issue. If the answer is no, step two determines whether the case involves a domestic (permissible) application of the provision or a foreign (impermissible) application of the provision. This involves identifying the statute’s focus and whether the object of the focus is located in the U.S.

While all the justices agreed that the answer at step one was no, the justices were almost evenly divided (5-4) at step two in how to draw the dividing line between a domestic and a foreign application of the Lanham Act’s infringement provisions.

The majority (opinion of the Court) held that the relevant criterion was the location of the conduct, that is, the infringing use of the mark must occur in U.S. commerce. They observed that the Court’s previous precedent, Steele v. Bulova Watch Co., which they called “narrow and fact-bound”, implicated both domestic conduct and a likelihood of domestic confusion so it was not helpful when determining which of the two criteria were relevant. Looking instead to the text and context of the infringement provisions, the majority explained that while the conduct must create a risk of confusion, confusion was not a separate requirement but a necessary characteristic of the infringing use. In addition, the majority reasoned that a conduct criterion was easy for the lower courts to apply and it was consistent with the territorial nature of trademarks enshrined in international law.

In contrast, the concurring justices argued that the relevant criterion was consumer confusion. They maintained that the focus of the statute was protection against consumer confusion in the U.S. In their view, an application of the Lanham Act to activities carried out abroad when there is a risk of confusion in the U.S. was a permissible domestic application.

The concurring justices argued that the Court’s precedents do not require a conduct only criterion. They argued that the focus of a statute can be parties and interests that Congress seeks to protect. In addition, they chided the majority for putting aside Steele v. Bulova Watch, which has guided the lower courts for more than 70 years. They also argued that the majority exaggerated the risk for international discord and that applying the Act when there was a likelihood of U.S. consumer confusion was consistent with the international trademark system.

The justices were unanimous in agreeing that the Court of Appeals’ judgment be vacated.

New Questions

The majority opinion raises questions concerning the localization of infringing use. Indeed, its focus on conduct suggests that the location of the actor is relevant. That said, there was no dispute that the Lanham Act applied to the products that Abitron sold directly into the U.S. But what if the products were delivered abroad but marketed to U.S. buyers? Under European Union law, for instance, an infringing use of a trademark takes place in the EU if an offer for sale of a trade-marked product located in a third State is targeted at consumers in the EU (L’Oréal and others (C-324/09).

Now that the Lanham Act no longer applies to foreign infringing acts, right holders will need to rely on foreign trademarks. As many right holders will undoubtably seek to enforce foreign rights in U.S. courts, the question arises whether the U.S. courts will hear foreign trademark claims. Historically, U.S. courts have been reluctant to hear infringement claims based on foreign registered rights for lack of subject matter jurisdiction or forum non conveniens. It will be interesting to see how SCOTUS rules on these questions in the future.

French Supreme Court Rules on the Application of Anational Norms under the 1980 Rome Convention

Case law, Developments in PIL, Developments of PIL beyond the EU, Views and comments

by The Editors of the EAPIL blog
19 January 2023

This post was contributed by Catherine Kessedjian, Professor Emerita of the University Paris Panthéon-Assas and Chair of the ADI/ILA 2023 Organising Committee.

In a judgment of 16 November 2022 (pourvoi n° 21-17.338), the French Supreme Court for private and criminal matters (Cour de cassation) addressed, among many other issues, the application of anational norms such as the Unidroit Principles on International Commercial Contracts.

This post will only focus on this issue.

Background

Conforama, a French Company, was contractually linked to Mab Ltd, a US company until the latter became bankrupt. Two creditors of Mab Ltd made a “saisie conservatoire” in Conforama’s hands of a certain sum that it owed to Mab Ltd. However, Conforama declared that Mab Ltd did owe it another sum of money (via several invoices issued by Conforama) and intended to apply “compensation” (set-off of debts) between the two sums in order to reduce the amount that it would have to pay to the creditors.

The Paris Commercial Court (First Instance) (Tribunal de commerce de Paris, 19 June 2019, n°2008006861) decided that Conforama’s invoices were issued without cause. Consequently, it ordered Conforama to pay the entire sum due to Mab Ltd.

Conforama appealed to the Paris Court of Appeal.

Legal Issue: Applicable Law to the contracts

At the centre of the controversy are several contracts between Conforama and Mab Ltd, from 2004 onward, titled “Commercial Cooperation” according to which Conforama issued the contested invoices. Article 4.2 of these contracts provided for set-off. French law is very strict when it comes to these types of contracts because they have led to abuses in the past. Particularly, former Article L.442-6 of the commercial Code provided that, in absence of proven counterpart, these contracts were to be declared null and void. The provisions on restrictive practices are now codified in Articles L. 442-1 to L. 442-4 of the Commercial Code (see in particular Article L 442-1 I 1°).

In this context, in order to avoid the application of French Law, Conforama argued that its cooperation contracts with Mabs were regulated by “general principles of law as applied to international commercial relations together with usages of international commerce” (translation of a quote made by the Court of Appeal out of Conforama’s brief). In addition, Conforama pointed out to Article 17 of the supplier contract of 15 July 2004 and Article 11 of its general terms and conditions of purchase of 14 October 2004 and also to the Unidroit Principles (Disclaimer: we did not have access to the exact wording of these contractual documents).

However, according to Conforama’s opponents, the cooperation agreement of 10 January 2006 referred to (former) Article 1289 of the French civil code on set-off of debts (cf. current Article 1347 of the French civil code).

The question of the applicable law to a “commercial cooperation” contract, was at the centre of the dispute with the following sub-questions: (a) what method should apply to define the applicable law when the contract is silent? (b) is the theory of “goup of contacts” helpful for applicable law purposes? (c) what role can play anational rules of law?

Application of the 1980 Rome Convention by the Court of Appeal

From this complicated contractual picture, the Court of Appeal rendered a very well-motivated decision centred on the mandatory character of French Law on the type of services Conforama pretended to invoice Mab Ltd (Paris, 30 March 2021, 19/15655). Wisely, the Court did not enter into the discussion on the matter of the ‘group of contracts’ theory or on the matter of the applicability of anational law. It simply said that the cooperation agreement did not include an applicable law provision and that the Rome Convention of 1980 (applicable ratione temporis) led the court to apply French law. Since the provisions of French law are mandatory, there was no need to go further into the arguments presented by Conforama.

Exclusion of Unidroit Principles by the Court of Cassation

At the level of the Court of cassation, Conforama altered slightly its story. Its argument can be summarised as follows. First, it argued that Unidroit Principles might be applied even though they are not mentioned expressly in a contract. Second, it insisted on the ‘group of contracts’ theory and argued that applicable law clauses contained in some other contracts did apply to all contracts that are related, including the “cooperation agreement”. Third, even if the court did decide that the contract did not include a proper choice of law clause, the cooperation contract is closely related to the distribution agreement and must be regulated by the same law.

In an unusual move for a decision that confirms the appellate decision, the Court starts with a broad pronouncement (§14 of the decision) and decides that (a) general principles applicable to international contracts, such as the Unidroit principles, may not be considered as “law” and (b) that they may not be chosen by the parties to regulate their contract according to article 3.1 of the Rome Convention of 1980.

Critical Assessment

First, this pronouncement was not necessary to the decision of the Court. It is an obiter dictum. The Court could have, as did the Paris Court of Appeal, decided that the Unidroit Principles did not apply in the case at hand (and limited its pronouncement to that) because they were simply not referenced in the contract that, apparently (although this is only implied in the discussion of the facts by the Court of Appeal) was silent on the applicable law. The Court could also reach the same decision on the basis of the mandatory nature of the applicable French provisions. Therefore, it had two avenues to confirm the Court of appeal decision without making a strong, bold, broad and overarching declaration.

Instead, for an unknown reason or out of sheer conservatism and strict positive law conception, the Court reverses years of understanding under French law (see already in that sense, Cour de cassation, 13 January 2021, 19-17.157), or at least in French doctrine, that under French law, general principles such as the Unidroit Principles could indeed have some application.

