Archive for category: Reports, recommendations, studies etc.

Supporting Families Following International Child Abduction – Online Survey

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The Editors of the EAPIL blog
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Professors Marilyn Freeman (University of Westminster, UK) and Nicola Taylor (University of Otago, NZ) are carrying out a research project on international child abduction.

The research investigates what happens after children have been removed to, or retained in, a country in a way which is considered wrongful in law. This is an issue which has not been properly investigated so far.

The research pursues multiple aims. First, to understand the impact of these removals and retentions on the children and family members affected. Second, to determine the support, if any, that was given to the children and family members in question, and to assess how to provide better services for children and their families internationally. Third, to investigate whether any further legal proceedings occurred following the return decision, and whether the abduction played a role in those proceedings.

Two online surveys are available for completion (in English).

The first survey is for parents and family members of children who have experienced their child’s removal to, and/or retention in, another country in a way which was considered wrongful in law

The second survey is for persons over 18 years of age who were previously abducted as children.

Those willing to complete the surveys may do so until 28 February 2026.

Information is being collected anonymously.

A research report on the findings will be published on the website of the University of Westminster around July 2026.

Detailed information on ethics and privacy guidelines are provided in the first page of each questionnaire. The research has been approved by the Liberal Arts and Sciences Research Ethics Committee at the University of Westminster, London.

Readers of this blog are encouraged to fill-in the surveys, if appropriate, or to publicise the research and share the survey links as widely as possible.

— Thanks to Costanza Honorati for drawing this initiative to the attention of the editors of the blog.

Law Commission’s Consultation Paper on Digital Assets/ETDs and PIL: An Outline

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Ugljesa Grusic
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The Law Commission of England and Wales is reviewing how private international law operates in the context of electronic trade documents and digital assets. As previously reported on this blog, on 5 June 2025 the Law Commission published a consultation paper (paper; summary) proposing reform to certain rules of private international law that apply in the context of digital assets and electronic trade documents. The Consultation Paper follows a call for evidence (Digital assets and ETDs in private international law: which court, which law? Call for evidence) and three FAQs documents (Digital assets in private international law: FAQs on the relationship with tax law, banking regulation, and the financial markets; Property and permissioned DLT systems in private international law: FAQ; ETDs in private international law: FAQs).

This post outlines the Consultation Paper and offer some preliminary remarks.

The Consultation Paper makes four key contributions:

(1) Proposals for a new free-standing information order, designed to assist claimants at the initial investigation stage of proceedings where the pseudo-anonymous and decentralised nature of the crypto-token environment presents significant obstacles to formulating and issuing a fully pleaded substantive claim;

(2) An analysis of the preferred interpretation of the tort and property jurisdictional gateways for service out of the jurisdiction in the context of claims relating to crypto-tokens;

(3) Proposals for a supranational approach in cases where the degree of decentralisation is such that the Rome I Regulation and the lex situs rule cannot meaningfully apply;

(4) Proposals to reform section 72 of the Bills of Exchange Act 1882 (‘1882 Act’) for all disputes, whether or not concerning electronic trading documents.

New Free-Standing Information Order

The Law Commission proposes creating a new power for the courts to grant free-standing information orders, enabling claimants who have lost crypto-tokens through fraud or hacking to obtain information about the perpetrators or the whereabouts of their tokens without having to go through the existing jurisdictional gateways.

Specifically, the Law Commission proposes that:

(1) Such a power should be grounded in the principles of access to justice, necessity and the prevention of injustice in modern digital and decentralised environments.

(2) A claimant must satisfy the following four-limb threshold test before the court’s discretion to grant an order may be exercised:

(a) A case of sufficient strength (the merits test);

(b) Necessity;

(c) Impossibility or unreasonableness;

(d) A connection to England and Wales.

Tort and Property Jurisdictional Gateways

The Law Commission suggests that, in cases involving crypto-tokens, the tort and property gateways in Civil Procedure Rules Practice Direction 6B, para 3.1(9)(a), (11), (15)(b) and (21)(a) can be applied without undue difficulty by reference to the general principles of international jurisdiction that underpin the gateway requirements.

Specifically, the Law Commission is of the view that:

(1) For the property gateways based on the location of property within the jurisdiction ((11) and (15)(b)), the appropriate court to hear a cross-border property claim concerning a crypto-token is the court of the place where the crypto-token can be controlled or otherwise dealt with effectively (for example, the place where the person who knows or has access to the private key is located or where control over the software underpinning the network is exercised) at the time proceedings are issued;

(2) For the tort gateways based on damage sustained within the jurisdiction ((9)(a) and (21)(a)):

(a) Where the tortious act involves interference with, or deprivation of, an object that can be localised (such as a private key controlling a crypto-token), the focus should be on the location of the object at the time of the interference/deprivation;

(b) In other cases where the tortious act involves interference with, or deprivation of, an object, the focus should be on the victim, that is, damage is sustained where the victim was physically present at the time of the damage;

(c) Where damage consists of being denied access to an online account that could, in principle, have been accessed from anywhere in the world and no real reason can be given for locating the damage in one place over another, the defendant should be sued in their home court, where possible;

(d) Where damage consists in the experience or consequences of being deprived of a crypto-token or access to a crypto-token, damage could be sustained in a different location from where the victim was physically present at the time of the deprivation.

Supranational Approach to Applicable Law

The Law Commission proposes moving away from the traditional multilateral or bilateral approach to determining the applicable law for issues arising in wholly decentralised applications of DLT – for example, contracts (purportedly) concluded by smart contracts in wholly decentralised finance applications and crypto-tokens held in accordance with the Bitcoin decentralised ideal. It recommends a supranational approach to the conflict of laws, that is, special substantive rules that would apply where a court is faced with an omniterritorial element.

Under this approach, the courts should take into account a range of factors to determine a ‘just disposal of the proceedings’, including the legitimate expectations and understandings of the parties. This might involve considering the terms of a coding protocol that participants have signed up to and any relevant blockchain conventions. However, the Law Commission considers it too early to propose legislative intervention on these issues, which should instead be left to judicial development.

Section 72 of the 1882 Act

The proposals to reform section 72 of the 1882 Act are of a general nature and are not confined to digital and decentralised contexts. The Law Commission proposes changes to paragraph 1, which concerns the determination of the law applicable to the formal validity of bills of exchange, paragraph 2, which concerns the determination of the law applicable to the contractual aspects of bills of exchange, namely the interpretation of the drawing, indorsement, acceptance or acceptance supra protest of the bill, and paragraph 3, which concerns the determination of the law applicable to the duties of the holder of the bill. Since section 72 also applies to cheques and promissory notes, the proposals apply mutatis mutandis to these instruments.

Regarding section 72(1), the Law Commission proposes a pro-validity rule. The proposed menu of options includes:

(1) The law governing the substance of the relevant contract;

(2) The law governing the substance of the drawer’s contract;

(3) The law governing the substance of the acceptor’s contract;

(4) The law of the place where the instrument is payable.

Regarding section 72(2), the Law Commission proposes a multi-limb structure that would use party autonomy as the default rule, followed by rules applicable where each relevant party has not made a valid choice. Specifically:

(1) The default rule for the law applicable to each contract on a bill of exchange should be the law chosen by the party incurring the relevant obligation, as indicated on the bill alongside their signature;

(2) In the absence of a valid choice by the acceptor, the applicable law should be that of the place where the instrument is payable, as interpreted consistently with the place of ‘proper presentment’ under section 45 of the 1882 Act;

(3) In the absence of a valid choice by the drawer, indorsees, and other secondary parties, the applicable law should be that of the relevant secondary party’s habitual residence;

(4) Such a multi-limb structure should not have an ‘escape clause’ or a ‘catch all’ provision;

(5) Section 72(2) should be amended to make clear that it applies to determining the law applicable to the substantive rights and obligations of the parties, material validity and not only interpretation.

Regarding section 72(3), the Law Commission proposes reform that would clearly distinguish the four sub-rules implicit in the current rule and avoid connecting factors referring to the location of the bill itself at the relevant times. Specifically:

(1) The duties of the holder with respect to presentment for acceptance should be governed by the law of the place where the drawee has their habitual residence;

(2) The necessity for, or sufficiency of, a protest or notice upon dishonour by non-acceptance should be governed by the law of the place where the drawee has their habitual residence;

(3) The duties of the holder with respect to presentment for payment should be governed by the law of the place where the bill is payable;

(4) The necessity for, or sufficiency of, a protest or notice upon dishonour by non-payment should be governed by the law of the place where the bill is payable.

 

Preliminary Thoughts

The analysis of the preferred interpretation of the tort and property gateways does not make new proposals. It merely expresses the Law Commission’s view on how the gateways should be interpreted and applied. It is sensible to highlight the difficulties with the existing case law and offer a view on how best to interpret and apply these jurisdictional gateways. There is, of course, no guarantee that the courts will not continue interpreting and applying the gateways in expansive and potentially inconsistent ways, although the discussion of the relevant issues before the courts should now be more informed.

Similarly, the ‘proposals’ for a supranational approach in cases where the Law Commission believes the degree of decentralisation is such that Rome I and the lex situs rule cannot meaningfully apply are not a call for legislative intervention in the field of choice of law, but rather amount to advice to the courts on how to approach such cases. In my view, there are two key points of criticism.

First, the Law Commission is against the application of the law of the forum where Rome I and the lex situs rule cannot meaningfully apply and sees its supranational approach as an alternative (see, eg, paras 6.32, 6.103). But it is not clear, from a legal-technical point of view, how the courts, which are supposed to apply Rome I and the lex situs rule to cases falling within their scope, can disapply these rules (especially Rome I) without a statutory instruction to do so.

Second, the Law Commission has spent several years explaining how substantive English law applies to smart contracts, electronic trade documents, decentralised autonomous organisations and digital assets. Much of its work has focused on how substantive English law applies to cases with a high degree of decentralisation. Yet now we are told that, in at least some such cases falling within the scope of Rome I and the lex situs rule, the courts should not apply English or any other domestic law, but rather nebulous ‘supranational law’ that is seemingly yet to be developed. In other words, the precise relationship between English law and the supranational approach is not defined. The following explanation of the relationship in para 6.60 is more confusing than clarifying:

In essence, the supranational approach recognises that, in cases with an omniterritorial element, it is not necessarily appropriate to apply the purely domestic private law of any one given country. Whilst any substantive rules developed and applied by the courts of England and Wales would ultimately remain a common law decision of our courts, it would not be an application of the “ordinary” law of England and Wales that would continue to apply in a purely domestic case. Rather, it would be a special body of substantive rules of decision that apply only in private law cases in which the law of no country would be appropriate to apply to resolve the issue in dispute, and the law of every country would be appropriate to apply to resolve the issue in dispute. (original emphasis)

I am sceptical that English courts, which are well-known for their legal-technical prowess, will ever be willing to adopt such an approach without a clear statutory instruction.

By contrast, the proposals for a new free-standing information order and the reform of section 72 of the 1882 Act would require, in the view of the Law Commission, legislative intervention (although the Law Commission thinks that the courts could probably develop the power to grant free-standing information at common law).

The new free-standing information order could be a useful device in cases where (1) there is no way in the country where a crypto-exchange is located to compel it to disclose information about the identity of the perpetrator of the fraud or hacking, the holder of the crypto-token or the whereabouts of the crypto-token and (2) there is some, even tenuous, link with England. Given requirement (1), the order will likely be available in cases where a crypto-exchange is located in a country with strict confidentiality laws. Yet an English order may put the crypto-exchange in the difficult situation of having to choose between complying with either the order or the law of the country in which it is located. This is something that should be taken into account when designing the new order and the test that the courts should apply before granting it.

I generally agree with the proposals to reform section 72 of the 1882 Act. However, I question whether the use of fixed connecting factors without an escape clause in the proposed paragraph 2 might be too rigid. In a consultation event following the publication of the Consultation Paper, some stakeholders expressed the view that, at least in some contexts, it may be desirable for different legal relationships arising under a bill of exchange to be governed by the same law. If the fixed connecting factors do not produce this outcome, and assuming this outcome is indeed desirable, an escape clause seems a logical solution. Any concern that an escape clause would lead to an unacceptable degree of legal uncertainty can be addressed by imposing a high threshold for its application.

The consultation period ends on 8 September 2025. Responses may be submitted to the Law Commission via an online form, by e-mail to conflictoflaws@lawcommission.gov.uk or by post.

Swedish Report Proposes Major Restrictions on International Adoptions

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Erik Sinander
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In response to both global and domestic revelations of serious shortcomings in the intercountry adoption system, the Swedish government launched an official inquiry on the matter in October 2021. The objective was to assess past practices and propose legal reforms as well as other appropriate measures.

Titled ‘Sweden’s intercountry adoption activities – Lessons learned and the way forward’ (officially referred as SOU 2025:61), the final report was presented on 2 June 2025. Spanning more than 1.500 pages in two volumes, the document presents a comprehensive examination of Sweden’s role in international adoptions. An eight-page summary in English is available on page 51 of volume 1.

Recommendations

Holding that serious shortcomings have occurred, the report recommends a series of measures. These include issuing a public apology to adoptees, establishing a national resource centre for adoption-related matters and providing financial grants to adoptees wishing to visit their countries of origin.

Several recommendations also pertain more directly to private international law.

First, the report suggests that the activity of arranging intercountry adoptions to Sweden shall be phased out.

Second, it is suggested that Sweden shall ratify the International Convention for the Protection of All Persons from Enforced Disappearance, emphasizing Sweden’s responsibility to investigate past adoption cases under this framework.

Third, it is also suggested that intercountry adoptions shall be restricted to situations when there is a personal relation between the child and the intended parent. For such situations when cross-border adoptions still will be allowed, Sweden as a State must take greater responsibility for securing a due process procedure as well as the best interest of the child.

Comment

If enacted, the suggested proposals will mark a paradigm shift in Sweden’s approach to international adoptions, moving away from a system designed for organized international placements to a model allowing for adoption in exceptional cases only. However, the future-looking policy-shift is perhaps not as dramatic as it first seems. From annual peaks nearing 2.000 in the late 1970’s and early 1980’s, international adoptions to Sweden have steadily dropped. In 2024, only 54 adoptions were registered (see statistics here).

Towards an EU Law on International Commercial Arbitration?

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Gilles Cuniberti
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A working group composed of French scholars chaired by Professors Mathias Audit and Sylvain Bollée (both Paris I Panthéon Sorbonne University) has issued a report on the opportunity of the EU lawmaker to include new provisions in the Brussels I bis Regulation on international commercial arbitration (Towards an EU Law on International Commercial Arbitration?). The report was presented in the Paris Arbitration Week and a recent conference on the recast of the Brussels I bis Regulation.

The core proposals would be to include two new provisions in the Regulation.

First, the report proposes to add a new Article 25 bis defining the jurisdiction of the courts of the Member States to support the arbitral process, to entertain challenges to arbitral awards, and to determine the existence and validity of arbitral agreements. The rule would grant jurisdiction to the court of the seat of the arbitration.

Article 25 bis

1. If the parties, regardless of their domicile, have agreed to settle their dispute by arbitration with its seat in the territory of a Member State, the courts of that Member State shall have jurisdiction over the following actions:
(a) Actions relating to the support for the constitution of the arbitral tribunal or the conduct of the arbitration procedure. This should be without prejudice to the jurisdiction of any other court expressly designated by the parties;

(b) Actions relating to the existence, validity or enforceability of the arbitration agreement. This should be without prejudice to:
– provisions of the national law of that State Member empowering the arbitral tribunal to rule on its own jurisdiction and, as the case may be, recognising it a priority in this respect; and
– article 31 bis paragraph 2.
(c) Actions for annulment, recognition or enforcement of the arbitral award.
2. Actions referred to in paragraph 1 (a) and (b) may not be brought before a court of a Member State on the basis of national rules of jurisdiction.

3. Paragraph 1 (c) should be without prejudice to the right for a party to seek recognition and enforcement of an arbitral award before a court of a Member State on the basis of its national rules of jurisdiction.

4. The provisions of this article are without prejudice to the application of a rule of national law of the Member State where the seat of arbitration is located enabling the parties to waive their right to bring an action for annulment.

5. The provision of this article do not apply in dis putes concerning matters referred to in Sections 3, 4 or 5 of Chapter II.

Second, the report proposes to add a new Article 31 bis which would grant a priority to the courts of the Member State of the seat of arbitration to decide on the existence, validity or enforceability of the arbitration agreement. The underlying policy would be to reinforce the rule of jurisdiction set out by proposed Article 25 bis, ensure the full protection of contractual agreements regarding the location of the seat, but also prevent forum shopping. On balance, the report finds it preferable that the court ruling on the existence, validity and enforceability of the arbitration agreement be that of the seat, which the parties have prima facie elected by mutual agreement, rather than a judge unilaterally seized by only one of the parties.