In addition, and more importantly, it was always understood that freedom of contract allowed parties to reference such non-state rules of law. This is reflected in Recital 13 of the preamble to the Rome I Regulation that reads as follows:

This Regulation does not preclude parties from incorporating by reference into their contract a non-State body of law or an international convention.

It is true that such a reference is not very common in practice. Indeed, parties may run a risk by limiting their choice of law to a non-State body of law either because that document is incomplete or would not cover the very question underlying the dispute, or because of the lack of case law to ascertain proper interpretation of these rules.

A final remark as to the effect of that part of the decision by the Court of cassation: it is rendered under the 1980 Rome Convention and not the Rome I Regulation. Strictly speaking, the Court will have to change its decision the next time it will be confronted with a similar provision in a contract regulated by Rome I. Indeed, under the Regulation, it is clear that the Court would not be able to say that parties are not allowed to choose non-State body of law as the applicable law to their contract.

Revue Critique de Droit International Privé – Issue 4 of 2022

Developments in PIL, Developments of PIL beyond the EU, Journals, Scholarship

by Marion Ho-Dac
18 January 2023

A new issue of the Revue Critique de Droit International Privé (4/2022) is out.

It contains one essay, one briefing note on the accession of the EU to the Hague Judgments Convention (by Y. El Hage, Lyon 3 University), as well as numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Journey to Europa?).

In a comprehensive article, Symeon C. Symeonides (Alex L. Parks Distinguished Research Professor and Dean Emeritus, Willamette University College of Law) explores possible ways of reforming EU conflict-of-laws rules in torts (Rome II et la responsabilité délictuelle transfrontière : une nécessaire refonte).

Developments since the adoption of Regulation Rome II have demonstrated the need to extend the logic of Article 7 beyond environmental torts to other categories of cross-border torts. Recognizing this need, the Legal Affairs Committee of the European Parliament (JURI) proposed a similar pro-victim rule for one category of cross-border torts — those involving human rights violations — which would give victims even more choices than Article 7. Likewise, two academic groups, the Group européenne de droit international privé (GEDIP) and the European Law Institute (ELI), have also proposed a similar pro-plaintiff rule for these conflicts. This essay supports these proposals, but also goes beyond them by proposing a rule that would encompass all cross-border torts, in addition to environmental torts and those involving human rights violations.

The essay will be soon available in English on Dalloz website.

More information is available here.

Ukraine / EU Judicial Cooperation on Civil Matters – A Call for Contributions

Call for papers, Case law, Conferences, academic events etc., Developments in PIL, Developments of PIL beyond the EU

by Marta Requejo Isidro
6 October 2022

Between 24 and 27 October 2022, an international congress on the impacts of the war in Ukraine will take place at the University of Barcelona, organized by Cristina González Beilfuss and Xabier Fernández Pons.

On the face of the program, it looks as if most of the interventions are devoted to public law-related aspects of the war. There is nevertheless an open call for papers which may be taken up to present a couple of specific private law problems likely (unfortunately) to result from the war.

In a wider perspective, the event may be an occasion to reflect on cross-border cooperation in civil and commercial matters, family and successions included, in relation to Ukraine. I definitely think it worth to explore the landscape as far as the European Union is concerned, not only with a view to a possible accession in the future. This being said, I fear that many of us (scholars of EU Member States) are not in a position to conduct a deep research, lacking the necessary language skills.

Having this in mind, the purpose of this post is to draw the attention of Ukrainian scholars staying in Europe (let’s hope on-going funding programs will not stop) to address the topic, that is, to walk us into the PIL of a country to which the EU is already linked by projects and conventions.

This can perfectly be done through contributions to this blog. In this sense, by way of example I would like to propose two topics that could be briefly addressed.

The first one would delve into the civil cooperation aspects of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part. The original document was signed on March 21 and 27 June 2014; it has been amended several times, the last consolidated version being of 22 November, 2021. It appears that only one provision of the Agreement focuses directly on judicial cooperation on civil matters, namely Article 24 paragraphs 1 and 2 in Title III, ‘Justice, Freedom and Security’:

‘Legal cooperation

The Parties agree to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial.
The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children.’

Research could be done on the actual scope of the provision, its background, whether it has already crystallized on specific proposals or, simply, on how much judicial cooperation in civil and commercial matters is already covered by Hague conventions.

In addition to this topic, another one of narrower scope is suggested by the case of OKR, C-387/20, a preliminary reference submitted to the Court in 2020 on the Succession Regulation. The second question referred to the Court read

‘Must Article 75, in conjunction with Article 22, of [the Succession Regulation] be interpreted as meaning that, in the case where a bilateral agreement between a Member State and a third country does not govern the choice of law applicable to a case involving succession but indicates the law applicable to that case involving succession, a national of that third country residing in a Member State bound by that bilateral agreement may make a choice of law?

and in particular:

– must a bilateral agreement with a third country expressly exclude the choice of a specific law and not merely govern the lex successionis using objective connecting factors in order for its provisions to take precedence over Article 22 of [the Succession Regulation]?

– is the freedom to choose the law governing succession and to make the applicable law uniform by making a choice of law – at least to the extent determined by the EU legislature in Article 22 of [the Succession Regulation] – one of the principles underlying judicial cooperation in civil and commercial matters in the European Union, which may not be infringed even where bilateral agreements with third countries apply which take precedence over [the Succession Regulation]?’

The ’third country’ was the Ukraine; at stake was whether a Polish notary could draw up a notarial will with a clause stipulating that the law applicable to the succession would be Ukrainian law, i.e., the national law of the grantor. The request was declared inadmissible on 21 September 2021 under Article 53(2) of the Rules of Procedure of the Court, after the Court got from the notary an explanation in relation to his duties in the context of the procedure in order to determine whether or not he had, in the present case, the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU. The substantive question remains thus to be answered – and it probably will, for the request is back before the Court, this time sent by the Sąd Okręgowy w Opolu. While Ukrania is, for obvious reasons, not a country presenting observations, nor can scholar Ukranian views of the problem be determinant , it is not without interest to learn how Article 75 of the Succession Regulation is seen from the non-EU signatory countries to the bilateral agreement.

Launch of a Public Consultation on the French Draft Code of Private International Law

Developments in PIL, Developments of PIL beyond the EU, Domestic legislation, Public consultations

by Marion Ho-Dac
1 July 2022

Following the release of a draft code of private international law (announced here), the French Ministry of Justice has launched on 8 June 2022 a public consultation to gather feedback from all stakeholders, including academics, “in order to determine the possible next steps”.

The blog has started to contribute to the discussion (see here on renvoi and here on foreign law) and other comments will follow.

Scope of the Consultation

The consultation template is divided into three main parts. The first part concerns the very principle of adopting written codified rules in the field of private international law, as well as the scope of the code (i.e. purely national or including EU and international rules applicable within the French jurisdiction). The second part allows for general comments on the draft Code (eg. its structure, its material scope). Finally, the third part proposes article-by-article comments (among 207 articles).

Conditions for Participation in the Consultation

The French Ministry of Justice invites interested parties to send comments on the draft code of private international law to consultation-codedip.dacs@justice.gouv.fr using the Word document provided for. Comments that do not respect this format will not be taken into account.

The consultation is open until 30 September 2022.

The Third Restatement of Conflict of Laws: Origins and Aspirations

Conferences, academic events etc., Developments in PIL, Developments of PIL beyond the EU

by Matthias Lehmann
29 April 2022

In 1971, the American Law Institute published the epochal Restatement of Conflict of Laws (Second). Now, a new version is in the making.

An overview of the work will be given by Kermit Roosevelt III (University of Pennsylvania) on 10 May 2022, at 5 PM CET, in the context of the Max Planck Institute (MPI) Hamburg series on “Current Research in Private International Law”.

This promises to be very interesting as the speaker is deeply involved in the drafting process.

The registration link can be found here. Participation is free of charge.

China/Singapore Supreme Courts’ MoU on Cooperation Regarding Foreign Law

Developments in PIL, Developments of PIL beyond the EU

by Marta Requejo Isidro
20 April 2022

While reflecting once more about the efforts to reach a forum-ius parallelism via interpretation of the grounds for jurisdiction and the connecting points of the conflict of laws rules (not be the best way to get to it), I found a piece of news about a new Memorandum of Understanding on cooperation on information about foreign law.

MoUs of this kind are indeed not unknown any longer – albeit not used in Europe. What makes this one special is that it has been entered into by the Supreme Court of Singapore and the Supreme People’s Court of China.

A MoU on guidance on the recognition and enforcement of money judgments in commercial cases exists already since August 2018.

The MoU on foreign law was signed at the 5th Singapore-China Legal and Judicial Roundtable held on 3 December 2021. According to the information given by the official website of the Singapore Supreme Court, the MOU establishes a mechanism between the two courts to determine questions of law of the other jurisdiction in international civil and commercial cases. It came into effect on April 3rd. The text, consisting of 17 provisions, is detailed regarding language and deadlines for the transmission of the requested information – always in relation to ongoing proceedings, and with no identification of the parties concerned-, but does not goes into other important issues such as costs. It can be downloaded here: memorandum-of-understanding-between-the-supreme-court-of-singapore-and-the-supreme-people’s-court-of-the-people’s-republic-of-china.

Although not a political commitment, this MoU can be considered as another evidence of the ties between Singapore and China and the progress made in bilateral cooperation despite the COVID-19 pandemic, including in traditional areas of cooperation ranging from trade and investment to financial cooperation. Actually, on December 29, 2021, 14 MoUs were signed ranging from strengthening cooperation in finance, exchange of trade and customs information, competition law, urban governance and planning, nature conservation to maritime safety.

Conference on Surrogacy and Private International Law

Conferences, academic events etc., Developments in PIL, Developments of PIL beyond the EU

by Marion Ho-Dac
17 March 2022

The Charles De Visscher Center for International and European Law (CeDIE, UCLouvain, Belgium) will host a conference on Surrogacy and Private International Law, on 31 March 2022.

The conference aims at discussing the theoretical and practical debates on surrogacy, by presenting both the rules of domestic law (including a comparative law approach) and the rules of private international law, with an emphasis on the latter. It will also provide for an opportunity to revisit some of the issues related to the ethical and human rights implications of surrogacy.

Speakers will include legal and medical practitioners as well as academics.

Geneviève Schamps (Professeure, UCLouvain), Jehanne Sosson (Professeure, UCLouvain, avocat), Hugues Fulchiron (Professeur, Université Jean Moulin Lyon 3, Juge, Cour de cassation française), Patrick Wautelet (Professeur, ULiège), Petra Hammje (Professeure, Université de Nantes), Michelle Giroux (Professeure, Université d’Ottawa), Geoffrey Willems (Professeur, UCLouvain), Julie Mary (Assistante et doctorante, UCLouvain) , Amélie Panet (Maître de conférences, Université Jean Moulin Lyon 3),Catherine de Bouyalski (Avocate au barreau de Bruxelles), Nicolas Gendrin (Juge, Tribunal de la famille de Namur), Florence Anciaux Henry de Faveaux (Conseiller, Cour d’appel de Mons), Géraldine Mathieu (Maître de conférences, Université de Namur & ULiège), Sylvie Sarolea (Professeure, UCLouvain, avocate), Caroline Mecary (Avocate aux barreaux de Paris & du Québec), Candice Autin (Médecin gynécologue, Responsable du centre de Procréation Médicalement Assistée au CHU Saint-Pierre), Jean-Philippe Cobbaut (Professeur, Université catholique de Lille & UCLouvain) and Jean-Yves Carlier (Professeur, UCLouvain & ULiège, avocat).

The working language will be French.

The full programme is available here. Online registration is open here.

France Amends Rule on Effect of Foreign Birth Certificates

Developments in PIL, Developments of PIL beyond the EU, Domestic legislation, Normative texts

by The Editors of the EAPIL blog
9 March 2022

This post was contributed by Christine Bidaud, who is Professor at the University Jean Moulin – Lyon 3, co-director of the Family Law Center and member of the Research team Louis Josserand.

French Background on Recognition of Foreign Birth Certificates of Children Born Abroad by Surrogacy

If there is one subject that divides not only jurists but also States, it is certainly surrogacy. Legal in some countries, prohibited in others, and unregulated in still others, each State develops its own law according to the social mores, values, and history of its society. But it is one thing to prohibit the practice of surrogacy on one’s own territory and another to consider the parenthood of a child born abroad by surrogacy. The French Cour de Cassation has well understood this.

Without going back over the details of the evolution of its case-law, it should be remembered that at first, the Cour de cassation refused to recognise or authorise the recognition in France of the parenthood of children born abroad by surrogacy (see Cour de Cassation, 1st Civil Chamber, 6 April 2011, n° 10-19053, Mennesson, n°09-66486, Labassée & n° 09-17130 and Cour de cassation, 13 September 2013, n°12-18315 & n°12-30138). The Court then accepted the partial transcription of the child’s foreign birth certificate in French civil status registers by limiting it to the biological parent (see Cour de Cassation, Plenary session, 3 July 2015, n°14-21323 & n°15-50002). The second parent, whether a man or a woman, had to adopt the child to establish his or her parenthood. Until the law of 21 February 2022, a requirement for such adoption was that the couple be married.

The Cour de Cassation then decided to go further. Even if in its opinion of 10 April 2019, the ECtHR did not require it, the Cour de Cassation decided to authorise the full transcription of the child’s foreign birth certificate in the French civil status registers. Initially presented as an exceptional solution justified by the circumstances of the Mennesson case, the Cour de Cassation finally generalised this solution (see Cour de cassation, 1st Civil Chamber, 18 December 2019, n° 18-11815 & n° 18-12337 and recently Cour de cassation, 1st Civil Chamber, 13 January 2021, n° 19-17929). The French case law seemed to be well established and yet…

2021 Reform of Article 47 of the French Civil Code

The law on bioethics of 2 August 2021 reformed Article 47 of the Civil Code, which governs the evidentiary value of foreign civil status documents. Even if the evidentiary value of foreign civil status documents must be distinguished from the recognition of parenthood, the two issues are “dangerously” intertwined in the case-law and obviously in the mind of the legislator too. Wishing to put a stop to the case law of the Cour de Cassation, the French Senate had proposed an amendment to introduce a new Article 47-1 into the Civil Code. In essence, the text provided for a return to the previous case law of the Cour de Cassation: partial transcription of the biological parenthood link and adoption of the child by the other parent.

The French National Assembly rejected this amendment and instead amended Article 47 of the Civil Code. The text, which already provided that

‘All civil status records of French citizens and foreigners made in a foreign country and drawn up in the forms used in that country are considered as proof unless other records or documents held, external data, or elements drawn from the record itself establish, if necessary after all useful verifications, that this record is irregular, falsified, or that the facts declared therein do not correspond to reality’,

has been supplemented by the precision that

‘This (reality) is assessed in the light of French law.

The change seems minor at first glance, but it nevertheless calls for a whole series of observations.

The Purpose of the New Provision

The Senate amendment only concerned the transcription of birth certificates of children born abroad by surrogacy into French civil status registers. The new version of Article 47 of the Civil Code does not concern the transcription, but the evidentiary value of all foreign civil status records: birth certificates, as well as others (e.g. marriage, recognition, death, and certificates of stillborn babies). The text introduces a problematic confusion between evidentiary value and transcription of foreign civil status records. A foreign civil-status record does not need to be transcribed into French registers to have evidentiary value. It must only have been established following “the usual forms” of the foreign country (as laid down by the first sentence of Article 47 of the Civil Code). Moreover, it is impossible to require transcription in all cases because transcription of foreign records is only possible when the person(s) concerned by the record have French nationality.

The Lack of Legitimacy of the New Provision

The amendment proposed by the Senate was expressly aimed at surrogacy, which is a bioethical issue. However, Article 47 of the Civil Code relates to the evidentiary value of all foreign civil status records, whether they relate to French citizens or to persons of foreign nationality. What is thus the legitimacy of a new law relating to bioethics to reform this provision? For example, what link can exist between bioethics and a foreign marriage record?

In our opinion, the legal context of the reform of Article 47 is therefore inappropriate and even instrumentalised.

An Incoherent Provision?