Article 31 bis

1. Where a court of a Member State is seized of an action and its jurisdiction is contested on the basis of an arbitration agreement establishing the seat of the arbitration in another Member State, it shall, on the application of the party seeking to rely upon the said agreement, stay the proceedings until the courts of this other Member State have ruled or may no longer rule on the existence, validity or enforceability of the arbitration agreement.

2. However the court whose jurisdiction is contested continues the proceedings if:
(a) the arbitration agreement is manifestly inexistent, invalid or unenforceable under the law of the Member State where the seat is located; or
(b) the arbitral tribunal was seized and declined jurisdiction, and the arbitration agreement is inexistent, invalid or unenforceable under the law of the Member State where the seat is located.
For the purposes of this paragraph, reference to the law of the Member State where t he seat is located encompasses conflict-of-laws rules applicable in that Member State.

3. The provisions of this article are without prejudice of the application of a rule of national law of the Member State where the seat of arbitration is located empowering the arbitral tribunal to rule on its own jurisdiction and, as the case may be, recognising it a priority in this respect.

The full report, including detailed comments of the proposed new provisions, can be downloaded here.

International Family Relocation: Where to Next?

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The Editors of the EAPIL blog
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The author of this post is Nishat Hyder-Rahman, Postdoctoral Research Fellow, MSCA Impact Fellowship Programme, Department of Private and Economic Law, Vrije Universiteit Brussel.  She is also a volunteer researcher at GlobalARRK and presented findings from the GlobalARRK report in panel 2 of the conference. The views expressed in this post are the author’s own, and not to be attributed to either GlobalARRK or the VUB.

On 2-4 April 2025, the Hague Conference on Private International Law (HCCH), the International Academy of Family Lawyers (IAFL) and the Embassy of Canada in Washington D.C., co-hosted a conference entitled 15 Years of the HCCH Washington Declaration: Progress and Perspectives on International Family Relocation, spotlighting the Washington Declaration on International Family Relocation (hereinafter, the Washington Declaration, or simply ‘the Declaration’).

The event brought together legal professionals and academics, government and policy experts, and special interest groups to reflect on the impact of the Washington Declaration and contemporary issues in international family relocation more broadly.

The Washington Declaration

The Washington Declaration was adopted in 2010 as a result of discussions that took place at the International Judicial Conference on Cross-Border Family Relocation. The 2010 conference gathered judges and experts from around the world, many of whom were also present at the 2025 event. The Declaration itself is written in the HCCH’s trademark clear, concise style, containing only thirteen principles. It addresses the availability of relocation proceedings, the notice period, the factors that are relevant to a decision on international relocation, the interaction between cross-border relocation and the operation of the Hague Convention on International Child Abduction (HCCA) 1980 and the Hague Convention on International Child Protection (HCCP) 1996, out-of-court decisions on relocation, the enforcement of orders, modification of contact provisions, judicial communication and finally, a call for further research, development, and promotion of the principles.  The content of the principles is relatively neutral, reflecting, perhaps, the common ground found between delegates from different jurisdictions during the 2010 discussions. Although the Declaration is not a legally binding document, it is nonetheless valuable, offering a starting point for a consistent global approach to international relocation.

Establishing the Current Landscape in International Family Relocation

Turning then to the 2025 conference, the first panel set the scene.  The opening address, delivered by Diana Bryant, former Chief Justice of the Family Court of Australia, reflected on developments within international family law in the fifteen years since the Washington Declaration.  Professor Robert George KC gave an overview of legal scholarship in international family relocation, including recent statistics on relocation cases, and two psychological experts spoke about the impact of abduction and relocation on children.  The second panel continued setting the scene.  Philippe Lortie and Laura Martinez-Mora from the HCCH permanent bureau set out HCCH’s framework of relevant conventions (HCCA 1980, HCCP 1996, Child Support Convention 2007) and available tools, respectively.  The relatively new Canadian legislation that sets out a clear and detailed process specifically for relocation was highlighted, as was a recent study by the charity GlobalARRK, on the lived experience of parents applying for international relocation in order to return to their home country.

What Constitutes the Child’s Best Interests?

The central tension within the socio-legal discourse on relocation was apparent across the first two panels, albeit just below the surface of the conference proceedings.  Scholarship on how to approach international family relocation remains heavily polarised, due to variations in empirical results and fundamental doctrinal differences on how to determine the child’s best interests.

On the one hand are those who emphasise the importance of a child maintaining regular contact with both their parents, and the risk of parental alienation upon the left-behind parent.  This approach prejudices international relocation, which inevitably makes regular (in-person) contact much more challenging.  Both of the psychology-focused reports on panel 1, appeared to follow this approach.

On the other hand are those who emphasise the importance of the quality of time spent, rather than the frequency or amount of time spent with the left-behind parent.  Furthermore, proponents of this approach emphasise the interdependence between the welfare of the primary carer parent (who is applying for relocation) and the welfare of the child.  This approach supports facilitating international relocation, where the circumstances demand it, i.e. to protect the welfare of the child directly or via the primary carer. The GlobalARRK report aligned with this approach. (For a recent overview of this debate and the relevant literature see: R. Schuz, ‘International Child Relocation after Relationship Breakdown, in Research Handbook on International Family Law, edited by J.M. Carruthers and B.W.M. Lindsay, Edward Elgar Publishing, 2024, at p. 133 ff.).

Both these approaches place the child’s best interests at the centre – however they differ over what constitutes the child’s best interests.  Unfortunately, there was little scope within the conference to openly engage with this discussion, in the context of policy making and legal practice.  This was a missed opportunity given the depth and breadth of international expertise in the room.

Country Reports on Relocation Policy and Procedures

The following four panels, indeed the core of the conference, was dedicated to a series of country reports from legal practitioners and judges, outlining the policy and procedures for international relocation in their jurisdiction.  For those countries that were represented at the 2010 conference, this was also an opportunity to reflect on progress in the intervening years. The country reports revealed considerable variation in how states regulate relocation.  While a few countries have a specific statutory framework for relocation (e.g. Canada), other countries have developed their legal framework for relocation primarily through caselaw (e.g. England & Wales.).  Furthermore, some countries do not have any specific procedures for relocation, and the matter is instead addressed under the general legal framework pertaining to parental responsibilities (e.g. Hungary), custody (e.g. Germany, the Netherlands) or child arrangements (e.g. Spain), to name a few examples.

The Impact and Influence of the Washington Declaration

Alignment between the relevant national laws on relocation and the content of the Declaration was evident in the country reports.  A common theme throughout all the country reports was the paramountcy of the child’s best interests, which is set out in Principle 3 of the Declaration.  Furthermore, the factors relevant to relocation decisions, set out Principle 4 of the Declaration, in whole or in part, were also common to most country reports.  However, this is most likely due to general, widespread evolutions within family law (for example, the strengthening of children’s rights and, therefore, the centrality of the best interests) rather than a conscious effort to incorporate or mirror the text of the Declaration itself.  While there is a certain degree of awareness of the Washington Declaration, there were only a few reported instances of direct reference to the Declaration by the courts.

Current and Future Research and Policy Perspectives

The penultimate panel considered current and future research and policy. The international NGO, International Social Service reported on its work, and AIJUDEFA (International Association of Spanish Speaking Family Law Jurists) shared the results of its recent survey on relocation procedures in thirteen jurisdictions.  The IAFL also shared the results of its extensive research comparing international relocation laws and procedures around the world.  Finally, Professor Marilyn Freeman and Professor Nicola Taylor, leading experts in the field of (international) family law and part of the 2010 conference delegation, reflected on the academic research landscape in international relocation.  They pointed to the lack of research undertaken on international relocation in recent years and indicated key future research directions, including the impact on the child’s (right to) identity in the context of relocation and abduction.   Furthermore, they indicated the need to consider more closely how the best interests of the child are determined in different jurisdictions in the context of research on child outcomes, and the possible links between the relocation jurisdiction and abduction.

Alternative Dispute Resolution and Support Services

The final panel of the conference focused on alternative dispute resolution and support services in international relocation.  Reunite International, a charity, presented on its work involving mediation in international relocation cases.  The Italian experience of introducing a pilot project on mediation training for cross-border family matters was shared, as was the experience of mediation in the American context.  Finally, GlobalARRK presented on its work as a charity supporting stuck parents around the world, and the services it offers.

Concluding Reflections

The conference was extremely informative; in particular, the country reports offered a unique, comparative insight into the operation of relocation law around the world.  Two elements would have arguably improved an otherwise excellent event.  Firstly, a lot of information was imparted over the three days, and although there was time for questions following each panel, it was not suitable for extended discussions.  Facilitating exchanges, in a roundtable or similar format, on key issues within international relocation would have allowed for deeper, more dynamic engagement with the matters at hand.  For example, despite acknowledgment of the gendered nature of relocation (most relocation applicants are mothers), and indeed abduction (most taking parents are mothers), the gender perspective and expertise was missing from conference proceedings.  Secondly, critically reflecting on the Washington Declaration itself, in particular, considering the expansion or detailing the principles would have propelled the discourse further.  Nevertheless, the conference was well-organised, well-attended, and a genuinely interesting gathering that will hopefully reignite much-needed research on international family relocation.

Finally, interested readers will be happy to know that many of the conference presentations are available via the HCCH website.  Furthermore, presentations will be written and published by the HCCH as a Special Issue of the Judge’s Newsletter (forthcoming).

Digital Assets and Electronic Trade Documents in PIL: Law Commission of England and Wales Consultation Paper

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Ugljesa Grusic
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On 5 June 2025, the Law Commission of England and Wales published a consultation paper (paper; summary) making proposals for reform on certain rules of private international law that apply in the context of digital assets and electronic trade documents.

The Commission also made proposals for reform of section 72 of the Bills of Exchange Act 1882. Separately, the Commission published an FAQ document concerning property issues in permissioned DLT systems.

They would like to hear from anyone with an interest in or awareness of this area of law. The deadline for responses is 8 September 2025.

The Law Commission describes the problem that the consultation paper addresses and its provisional proposals as follows.

The Problem

When parties to a private law dispute are based in different countries, or the facts and issues giving rise to the dispute cross national borders, questions of private international law arise: in which country’s courts should the parties litigate their dispute, and which country’s law should be applied to resolve it?

When answering these questions, private international law has traditionally placed significant emphasis on geographical location, with rules pointing to “the courts of the place where the property object is situated” or “the law of the place where the damage occurred”.

New technologies – and particularly wholly decentralised applications of distributed ledger technology (DLT) – pose novel problems for private international law because they challenge this reliance on geographical location. DLT uses a network of computers – potentially located in many different places in the world – to record and store data (and crypto-tokens), meaning it can be difficult to “locate” an asset or activity in any one place. This gives rise to legal uncertainty and the application of rules that lead to arbitrary results when applied to the modern digital and decentralised environment.

Those who invest in or use emerging technologies need a clear legal landscape, with modern, fit-for-purpose laws that reflect how these emerging technologies are actually used in modern commercial practice.

Provisional Proposals

In the context of international jurisdiction, the Commission considers how the existing jurisdictional gateways for property and tort can be applied in the context of crypto litigation. The Commission also proposes the creation of a new free-standing information order to help claimants who have lost crypto-tokens through fraud or hacking obtain information about the perpetrators or the whereabouts of their tokens without having to go through the existing gateways.

In the context of applicable law, the Commission identifies wholly decentralised uses of DLT as being particularly problematic for private international law, and suggests that a different approach is required that would no longer require courts to identify a single applicable law. Rather, the courts should take into account a range of factors to determine a just outcome of the dispute, including the legitimate expectations of the parties. We note that this might involve taking into account the terms of a protocol that participants have signed up to.

The Commission also makes proposals to modernise section 72 of the Bills of Exchange Act 1882, a private international law provision that identifies the law applicable to particular contractual issues arising in connection with bills of exchange and promissory notes. These proposals, if implemented, would apply to relevant documents in both paper and electronic form.

Call for Evidence on EU Digital Justice Strategy for 2025-2030

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Marion Ho-Dac
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On 26 May 2025, the European Commission launched a call for evidence to support the preparation of the EU Digital Justice Strategy for 2025-2030 – DigitalJustice@2030. Anyone can contribute by logging in to an EU login account. The call is open for feedback until 23 June 2025.

 General Context

As explained on the dedicated webpage, this new strategy aims “to support and strengthen Member States’ capabilities to deploy and use digital technologies, including AI tools, in their judicial systems”. Moreover, it should propose a “set of tools (…) to improve the efficiency, resilience and quality of justice”.

It is a clear continuum of Regulation (EU) 2023/2844 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters adopted in 2023. This latter instrument only tackles certain aspects of digitalisation in the context of cross-border disputes (briefly analysed here). According to the Commission, there is a need “to digitalise practices that are common to all justice systems” notably via “[common] or similar IT tools (including AI tools) and data standards”. To achieve this innovative and integrative step in judicial digitalisation new mechanisms and common frames of reference may be beneficial at EU level.

Future EC Communication

The future document will take the format of a Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. It will therefore not be a binding legislative text, but a soft law instrument containing policy guidelines that may also give rise to future toolkits or recommendations for Member States and their judicial authorities. There are two main reasons for that. First, the digitalisation of judicial systems goes beyond the Union’s competence on judicial cooperation in civil matters (which is cross-border by nature pursuant to Article 81 TFEU), as it blurs the frontier between cross-border disputes, on one side, and purely domestic cases, on the other side. Second, the deployment of digital and AI-based technologies within the Judiciary is a highly complex and sensitive process, implying new technical, ethical and legal skills as well as financial investments. However, Member States are not progressing at the same pace on these issues.

The forthcoming Communication will be drafted under the lead of DG Justice and Consumers (DG JUST) within its “A1 Unit” in charge of Digital transition and judicial training”. The text is expected to be published in the last quarter of 2025 and should be adopted together with the new Judicial Training Strategy (2025-2030).

Next Steps

The supporting document of the call for evidence provides for a list of possible workstreams with actions to be further developed:

Data on digitalisation of national justice systems and exchange of best practices: to create an overview of digitalisation practices in national justice systems, allowing meaningful exchange of best practices. Member States should be able to exploit synergies and implement existing well-functioning systems; and to aim at their interoperability – rather than each Member State developing its own national tools.

IT/AI Toolbox for Justice: to accelerate the level of digitalisation and generate cost savings for Member States, the toolbox could pool information about IT (including AI) tools at EU level.

AI in justice: to ensure the consistent application of the rules under the AI Act and help national authorities to make informed decisions on whether to use AI tools in justice, for which purpose and how. This would include identifying the opportunities related to the development and use of AI tools in the framework of judicial proceedings.

European Legal Data Space (ELDS): to ensure wide and systematic access to EU and national legislation and case-law and to promote the use of legislative and judicial data for the training and development of justice-adapted AI tools.

Digital court proceedings: to achieve fully digitalised cross-border court proceedings in civil and commercial matters. Key enablers include the use of trusted digital identities such as the European Digital Identity Wallet and the European Business Wallet, qualified signatures and seals, time stamps, e-delivery and e-archiving.

EU funding for digitalisation: several workstreams depend on access to sufficient funding at national and EU level. Availability of EU funding should be ensured under the current multiannual financial framework (MFF) and the existing financial programmes. Without prejudice to the Commission proposal and the negotiations with the co-legislators, the need for appropriate funding will be assessed for the next MFF, covering the period 2028-2034.

The European Commission Issues Its Report on the Application of the Brussels I bis Regulation

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Pietro Franzina
by

The European Commission has made public its Report on the application of the Brussels I bis Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (COM(2025)268 of 2 June 2025), together with a Staff Working Document providing further analysis of the issues discussed in the Report (SWD(2025)135).

Consistent with Article 79 of the Regulation, which required the Commission to ‘present a report … on the application of this Regulation’, accompanied by, where appropriate, ‘a proposal for amendment’ of the Regulation’s provisions), the document assesses the practical operation of the Regulation, and discusses the challenges posed by some of its provisions.

The Report, which builds on a study prepared by Milieu based on expertise provided by a group of scholars led by Pedro de Miguel Asensio and Geert van Calster (see here), and on the findings of the JUDGTRUST project, implemented by the Asser Institute in cooperation with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut, marks a further step towards a new recast of the Regulation.

General Remarks

The Report begins by noting that the Regulation is generally viewed as a ‘highly successful instrument’ and that ‘the enhancements that it provided, such as the abolition of exequatur, have strengthened judicial cooperation in civil and commercial matters and as such have been welcomed by the Member States and the stakeholders’.

The rules of the Regulation, the Report also note,s are generally ‘considered to be clear and simple’, and there is ‘a broad consensus that in principle the case-law of the CJEU provides sufficient guidance and assistance for the judiciary when applying the rules of the Regulation’.

However, on specific issues, evidence exists that the interpretation of the Regulation raises complex issues, which may warrant clarifications by the legislator.