There is still one condition for foreign documents to be evidentiary: they must have been drawn up following the local rules of form. And there are still three grounds for overturning this presumption of evidentiary value: irregularity, falsification, and inconsistency of the facts contained in the document to reality. There is no change for the first two grounds of challenge pursuant to the new version of Article 47. “Irregularity” means that the act respects the foreign local forms. The “absence of falsification” implies that there must be no documentary fraud (e.g. erasure, pasting, or fraud carried out with different computer software), but also more elaborate fraud, sometimes carried out with the complicity of local authorities (one can think of ‘true-false’ records drawn up deceptively and inserted into foreign registers by unscrupulous foreign civil registrars).

The third ground for challenging the evidentiary value – “the lack of conformity of the facts with reality” – has been completed by the strange precision that this reality must be “assessed in the light of French law”. Until now, this condition was interpreted in terms of accuracy or inaccuracy: was the person born in that town? Did the person die on that date? It is logical, facts are true or false. What sense can be given to the requirement that the facts must be conform with reality “assessed in the light of French law”?

Keeping in mind that the goal of the text was to put an end to the case law of the French Cour de Cassation, we can only observe that the legislator makes a confusion between what is a fact and what is not. Parenthood is not a fact: it may result from the effect of the law, from a recognition act, from a possession of status, or from a judicial decision. The new version of Article 47, therefore, invites reasoning in terms of equivalence between what French law allows and what it does not allow. It is no longer a question of factual reality but of legal reality.

An Incoherent System of Reception of Foreign civil status records?

Reasoning in terms of legal reality means that we must check if the element of personal status established or constituted abroad has an equivalent in French law. And that must be done for each element that may compose the status of a person: facts such as dates and place of birth, but also everything else, i.e. marriage and parenthood. And how far should this research of equivalence be pushed? Should we, for example, require that marriages celebrated abroad have a civil form because it is the only one that exists in France? Such research would not make sense because it would be the same as considering that a foreign record relating to a marriage celebrated only in the religious form has no evidentiary value in France, even though this marriage would be considered valid. Since 1955, French case law has considered that this question belongs to the conditions of form of marriage and is therefore governed by foreign law (see Cour de cassation, 22 June 1955, Caraslanis). This rule is now written into the Civil Code.

The formulation of the text causes confusion between the evidentiary value of the records and the recognition of the status of persons. The civil status record is used to prove that an event concerning personal status occurred abroad, but this does not mean that this personal status will produce effects in France. With the new version of Article 47 of the Civil Code, everything is mixed up: the element of personal status is checked to ensure that it corresponds to the definition given by French law to give evidentiary value to the foreign civil status record.

The New French Legal Reality of Female Parenthood

The law on bioethics has opened up medically assisted procreation to women couples and single women (Art. 342-10 of the Civil Code). The new Article 342-11 of the Civil Code provides that “At the time of the consent [by the notary] provided in Article 342-10, the couple of women jointly recognises the child”. For the woman who gives birth, parenthood is established in accordance with Article 311-25 which lays down that “‘Regarding the mother, parenthood is established by her designation in the child’s birth certificate”. For the other woman, it is established by the joint acknowledgement provided in the first paragraph of this Article. This is given by one of the two women or, where applicable, by the person responsible for declaring the birth to the civil registrar, who indicates this in the birth certificate. Regarding the woman of the couple who is not carrying the child, she will therefore be the legal mother of the child from the moment of its birth because of prenatal recognition.

So today, it is possible under French law to be the legal mother of a child without having given birth to that child and without the need to use adoption.

What Consequences for the Reception in France of Foreign Birth Certificates of Children Born Abroad by Surrogacy?

When the couple who had recourse to surrogacy abroad is heterosexual, most of the time, the indications written in the foreign birth certificate will only specify “mother:…” and “father:…”. It will not mention whether the woman has or has not given birth. It will only give the identity of the mother. Therefore, the foreign record will not contain any factual inaccuracies. To check if the indications are in conformity with the legal reality assessed in the light of French law, it is then necessary to verify whether French law allows the registration of a woman as a mother without having given birth and without having adopted the child. And this is now possible since the Bioethics Law of 2 August 2021…

The Cour de Cassation is therefore not required to change its case law in this situation. It can continue to transcribe these birth certificates in the French civil status registers. The situation is more problematic regarding men’s couples. In this case, there will be two fathers in the foreign birth certificate. To ensure that this record corresponds to the legal reality assessed under the light of French law, the Civil Code should contain a provision that allows the establishment of a double link of paternal parenthood from the child’s birth, without using adoption. And this provision does not exist. Therefore, it should no longer be possible to transcribe these foreign birth certificates in French civil status registers!

What Perception will the ECtHR have of such differential treatment?

The ECtHR does not systematically condemn States that do not allow the recognition or reconstruction of a parenthood link towards the non-biological parent who has had recourse to surrogacy abroad if the child has a family life with his or her parents. However, special circumstances are required and in its advisory opinion of 10 April 2019, the ECtHR stated that the parenthood link between the child and the intended mother must be established, including through adoption, but that there was no obligation for States to transcribe the child’s full birth certificate. This opinion was issued to surrogacy carried out by a different-sex couple but is perfectly transposable to same-sex couples.

If the French Cour de Cassation only allows the transcription of foreign birth certificates of children born from surrogacy when the parents are of different genders, there would certainly be discrimination between heterosexual and homosexual couples and even more between children who are all born abroad by surrogacy. It is difficult to see how France could not be condemned again by the ECtHR… And the recent Pancharevo Case of the CJEU (analysed here on the blog) can only add arguments in the direction of maintaining the current case law of the French Cour de Cassation.

Journal du Droit International: Issue 1 of 2022

Developments in PIL, Developments of PIL beyond the EU, Journals, Scholarship

by Marion Ho-Dac
17 February 2022

The first issue of the Journal du droit international for 2022 has just been released. It contains three articles and several case notes relating to private international law issues.

In the first article, Gian Paolo Romano (University of Geneva) revisits the interplay between “private” international law and “public” international law (Droit international dit « privé » et droit international dit « public » : éléments d’une théorie unitaire et humanisée du droit international).

The English abstract reads :

The doctrine of private international law and the doctrine of public international law rely on two supposedly self-standing theories whose independence is justified by the difference in their subject-matter : public international law mainly deals with relations between States and the international organizations they form, while private international law deals with relations between private individuals and corporations. However, each of these theories comes up against multiple paradoxes and unresolved problems that their specialists candidly acknowledge. The author argues that a unified and human-centered theory of international law promises to overcome such difficulties, to give a more accurate account of the contemporary law of international relations and to facilitate its further progress.

In a second article, Alejandra Blanquet (Catholic Institute of Paris) focuses on the issue of international child abductions in Japan under the 1980 Hague Convention (Le risque juridique au sein de la Convention de La Haye de 1980 : le cas des enlèvements internationaux d’enfants au Japon – À propos de l’arrêt de la première chambre civile de la Cour de cassation du 28 janvier 2021).

The English abstract reads:

When a French judge confirms that a wrongful removal or a retention of a child have taken place, he must apply The Hague Convention of 1980 and order the child’s return to the place of his habitual residence. The only exception accepted to this solution is the fulfillment of one of the situations described on the text, especially the one exposed in Article 13. Exceptional in nature, these situations also received a restrictive interpretation preventing French jurisdictions from taking legal risk into consideration. This concept may be defined, in our opinion, as the danger derived from the content of foreign law, specifically the one from the country of habitual residence of the child, and which application could lead to negative consequences for the child in the event of a return. By excluding its consideration, the Court of Cassation confirms its preference for a restrictive interpretation of Article 13.b while she closes the door to a possible adaptation of the Convention’s solutions that may be useful to face the particular problem of Japanese kidnappings.

In the third article, Élodie Kleider (PhD, Strasbourg & Bâle Universities) discusses the scope and interpretation of the Lugano Convention based on Norwegian and Swiss case law (Convention de Lugano, États tiers et CJUE : entre influence et ignorance, exemples venus de Suisse et de Norvège).