Scope of Application of the Regulation

As regards Article 1, the Report acknowledges that difficulties have arisen, inter alia, as regards the standard to be used in order to decide whether a matter has cross-border implications, the notion of ‘civil and commercial’ matters, the delineation of insolvency-related claims (which are excluded from the Regulation’s scope), and the exclusion of arbitration.

As concerns arbitration, the Report, having regard to the ruling of the Court of Justice in London Steam-Ship Owners, observes that

possible future review could further look into whether certain practical situations can be addressed in the Regulation, for instance by providing a clear lis pendens rule which could prevent situations of irreconcilability between an arbitral award/judgment confirming such an award and another judgment.

With reference to Articles 2 and 3, on definitions, the Report focuses on the issues raised in conenction with the notions of ‘judgment’, ‘court settlement’ and ‘authentic instrument’, in partcular as regards the cross-border movement of provisional measures and the notion of ‘court’. In this respect, the Commission notes in its Report that

a possible future review of the Regulation could further look into this matter, including the possibility to provide a definition or description of the concept of ‘court or tribunal’ that would, on the one hand, enhance the effectiveness of the Regulation and, on the other hand, would possibly do away with the need to provide for exceptions

but adds that

[f]urther reflection is … needed on the concept of provisional measures, in particular on whether ex parte measures should be included.

Defendants Domiciled in Third Countries

As specifically required in Article 79 of the Regulation, the issue is discussed of the possible extension of the jurisdiction rules of the Regulation (other than those on exclusive jurisdiction, choice of court and weaker parties) to proceedings brought against persons domiciled in States outside the European Union.

The Report acknowledges that the absence of uniform rules for proceedings against third-country domiciliaries ‘poses several challenges’. In fact, the ‘current state of affairs creates an unequal access to justice and an unequal playing field for EU and non-EU businesses and citizens that are involved in international (extra-EU) dealings depending simply on where they have their domicile’. In addition, the present situation ‘seems to have a negative impact on business and human rights litigation’, specifically in litigation where victims would seek to sue both a foreign business domiciled outside the EU and a controlling parent company based in the EU: given that different Member States have different rules on this, the ‘situation creates legal uncertainty and … puts EU parties, in this case both the plaintiff and the defendant parent EU company, on an unequal footing’.

The Report recalls that the preparatory Study by Milieu ‘revealed a mixed picture on the extension of the jurisdiction rules to defendants domiciled in third countries’, and observes that

a possible future review of the Regulation could further look into the matter of extending the jurisdictional rules to include disputes involving defendants domiciled outside the Union.

Rules of Special Jurisdiction

The Report notes that most Member States ‘reported the application of Article 7 to be non-problematic’, but remarks that ‘numerous referrals from national courts to the CJEU … reveal several major issues related to Articles 7(1) and 7(2)’.

These notably include: the notion of ‘matters relating to a contract’, which appears to form the object of increasingly broad interpretation (reference is made, in particular, to the Court’s findings in Feniks, on actio pauliana); the determination of the place of performance of contractual obligations (which many perceive as overly complex, notably under the Tessili formula); the determination of the place of damage in cases of pure financial loss (with the Commission acnowledging that many complain about the uncertainty as to the criteria that the national courts have to consider when localising purely financial loss and and the lack of clarity in the case-law of the Court of Justice); and the application of the ‘mosaic’ principle in cases involving the violation of privacy rights (with many arguing that the mere accessibility of the infringing content is not sufficient to establish jurisdiction, and that the mosaic principle may result in a multiplication of fora that defies the objectives of predictability and sound administration of justice).

That said, the Report contents itself with suggesting that the future review of the Regulation could ‘consider ways to simplify and modernize Article 7(1) and 7(2)’, without providing hinting at possible solutions of the difficulties experienced.

Jurisdiction over Consumer Contracts

The Report witnesses that the major difficulties relating to the application of protective jurisdiction rules regarding disputes over consumer contracts concern the notion of a ‘consumer’, the notion of ‘directing the commercial activity’, and the exclusion of transport contracts in Article 17(3) (issues in respect of collective redress actions are also considered in this part of the Report, but they are further elaborated among the ‘horizontal issues’, discussed below).

The analysis offered in the Report is rather comprehensive, but the Commission’s findings regarding this part of the Regulation are ultimately short and cautious. The rules on consumer contracts, the Commission notes, ‘generally function well and provide a satisfactory level of consumer protection’, but

certain aspects of consumer protection could be further clarified through the case-law or strengthened by a legislative intervention, subject to further analysis during the review.

Exclusive Jurisdiction

As to Article 24, the Report makes reference to the discussion surrounding the codification of the Court’s ruling in GAT into Article 24(4), and the reflexive effect that, according to one view (which the Court of Justice failed to endorse, however), the various exclusive grounds of jurisdiction in Article 24 might produce.

The opinion of the Commission is that ‘the rules establishing exclusive jurisdiction of the Regulation generally operate well’. Nevertheless,

a future review of the Regulation could reconsider the wording of Article 24(4) that aimed at codifying the GAT jurisprudence in the light of the recent developments in BSH Hausgeräte.

The Rules on the Recognition and Enforcement of Judgments

The Report acknowledges that there are ‘some national variations’ in the interpretation of the Regulation’s rules on the circulation of judgments, especially as regards the interpretation of the refusal grounds. However, ‘this does not affect the overall good functioning of the system of recognition and enforcement’, and the Court of Justice ‘has interpreted these refusal grounds in a consistent manner throughout the years and the few cases lodged under the Regulation do not alter this situation’.

The focus of the Commission is on Article 45(1) point (a), on public policy, and on Article 45(1), points (c) and (d), on irreconcilable judgments. At the national level, the Report observes, public policy is rarely invoked and, when it is, its invocation is rarely successful. This shows that, ‘in general, national courts follow the case-law of the Court and apply a restrictive interpretation of this concept’.

As to conflicting judgments, it is noted that in London Steam-Ship Owners, the Court of Justice raised questions as to the significance of the observance of the lis pendens rules of Articles 29 and 30 of the Regulation in the context of invoking the refusal ground of irreconcilable judgments. In fact, except for the case where the court of origin has exclusive jurisdiction, the Regulation does not contain any mechanism of control of the application of the latter provisions. Contrary to Article 29 and 30, which favour the court first seised, point (d) of Article 45(1) ‘favours the earlier judgment, even where the proceedings started after those that led to the judgment to be recognised and enforced’. On the other hand, ‘point (c) of Article 45(1) does not contain any time requirement, but its scope of application is wider than that of the lis pendens rules’.

In the end,

a possible future review of the Regulation could further look at the consistency between points (c) and (d) of Article 45(1) and the lis pendens rules.

Relationship with Other Instruments

The rulig of the Court of Justice in Gjensidige, the Report notes, illustrates the difficulties that the national courts face when applying Article 71 of the Regulation, on the relationship with conventions in force for Member States. These difficulties ‘are primarily attributed to the vagueness of the TNT test and are seen as jeopardizing the uniform application of Article 71 across the Member States’.

The Commission expresses the view that the Regulation provisions on this issue ‘appear to operate well’, and merely concedes that

a future review could look into the possibility to further clarify Article 71 in light of the interpretation provided by the CJEU.

Horizontal Issues: Collective Redress Actions

The Commission’s Reports notes that the Brussels I bis Regulation does not provide specific rules applicable to collective actions, and that several of questions have been raised as to whether recourse to the ordinary rules on jurisdiction in matters related to tort or consumer contracts are fit for purpose in order to effectively deal with collective redress claims.

It is acknowledged that the Regulation ‘may create unnecessary burdens for the plaintiffs in collective redress claims because in most cases they would have to turn to more than one court in order to litigate’, which, in turn, ‘can lead to irreconcilable judgments’.

In light of this,

a possible future review of the Regulation could further look into this matter, in particular on whether the Regulation regulates in a satisfactory manner jurisdiction in collective (consumer) claims.

Horizontal Issues: The Impact of Digital Transformation on the Regulation

The challenges, here, are posed both by the the ‘multiplication of “digital” relationships that are intrinsically aterritorial and an ever-increasing use of digital technologies that are ubiquitous in nature’, notably when it comes to jurisdiction rules traditionally based on geographical connecting factors, and by the digitalisation of judicial procedures.

As to the first aspect, the Report notes that ‘the difficulties encountered by the national courts when applying the Regulation in a digital context are not so different from those arising in a “non-digital” context’, and concludes that,

at this stage, neither the questions referred to the CJEU or the decisions of the latter, nor the scarce data collected at the national level allows to draw firm conclusions as to the suitability of the current rules of the Regulation in an ever-increasing digital environment.

Concerning the digitaliasation of civil justice, the Commission takes the view in the Report that the

review of the Regulation could investigate possible ways to revise and simplify the procedures under the Regulation as part of the digital reform of civil justice systems spearheaded by the Digitalisation package.

Concluding Remarks

The Commission is ready to ‘initiate a formal review’ of the Brussels I bis Regulation in order to ‘consider and potentially prepare a proposal to amend or recast’ its provisions.

Possible innovations will be explored as regards, to sum up:

  • the possible extension of jurisdictional rules to defendants domiciled in third States
  • the clarification of concepts used in provisions dealing with the scope of application, such as the exclusion of arbitration, as well as the notion of ‘court or tribunal’ or the one related to provisionalmeasures
  • the simplification and improvement of the rules on special jurisdiction in Article 7 point (1) and point (2), as well as those related to consumer contracts
  • the grounds for refusal of recognition in Article 45(1) point (c) and point (d), regarding irreconcilable judgments.

Further analysis is needed, the Court observes, ‘in order to decide whether the necessary procedural tools to cover certain type of claims, such as those commonly referred to as collective redress, could be further enhanced through legislative intervention’.

The possibility to improve the coordination between the Regulation and international instruments, and the ways to modernise and simplify the procedures under the Regulation as part of the digital reform of civil justice systems, could also ‘be looked at’.

Briefing on Cross-Border Enforcement of the Unfair Trading Practices Directive

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Marion Ho-Dac
by

The European Parliamentary Research Service has recently released a Briefing, by Nikolina Šajn, on the European Commission’s proposal for a regulation on cooperation among enforcement authorities responsible for the enforcement of Directive (EU) 2019/633 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain.

Background

The proposal aims at improving farmers’ position in the agri-food supply chain, building on Directive (EU) 2019/633 on Unfair Trading Practices (UTP). In that respect, the proposed regulation lays down new rules under which the enforcement authorities of EU Member States (designated pursuant to the UTP Directive) should better cooperate and coordinate actions with each other, overcoming the principle of territoriality (Article 1 and Recital 3).

The abstract of the Briefing, titled Cross-border enforcement of the Unfair Trading Practices Directive, reads as follows:

The 2019 Unfair Trading Practices (UTP) Directive sought to address imbalances in bargaining power between suppliers and buyers of agricultural products. The directive was primarily aimed at protecting farmers, as a weaker party, selling their products to big supermarkets and food processing companies. However, experience has shown that the directive does not always provide a sufficient legal basis for mutual assistance in cross-border investigations. The Commission’s proposal for a new regulation on cross-border cooperation among authorities responsible for the enforcement of the UTP Directive is part of EU efforts to improve farmers’ position in the agri food supply chain. It would enable cooperation between enforcement authorities in cases of unfair trading practices where suppliers and buyers are in different Member States. Farmer associations have welcomed the proposal but are calling for a more substantial revision of the directive, in particular a ban on buying agricultural products below production cost. Retailers meanwhile are highly critical, saying that the proposal risks fragmenting the single market.

Private International Law Perspective

The draft regulation mainly focuses on establishing public enforcement rules and “is without prejudice to the Union and national rules on private international law, in particular rules related to court jurisdiction and applicable laws” (Article 2(2)).

However, some EU substantive rules on cross-border enforcement could have an indirect impact on conflict of laws, according to the positions of the interested parties reported in the report. Indeed, several industry representatives claim that “the proposal raises serious legal concerns for the single market as it could undermine businesses’ right to choose the law and jurisdiction applicable to their contracts” (EuroCommerce and, similarly, Independent Retail Europe).

Other stakeholders argue that the draft regulation “should help address practices such as forum shopping, ‘where some operators, particularly retail alliances, have located in certain jurisdictions to avoid the application of UTP laws’” (European Brands Association). This seems to open up avenues for exploration for PIL experts.

Conclusions and Decisions of the 2025 CGAP Meeting – An Overview

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Pietro Franzina
by

The conclusions and decisions adopted by the Council on General Affairs and Policy (CGAP) of the Hague Conference on Private International at its 2025 meeting, which ended today, have just been made available here.

Ongoing Projects

In the coming months, additional meetings will be convened of the Working Groups in charge of the Parentage / Surrogacy Project and the Jurisdiction Project, respectively.

Regarding the former project, CGAP noted the Aide-mémoire prepared by the Chair of the Working Group and welcomed the progress made by the group. To further develop provisions for a draft instrument and draft a final report of the work of the group, CGAP invited the Permanent Bureau, in addition to the April 2025 meeting, to convene one further meeting, possibly in the second half of 2025, with intersessional work as required, as well as, if
necessary, one online meeting before CGAP 2026. The CGAP conclusions and decisions reiterate that any work by the Conference in relation to private international law matters related to legal parentage resulting from surrogacy arrangements should not be understood as supporting or opposing surrogacy.

As proposed by the Permanent Bureau of the Conference (see the post published on this blog a few days ago), a written consultation process will be launched to gather feedback from operators regarding the instrument that will represent, in due course, the outcome of the Jurisdiction Project. Following the completion of the current work on the latter project, “the consideration of direct jurisdiction rules could be further developed in a separate and subsequent project, subject to CGAP’s decision”.

The work of the Expert Group on Central Bank Digital Currencies is also set to continue in the coming months.

New Normative Projects

CGAP decided to establish new expert groups to work on the private international law aspects of digital tokens and carbon credits. A more detailed background of the latter projects can be found here and here. A post published on this blog illustrated some of the private international law issues surrounding the operation of voluntary carbon markets

Post-Convention Work

Two Working Groups will be established to finalise, respectively, the Model Forms pertaining to Chapter II of the 1970 Evidence Convention and the Good Practices document relevant to the 1965 Service, 1970 Evidence, and 1980 Access to Justice Conventions. A Working Group will also be established to review and complete the work done by the Permanent Bureau on the application and interpretation of Article 2 of the 1985 Trusts Convention and on the institutions analogous to trusts, with a view to its publication.

Other Initiatives

CGAP welcomed, inter alia, the proposal of Morocco to host a Regional Office for Africa (ROAF). This is the third Regional Office of the Conference. The two others operate for Latin America and the Caribbean (ROLAC) and Asia and the Pacific (ROAP), respectively.

Briefing on Surrogacy Prepared for the European Parliament

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Marta Requejo Isidro
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On 27 February 2025, the research services of the European Parliament published on line a briefing authored by David de Groot, entitled Surrogacy: The legal situation in the EU, setting out the legal situation in the EU regarding surrogacy.

The document provides a good, well-researched and easy-to-follow introduction to the topic. In 17 pages, it explains in some detail the approaches of the Member States having introduced laws for altruistic surrogacy (Ireland, Greece, Cyprus and Portugal; a similar move is under discussion in the Netherlands), and of those banning, either explicitly or implicitly, domestic agreements on surrogacy (Austria, Bulgaria, Croatia, Estonia, Finland, France, Germany, Hungary, Lithuania Malta, Slovenia, Spain, Sweden), or both domestic and cross-border arrangements to the purpose (Italy).

It also addresses the issue of recognition of parenthood involving surrogacy abroad, examining the case law of the ECHR and its Advisory Opinion of 10 April 2019, on the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother.

The final part of the document focuses on the EU action on the matter: the parenthood regulation proposal (NoA: negotiations ongoing, awaiting decision, and addressed by Justice and Home Affairs Council, of June 14, 2024, where exchange in particular dealt with cases of parenthood following surrogacy), and Directive 2024/1712, which identifies the exploitation of surrogacy explicitly as a form of human trafficking (although, if my understanding is correct, not punishable as an offence of trafficking in human beings except in case the surrogate mother is a child: see recital 6 and Article 1 amending Article 2, paragraphs 3 and 5 of Directive 2011/36, on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA).

Reference is of course also made to the Hague Expert Group and the Working Group on surrogacy, with a link to the 2022 final report of the former (the said report, and more, can be found here).

 

ILA Project on Conflict of Laws in Arbitration

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Matthias Lehmann
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A webinar of the International Law Association (ILA) Committee on Conflict of Laws Issues in International Arbitration will take place on 18 February 2025.

The webinar will be held in two sessions with identical content, to accommodate participants around the world. Here are the zoom links:

Session 1 (8 AM London, 9 AM Berlin, 4 PM Hong Kong, 7 PM Sydney)
Session 2 (8 AM US Pacific Coast, 11 AM US East Coast, 4 PM London, 5 PM Berlin)

The webinars aim to inform those who are interested in the Committee about the project’s content and how to become members.

Why This Topic Matters

Those working in international arbitration will not be surprised by the topic. Conflict-of-laws problems frequently surface in arbitration, causing head-scratching, sometimes headaches, and in the worst cases head-on collisions. Readers of this blog will remember the online symposium we organised on the law governing the arbitration agreement. This is just one of the many intricate conflicts problems that may plague arbitration proceedings. Here are some other issues:

  • Which law governs arbitrability, i.e. the question whether the dispute is amenable to private dispute resolution?
  • Which law governs the duty of document production?
  • Which law governs attorney–client or other forms of privilege?
  • How should an arbitrator deal with sanctions, moratoria, or other overriding mandatory rules?
Committee Leadership and Mandate

The ILA has decided to set up this new committee, chaired by Nikolaus Pitkowitz (Vienna) and Wendy Lin (Singapore). The rapporteurs are Mariel Dimsey (Hong Kong) and me. The full mandate can be found here.

In a first step, the Committee will run for four years, from 2025 to 2028. In this time, it will draft a questionnaire, disseminate it to ILA members, and analyse the responses. It will also elaborate a general methodology and principles for tackling conflicts problems in arbitration. Should the project be extended for a second phase, from 2029 to 2030, the Committee may also draft new rules in the form of treaties, model laws, or arbitration rules that will be suggested to international organisations and institutions.

Call for Support

The task of the Committee is broad, complex, and has potentially far-reaching consequences. We would welcome if members of EAPIL and readers of this blog support this committee with their expertise in private international law. Please be aware that only ILA members can participate in the Committee, and that they must be nominated by their national chapters. More information will be given in the webinars.

European Commission’s Report on Rome II Published

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Pietro Franzina
by

The European Commission published on 31 January 2025 its long-awaited report (COM(2025) 20 final) on the application of Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II).

The report is based on Article 30 of the Regulation. The latter provision required the Commission to submit to the European Parliament, the Council and the European Economic and Social Committee a report focusing, among other issues, on “the effects of the way in which foreign law is treated in the different jurisdictions and on the extent to which courts in the Member States apply foreign law in practice pursuant to this Regulation”, and on the effects of Article 28 (on the relationship of the Regulation with international conventions in force for individual Member States) “with respect to the Hague Convention of 4 May 1971 on the law applicable to traffic accidents”. The Commission was equally expected to report on the “situation in the field of the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality”.

Soon after the Regulation entered into force, three specific studies were carried out for this purpose, namely on road traffic accidents (2009), on privacy and rights relating to personality (2009) and on the application of foreign law (2011). Additional information concerning the practical experience with Rome II came, in particular, from an external study carried out in 2021 under the scientific coordination of the British Institute of International and Comparative Law.

The published report, which builds on these and other sources, consists of a general overview of the operation of the Regulation, followed by a focus on a specific areas, such as: (1) privacy, rights relating to personality, including defamation and SLAPP; (2) artificial intelligence; (3) financial market torts and prospectus liability; and (4) collective redress and cases involving multiple parties.

The Commission’s overall conclusion is that the Regulation “generally works well and is fit for purpose”. However, “several issues” exist that “merit further in-depth analysis with a view to assessing whether targeted legislative adjustments of Rome II are desirable and what options may exist to efficiently address them”, notably as concerns: (a) the current exclusion from the scope of the Regulation for privacy and personality rights, including defamation; (b) the application of the Regulation “in cases where the damage occurs simultaneously in many jurisdictions, leading to a possible application of multiple national laws”, such as cases of collective redress and torts committed online, including infringements of IP rights online, especially of copyright; and (c) torts causing purely economic losses, including financial market torts and prospectus liability.

With a view to assessing whether legislative change is needed, the Commission plans to “carry out further analysis in order to consider and potentially prepare a proposal to amend or recast the Regulation in accordance with the Better Regulation rules”, noting that “further analysis can also be carried out to assess the merits of other conceivable modifications or, in areas where the existing rules are fully appropriate, possible textual clarifications to facilitate their application”.

The report is accompanied by a Commission Staff Working Document (SWD(2025) 9 final). The latter provides, in particular, a more detailed analysis of the practical experience of the Regulation, chapter by chapter, a summary of the studies conducted for the purposes of the report, and a table summarizing the findings of the rulings of the Court of Justice concerning (or mentioning) the Regulation.

Hague Conference to Discuss Private International Law Aspects of Voluntary Carbon Markets

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Pietro Franzina
by

The next meeting of the Council on General Affairs and Policy (CGAP) of the Hague Conference on Private International Law (HCCH) is scheduled to take place on 4-7 March 2025. According to the meeting’s draft agenda, the CGAP will deal, among other things, with the project on Voluntary Carbon Markets (VCMs), following last year’s meeting, when the CGAP, based on a proposal for exploratory work prepared by the Permanent Bureau (PB), invited the PB to monitor the ongoing developments in this area, notably in light of the work that UNIDROIT is carrying out since 2022 (see the meeting’s Conclusions and Decisions, para. 18). The CGAP also mandated on that occasion the CGAP to cooperate and coordinate with the Secretariats of UNCITRAL, UNIDROIT, the United Nations Framework Convention on Climate Change (UNFCCC) and other relevant international organisations on their projects in relation to VCMs.

The Voluntary Carbon Markets Project in a Nutshell

The 1997 Kyoto Protocol to the UNFCCC introduced the concept of carbon credit, with the objective of creating a mechanism by which the emission of greenhouse gases into the atmosphere could be reduced. The Paris Agreement included carbon trading as a crucial component in the initiative to reduce carbon emissions in international and domestic supply chains.

From a private international law perspective, the variety of participants and actors involved in a single carbon market transaction, as well as the origins and nature of the relevant carbon projects, may challenge the application of traditional connecting factors, as there may be a number of connecting factors to a number of jurisdictions. For example, where a unit is created as the result of a carbon project in one jurisdiction, it must be certified by a carbon standard, according to their particular methodology and pursuant to the contractual arrangement between the standard and the project developer.

Throughout the life cycle of carbon credits, private international law questions may arise, for example, in the creation, verification, registration, intermediation, trading and retirement or cancelling of the unit. Further complexities in the carbon markets that may give rise to private international law concerns include the digital or online certification of units, the tokenisation of units (including the interplay with decentralised or distributed storage mechanisms such as those based on distributed ledger technology), the revocation of the units, including the matter of authorisation under Article 6 of the Paris Agreement, and the extent to which the credits are potentially subject to insolvency proceedings.

Recent Developments Concerning the Project

A document has been prepared by the PB in November 2024 to report on the status of the work in cooperation with UNIDROIT and the other organisations mentioned above, outline the main private international law issues arising from the operation of VCMs, and make proposals about the next steps.

Input provided to the UNIDROIT Working Group dealing with carbon credits

Consultations between the PB and the UNDROIT Secretariat led to an invitation from the latter to the PB to form a joint informal subgroup of experts to provide input to an applicable law provision in the draft UNIDROIT Principles on the Legal Nature of Verified Carbon Credits (the UNIDROIT draft refers to “verified”, rather than “voluntary” carbon credits on the understanding that it is the purchase that is voluntary rather than the credit itself, and that reference to “verified” would potentially encompass credits verified by States as well as credits verified by independent carbon crediting programmes).

The UNIDROIT Working Group charged with dealing with the carbon credits project postponed consideration of matters regarding private international law at the full Working Group level, deferring these matters to the said informal subgroup.

The PB identified five volunteer subject-matter experts, sitting in their individual capacities, to support the PB in this informal subgroup: Amy Held, Mary Keyes, Alex Mills, Fabrício Bertini Pasquot Polido and the author of this post. The experts submitted to the UNIDROIT Secretariat a Preliminary Report concerning the Inclusion of an Applicable Law Provision in the draft UNIDROIT Principles on the Legal Nature of Verified Carbon Credits (the Preliminary Report: Annex I to the document of November 2024 mentioned above).

The experts expressed the view that, to ensure the effectiveness in practice of any applicable law rule, including in the draft UNIDROIT Principles, it is necessary to undertake a comprehensive analysis of the interconnected issues of jurisdiction, and recognition and enforcement; and to consider and multilaterally consult on the underlying policy that the rule is intended to further.

Specifically, as the carbon markets engage a range of diverse and complex interests, both public and private, solutions to private international law challenges should involve a broad multilateral consultation on the various policy issues engaged. This would better allow the different interests and potentially different perspectives to be ventilated, with the support of technical experts who can then find the best way to draft any solutions that are agreed upon.

According to the Preliminary Report,

[w]ithout multilateral consultation, there is a clear risk of adopting a rule which may not only fail to adequately consider and balance relevant policy considerations and different private interests, but which may indeed have harmful consequences for the functioning and impact of carbon markets, or for the likely adoption of the draft Principles as a means to facilitate their growth and the positive contribution they may make to climate change mitigation.

This led the experts to conclude that they were not in the position to endorse the approach in which an applicable law provision is drafted without multilateral consultation, in abstracto and in isolation from more holistic considerations of other private international law issues.

The recommendation made to UNIDROIT in the Preliminary Report was therefore that the UNIDROIT Working Group may wish to consider including a provision that the draft UNIDROIT Principles do not impact on private international law relating to carbon credits, and referring to the work being undertaken at the HCCH.

In the case that the UNIDROIT Working Group and the Members of UNIDROIT consider that the draft Principles would be incomplete without the inclusion of an applicable law provision, the recommendation made is that the provision be included after multilateral consultations, on a holistic approach to the issues of private international law, encompassing jurisdiction, applicable law, recognition and enforcement, and international cooperation mechanisms, are undertaken and completed at the HCCH, given the mandate of the HCCH.

Report and proposals in the Preliminary Document to CGAP

In its preliminary document of November 2024, the PB observes that each step of the carbon credit lifecycle raise private international law issues. Specifically, the variety of participants or actors potentially involved in a single carbon market transaction, as well as the origins and nature of the relevant carbon projects, may challenge the application of traditional connecting factors, as there may be a number of connecting factors to a number of jurisdictions, all of which may differ at each of the different stages of the lifecycle of a carbon credit.

Quoting the Preliminary Report, the document notes that private international law issues

arise, for instance, from the origins of the relevant carbon project, the issuance of the credit, the matter of revocations, retirement, and the different commercial transactions that may take place involving carbon credits (e.g., trading, granting of security rights, insolvency matters).

Given the complex and interconnected nature of the above questions, one particular private international law question arising on a specific moment / stage of the lifecycle cannot be examined in isolation. As stated in the Preliminary Report,

[i]f applicable law rules were to be developed with a focus on a particular moment or lifecycle stage, it would be necessary to consider not only the suitability of the rule for that moment / stage, but also how or whether that rule would affect the applicable law both before and after that moment / stage, and the implications of possible changes in applicable law during the lifecycle.

The PB further notes in its preliminary document that, while compliance carbon markets may be subject to greater direct public governance, voluntary markets also engage similar public interests, adding that there is widespread recognition of the increasing convergence between the two.

According to the PB, it is necessary to look into the private international law issues in the carbon markets in general (i.e., not only the VCMs) in order for the HCCH to support UNIDROIT’s work, considering that the work of the UNIDROIT Working Group could potentially include within its scope verified credits that are issued by governments. The document also states that it is not helpful, for private international law purposes, to classify the types of credits (i.e., verified or not verified) originating in the VCMs.

The different types of projects that originate the credits and their nature (e.g., forestry and land use, or REDD+, or renewable energy), for their part, may also result in different private international law challenges.

The preliminary document of the PB stresses that the nature of carbon markets raises specific public policy considerations, which may have a bearing on private international law considerations. Although VCMs are mostly based on contractual and other relationships which are regulated by private law, these markets are also understood as serving a broader public purpose, and potentially engage important national interests such as local environmental concerns, or in some cases competing claims over land rights.

The PB also underscores the important role of national or private registries to ensure transparency and accountability in carbon markets, adding that, given the inherent cross-border nature of carbon credits, cooperation between registries and / or between national authorities has been considered one of the possible ways to provide further integration and more reliability in the carbon market.

Possible Next Steps

In light of the above considerations, the CGAP will be invited to consider establishing an Expert Group to study the private international law issues relating to carbon markets.

According to the proposal put to CGAP, the Expert Group should be tasked with studying: (a) the private international law aspects of the carbon markets and the legal relationships within these markets, excluding aspects of substantive law; (b) the private international law questions that arise in the different phases of the carbon credits lifecycle holistically, as each phase is interconnected to the other; (c) the possible inclusion of an applicable law provision in the draft UNIDROIT Principles on carbon credits; (d) the feasibility and desirability of international cooperation mechanisms in this area.

‘Locating’ Digital Assets in PIL, Tax Law, Banking Regulation and the Financial Markets

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Ugljesa Grusic
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I have already reported on this blog that in 2024 the Law Commission of England and Wales published a call for evidence to help them identify the most challenging and prevalent issues of private international law that arise from the digital, online, and decentralised contexts in which modern digital assets and electronic trade documents are used. I also reported on this blog that later in 2024 the Law Commission published the first result of its call for evidence, an interim document relating to electronic trade documents (ETDs) in private international law.

On 14 January 2025, the Law Commission published the second result of its call for evidence – another interim document on the ‘location’ of digital assets in private international law, tax law, banking regulation and the financial markets. This 35-page document is structured as a ‘Frequently Asked Questions’ to respond directly to the most common concerns raised with the Law Commission so far.

The FAQs answered in the document are:

Q.1. What is the relationship between private international law and other areas of law such as tax law and financial services regulation?
Q.2. How is situs relevant for the purposes of private international law?
Q.2(a) What are the methods and objectives of private international law?
Q.2(b) What policy considerations underpin the private international law situs rules?
Q.3. Can the private international law situs rules be applied in the public law context?
Q.3(a) Can the private international law situs rules be applied in the tax context?
Q.3(b) Can the private international law situs rules be applied in the banking regulation context?
Q.3(c) How do financial services regulation and private international law interact?
Q.4. How does characterisation work in commercial and financial markets use cases of DLT?
Q.4(a) Why is it unhelpful to think in terms of “the law applicable to the digital asset”?
Q.4(b) How might characterisation work in the financial markets?
Q.4(c) How might characterisation work in the context of “linked assets”?

The Law Commission welcomes any follow up questions at conflictoflaws@lawcommission.gov.uk.

Strengthening Anti-SLAPPs Legal Protection in the Western Balkans

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Marco Pasqua
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While the implementation of Directive (EU) 2024/1069 is underway across EU Member States, and it will have to be done according to the timing already indicated in this blog, attention is increasingly turning to the pressing need to strengthen anti-SLAPPs protections in the Western Balkans. The issue of SLAPPs is a growing concern in this region, where robust legal frameworks and policy measures are essential to safeguard freedom of expression and democratic values.

In this context, the Council of Europe recently hosted a regional exchange on combatting SLAPPs, bringing together key stakeholders from the Western Balkans. The event highlighted the challenges faced by journalists and civil society organizations targeted by such lawsuits, which often exploit legal systems to intimidate and financially burden individuals and groups speaking truth to power.

One of the critical outcomes of this initiative is the publication of the Regional Baseline Assessment of Legislative and Policy Needs for Implementing Anti-SLAPP Standards in the Western Balkans. The regional assessment was prepared by Flutura Kusari and is based on domestic assessments which were prepared by Aulona Hazbiu (Albania), Svjetlana Milišić-Veličkovski (Bosnia and Herzegovina), Flutura Kusari (Kosovo), Aneta Spaic (Montenegro), Dragan Sekulovski (North Macedonia) and Gordana Konstantinović (Serbia).

The report examines the current legislative landscape in the region and identifies gaps that undermine effective protection against SLAPPs. It also offers tailored recommendations to align domestic laws with international standards, including those outlined in the European Court of Human Rights’ case law and the Council of Europe’s legal framework, such as the Recommendation CM/Rec(2024)2 of the Committee of Ministers to member States on countering the use of strategic lawsuits against public participation (SLAPPs). In addition to substantive and procedural law aspects, it also encompasses issues related to cross-border cases.

Chapter 3 of the report, which focuses on general recommendations, provides an in-depth exploration of measures needed to establish effective mechanisms for countering SLAPPs. It underscores the critical need for a lex specialis — specific legislation designed to directly address the unique nature of SLAPPs. This approach recognizes that existing legal frameworks are often insufficient to tackle the particular challenges these lawsuits present.

Additionally, the report extends its analysis by offering jurisdiction-specific recommendations tailored to the legal framework of Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia and Serbia.