The English abstract reads:

Only a few non-Member States of the European Union benefit from the Lugano Convention of October 30th, 2007. The United Kingdom hoped to join them after the Brexit. Such a position is advantageous : thanks to the convention, the third country enjoys the benefits of the European judicial area, while keeping great flexibility. Jurisdictions of those countries tend to comply with the judgments of the ECJ, but sometimes clearly deviate. Some Swiss and Norwegian decisions will prove it.

Rethinking Flow Beyond Control – An Outreach Legal Essay

Books, Developments in PIL, Developments of PIL beyond the EU, Scholarship

by Marion Ho-Dac
9 February 2022

Jean-Sylvestre Bergé who is a law professor at Université Côte d’Azur (CNRS GREDEG) and a former member of the Institut Universitaire de France has recently published a new open access essay titled Rethinking Flow Beyond Control – An Outreach Legal Essay (ed. DICE, coll. Confluence des droits collection, 2021, 154 p., already announced here).

This work is the continuum of his previous legal essay titled “Situations in Motion and The Law – A Pragmatic Epistemology” (Les situations en mouvement et le droit – Essai d’une épistémologie pragmatique, Dalloz, 2021, announced here) which examines a number of legal constructs in national, international or European contexts and the way they respond each time they are faced with “situations in motion”. As explained by the author, “it was an attempt at deconstruction and reconstruction with the aim of offering a series of tools that could improve our understanding of both ordinary and complex circulation phenomena”.

Since the very inspiring work of Jean-Sylvestre Bergé is about circulation across territories, following a global approach, I have interviewed Jean-Sylvestre to know more about his new essay from a private international law perspective.

— Can you share with us the central idea of your work?

First of all, I would like to make it clear that this book is written for a wide audience, not just lawyers, and writing it in English allows me to capture all the exchanges I had during its preparation and now to share them as widely as possible.

The book is divided in two parts.

The first part is an epistemological analysis of circulation and law through the lens of circulation. The approach is therefore different from the one traditionally chosen, particularly by private international law scholars, who study the “law of circulation” (e.g. legal aspects of movement of goods or persons). I reverse the perspective: how does the phenomenon of circulation question the constructions of law and in particular those of private international law?

For example, when we study the cross-border circulation of judgments or civil status documents, there is a disciplinary pre-understanding. The analysis is made under the rules and methods of the subject. The book proposes to “decompartmentalize” knowledge and analysis, by taking various examples in several disciplinary fields.

The second part of the book aims at characterising circulation and pushing it to a point of paroxysm: this is the figure of “rupture” that I call the “total loss of control in circulation”. I think about flows produced by all of us in the everyday life and the loss of control of the stakeholders, such as a family, a company or even the whole world. This figure of loss of control is interesting because it is a “clash of the titans” with the law. Law is dominated by the control of situations and, for my part, I work on the loss of control of flows. This is not an unknown object of study, but lawyers find it difficult to accept! Think of the nuclear risk and its legal treatment. Control is certainly not total…

— If we take the example of cross-border circulation of civil status documents, when do we reach a situation of “loss of control”? Can private international law regulate the situation “beyond control”?

Let’s take the specific case of children born of surrogate motherhood abroad (where it is legal), and then the request for transcription of the child’s birth certificate in the country where the parents live and which prohibits this method of procreation, such as France. In this context, the core issue could be the circulation of the child. There are mechanisms that allow for the circulation of the child; consequently, this infers all subsequent constructions, including those of private international law, which deal with and regulate the circulation of civil status records of these children born of surrogate motherhood.

In France, this circulation was liberated by the “Taubira” circular concerning travel documents allowing the child to leave his/her State of birth for France, even though surrogate motherhood is prohibited in France. If we want to fight surrogate motherhood (from the point of view of its opponents), we must attack the circulation, block it, prohibit it… Can we ban these children from circulation and how can we do it? There is a “reading template” to respect, starting with the respect of the fundamental rights of the child with regard to circulation or non-circulation.

This is another way of considering this topic, renewing the usual debate on the prohibition (or not) of this mode of procreation and the cross-border “recognition” of the parent-child relationship; it is the prism of circulation beyond control, following an epistemological approach of private international law.

— What is the main contribution of your work to private international law theory and practice?

The book invites us to revisit the legal acquis (including private international law acquis) by using the language of an epistemology of circulation and of a total loss of control, such as internationality, extraneity, mobility or relocation (see the index of the book). There are well-known concepts in private international law that could allow the issue of circulation to be brought back to the center of the proposed analysis. For example, in France, the “Matter doctrine” according to which a contract is international if it involves the interests of international trade through the ebb and flow of financial values across borders. In my opinion, this doctrine is not sufficient to consider that the issue of the international dimension of a situation is settled. It has not provided for a conceptual framework for circulation phenomena under private international law. It can usefully be rethought through the concept of flow in the context of situations in motion.

To this end, I propose new notions, such as a distinction between cases in which the law tackles situations in motion from a “consequential perspective” (i.e. looking at its causes and effects) or “in and of itself” (i.e. from end to end). This distinction is very interesting because it allows to study mechanisms of private international law to see whether they deal with mobility from beginning to end or, on the contrary, whether they only deal with its causes or effects. It is often the latter answer that prevails because it is the easiest way for the law in general. Let us think of the expulsion of an individual from a territory: it is a question of apprehending an incoming flow. There is a legal apparatus that deals with the issue only by its causes or effects in this case.

In contrast, the law can grasp the movement in its entirety, from start to finish: this is the case in extradition conventions, in the mechanism of the European arrest warrant, or in private international law of the legal regime for the return of illegally displaced children, in the Hague Convention on international child abduction. This text puts in place a very sophisticated mechanism based on a very high level of cooperation between public authorities, which makes it possible to apprehend the circulation and return of the child with immediate effect.

In this contrasting context, the question is which path the law chooses to take in its legal treatment of circulation? This is a legal policy choice with varying levels of construction. End-to-end mechanisms are fragile, often held in check and more complex to set up and implement because they require an understanding across territories of the complete mechanisms. The treatment of the subject by its causes or effects is easier, the law knows how to “receive” or “send” a situation in motion. It is a much more unilateral rationale and, whatever one may say, unilateralism is a key-component of private international law…

— The book also develops a “modal analysis of circulations”, distinguishing between the forms of circulations that lead to different legal regimes.

Yes, this approach is well-known in transport law: depending on the type of transport by air, sea or road, there are adapted legal regimes. We can use this rationale to analyse some mechanisms of private international law.

For example, circulation in law is consubstantial with its subject. In private international law, is the person consubstantial with its object? People should be allowed to circulate without losing their status. This question has already been examined but the analysis can be renewed. We know that we cannot let everyone circulate freely. So as soon as we deal with movement, it is because we have the right to control it; if we deal with controlling movement, it is because movement is not free. In law, we do not talk about movement when it is free; if the law talks about it, it is because it controls it. Hence my counterpoint: loss of control!

— The book proposes another concept, which could be very useful for international lawyers, that of the “normative space of flows”. Can you tell us more about it?

I start from the idea that it is the flow that designates the perimeter of actors in a field with cross-border implications, and brings them into contact (e.g. a buyer and a seller in an international contract). This flow is composed of a set of factual and legal data. Sometimes, this can give rise to collateral damage that is difficult to grasp and that draws new, global perspectives. In this context, my theoretical proposal is to say that the flow creates its own space and that this space is capable of producing its own law.

For example, a transatlantic air flight is a normative space of flow; it should be possible to study it as the ephemeral constitution of a legal order that federates around its object the movement of the plane from Paris to Toronto, a set of rules of private law, public law, soft law, hard law, requirements on corporate social responsibility, etc… All these rules have the flow as their object. If I put the flow back at the center of the legal order, I redraw the relationships between the legal norms at the start of the flow.

There are a large number of possible examples.

To return to the example of surrogate motherhood in an international context, the circulation of the child is a normative space of flows that disrupts the classic legal framework for understanding this phenomenon.

— In this normative space of flows, where does control lie? Is the circulation always “beyond control”?

It depends! Circulation can be under control or beyond control for the law in a normative space of flows. In the hypothesis of a plane accident, its legal treatment can be analysed through the normative space of flows but the law will have difficulty in regaining control of the situation, given the complexity of the cross-border legal treatment of the situation (i.e. compensation for material and physical damage, search for the responsibilities of the parties involved, etc.).