The report emphasizes the necessity for a holistic approach to effectively counter SLAPPs. It advocates for the implementation of robust legal safeguards that ensure the protection of individuals and organizations engaged in public participation. The main recommendations, aligned with the analytical sections of the report, encompass early dismissal mechanisms, burden of proof adjustments, security for procedural costs, compensatory damages and restitution of legal costs, acknowledgement of SLAPP victim status, capping of costs and damages for claimants and non-judicial remedies.

Finally, chapter 13 of the report discusses the added complexity of cross-border SLAPPs, where claimants file lawsuits in foreign jurisdictions to exploit more favourable legal environments. Defending such cases requires navigating multiple legal systems, significantly increasing costs, time and stress, and amplifying the chilling effect on public participation.

The report highlights the need to limit forum shopping — selecting jurisdictions that disadvantage defendants or undermine freedom of expression. It cites the relevant Council of Europe’s recommendations on the matter and the Directive (EU) 2024/1069, which both emphasize the refusal of recognition and enforcement of third-country judgments if the case is deemed manifestly abusive or unfounded. In addition, both instruments mandate that Member States provide individuals or entities who are subject to abusive legal actions from claimants outside the EU or Council of Europe the opportunity to seek compensation for any damages or costs incurred through these proceedings in their domestic courts.

National laws on private international law and civil procedure of the Western Balkans countries scrutinized govern whether foreign court decisions can be enforced. References to the grounds for refusal are provided on a State-by-State basis.

In the conclusions of the report, the assessment examines the legislative and policy gaps in Western Balkans countries concerning anti-SLAPP standards. It finds that, while existing procedural safeguards in civil matters could support anti-SLAPP implementation, significant gaps remain, particularly in victim recognition and specific rules for security for costs. Compensation for damages, including non-pecuniary harm, is available in all countries, but none explicitly recognize SLAPP victims or offer automatic rights to compensation. Media self-regulatory bodies exist but lack formal authority in legal proceedings. Recognition and enforcement of judgements in cross-border SLAPP cases are governed by national laws, with common grounds for refusal including jurisdictional issues, procedural irregularities and public policy.

Practical Handbook on the Hague Adults Convention Released

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Pietro Franzina
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The final version of the practical handbook on the Hague Convention of 13 January 2000 on the international protection of adults, marking the end of a process led by the Permanent Bureau of the HCCH and a dedicated Working Group, which started in 2021.

The Practical Handbook is intended to assist current and prospective Contracting Parties to the 2000 Protection of Adults Convention by providing practical guidance on the implementation and operation of the Convention, which provides for the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. The Practical Handbook draws upon the experiences and practical examples provided by experts from Contracting Parties with experience in the implementation and operation of the Convention, as well as by experts from States which are considering becoming Parties to the Convention.

The 250-page-long document builds on a variety of sources, such as the explanatory report of the Convention, by Paul Lagarde, the experience of Central Authorities established under the Convention, court rulings and the opinions of scholars. The handbook covers a broad range of issues that may arise in connection with the protection of adults in cross-border cases through plain, yet detailed, explanations and several examples.

Several other freely accessible practical handbooks have been published by the Hague Conference on Private International Law regarding conventions adopted under its auspices, including the 1970 Evidence Convention, the 1965 Service Convention, the 1996 Child Protection Convention, the 2007 Child Support Convention and Maintenance Protocol, and the 1961 Apostille Convention (Apostille Handbook). The full list can be found here.

Law Commission of England and Wales on Electronic Trade Documents in Private International Law

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Ugljesa Grusic
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I have already reported on this blog that earlier this year the Law Commission of England and Wales published a call for evidence to help them identify the most challenging and prevalent issues of private international law that arise from the digital, online, and decentralised contexts in which modern digital assets and electronic trade documents are used.

The first result of that call for evidence is an interim document relating to electronic trade documents (ETDs) in private international law. This 22-page document explains how the UK Electronic Trade Documents Act 2023 and other legislation inspired by the UN Model Law on Electronic Transferrable Records interact with private international law. It is structured as a ‘Frequently Asked Questions’ to respond directly to the most common concerns raised with the Law Commission so far.

The FAQs answered in the document are:

Q.1. When will ETDs engage private international law?
Q.1(a) What is private international law?
Q.1(b) How do private international law and trade documents interact in the cross-border context?
Q.1(c) How do the courts of England and Wales approach private international law?
Q.1(d) If an applicable law rule points to the law of England and Wales, does this include the private international law rules of England and Wales?
Q.2. What law applies to/governs an electronic trade document and electronic validity?
Q.2(a) What law “governs” or “applies to” a trade document”?
Q.2(b) What law “governs an electronic trade document” or “electronic validity”?
Q.3. When does the Electronic Trade Documents Act 2023 apply?
Q.4. Can I choose the Electronic Trade Documents Act 2023 as the law applicable to my trade document?
Q.5. Is section 72 of the Bills of Exchange Act 1882 problematic in the electronic context?
Q.6. Can section 72 of the Bills of Exchange Act 1882 “invalidate” an electronic trade document?
Q.6(a) When do issues of “electronic validity” arise under section 72?
Q.7. Is Section 72 out of date?

The Law Commission welcomes any follow up questions at conflictoflaws@lawcommission.gov.uk with the subject “ETDs in PIL: FAQs”.

French Think Tank Issues Report on Law Applicable to Assets Registered in Distributed Ledgers

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Gilles Cuniberti
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The Legal High Committee for Financial Markets of Paris has recently published an English version of its report issued in May 2024 on The determination of the law applicable to assets registered in distributed ledgers. The report was produced by a working group chaired by Jérôme Chacornac (Paris II University) and Hubert de Vauplane (Kramer Levin Naftalis & Frankel).

The introduction of the report presents the background and purpose of the report as follows:

In connection with the adaptation of French law to the entry into force of a European
framework for distributed registry technologies, the Financial Markets Authority (AMF) asked the Legal High Commitee for Financial Markets of Paris (HCJP) to prepare a report on the state of solutions in French private international law to conflicts of laws relating to the proprietary effects of assets registered in a distributed ledger.

The issues to be addressed under French law are part of a rapidly changing context. Several countries, including the United States, Switzerland, Germany, Monaco and Liechtenstein, have adopted specific substantive law and conflict-of-laws rules concerning certain types of assets registered in “distributed” or “decentralized” ledgers.

A draft set of Principles on Digital Assets and Private Law (“DAPL”) was adopted in May 2023 by the Unidroit General Assembly, consisting of substantive law principles and a specific conflict-of-laws rule (hereinafter, the “Unidroit Principles”). The work carried out by Unidroit was envisaged as a possible starting point for the development of an international instrument on the subject by the Hague Conference on International Law, as part of a “joint initiative” between the two organizations. However, this joint initiative was halted in view of France’s reservations about its premises, which were shared by other member states of the HCCH.

In France, the entry into force of the “pilot regime” regulation has led to several adapta ons to securities law, while the adoption of the “MiCA” regulation has recently been the subject of further work in the marketplace. This report has endeavored to integrate this evolving framework into its presentation and proposals, making a clear dis nc on between de lege lata and de lege ferenda elements, in particular as regards the avenues for adapting French law to the MiCA regulation recommended in a HCJP report published during its preparation.

It was in this context that the undersigned were asked to set up a working group to identify any gaps or shortcomings in French conflict-of-laws rules, and to consider the relevant connecting factors for the purposes of drawing up any specific rule. The working group met six times between November 2023 and May 2024, to decide on the method to be used, then to examine the determination of the relevant connecting factor for transferable securities registered in a distributed ledger technology, before considering the characterization and possible connecting factors for assets other than transferable securities.

This report is therefore concerned with determining the law applicable to the proprietary effects of assets registered in distributed ledgers. 

The report can be downloaded here.

Working Group on the Reform of the Brussels Ibis Regulation Issues New Position Paper

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Anna Wysocka-Bar
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This post was prepared by Tess Bens from University of Vienna.

Burkhard Hess and his team at the University of Vienna have finalised an updated version of the Position Paper on the Reform on the Brussels Ibis Regulation of the association.

Establishment of the EAPIL Working Group

The Brussels Ibis Reform project leading up the Academic Position Paper commenced with the formation of a Working Group within the European Association for Private International Law (EAPIL) in 2021, spearheaded by Burkhard Hess and Geert Van Calster. This Working Group consisted of 42 academics from 22 EU Member States plus Iceland, Norway, Switzerland and the UK. The Members of the Working Group provided information on the application of the Brussels Ibis Regulation in their respective jurisdictions by means of a questionnaire, after which a Members Consultative Committee of the EAPIL produced a report. Based on this input, the former MPI Luxembourg and the KU Leuven organised a conference in Luxembourg on 9 September 2022.

Reform Proposals

After the Luxembourg conference, Burkhard Hess and a team of researchers of the former MPI Luxembourg prepared a Working Paper with 32 reform proposals. The Members of the EAPIL Working Group and the academic public were invited to express their opinion on these proposals through online surveys. The results of these surveys were processed by Burkhard Hess and his team , which led to amendments to the original proposals. These amended proposals were presented discussed at a conference in Vienna on 12 April 2024. The findings of this conference were integrated into the Academic Position Paper that, after consulting the Members of the EAPIL Working Group, received a final update before being uploaded on SSRN

The Academic Position Paper

The five parts of the Academic Position Paper cover the role and scope of the Brussels Ibis Regulation, collective redress, third-state relations, jurisdiction and pendency, as well as recognition and enforcement. Each part covers distinct issues identified at the 2022 Luxembourg conference and formulates specific proposals to resolve them. The background of each proposal is briefly explained and the charts indicating the responses to the surveys are presented, before discussing the feedback received through the surveys and during the 2024 Vienna Conference.

Thanks to Participants

Burkhard Hess and his team would like to thank everyone that has taken the time to answer the surveys and/or attend the conferences. Your input was invaluable, and we have sought to take your views into account as much as possible. We believe that the proposals in the Academic Position Paper provide a solid set of recommendations to consider in recasting the Brussels Ibis Regulation, which will be presented to the European Commission as a meaningful contribution of academia in the upcoming law-making process.

Study on Child Abductions to Third Countries Prepared for the JURI Committee

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The Editors of the EAPIL blog
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The author of this post is Costanza Honorati, professor of EU Law at the University of Milan Bicocca.

The JURI Committee of the European Parliament has commissioned and recently published an interesting Study on Parental Child Abductions to Third Countries. The Study is delivered by long-term expert Marilyn Freeman (University of Westminster), and builds on a number of desk or evidence-based research studies and handbooks she and her colleague and friend Nicola Taylor (University of Otago) have run over recent years.

As stated in the title, the focus is on abduction from the EU to non-EU Countries, both when such a Country is a Contracting Party to the 1980 Hague Convention, as well as when such Country is not bound by the Convention. The Study instead does not cover abduction within the EU – which is dealt with by the Brussels II ter Regulation which complements the 1980 Hague Convention – nor abductions from third Countries to the EU. The author points out the need for further research in this latter direction, where very little legal research is to be found.

The study sets off briefly recalling why international abduction is so detrimental to children and highlighting consequences and long-term effects of such event on their lives. Though this is generally well-known, it is not inappropriate to refresh the reasons for the drafting of the 1980 Hague Convention through the personal experience of affected children, who have become adults.

The 1980 Hague Convention applies when the abducted child is habitually resident in a Contracting State and is removed or retained to another State which is also a Contracting Party to the Convention. This situation sets the scene for a general assessment of the Convention itself and to clarify a position which is strongly felt by the author: though this is a powerful and successful instrument, there is a strong need to ‘nurture’ the Convention in order to keep it serving the best interests of children in a contemporary society. The Hague Convention is now 40 years old and is facing critical challenges. Building on empirical data collected through several research projects conducted in recent years by both the above mentioned academics, some topics are selected which require further study and, possibly, some kind of review and update.

These cover:

  • re-balancing of an uneven playing field for the competing parents, based on the different access to public funding and level of skill and specialization of judicial and non-judicial experts existing in different countries;
  • better management of abductions which occur against a background of domestic violence – an issue that was widely discussed also in the context of the 8th Special Commission in October 2023;
  • ensuring speed and efficiency of return proceedings;
  • promoting and strengthening the role and participation of children in return proceedings, in view of the wide divergence in practice within Contracting States;
  • managing the delicate issue of enforcement – expanding on how to secure a more holistic solution through international mediation and how to make more stable voluntary arrangements by incorporating the agreement in a judicial decision.

It is in Chapter 4 that the Study briefly explains how abduction to a country which is not a Contracting Party to the Convention can be dealt with. Not surprisingly, the focus is on what happens in Islamic Law countries, given that only a few of them (eleven, among which Morocco, South Africa and Tunisia) have ratified the 1980 Hague Convention and that some of these are perceived as safe-heavens by abductors.

A brief analysis shows how neither recurring to local laws (often based on Sharia principles that have a build-in bias in respect of foreign parents), nor relying on the very few and often inadequate bilateral international agreements (a summary list of which is provided) can provide for a satisfactory solution. Along the same lines, diplomatic effort, often the only route to assist if not solve in more delicate cases, is judged ineffective. Interestingly, this conclusion is based on a US-German case of the late Nineties. Finally, it is warned that re-abduction is also not a viable route, as is shown with a case example from Lebanon.

In such a legal framework, a positive note is played by the Malta process – an international exercise started in 2004 with the aim of improving co-operation in cross-border disputes involving children where the relevant international legal framework is not applicable – and by the use of mediation, as long as this is run by mediators specialized in international abduction cases. Because of the long-standing tradition of sulh (Alternative Dispute Resolution) in the Muslim world, an appropriately led and run mediation may prove the most effective path in abduction cases in Islamic Law countries which are not Contracting Parties to the 1980 Hague Convention.

On a more general note, the Study clearly supports and speaks in favor of the 1980 Hague Convention, which is seen as the most effective and powerful instrument to prevent and solve this unlawful and highly detrimental unilateral practice.

This belief is however not blind of the inconsistencies and needs that a long-standing instrument shows in current times. Instead, the Study advocates for further action to be taken in order to up-date the convention .

As the Author puts it:

The Convention’ offers the best available protection against abduction in that it deters some abductions and provides an agreed mechanism for the prompt return of abducted children. Both these outcomes help to avoid some of the trauma associated with abduction. The high number of Contracting States to ‘the Convention’ demonstrates its widespread appeal which is critical for its success.

However, ‘more’ needs to be done to help ‘the Convention’ meet the challenges it faces and to avoid it slipping from being a successful instrument of protection into an instrument of harm to those it seeks to protect. This study suggests ways in which that ‘more’ may be achieved, highlights the positive role which the European Parliament has played to date, and advocates its continued involvement to maintain its leadership in this field.

A list of  recommendations is provided at the end of the paper. These include:

  • more evidence-based research on several topics, including: i) effects of abduction occurred against the background of domestic violence; ii) prevention and iii) support for abducted children and their families;
  • more collaboration among key actors (such as the HCCH, the EP Coordinator on Children’s Rights, specialist academics/researchers, mediators, and NGOs) to ‘address, consider and report on issues relating to the required nurturing of the Convention’. Interestingly the author suggest that the EP Coordinator on Children’s Rights could be an appropriate forum to coordinate these efforts;
  • Continued efforts by the HCCH to expand membership of the 1980 Hague Convention;
  • continued efforts, including through the Malta Process, to engage with countries which remain outside of the 1980 Hague Convention and to the use of specialist mediation in appropriate cases.

The 1980 Hague Convention is a powerful instrument and a great success. The family and society pattern that was at its background when it was drafted has however greatly changed and, in some respect, the convention appears to be at odds with todays needs. A revision of the international treaty may appear unrealistic, but something should be done. It will be a long way, but the journey should be started somewhere. The wise and balanced views expressed in this Study should be given careful consideration.

GEDIP Adopts Position Paper on the Proposed Regulation on Parenthood

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The Editors of the EAPIL blog
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The European Group for Private International Law (GEDIP) has recently adopted a position paper on the proposal for a Council Regulation in matters of Parenthood.

The Group welcomes that the EU intends to legislate in this field, since parenthood is a status from which persons derive numerous rights and obligations.

However, the Group is of the opinion that there are important shortcomings in the proposal due to the narrow perspective taken and an insufficient consideration of the legal complexities concerning parenthood in cross-border situations. It therefore encourages a reconsideration of the proposal in the light of its observations.

Conclusions and Recommendations of the HCCH Special Commission on Child Abduction and Child Protection Conventions

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The Editors of the EAPIL blog
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The author of this post is Costanza Honorati, professor of EU law and private international law at the University of Milan Bicocca. She chaired the working group that prepared a position paper on behalf of the  European Association of Private International Law in view of the eight meeting of the Special Commission on the practical operation on the 1980 Child Abduction and the 1996 Child Protection Conventions, and attended the meeting on behalf of EAPIL.

The Special Commission (SC) charged by the Hague Conference on Private International to discuss  the practical operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention met for the eighth time from 10 to 17 October 2023. The meeting was attended by 471 delegates, in person and online, representing 66 HCCH Members, 13 non-Member Contracting Parties, 27 observers from inter-governmental and non-governmental organisations, including the European Association of Private International Law (see its position paper as Info. Doc. No 18 of October 2023)

As usual, at the end of the meeting the SC adopted a set of Conclusions & Recommendations (C&R), whose content is briefly summarized below, with a focus on a selection of issues. To the reader’s benefit the two Conventions are addressed here separately.

The 1980 Child Abduction Convention

The SC took note that, since the Seventh Meeting of the SC in 2017, five States have become Contracting Parties to the 1980 Child Abduction Convention (Barbados, Botswana, Cabo Verde, Cuba, and Guyana), bringing the total number of Contracting Parties to the Convention to 103.

Interesting information were drawn from the fifth Statistical Study drawn by prof. Nigel Lowe and Victoria Stephens for the year 2021 (Prel. Doc. No 19A ). While the data in that year are likely to have been affected by the COVID-19 pandemic, a few relevant findings are worth mentioning. Among these, the increase in the average number of days it took to reach a final decision; the increase of refusals to return; the almost double increase of proportion of refusals to return on the basis of the Article 13(1)(b) exception, compared with the results of the 2015 statistical study; the small decrease in cases going to court; the increase of cases being settled outside court .

While the SC has reaffirmed and reiterated some of the conclusions adopted in previous meetings, a few specific topics have been discussed in greater detail.

Under the heading Addressing delays under the 1980 Child Abduction Convention, the SC found that delays continue to be a significant obstacle in the operation of the 1980 Child Abduction Convention and the SC strongly recommended Contracting Parties experiencing delays to review their existing processes in order to identify potential causes of delays.

With this in mind the SC reiterated

the effectiveness and value of the use of information technology for efficient communication between authorities, sharing of data, and to assist in reducing delays and expedite return proceedings.

The SC thus encouraged States to continue implementing and enhancing the use of information technology and to make use of the Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention as a helpful resource (para 5-9).

The SC then addressed the Relationship of the 1980 Child Abduction Convention with other international instruments – 1989 UN Convention on the Rights of the Child (UNCRC). Having recalled the rationale for the return of the child and the scope of the return proceedings, the SC emphasized how return proceedings should not include a comprehensive ‘best interests assessment’. In particular the SC stated, at para 14 e 15 that

[w]hile the exceptions derive from a consideration of the interests of the child, they do not turn the return proceedings into custody proceedings. Exceptions are focussed on the (possible non-) return of the child. They should neither deal with issues of custody nor mandate a full “best interests assessment” for a child within return proceedings.

Similar findings are featured in the communication No 121/2020 of the UN Committee on the Rights of the Child under the Optional Protocol on a Communications Procedure.

The SC had a lively discussion on the Application of Article 13(1)(b) of the 1980 Child Abduction Convention in a contest of Domestic violence. The C&R reflect the discussion summarizing some of the results as following. It firstly makes reference to the Guide to Good Practices on Article 13, noting that, according to paragraph 33,

harm to a parent, whether physical or psychological, could, in some exceptional circumstances, create a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Article 13(1)(b) exception does not require, for example, that the child be the direct or primary victim of physical harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child.

In light of the ongoing discussions and initiatives promoted by advocates for victims of domestic violence, the SC supported the proposal to hold a international open forum allowing for discussions amongst organisations representing parents and children and those applying the Convention. The Philippines offered to assess hosting the forum in Manila in 2024 and States have been invited to contribute in the organisation and funding of such a forum (para 26)

Closely connected to domestic violence is the related issue of Safe return and measures of protection. Interestingly, the SC made it clear that a court may also order protective measures to protect the accompanying parent in order to address the grave risk to the child (para 28). As regards undertakings, the SC reiterated that the efficacy of the measures of protection will depend on whether they are enforceable in the State of habitual residence of the child. Insofar, voluntary undertakings are not easily or always enforceable and, because they may not be effective in many cases, they should be used with greatest caution. It was also suggested that, when undertakings are made to the court of the requested State, they should be included in the return order in order to help facilitate enforcement in the State of habitual residence of the child. This is a new practice that could come result interesting.

The issue of hearing of the child again attracted much interest. Based on the fact that States follow very different approaches when hearing the child, C&R aim to circulate some good practices, such as (para 37)

a) the person who hears the child, be it the judge, an independent expert or any other person, should have appropriate training to carry out this task in a child-friendly manner and training on international child abduction; b) if the person hearing the child speaks to one parent, they should speak to the other; c) the person hearing the child should not express any view on questions of custody and access as the child abduction application deals only with return.

It was also emphasised that when hearing the child for the purposes of Article 13(2), this should be done only for such purpose and not in respect of broader questions concerning the welfare of the child, which are for the court of the child’s habitual residence. In other terms, the hearing of the child should be kept in the framework of an exception to return and not embrace a wider scope.

The very topical issue of asylum claim lodged in abduction cases was also shortly discussed, on the basis of Prel. Doc. No 16 . The C&R only indicate that such proceedings should be examined expeditiously (para 40).

The 1996 Hague Convention

Eight new States have become Contracting Parties to the 1996 Child Protection Convention since the 2017 SC, namely Barbados, Cabo Verde, Costa Rica, Fiji, Guyana, Honduras, Nicaragua and Paraguay, thus bringing the total number of Contracting Parties to the Convention to 54 (27 of which are EU Member States).

Some interesting clarifications were given in relation to recognition and enforcement of protection measures. First, in relation to the scope of application of Article 26(1) – a rule which provides that, where measures taken in one Contracting Party require enforcement in another Contracting Party, such measures shall be declared enforceable or registered for the purpose of enforcement in that other Contracting Party – the SC made it clear that not all measures of protection require enforcement under Article 26. Enforcement shall be required, for example, for the forced sale of property; or in relation to a parent refusing to abide by the orders made by the competent authority in another State. Because not all cases fall under Article 26, the SC invited Contracting Parties (in relation to their laws) and competent authorities (in relation to their procedures) to differentiate between those measures that require enforcement and those that do not (para 74-75).

Second, it was noted that, in order to facilitate the recognition and enforcement of measures of protection, the competent authority should carefully describe those measures in the decision and the grounds upon which it based its jurisdiction, including when jurisdiction is based on Article 11(1) (para 77-78).

Another interesting topic on which the SC focused is the placement of children. In this regard the SC endeavored to clarify what should be regarded as placement under Article 3(e) and Article 33 (i.e. any placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution) ) and also what should not be regarded as a placement (i.e. purely private arrangements, including the ones in the form of an agreement or unilateral act, including a notarial kafala; a child travelling abroad for tourism purposes with their foster parent) (para. 83 et seq).

It then offered a useful guidance on minimum steps for the procedure under Article 33. These include the following:

1. The competent authority of the State which is contemplating the measure of alternative care must consult the Central Authority or competent authority in the State where it is proposed that the measure will be exercised by: (1) discussing the possibility of such a placement in the receiving State; (2) transmitting a report on the child; (3) explaining the reasons for the proposed placement or provision of care outside the requesting State and in the requested State.

2. The Central Authority or competent authority of the State where it is proposed that the measure will be exercised gives its consent to the proposed placement or provision of care.

3. If the requested State has consented to the placement or provision of care, taking into account the child’s best interests, the competent authority of the requesting State then issues its decision.

 Call for Further Action

Finally, as a result of the lively debate in the course of the SC, the need for further future action of both the Permanent Bureau (PB) and Contracting States was recommended. This was further reflected in the C&R with respect to the following topics.

In relation to direct judicial communications and the International Hague Network of Judges (IHNJ), the proposal was advanced to develop a short model guide to court practice and further initiatives to hold a regional in-person meeting of the IHNJ in Brazil (May 2024) and a global in-person meeting of the IHNJ in Singapore (May 2025) (para 19).

Regarding the determination of wrongful removal pursuant Articles 8, 14 and 15, the SC invited the PB to draw up a note containing information on the use of such rules, drawing from the contents of Prel. Doc. No 14. (para 46).

As to the revised Request for Return Recommended Model Form and the new Request for Access Recommended Model Form, the SC concluded that further work needed. A Group of interested delegates will assist the PB in finalising both revised Forms (para 50).

Concerning relocation, after noting the strong impact on international abduction and the diversity of approaches of States in this matter, the SC proposed the development of a questionnaire by the PB directed to States to gather information about procedures that States have in place to facilitate lawful relocation (para 54);

With regard to transfer of proceedings under Article 8 and 9 of the 1996 Child Protection Convention, besides recalling the general duty to cooperate among Central Authorities and direct judicial communications between judges involved in a transfer of jurisdiction, the PB was asked to circulate the questionnaire annexed to to all Contracting Parties to the 1996 Child Protection Convention, with a view to collecting information from judges and Central Authorities regarding requests under Article 8 or 9 and to then review such document in light of the responses from Contracting Parties (para 69).

Finally, on the placement of children, the PB was asked to start collecting information on the operation of Article 33 from Contracting Parties in addition to that set out in Doc. No 20 and that a Working Group be established to develop: (a) a model form for cooperation under Article 33; and (b) a guide on the operation of Article 33.

ELI Project on Recognition of Foreign Filiations and Its First Webinar

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Anna Wysocka-Bar
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European Law Institute (ELI) has recently launched a new project devoted to the proposal of the EU Regulation on the Recognition of Foreign Filiations.

The ELI Project Team wants to scrutinise the rules of the proposal  from four specific perspectives: children’s, LGBTI persons’ and women’s fundamental rights, and the underlying EU primary law, especially concerning the free movement of citizens.

The works within the project will be conducted under the accelerated procedure, with the aim of having results by February 2024. Based on its analysis, the Project Team wants to develop a Position Paper, in which provisions of the proposal will be scrutinized and alternative formulations proposed. Additionally, the Position Paper will be supplemented with explanations and comments. Model Rules in the form of desirable amendments to the proposal will also be drafted.

The ELI Project Team consists of Claire Fenton-Glynn, Cristina Gonzalez Beilfuss, Fabienne Jault-Seseke, Martina Melcher, Sharon Shakargy, Patrick Wautelet, Laima Vaige with Susanne Gössl and Ilaria Pretelli acting as Reporters.

On 2 October 2023 the Kick-Off Webinar of the Project was held. Here is a summary of discussions and a recording of the whole meeting.

Posts on this blog devoted to the same proposal and academia’s reactions to it may be found here, here and here.

French Committee Issues Report on Paris International Commercial Courts

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Gilles Cuniberti
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The Legal High Committee for Financial Markets of Paris issued a report on the work of the international commercial chambers of Paris courts (Bilan du fonctionnement des chambres internationales du tribunal de commerce et de la cour d’appel de Paris) in March 2023.

The report discusses the competitive environment of the Paris international commercial courts, the resources of the courts, how they can be seized, and their procedural rules.

It concludes with 15 propositions for reform. They include:

  • Offering to the parties the power to agree on specialised judges assigned to other chambers (than the international commercial chamber) of the commercial court of Paris,
  • Reflecting on the possibility to appoint French and foreign lawyers to supplement the international chambers,
  • Introducing the possibility to hear private experts retained by the parties
  • Allowing the parties to agree on confidential proceedings in cases which could have gone to arbitration.

European Parliament’s Study on the Cross-Border Legal Recognition of Parenthood in the EU

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Pietro Franzina
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At the request of the Committee on Petitions of the European Parliament, the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs commissioned  a study titled Cross-Border Legal Recognition of Parenthood in the EU. It is available here.

Authored by Alina Tryfonidou (Neapolis University of Pafos), the study examines the problem of non-recognition of parenthood between Member States and its causes, the current legal framework and the (partial) solutions it offers to this problem, the background of the Commission proposal for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, and the text of the proposal. It also provides a critical assessment of the proposal and issues policy recommendations for its improvement.

Marburg Group Issues Comments on the Commission’s Proposal on Parenthood

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Pietro Franzina
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A group of German scholars, consisting of Christine Budzikiewicz (University of Marburg), Konrad Duden (University of Leipzig), Anatol Dutta (Ludwig Maximilian University of Munich), Tobias Helms (University of Marburg) and Claudia Mayer (University of Regensburg), collectively the Marburg Group, reviewed the European Commission’s proposal of 7 December 2022 for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood.

The Group, while welcoming the initiative of the Commission issued a paper to suggest some fundamental changes, apart from technical amendments.

The Group’s comment can be found here.

Commission Study on the Application of the Maintenance Regulation

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Pietro Franzina
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The European Commission published on 13 April 2023 a study on the application of Regulation 4/2009 on maintenance obligations. The study, authored by Marion Goubet, Sophie Buckingham,  Cécile Jacob, Michael Wells-Greco and Quentin Liger, consists of a final report and various annexes, including a synthesis report. Details on the operation of the Maintenance Regulation in the Member States between 2011 and 2019 are found here.

The final report finds that the majority of stakeholders consider the Maintenance Regulation to be effective in establishing common rules for the recovery of maintenance claims across the EU, but acknowledges that, in response to the challenges and issues raised in terms of practical implementation of the Regulation’s provisions, “certain adjustments could be made were it to be recast”.

The report observes, among other things, that the provisions regarding jurisdiction appear to be fragmented and can thus difficult to apply due to there being multiple possible fora and no hierarchy amongst them. In addition, “certain inconsistencies arise both within the Regulation itself, and when compared to other instruments, including Brussels IIa and Brussels IIa recast”.

Concerning the applicable law, which is to be determined in accordance with the Hague Protocol of 2007, the report highlights the practical difficulties experienced in respect of Article 10, concerning public authorities. One issue, the report notes, “was that the process for a public body to prove permissible representation of a creditor is sometimes lengthy and burdensome”. In addition, “if recovery is already under way for the applicant (not a public body) for unpaid maintenance, a public body can be denied legal aid given that two recoveries from the same debtor are not possible”.

As to recognition and enforcement, the study indicates that challenges have arisen in the enforcement of maintenance decisions that set the amount of maintenance obligations on the basis of a percentage of the salary of the debtor or of the requesting State’s minimum wage, but adds that, in this aspect, “a greater uptake and update of the current non-compulsory standard form on the statement of maintenance arrears created by the EJN could be recommended”. For example, “the form could also include information on how to calculate the maintenance based on the State’s minimum monthly wage”. 

The report also signal that “delays are still encountered to enforce maintenance decisions originating from Member States other than the Member State of enforcement”, which is “partly due to the obligation under Article 41 of the Regulation to afford the same conditions for enforcement in the Member State of enforcement to those decisions originating from another Member State”. In fact, if “criteria that are necessary for enforcement in some Member States are not met, this circumstance explains the delays faced for the enforcement of decisions originating from a Member State other than the Member State of enforcement”. The lack of minimum procedural harmonisation, it is contended, “also encompasses differences in the service of maintenance decisions across Member States, termination of maintenance proceedings and different practices in the recovery of lawful interests”. In the end, “a minimum harmonisation of enforcement procedures of maintenance decisions across Member States could be recommended”, in particular as concerns “the procedures for the location of the income and other financial circumstances of the debtor abroad, the possibility to access some information about the debtor, and the introduction of grounds for the suspension and the termination of the maintenance proceedings”.

Challenges (and proposals aimed to address them) are identified in the report also as regards legal aid and cooperation between authorities.

Various remarks are made concerning the interplay between the Maintenance Regulation an other instruments. It is observed, inter alia, that the Regulation and the 2007 Lugano Convention “are not sufficiently aligned, and their interaction can be complex, especially when it comes to jurisdictions rules such as in the case of choice of court agreements”. If the Regulation were to be revised, “the opportunity could be taken to abide by the 2007 Lugano Convention, especially when dealing with the application of exclusive jurisdiction clauses agreed based on the Convention”. Likewise, the Regulation “could allow the EU second seized court to decline jurisdiction in favour of the first seized non-EU court, thus ensuring the respect of the lis pendens rule of the 2007 Lugano Convention”: a recommendation would be to “draft choice of law rules that leaves less leeway for different interpretations in different States”. 

The report also stresses the benefits that (further) digitalisation in this area would provide.

European Commission’s Brussels I Study and Jurisdiction in Employment Matters – A Disappointment

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The Editors of the EAPIL blog
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The author of this post is Uglješa Grušić, Associate Professor, Faculty of Laws, University College London.

As has already been reported on this blog, on 29 March 2023 the European Commission published a study to support the preparation of a report on the application of the Brussels I bis Regulation. This is an important and potentially very influential document.

It is because of its importance and potential influence that I want to share my disappointment with the part of the study that deals with jurisdiction in employment matters (pp 165-171). This part of the study contains some obvious mistakes and omissions.