The problem is that there is no “meta rule” of private international law to seize one single court with a unique applicable law at the global level. In the example of an air crash, there is inevitably a scattering of the procedure with victims who are culturally different, the evidence is spread over several territories, the area of the accident may even be a-national (on the high seas), etc.

Finally, we may wonder if the law – including private international law – is capable of dealing with the phenomenon of circulation. The answer is difficult. When it circulates, the answer is positive, but when the circulation is difficult or when there is no circulation at all, we wonder. This brings us to the limits of the legal treatment of situations in motion. Why is this so? Because the flow cannot produce its own normative space.

— What about EU private international law? In what way does the unification of PIL rules in the European area contribute to the discourse on situations in motion and its legal treatment?

The European system of private international law is a normative space of flows. This may seem obvious, but it is no small thing to say! It is a legal system that modifies the reference system of private international law. This is huge! It was originally the (national) forum and sometimes we looked a little at the lex causae, but that remained rare. And now we have a supranational construction that anchors a space that is not a territory as a point of reference. This changes everything: it is a normative space of flows like a national forum.

In this context, the book proposes that lawyers and lawmakers take the flow as the object of normative construction. This could perhaps make it possible to overcome certain failures of the law to embrace situations in motion. But there is strong resistance because each legal order wants to keep its perimeter, its control and deal with the situation alone, even if it goes beyond its borders…

In conclusion, I would like to thank Jean-Sylvestre for this fascinating analysis of situations in motion, based on the concept of flow, and this invitation for lawyers, including experts in private international law, to rethink the “applicable law” (i.e. from its conception to its implementation).

Cyberjustice, new Opportunities for the Judicial Officer

Books, Developments in PIL, Developments of PIL beyond the EU, Scholarship

by Marion Ho-Dac
12 January 2022

David Walker, Rapporteur of the 24th International Union of Judicial Officers (UIHJ) Congress, has edited the proceedings of the event. The book, published by Bruylant, is titled Cyberjustice, new Opportunities for the Judicial Officer and includes various contributions (in English and French) dealing with Cyberjustice in line with the expectations of judicial officers. Many articles are dealing with international justice and enforcement (e.g. e-Codex, Hague Convention on Judgments, Service of documents Regulation…) under a digital perspective.

As explained in the foreword by Marc Schmitz, President of the UIHJ, the world is digitising and the current pandemic of COVID-19 even accelerates this process. The judicial officer must consider the digital evolution of justice not only as a challenge but as an opportunity. In particular digital enforcement and digital asset seizure will become common practice in the near future. In this context, there is a need to introduce rules on digital enforcement and seizure of digital assets. These rules need to be harmonised globally. Solutions at national level alone will not be sufficient. The digital world is cross-border. The UIHJ can be one of the pioneers and play a leading role in drafting position papers and making recommendations in the field of digitalisation of enforcement, such as a proposal for a World Code of Digital Enforcement.

The table of contents reads as follows:

Introduction by the President of UIHJ
Word of His Excellency Director General of Dubai Courts
Introduction by the General Reporter

Part I – Excellence and Innovation

Part II – New Technologies – Delivering Efficient Justice

Part III – New technologies and enforcement

Contributors include : Françoise Andrieux, Amna Al Owais, Massimiliano Blasone, Jackson Chen, Gary A. Crowe, Malone da Silva Cunha, Karolien Dockers, Sylvian Dorol, Robert W. Emerson, Luc Ferrand, Natalie Fricero, Patrick Gielen, Alex Irvine, Aída Kemelmajer de Carlucci, Martin Leyshon, Jorge Martinez Moya, Paula Meira Lourenço, Tereza Lungova, Orazio Melita, Yacob Mohamed Ahmed Abdullah, Jérôme Gérard Okemba Ngabondo, Luis Ortega, Guillaume Payan, Iva Peni, Neemias Ramos Freire, Teresa Rodríguez de las Heras Ballell, Dovilė Satkauskienė, Marc Schmitz, Risto Sepp, Rui Simao, Adrian Stoica, François Taillefer, Dimitrios Tsikrikas, Aranya Tongnumtago, Jos Uitdehaag, Sjef van Erp, Jona Van Leeuwen, Pimonrat Vattanahathai, Anna Veneziano, Elin Vilippus, David Walker, Vladimir Yarkov, Ning Zhao.

Full table of contents here and more information here.

Journal du Droit International: Issue 3 of 2021

Developments in PIL, Developments of PIL beyond the EU, Journals, Scholarship

by Marion Ho-Dac
7 September 2021

The third issue of the Journal du droit international for 2021 has just been released. It contains two articles and several case notes relating to private international law issues.

In the first article, Guillaume Feld (Avocat, Paris bar) and Guillaume Sauvaget (Associé, PS Consulting) discusse the concept of “dispute boards” as ADR technique in an international context (Les “dispute boards”: originalité, évaluation et perspectives d’un mode alternatif de règlement des différends singulier).

The English abstract reads:

Original alternative dispute resolution (ADR) technique, dispute boards (known in French as « comités de règlement des différends ») have been conceived in the construction industry in North America in the 1960s-1970s as an empirical answer to the infrastructure projects’ high propensity to disputes and their negative consequences for all involved parties. Initially designed as a permanent body comprising one or more knowledgeable neutrals set up at the project’s inception in order to assist the parties in avoiding and/or overcoming any disagreements and/or disputes which could arise under or in connection the underlying contract, the popularity of dispute boards has grown significantly over the past two decades well beyond the construction industry. Their dual preventive and curative functions as well as their undeniable efficacy explain to the uniqueness of dispute boards which sets them apart from other ADR techniques. While they are not without inconveniencies and risks, dispute boards offer to their users numerous advantages and opportunities which justify their adoption under major international projects in various industries. The purpose of this article is to present : the concept, genesis and development of dispute boards ; their originality, typology and operation ; their advantages and inconveniencies ; their risks and opportunities ; and their possible future.

In the second article, Charlotte Ankaoua (PhD, University of Versailles-St-Quentin-en-Yvelines) analyses the recent caselaw of the CJUE dealing with the ‘Actio Pauliana’ under Brussels I bis Regulation (L’assimilation de l’action paulienne à une action contractuelle selon la Cour de justice de l’Union européenne).

The English abstract reads:

Through two court rulings, the Court of Justice of the European Union rules that the Paulian action is a legal action of a contractual nature within the meaning of Article 7, §1, of the Brussels I bis Regulation, even though the parties are not bound by a freely accepted commitment. The latter thus enshrines the extension of contractual matters undertaken in recent years and which makes the « cause of action » the main criterion of this autonomous concept. While these rulings seem to clarify the Paulian action, a «chameleon » action, the article tends to show that, on the contrary, they can distort it, in particular by undermining the principle of the relative effect of contracts which characterises it.

A full table of contents can be downloaded here.

The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law Conference

Conferences, academic events etc., Developments in PIL, Developments of PIL beyond the EU

by Anna Wysocka-Bar
20 May 2021

From 9 to 11 September 2021, the Max Planck Institute for Comparative and International Private Law will host a conference titled The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law. Depending on the course of the pandemic, the organizers plan that the conference will take place either at the Max Planck Institute in Hamburg virtually or in a hybrid form. An official invitation was issued and registration is now open.

The conference is designed to present findings of the research project bearing the same title led by Ralf Michaels (Max Planck Institute for Comparative and International Private Law), Verónica Ruiz Abou-Nigm (University of Edinburgh) and Hans van Loon (former Secretary General of the Hague Conference on Private International Law). The project, as explained by its leaders, “aims to raise an awareness of how PIL – with its methods and institutions – is also capable of making a significant contribution in the quest for sustainable development” defined in UN Sustainable Development Goals 2030. The edited volume presenting findings of the project will be published by Intersentia and is scheduled to be released in September 2021, to be ready for the conference. The volume will be freely accessible online, in open access.