Let me turn first to the mistakes. The study says this about the comparison between the 2012 Brussels I bis Regulation and the 2001 Brussels I Regulation on p 165:

[Section 5 of Chapter II] remains substantially the same in the Brussels Ia Regulation, with a small change in Article 20(1) (previously Article 18(1)), to which was added ‘(…) in the case of proceedings brought against an employer, point 1 of Article 8’. This insertion clarifies rather than changes the Article’s scope of application.

The study makes the same point on p 166:

The Regulation remains unchanged regarding the provisions addressing jurisdiction relating to individual employment contracts, except for an alteration inserted in Article 20(1).

These statements are not entirely correct. In addition to specifying that employees can join third parties pursuant to Article 8(1), the Brussels I bis Regulation introduces one further novelty in Section 5 of Chapter II. This novelty is the rule in Article 21(2), which provides that an employer not domiciled in a Member State may be sued in a court of a Member State in accordance with Article 21(1)(b), that is, in the courts for the habitual place of work if the habitual place of work is in the EU or, in the absence of the habitual place of work, in the courts for the engaging place of business if the engaging place of business is in the EU.

Another, seemingly innocuous mistake is the wrong citation of an academic commentary on which the authors of this part of the study heavily rely, namely Louse Merrett’s chapter on ‘Jurisdiction over Individual Contracts of Employment’ in Dickinson and Lein’s edited collection on the Brussels I bis Regulation. The mistake in the citation is that Merrett’s chapter was not published in 2020, as the study says, but in 2015. The relevance of this mistake lies in the fact that the authors of this part of the study rely on Merrett’s chapter as supporting the claims made on p 166 that the “concerned parties are satisfied with the solutions adopted and its application in practice through court judgments” and that “[t]here is little case-law related to jurisdiction on individual employment contracts, suggesting that this section has not been subject to much litigation”. Misciting Merrett’s chapter creates a wrong sense of complacency: if a leading scholar writes in a piece published relatively recently that Section 5 of Chapter II works well and there is little case-law, then the implication is that the European Commission need not worry too much about this part of the Brussels I bis Regulation. The problem, however, is that Merrett’s chapter was published in 2015, the same year when this regulation started to apply, and a lot has happened since then.

This brings me to the omissions. The study was completed in January 2023 and was published on 29 March 2023. The study was largely informed by the case law of the CJEU. The problem with the part of the study that deals with jurisdiction in employment matters is that it was outdated the moment it was completed because the authors did not take into account the controversial judgment in ROI Land Investments Ltd v FD that was handed down on 20 October 2022.

While persons domiciled outside the EU can, generally speaking, be sued in the Member State courts under national jurisdictional rules (Article 6(1)), employers domiciled outside the EU can only be sued in the courts for the habitual place of work or, absent a habitual place of work, in the courts for the engaging place of business if the habitual place of work/engaging place of business is located in the EU. The CJEU has clarified in ROI Land Investments Ltd v FDthat, if the habitual place of work/engaging place of business is located in the EU, employers domiciled outside the EU cannot be sued in the Member State courts under national jurisdictional rules. This makes little sense from the perspective of employee protection. As Recital 18 states, ‘[i]n relation to…employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.” ROI Land Investments Ltd v FD achieves the opposite effect.

The purpose of this post is to indicate that there are deficiencies in the part of the study that deals with jurisdiction in employment matters. Consequently, the European Commission should approach this part of the study with care and look at other sources when preparing its report on the application of Section 5 of Chapter II.

For what it’s worth, I have already shared on this blog my proposals for reform of this part of the regulation.

Study to Support a Report on the Application of Brussels I bis

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Pietro Franzina
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The European Commission has published, on 29 March 2023, a Study to support the preparation of a report on the application of the Brussels I bis Regulation, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The blurb reads as follows.

Regulation 1215/2012 (Brussels Ia Regulation) was adopted on 12 December 2012, entered into force on 9 January 2013, and started to apply from 10 January 2015 onwards. It aims to establish a uniform and comprehensive set of rules governing jurisdiction and the recognition and enforcement of judgments in cross-border civil and commercial matters. The scope of the Regulation encompasses a wide range of civil and commercial matters, including insurance, consumer, and employment contracts. It applies in all EU Member States. Since the adoption of the Regulation, several developments, such as the case-law of the CJEU, increased worker mobility, digitalisation, the adoption of new international instruments in the field of private international law (PIL) (such as the 2019 Hague Judgments Convention), the adoption of other EU instruments providing for PIL rules applicable in civil and commercial cross-border matters (such as the Maintenance Regulation or the Insolvency Regulation) are likely to have had an impact on its operation. In this context, the objective of the Study is to assist the Commission in preparing the report on the application of the Brussels Ia Regulation (as provided under its Article 79), and to provide a thorough legal analysis of the application of the Brussels Ia Regulation in the Member States. In particular, the Study aims to determine whether the Regulation is correctly applied in the Member States and to identify specific difficulties encountered in practice. The Study also aims to assess whether recent socioeconomic changes pose challenges to the application of Brussels Ia Regulation’s rules, definitions, and connecting factors. The analysis – based on desk research, CJEU and national case-law analysis and interviews at both the EU and national levels – covers 34 questions on the main legal and practical issues and questions arising from the application of the Brussels Ia Regulation.

The study, written by Milieu, is based on advice provided by Pedro de Miguel Asensio and Geert Van Calster, and draws on input from a team of national experts including Florian Heindler and  Markus Schober, Michiel Poesen, Dafina Sarbinova, Christiana Markou, Hana Špániková, Bettina Rentsch and Maren Vogel, Morten M. Fogt, Thomas Hoffmann and Karine Veersalu, Argyro Kepesidi Eduardo Álvarez-Armas, Katja Karjalainen, Virginie Rouas, Ivan Tot, Tamás Fézer, William Binchy, Laura Carpaneto and Stefano Dominelli, Yvonne Goldammer and Arnas Stonys, Vincent Richard, Aleksandrs Fillers, Emma Psaila, Kirsten Henckel, Anna Wysocka-Bar, Maria João E. de Matias Fernandes, Sergiu Popovici, David Jackson, Ela Omersa, and Natalia Mansella.

The report can be found here.

European Parliament Study on Efficient Cooperation with the UK

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Gilles Cuniberti
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Lotario Benedetto Dittrich (University of Trieste) has written a Study at the request of the JURI committee of the European Parliament on Ensuring Efficient Cooperation with the UK in civil law matters.

The abstract reads:

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee, analyses the implications of Brexit in relation to the profile of judicial cooperation in civil matters. It examines the existing legal framework in order to identify the areas of law in respect of which there is a gap in the relationship between the EU and the UK. It assesses the consequences of the UK’s failure to accede to the 2007 Lugano Convention. Concludes that the conclusion of new treaties between the EU and the UK should be pursued in relation to those areas where there is a regulatory gap, with particular reference to the area of human rights.

And from the executive summary:

The paper is divided into seven chapters.

In the first chapter, the effects of the Withdrawal Agreement in the field of civil judicial cooperation are outlined, with particular reference to the residual applicability of the individual European Regulations in relations with the UK in the so-called transitional period, that is, from the entry into force of the Withdrawal Agreement until December 31, 2020. The reasons why the revival of the 1968 Brussels Convention is not conceivable are also explained.

It then goes on to examine the “body of law” consisting of the Hague Conventions (1961 Apostille Convention; 1965 Service Convention; 1970 Evidence Convention; 1970 Divorce Convention; 1980 Child Abduction Convention; 1996 Child Protection Convention; 2005 Choice of Court Convention; 2007 Child Support Convention) to see which of them and to what extent still apply to the relationship between the EU and the UK.

The third chapter discusses the content of the so-called EU Reitaned Laws, i.e., the set of UK rules transposing sectors of EU legislation into that country’s legal system. The continued applicability of the Rome I and Rome II Regulations and their effects in relations with the EU will be the subject of analysis, as well as, conversely, the superseded inapplicability of European simplified procedures and exclusion from the European Judicial Network.

The fourth chapter is specifically devoted to an analysis of the most relevant gaps left by Brexit in the area of, in particular, the following matters: legal separation and divorce, maintenance obligations, successions, notifications, taking of evidence, public documents, access to justice, mediation, and insolvency.

Particular attention is paid in Chapter Five to the effects resulting from the United Kingdom’s non accession to the 2007 Lugano Convention.

Indeed, as is well known, on June 28, 2021, the European Commission submitted a Note Verbale to the Swiss Federal Council as the Depositary of the Lugano Convention, in which it denied its consent to the UK’s application for accession.

The effect of the UK’s accession to the aforementioned Lugano Convention would have been that Regulation No. 44/2001, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (so-called Brussels I), would also apply to it. This accession would have entailed renewed UK participation in the European judicial area, albeit without the automatic recognition of court decisions introduced only by the subsequent Regulation No. 1215/2012 (so-called Brussels I bis).

The effects on the legal services market of the UK’s exclusion from the European legal system are also analysed. Indeed, there is the emergence of specialized commercial courts, located in several EU countries, which are bidding to be alternative judicial hubs to the London courts. Such competition would be fostered by the easier circulation of judicial orders rendered by EU courts in the European legal space than judicial orders rendered by UK courts.

The study dwells on the actual likelihood of success of such initiatives, raising the possibility in the future of the establishment at the EU level of a single court specializing in commercial matters, which could more effectively undermine the continued attractiveness of London courts.

The study then turns to viable remedies to prospectively reduce the impact of Brexit in the area of rights protection, with particular reference to individuals, families and Small Medium Enterprises (SMEs).

In particular, a possible path is outlined, as a result of which covenanted regulations can be introduced in the following matters: divorce and legal separation, alimentary obligations, Small Claims, and cross border insolvencies.

Finally, special attention is given to the phenomenon of Strategic Lawsuits Against Public Participation (SLAPPs), the subject of a European Commission proposal for a directive, concluding as to the desirability of agreements involving the UK as well, in order to ensure broader protection for freedom of the press and opinion, limiting phenomena of forum shopping and possible circumvention of decisions on the subject.

In summary, the study pragmatically suggests that the parties establish negotiations on specific and limited matters of particular social relevance as a first step in rebuilding a system of international cooperation between the EU and the UK.

At the same time, the study points to the existence of areas in which economic competition is currently taking place in the area of legal services.

Thanks to Jorg Sladic for the pointer.

Apostille Handbook – Second Edition

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Marco Pasqua
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The Hague Conference on Private International Law (HCCH) has recently published the new edition of the Practical Handbook on the Operation of the Apostille Convention.

The Handbook provides guidance on the practical implementation and operation of the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, applied tens of millions of times every year to the benefit of individuals, families, and businesses from across the world.

This second edition provides updated information and resources in response to the latest developments in relation to the Convention, including by incorporating advice from recent meetings and reflecting on the experiences of the growing number of Contracting Parties. Key changes include a greater focus on the electronic Apostille Programme (e-APP), further explanation of the role of diplomatic missions, and the incorporation of outcomes of the Working Group on the Authentication of Documents Generated by Supranational and Intergovernmental Organisations, the Experts’ Group on the e-APP and New Technologies, as well as the most recent meetings of the International Forum on the e-APP and the Special Commission on the practical operation of the Apostille Convention.

The Handbook is available here in English, French and Spanish.

Private International Law in the Proposal by the UNIDROIT Working Group on Digital Assets

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Matthias Lehmann
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UNIDROIT has started an online consultation on its Draft Principles and Commentary on Digital Assets and Private Law, which Marco Pasqua has thankfully posted on this blog.

Principle 5 titled “Conflict of laws” will be of special interest for our readers, yet even experts of the field may have trouble understanding this somewhat complex provision. As an observer in the Working Group, I would like to give some background.

Scope ratione materiae

The subject of Principle 5 is the law applicable to proprietary issues in digital assets. A digital asset is defined in a broad way as an “electronic record which is capable of being subject to control” (Principle 2(2)). This covers all cryptocurrencies and tokens. The term “proprietary issues” is not defined but can be understood as encompassing the existence and transfer of ownership as well as other rights in rem.

Party Autonomy

The law governing proprietary issues in digital assets is defined by a waterfall.

The first two levels are dominated by party autonomy. Principle 5(1)(a) refers to the law expressly specified in the digital asset itself, whereas Principle 5(1)(b) points to the law chosen for the system or platform on which the asset is recorded.

Free choice of law may be seen as a heresy in property law. Yet it must be borne in mind that the blockchain environment is relatively self-contained. A restricted choice of the applicable property law has already been accepted in the Hague Intermediated Securities Convention. This was a door-opener, even though the EU did not sign up.

The problem lies elsewhere. Virtually none of the existing digital assets or systems contains a choice of law. This is by no means a coincidence, but the result of the anti-etatist beliefs of the social circles in which the technology was conceived. Since these beliefs are unlikely to change any time soon (if ever), choice of law for a blockchain will remain as rare as hen’s teeth.

Options A and B

If the governing law is not chosen (i.e. virtually always), the draft provides two options (Principle 5(1)(c)). Under Option A, a state can specify the relevant rules of its forum law which should govern, and to the extent these are insufficient, refer to the UNIDROIT Principles as a kind of gap-filler. Under Option B, it can declare the UNIDROIT Principles to apply directly, without specifying any part of its domestic law.

What is striking is that the conflict-of-laws method is completely ignored here. The law of the forum or the UNIDROIT Principles govern, regardless of the connections of the case.

This may be justified insofar as substantive law harmonisation on the international level is achieved, i.e. in case of Option B. But where a state follows Option A by specifying certain rules of the forum as applicable, these rules would in fact govern all situations world-wide before its courts. Other states following Option A would also specify their own national rules. Divergences between these rules will not only be cast in stone, but exacerbated by substantive rules of PIL (règles matérielles de droit international privé). The result will be a global jumble, leading to the opportunities of forum shopping which PIL experts know so well. 

UNIDROIT Trumps National Law

If the governing law is not chosen, nor the substantive rules or the UNIDROIT Principles on Digital Assets apply, then the law applicable by virtue of the PIL rules of the forum governs (Principle 5(1)(c)). The PIL rules are thus relegated to the last level. What is more, no harmony is achieved, as not a single indication is given on how the states should fashion their PIL. Anything goes – hardly a recipe for global harmonisation.

Joint Project with HCCH

The Hague Conference on PIL has just published a joint proposal with UNIDROIT for a “Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens”. It shall deal specifically with Principle 5 of the UNIDROIT Draft. This is the first joint project between the two institutions. One may nurture the hope that it will result in more precise and elaborate connecting factors. Until then, the need for clearer conflicts rules may be highlighted in the UNIDROIT online consultation, which is open until 20 February 2023.

HCCH Experts’ Group on Parentage/Surrogacy Issues Final Report

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Gilles Cuniberti
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The Experts’ Group on the Parentage/Surrogacy Project of the Hage Conference on Private International Law (HCCH) has issued its Final Report on The feasibility of one or more private international law instruments on legal parentage  on 1 November 2022.

The conclusions of the report are as follows:

The Group agreed on the desirability of, and urgent need for, further work by the HCCH in the form of a binding PIL instrument on legal parentage in general (a Convention) and a binding PIL instrument on legal parentage established as a result of an ISA specifically (a Protocol).

The conclusions of the Group with respect to the feasibility of some of the key elements of a Convention and a Protocol are set out in boxes throughout (and annexed to) this Report.

The Group concluded on the general feasibility of developing a Convention dealing with the recognition by operation of law of foreign judicial decisions on the establishment and contestation of legal parentage.

The Group also concluded on the general feasibility of rules on recognition by operation of law of legal parentage as a result of an ISA established by judicial decision in a Protocol. Feasibility will depend in particular on how safeguards / standards are addressed.

Owing to the particularly complex and sensitive nature of the topic, the Group noted some key feasibility challenges going forward, which include:

-For a Convention, whether or not to include:
⇒ domestic adoption;
⇒ rules on uniform applicable law for the establishment of legal parentage; and
⇒ rules on public documents.
-For a Protocol, the way to address safeguards / standards.
-For both instruments, scope issues related to legal parentage established as a result of a domestic surrogacy arrangements and / or ART involving a third-party individual (donor) and legal parentage established by domestic adoptions following a surrogacy arrangement.
-Some experts agreed on the feasibility of advancing work on only one instrument, while others did not think that advancing work on one instrument without the other would be feasible.

While different elements to be included in a Convention and / or a Protocol, when taken individually, seemed to be feasible, this assessment might change depending on decisions taken on other elements. For example:

-For some experts, any instrument would only be attractive to States if it also addressed legal parentage established without a judicial decision, given that, in the majority of cases, legal parentage is established by operation of law or following an act. For other experts, this did not seem a key issue and / or those experts questioned the feasibility of agreeing rules on legal parentage without a judicial decision in an instrument.
-Although the Group agreed on the need for safeguards / standards in a possible Protocol, experts had different views as to which safeguards / standards should be included and how they should feature. For many experts, a Protocol would only be feasible if it included uniform safeguards / standards included directly in a Protocol, some of which featuring as conditions for recognition, others as grounds for refusal. For some experts, a Protocol would rather be feasible if it included State-specific safeguards / standards indirectly in a Protocol with a declaration mechanism and grounds for refusal.