The following 19 contributors involved in the project will present and discuss their findings on respective SDGs (the exact conference program will be ready in the coming weeks):

SDG 1 No Poverty

Benyam Dawit Mezmur (University of the Western Cape, South Africa)

SDG 2 Zero Hunger

Jeannette Tramhel (Organization of American States, United States of America)

SDG 3 Good Health and Well-being

Anabela Susana de Sousa Gonçalves (Universidade do Minho, Portugal)

SDG 4 Quality Education

Klaus Beiter (North-West University, South Africa)

SDG 5 Gender Equality

Gülüm Özçelik (Bilkent Üniversitesi, Turkey)

SDG 6 Clean Water and Sanitation

Richard Frimpong Oppong (Kamloops, Canada)

SDG 7 Affordable and Clean Energy

Nikitas E. Hatzimihail (University of Cyprus, Cyprus)

SDG 8 Decent Work and Economic Growth

Ulla Liukkunen (University of Helsinki, Finland)

SDG 9 Industry, Innovation and Infrastructure

Vivienne Bath (University of Sydney, Australia)

SDG 10 Reduced Inequality

Thalia Kruger (Universiteit Antwerp, Belgium)

SDG 11 Sustainable Cities and Communities

Klaas Hendrik Eller (Universiteit van Amsterdam, Netherlands)

SDG 12 Responsible Consumption and Production

Geneviève Saumier (McGill University, Canada)

SDG 13 Climate Action

Eduardo Álvarez-Armas (Brunel University London, United Kingdom and Université Catholique de Louvain, Belgium)

SDG 14 Life Below Water

Tajudeen Sanni (Kampala International University, Uganda)

SDG 15 Life on Land

Drossos Stamboulakis (Monash University, Australia)
Jay Sanderson (University of the Sunshine Coast, Australia)

SDG 16 Peace, Justice and Strong Institutions

Sabine Corneloup (Université Panthéon-Assas, Paris II, France)
Jinske Verhellen (Universiteit Gent, Belgium)

SDG 17 Partnerships for the Goals

Fabricio Polido (Universidade Federal de Minas Gerais, Brazil)

New Tripartite Legal Guide for International Commercial Contracts

Developments in PIL, Developments of PIL beyond the EU, Normative texts, Reports, recommendations, studies etc.

by Marion Ho-Dac
6 May 2021

A joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH, titled Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, has just been released.

As explained on the HCCH website, the Legal Guide “offers an overview of the principal legislative texts prepared by each organisation, such as the United Nations Convention on Contracts for the International Sale of Goods, the HCCH Principles on Choice of Law in International Commercial Contacts and the UNIDROIT Principles on International Commercial Contracts. It also illustrates how these texts interact to achieve the shared goals of predictability and flexibility. The Legal Guide will be a user-friendly resource for those interested in the adoption, application, and interpretation of uniform contract law.”

Following the UNIDROIT website, “it aims at creating a roadmap to the existing uniform law texts in the area of international sales law prepared by each organization […]. It is an effort to clarify the relationship among them, promoting uniformity, certainty and clarity in this area of the law”.

A significant contribution towards the preparation of the Legal Guide is due to Professors Neil Cohen (USA), Lauro da Gama e Souza Jr (Brazil), Hiroo Sono (Japan), Pilar Perales Viscasillas (Spain) and Stefan Vogenauer (Germany).

The Legal Guide is available in English and will soon be released in other United Nations languages (as it is the case of the previous joint publication of the three organisations on Security Interests, 2012).

More information on the Legal Guide here (video announcement) and here (recording of the International Conference on the forthcoming Tripartite Legal Guide, 22 September 2020).

International Action Plan of the French Court of Cassation: Key Aspects Relevant to PIL

Developments in PIL, Developments of PIL beyond the EU, Reports, recommendations, studies etc.

by Marion Ho-Dac
30 March 2021

In September 2020, the First President of the French supreme court for private and criminal matters (Cour de Cassation), Ms Chantal Arens, presented the main aspects of the Court’s international strategy for 2020-2022.

The report of this presentation (available here, in French) may be of interest to practitioners and academics dealing with private international law (PIL) issues connected to France.

Here are the key elements of the report and some personal comments.

This “international action plan” of the Cour de Cassation is the result of discussion within the Court and exchanges with institutional partners worldwide. It is based on three main objectives: international reputation, promotion of fundamental values and judicial cooperation.

International Reputation

The first objective is for the Cour de Cassation to gain an international recognition of its qualities as a judicial institution, in particular regarding its working methods (see here) and caselaw. This ambition is also part of a broader goal of promoting the civil law tradition and the French-speaking community worldwide.

Against this backdrop, the website of the Court will be accessible in foreign languages and its landmark judgements will be translated into various languages and accessible online (see, for now, the very few documents available in English). It will be a great advantage for non-French-speaking PIL experts to be able to access the French “living law” in civil and commercial matters. In this respect, the international commercial chamber at the Paris Court of Appeal (ICCP-CA) established in 2018 may surely be seen as a pioneer within the French legal landscape, since its judgements are translated into English (see here).

Fundamental Values

The second objective is the promotion of the fundamental values and principles of the French judicial system (i.e. independence of justice, legal certainty, “dialogue” between judges, fundamental freedoms). However, these are not specific to France since they are inherent to the European legal order, within the Council of Europe and the European Union.

Regarding transnational judicial dialogue, it can be noticed that the Cour de Cassation is more and more likely to refer to European case law in its own decisions (for a recent example reported on this blog, see here). It may also be noted that the Court submitted to the ECtHR, in October 2018, the first request under Protocol No. 16 in the field of international family law. A PIL issue was at stake, namely the compliance with article 8 of the ECHR of the non-recognition of a foreign birth certificate of a child born abroad as the result of a surrogacy – prohibited in France – (for the request see here and for the advisory opinion see here).

Within the EU legal order, however, one could expect the Cour de Cassation to reinforce its involvement by referring to the CJEU requests of interpretation of EU law (and EU PIL in particular). With respect to judicial Cooperation in civil matters, only two cases submitted by the French Court are currently pending before the Court of justice (and three altogether for France in this field; two were reported here and here), whereas, at the same time, around fifteen preliminary questions from German Courts are pending (following a quick research via the curia case-law search form). A recent judgment of the Cour de Cassation on the scopes of Brussels II bis Regulation and 1996 Hague Convention (reported here) may be seen as an illustration of the reluctance of the French Supreme Court to submit preliminary questions to the CJEU, despite the existence of serious doubts on the interpretation of EU (PIL) law (and its duty to do so pursuant to article 267, §3, TFEU).

International Judicial Cooperation

The third objective is to learn from other legal systems in order to enrich French law. It implies, in particular, the development of transnational exchanges on common legal issues. In this context, international judicial cooperation is crucial.

The Cour de Cassation is a member of various European and international networks such as the Association of the French-speaking Supreme Courts (AHJUCAF) and the network of The Presidents of the Supreme Judicial Courts of the Member States of the European Union.

The latter network serves as a forum for exchanges between the European institutions and the national Supreme Courts.

A common portal of case law is also accessible to facilitate the search (and the translation) of national case law within the legal orders of the EU Member States. It should not be confused with the Judicial Network of the European Union (Réseau judiciaire de l’Union européenne, “RJUE”) created more recently on the initiative of the President of the CJUE and the Presidents of the Constitutional and Supreme Courts of the Member States in 2017.

It also provides for a collection of decisions delivered by national courts and tribunals, which are of particular interest for EU law. The creation of such online compendiums of transnational case law is surely of great interest for PIL experts and more efforts (and funds) should be put in their developments (see, by comparison, the unalex and the Lynxlex databases).

*Thanks to my colleague Lukas Rass-Masson (University of Toulouse), a recorded conference on the international strategy of the French Court of Cassation, with Ms First President Chantal Arens, is available here.

Indonesia to Accede to the Hague Apostille Convention

Conventions and other international instruments, Developments in PIL, Developments of PIL beyond the EU, Domestic legislation, Normative texts

by The Editors of the EAPIL blog
9 March 2021

The author of this post is Priskila P. Penasthika, Ph.D. Researcher, Erasmus School of Law, and Lecturer in Private International Law at Universitas Indonesia.

For almost ten years I have been closely observing the discussions taking place between Indonesia and The Hague Conference on Private International Law (HCCH) on the matter of Indonesia becoming a contracting state to the 1961 Hague Apostille Convention. This endeavor has finally materialized at the beginning of 2021 when Indonesia decided to accede to The Hague Apostille Convention. The instrument of accession – Presidential Regulation Number 2 of 2021 – was signed by President Joko Widodo on 4 January 2021, and issued on 5 January 2021.

Entrance into Application of the Hague Apostille Convention

Although the Presidential Regulation required at national level to seal the accession has been signed and published, this good news will not lead to an immediate application of the Hague Apostille Convention in Indonesia. It will take some more months before this Convention enters into force for Indonesia. The latest update informs that the instrument of accession is at the moment being recorded in the Indonesian state gazette to comply with the enactment and publication requirement of a presidential regulation according to the Indonesian law. After the completion of this process, according to Articles 12 and 15 of the Convention, the instrument of accession needs to be deposited with the Ministry of Foreign Affairs of the Netherlands. Subsequently, there will be six months period for the other contracting states to the Convention to raise any objection to the Indonesian accession to the Convention. The 1961 Hague Apostille Convention will enter into force between Indonesia and the contracting states which have raised no objection to its accession on the sixtieth day after the expiry of the six months period. Even if this last part of the process is expected to run smoothly, it is likely that the interested parties will have to wait until the end of 2021 for the Convention to become applicable for Indonesia.

Present Process of Legalization of Indonesian Documents to Be Used Abroad

The accession to this Convention brings good news for many interested parties because the current legalization process for public documents in Indonesia is a lengthy, complicated, time-consuming, and a costly procedure.

As an illustration and based on my personal experience, there are at least four different institutions in Indonesia involved in the legalization process. We can take the example of an Indonesian birth certificate that would need to be used before a foreign authority. The first step in this process would be the legalization by the Indonesian Civil Registry Office that issues the document. Then, a second legalization is performed by the Ministry of Law and Human Rights of the Republic of Indonesia. This is to be followed by a subsequent legalization by the Ministry of Foreign Affairs of the Republic of Indonesia. Lastly, the birth certificate should also be legalized by the Embassy or the Representative Office in Indonesia of the foreign country in which the birth certificate is to be used. After all these steps, the birth certificate can finally be used in the designated foreign jurisdiction.

Changes the Convention Will Bring in the Process of Legalization of Documents

By the accession of the 1961 Hague Apostille Convention, the above lengthy procedure will be limited to one step and will involve only one institution – the designated Competent Authority in Indonesia. Although, there is not yet an official announcement about which institution will be appointed as the Indonesian Competent Authority, it is very likely that the Ministry of Law and Human Rights of the Republic of Indonesia will be entrusted with the task.

Limitations Made to the Application of the Hague Apostille Convention

When it comes to its accession to the Hague Apostille Convention, Indonesia made a reserve declaration to exclude from the definition of public documents (Article 1(a) of the Convention) the documents issued by the Prosecutor Office of Indonesia.

Additional Significance of the Accession to the Hague Apostille Convention

Beyond facilitating and speeding up the process of recognition of documents, the decision to join the 1961 Hague Apostille Convention represents an important step for Indonesia.

The 1961 Hague Apostille Convention is the first HCCH’s convention that Indonesia accedes to. Given the fact that Indonesia is not yet a member to the HCCH, the accession to the Hague Apostille Convention will mark the first official connection Indonesia has with the organization. It is anticipated that this will lead to more accessions to the HCCH’s conventions by Indonesia in the coming future.

The other significance of this accession is related to the Visi Indonesia 2045 (Vision of Indonesia 2045). The Government of Indonesia has launched this Vision to commemorate the centenary of the Indonesian independence which will take place in 2045. This Vision aims to portray Indonesia as a strong sovereign, developed, fair, and prosperous country. To achieve this, one of the targets is to simplify procedures in order to boost public service, international cooperation and investment. A simplified legalisation procedure for public documents is thus a strategy that would contribute to an easiness of doing business, and eventually for the accomplishment of the Vision of Indonesia 2045’s targets.

A more in-depth analysis (in Indonesian) explaining the current legalization process in Indonesia and the urgency to accede to The Hague Apostille Convention 1961 can be accessed here.

Asian Principles for the Recognition and Enforcement of Foreign Judgments

Developments in PIL, Developments of PIL beyond the EU, Reports, recommendations, studies etc.

by The Editors of the EAPIL blog
16 February 2021

The post below was provided by Catherine Shen, Project Manager at the Asian Business Law Institute.

Readers of the EAPIL blog are well aware that in Europe, harmonisation in the field of private international law has been enormously successful with efforts encompassing both the civil and commercial, as well as family, spheres. In relation to foreign judgments in civil and commercial matters, the Brussels I bis Regulation is a double convention comprising of rules on both jurisdiction and foreign judgments. Apart from harmonising the rules under which a court in one European Union (“EU”) Member State would assume jurisdiction, it enables the free circulation of judgments from one EU Member State within the EU.

In Asia, however, harmonisation efforts in this field have been relatively lacking. That was until recently. The Asian Business Law Institute (“ABLI”), set up in 2016 with the aim of promoting the convergence of business laws in Asia, identified among its first batch of projects an undertaking to advance the convergence of foreign judgments recognition and enforcement rules in Asia (“Foreign Judgments Project”).

ABLI released its first publication, Recognition and Enforcement of Foreign Judgments in Asia (“Judgments Compendium”) in the beginning of 2018. This compendium contains 15 short and concise country reports which provide lawyers and businesses with an overview of how foreign judgments in civil and commercial matters are recognised in different jurisdictions in Asia and the requirements which would need to be met for a foreign judgment to be enforced in those jurisdictions. The jurisdictions studied are all ten member states of the Association of Southeast Asian Nations or ASEAN (i.e., Brunei, Cambodia, Indonesia, Lao, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam) and their major trading partners, including Australia, China, India, Japan and South Korea.

In fact, the Judgments Compendium marks the first time when the rules of several ASEAN member states on the recognition and enforcement of foreign judgments are made available in the English language. Its release concluded the first phase of ABLI’s Foreign Judgments Project and set the stage for the second phase where both the similarities and the differences of the rules of these 15 jurisdictions are distilled to formulate a set of common principles.

That set of principles has now been released under the title of Asian Principles for the Recognition and Enforcement of Foreign Judgments (“Asian Principles”). This ambitious piece of work is a sequel to the Judgments Compendium and includes a total of 13 principles that among other things, cover the rules on international (or “indirect”) jurisdiction, reciprocity, the enforcement of non-monetary judgments, public policy, due process and inconsistent judgments. Each principle is accompanied by a commentary which fleshes out how the various countries apply that principle and also includes a way forward section, where applicable, to suggest the desired directions of law development.

A detailed write-up on the Asian Principles and the Foreign Judgments Project in general can be found at Adeline Chong, “Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia” (2020) 16 Journal of Private International Law 31-68. Associate Professor Chong is the general editor of both the Judgments Compendium and the Asian Principles.

ABLI is delighted to offer all members of EAPIL and all readers of this blog an exclusive discount to purchase both the Judgments Compendium and the Asian Principles. Interested members and readers can enjoy 10% off by following the steps listed at the end of this post.

Both the Judgments Compendium and the Asian Principles are available in PDF softcopies. Three hardcopies remain in stock for the Judgments Compendium. Please contact Catherine Shen, Project Manager of ABLI, for any query at catherine_shen@abli.asia.

How to enjoy your 10% discount as an EAPIL member or EAPIL blog reader (offer ends on 1 March 2021): (1) Go to https://payhip.com/b/e0md (for Judgments Compendium) or https://payhip.com/b/hACJ (for Asian Principles); (2) Click on the purple icon “buy now”; (3) After entering your name and email address, click on “Have a coupon code? Add coupon“ (right below the data protection terms) and enter promo code “EAPIL”, and then proceed to check out; (4) Once payment is processed by PayPal, an email will be sent to your indicated address for you to download the purchased copy instantly.

Please contact Catherine Shen if you wish to pay by credit card instead of PayPal.