The Group finally recommends the establishment of a Working Group to explore the provisions on a possible convention and protocol.

Five Takeaways from the First Meeting of the Special Commission on the Hague Adults Convention

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The Editors of the EAPIL blog
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This post was written by Pietro Franzina and Thalia Kruger, and is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

The delegations of more than thirty Member States of the Hague Conference on Private International Law attended the first meeting of the Special Commission charged with reviewing the operation of the Hague Convention of 13 January 2000 on the international protection of adults. The meeting took place in The Hague and online from 9 to 11 November 2022 (for a presentation of the meeting, see this post on Conflictoflaws.net and this one on the EAPIL blog). A dozen organisations, governmental and non-governmental (including the Council of the Notariats of the European Union, the Groupe Européen de Droit International Privé and the European Association of Private International Law), were also in attendance.

The discussion covered a broad range of topics, leading to the conclusions and recommendation that can be found on the website of the Hague Conference (see here). The main takeaways from the meeting, as the authors of this post see them, are as follows.

The Hague Adults Convention Works Well in Practice

To begin with, the Special Commission affirmed that the Convention works well in practice. No major difficulties have been reported either by central authorities instituted under the Convention itself or by practitioners.

Doubts occasionally appear with respect to some provisions. Article 22 for example provides that measures of protection taken by the authorities of a Contracting State “shall be recognised by operation of law in all other Contracting States”, unless a ground for refusal among those listed in the same provisions arises. A declaration of enforceability, as stipulated in Article 25, is only necessary where measures “require enforcement” in a Contracting State other than the State of origin.

Apparently, some authorities and private entities (e.g., banks) are reluctant to give effect to measures of protection that clearly do not require enforcement, such as a judicial measure under which a person is appointed to assist and represent the adult, unless that measure has been declared enforceable in the State where the powers of the appointed person are relied upon. The Special Commission’s conclusions and recommendations address some of these hesitations, so that they should now prove easier to overcome. Regarding exequatur, see para. 33, noting that “measures for the protection of an adult only exceptionally require enforcement under Article 25”, adding that this may occur, for instance, “where a decision is taken by a competent authority to place the adult in an establishment or to authorise a specific intervention by health care practitioners or medical staff”, such as tests or treatments. Other doubts are dealt with in the practical handbook prepared by the Working Group created within the Hague Conference in view of the meeting of the Special Commission. The draft handbook (see here the first version publicly available), which the Special Commission has approved “in principle”, will be reviewed in the coming weeks in light of the exchanges that occurred at the meeting, and submitted to the Council on the General Affairs and Policy of the Conference for endorsement in March 2023).

Situations Exist in the Field of Adults’ Protection that Are Not (Fully) Regulated by the Convention

The Convention deals with measures of protection taken by judicial and administrative authorities, and with powers of representation conferred by an adult, either by contract or by a unilateral act, in contemplation of incapacity. By contrast, nothing is said in the Convention concerning ex lege powers of representation. These are powers of representation that the law of some States (Germany, Austria and Switzerland, for example) confers on the spouse of the adult or a close relative or family member, for the purpose of protecting the adult. Their operation is generally confined to situations for which no measures have been taken and no powers of representation have been conferred by the adult.

The Special Commission acknowledged that ex lege powers of representation fall under the general scope of the Convention, but noted that no provision is found in the Convention that deals specifically with such powers. In practice, ex lege powers of representation may be the subject of cooperation between the authorities of Contracting Parties (notably as provided for under Chapter V), but, where the issue arises of the existence, the extent and the exercise of such powers, the courts and other authorities of Contracting States will rely on their own law, including, where appropriate, their conflict-of-laws rules.

There is yet another gap that the Special Commission discussed. The Commission observed that instructions given and wishes made by an adult in anticipation of a future impairment of their personal faculties (e.g., in the form of advance directives), similarly fall within the general scope of the Convention and are subject, as such, to the cooperation provisions in Chapter V. Whether or not a particular anticipatory act constitutes a power of representation for the purposes of Articles 15 and 16, on powers of representation conferred by the adult, is to be determined on a case-by-case basis. Some unilateral acts plainly come within the purview of Articles 15 and 16, as they actually include a conferral of powers on other persons. Others do not, and may accordingly be dealt with by each Contracting State in conformity with their own law.

States Do Not Currently See an Interest in Modifying the Convention

The question has been raised in preparation of the Special Commission whether the Convention ought to be amended, namely by a protocol to be negotiated and adopted in the framework of the Hague Conference on Private International Law. In principle, a protocol would have provided the States with the opportunity to fill the gaps described above, and address other concerns. However, under international law only those Contracting States that ratify the protocol would be bound by the modifications.

The Special Commission witnessed that, at this stage, no State appears to see an amendment as necessary.

Only one issue remains to be decided in this respect, namely whether the Convention should be modified in such a way as to include a REIO clause, that is, a clause aimed at enabling organisations of regional economic integration, such as the European Union, to join the Convention in their own right. The matter will be discussed at the Council on the General Affairs and Policy of the Conference of March 2023.

The decision lies, in fact, in the hands of the Union and its Member States, as this is currently the only Regional Economic Integration Organisation concerned by such a clause. Their decision will likely be affected by the approach that should be taken in the coming weeks concerning the proposal for a regulation on the protection of adults that the Commission is expected to present in the first half of 2023.

Efforts Should Now Be Deployed Towards Increasing the Number of Contracting Parties

The main problem with the Convention lies in the fact that only relatively few States (fourteen, to be precise) have joined it, so far. Several States stressed the importance of further promoting ratification of, or accession to, the Convention.

It is worth emphasising in this respect that the Hague Adults Convention builds, to a very large extent, on cooperation between Contracting States. This means that a State cannot fully benefit from the advantages of the Convention by simply copying the rules of the Convention into its own legislation, or by relying on such rules on grounds of judicial discretion (as it occurs in the Netherlands and to a large extent in England and Wales), but should rather become a party to it.

Various States expressed an interest in the Convention. The responses to the questionnaires circulated in preparation of the meeting of the Special Commission suggest that at least five States are actively contemplating ratification (Hungary, Italy, Luxembourg, Mexico and Sweden), and that others have considered ratification (Slovakia) or are considering it (Argentina). For its part, Malta signed the Convention on the occasion of the meeting of the Special Commission, and will likely ratify it in the not too distant future.

Tools to Enhance the Successful Operation of the Convention

Some of the practitioners present drew the participants’ attention to practical difficulties in the cross-border protection of adults. To minimise practical difficulties, the Permanent Bureau, in some instances together with the Working Group on the Adults Convention, developed a number of tools.

The first is an extensive country profile, to be completed by Contracting States and made available on the website of the Hague Conference. This profile includes various matters of national law, such as names and content of measures of protection, jurisdiction of courts or other authorities to issue these measures, transfer of jurisdiction, and names, forms and extent of powers of representation.

The second is a toolkit on powers of representation, which contains detailed information about the national laws of States that provided responses, on for instance who can be granted powers of representation, how this granting must take place, and the permitted extent of the representation.

Concluding Remarks

All in all, the issue of the cross-border protection of Adults has rightly gained attention over the past ten years. While States amend their domestic legislation to be in conformity with the UN Convention on the Rights of Persons with Disabilities, they seem to be increasingly aware of the importance of ensuring cross-border continuity. This includes continuity of measures of protection issued by authorities such as courts, as well as the powers of representation granted by adults themselves. These matters of private international law require dialogue on the international and European Union level, more States to join the Convention, and tools to assist practice.

The Upcoming First Meeting of the Special Commission on the Hague Adults Convention

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Pietro Franzina
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On 9, 10 and 11 November 2022, a Special Commission devoted to the Hague Convention of 13 January 2000 on the international protection of adults will meet in the Hague.

The Hague Adults Convention applies in international situations to the protection of persons aged 18 or more who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. It lays down a comprehensive set of private international law rules in this area: rules on jurisdiction to give measures of protection, on the law applicable both to measures of protection and powers of representation conferred by an adult in contemplation of a possible loss of autonomy, on the recognition and enforcement of measures of protection across Contracting States, and on cooperation between the authorities of such States.

Today, fourteen States are bound by the Hague Adults Convention, the latest to join being Greece (actually, the Convention entered into force for Greece yesterday, 1 November 2022).

Why a Special Commission, and How It’s Been Prepared

While the Hague Adults Convention has generally proved to work well in practice, the Council on General of Affairs and Policy of the Hague Conference on Private International Law considered, in 2019, that the time had come to convene a Special Commission for the purpose of reviewing the practical operation of this instrument.

Preparation work began shortly afterwards, with a questionnaire addressed to States aimed to determine the issues that the Special Commission ought to address (the responses are found here), followed by a questionnaire on the practical operation of the Convention (see here the responses).

Since April 2021, a working group constituted for this purpose has been meeting regularly with the aim to draft a Practical Handbook on the Convention and, more generally, to discuss the various documents that the Special Commission will consider in its meeting (or serve as a background to it). As a member of the working group, the author of this post enjoyed the intense and fruitful exchanges that occurred among the members, and witnessed the amazing job carried out by the Permanent Bureau to assist the group and, generally, to get everything ready for the Special Commission.

The meeting of the Special Commission will only open to delegates designated by States and invited observers (by the way, the European Association of Private International is among the observers: as the readers of the blog may recall, EAPIL received a similar invitation in May 2022 to attend the first meeting of the Special Commission on the Hague Maintenance Convention and Protocol). Of course, the Conclusions that the Special Commission will adopt will be made available once the meeting is over.

What to Expect from the Meeting (1): A Substantial Contribution to the Understanding of the Convention

The November 2022 meeting is the first such meeting devoted to the Hague Adults Convention. In fact, the work carried in preparation of the Special Commission over the last year and a half, and its finalisation by the Special Commission, represents the first major collective exercise of this kind regarding the Convention.

This is in itself remarkable, especially if one considers that, over the years, several Special Commission meetings have taken place to discuss the operation of other Hague instruments. For instance, the Special Commission charged with reviewing the operation of the Hague Convention of 1980 on the civil aspects of international child abduction has met seven times, and the next meeting – due to take place in October 2023 – is already under preparation.

As a matter of fact, some practically important issues regarding the Hague Adults Convention had not been the object of detailed analysis before the working group and the Permanent Bureau engaged in this exercise.

One such issue is whether, and in which manner, the Convention applies to ex lege powers of representation, that is powers of representation that, according to the law of some States, a person close to the adult (e.g., their spouse) is entitled to exercise for the purposes of protecting them. A preliminary document, drawn up by the Permanent Bureau with the assistance of the working group provides an account of the questions that surround these powers, and discusses how they could (or should) be dealt with under the Convention.

Doubts have been raised in literature and among practitioners as regards the way in which the Hague Adults Convention deals with advance directives concerning matters of health, welfare and other personal matters. This topic, too, is the object of a preliminary document.

The Special Commission will offer a unique opportunity to collect the views of States and observers on these and several other issues. The finalised Practical Handbook (the latest revised draft is available here) will eventually help shape a common understanding of the operation of the Convention, notably as regards the issues that have prompted doubts and disputes.

While the Practical Handbook and the Conclusions of the Special Commission will not be formally binding on State courts and other authorities, the consensus that the Commission will be able to record on the various topics under discussion will in fact serve as a guideline for anybody having to do with the Convention.

What to Expect from the Meeting (2): A New Wave of Ratifications

One recurring criticism concerning the Hague Adults Convention is that it is in force only for relatively few States. Admittedly, the pace of ratifications has been disappointing.

Experts generally agree that the Convention significantly facilitates the handling of cross-border cases, and authorities in Contracting States frequently report about the benefits offered by the Convention in cases governed by its rules, compared with cases for which the Convention is of no avail (e.g., when the need arises to coordinate proceedings before local courts with proceedings in a State that is not bound by the Convention). Yet, several States have apparently never considered joining the Convention, and many among those that have expressed an interest in ratifying the Convention have so far contented themselves with taking preliminary steps in that direction.

The Special Commission of November 2022 is likely to encourage new ratifications and accessions. There are various reasons for that.

To begin with, the Convention has slowly come under the limelight, these last years. There has been an increase in the number of scholarly writings and academic initiatives regarding the protection of adults, and the practical importance of the topic is no longer challenged. The Special Commission itself is meant, inter alia, to draw the attention of States and stakeholders on the problems surrounding the international protection of adults, and will further increase the visibility of the Convention. All this will plausibly lead more States to consider joining the Convention, or work at its ratification.

Secondly, the Special Commission will enable States to develop a more thorough understanding of the Convention. The benefits of ratification should in fact prove easier to assess based on the information collected in preparation of the Special Commission. The work that individual Contracting States are expected to carry out in the future should also be of help in this respect. Reference is made to the “Country Profiles” that States are invited to prepare in accordance with a draft that the Commission will discuss. The States that will join the Convention in the future will thus be able to rely on a rich collection of data produced both by the Hague Conference and by the current parties. The will not bear the price, in terms of information, that “pioneer” States must face when joining a uniform regime whose actual functioning has not been fully tested or is not thoroughly documented.

What to Expect from the Meeting (3): A Step Towards a Limited Amendment to the Convention Itself?

So far, the Hague Adults Convention has been ratified only by European States. Apart from Switzerland, Monaco and the UK, all of the States parties to the Convention are also Members of the European Union.

As the readers of this blog know, EU institutions have on various occasions expressed the view that the protection of adults in cross-border deserves greater attention on the part of Member States and the Union itself.

Building on the conclusions adopted by the Council in June 2021, the European Commission launched a public consultation in December 2021 on the measures that the Union should adopt in this field (EAPIL issued a position paper in response to that consultation), and published a study on the matter. The Commission is reportedly working at an impact assessment study that would accompany a possible proposal for a regulation.

One of the hurdles that the Union faces in this area is that the EU cannot itself become a party to the Hague Adults Convention, for this is only open to States. This means that the EU could, at best, authorise the Member States that have not yet done so to ratify the Convention “in the interest of the Union”, as it occurred with the Hague Convention of 19 October 1996 on the protection of children.

At a workshop organised by the Czech Presidency of the Council of the EU in September 2022, the question has been put forward by the First Secretary of the Hague Conference, Philippe Lortie, of whether it would make sense to amend the Convention so as to include a “REIO clause”, i.e., a clause that would enable regional economic integration organisations, such as the EU, to join the Convention. Other provisions in the Convention could be amended on the same occasion: these additional changes would not alter the substance of the Convention, but rather clarify the meaning of provisions whose uniform interpretation could otherwise be difficult to achieve. The possible scope of the various amendments, together with the issues that this move would entail, are outlined in a dedicated preliminary document that has also been prepared in view of the Special Commission.

The prospect of a direct involvement of the EU as a party to the Hague Convention raises some politically sensitive questions, both for the Member States (external action by the Union is a delicate subject) and for the Union itself. One should consider, among other things, that an amendment to the Convention would take several months to complete: if that path were to be taken, the plans of the European Commission regarding new legislation in this area would likely need to be put on hold for some time, and adapted to the changed context.

The implications of the Union becoming a party to the Convention, however, would also be practically significant. Among other things, the Court of Justice would find itself in a position to issue preliminary rulings on the Convention, thereby in fact playing a key role in the uniform interpretation of its provisions.

It remains unclear whether States (not just EU Member States) may in fact have an appetite for this and/or other changes to the Convention. The Special Commission will provide a first opportunity to discuss this prospect. The topic, however, will likely be rediscussed in the broader context of the next meeting of the Council on General Affairs and Policy of the Conference, due to be held in March 2023.

GEDIP’s Reccommendation on the Proposal for a Directive on Corporate Sustainability Due Diligence

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The Editors of the EAPIL blog
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This post was written by Hans van Loon.

As reported in this blog before the European Commission on 23 February 2022 adopted a proposal for a directive on corporate sustainability due diligence.

At its annual meeting in 2021, the European Group for Private International Law (GEDIP) had adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability. The EAPIL blog covered this development, too.

While some of the recommendations proposed by GEDIP are reflected in the Draft Directive, the Draft fails to take into account several crucial recommendations concerning judicial jurisdiction and applicable law. This will detract from its effectiveness.

In particular:

  • The Proposal, while extending to third country companies lacks a provision on judicial jurisdiction in respect of such companies;
  • The Proposal, while extending a company’s liability to the activities of its subsidiaries and to value chain co-operations carried out by entities “with which the company has a well-established business relationship”, lacks a provision dealing with the limitation of the provision on co-defendants in the Brussels I bis Regulation (Article 8(1)) to those domiciled in the EU;
  • The Proposal lacks a provision allowing a victim of a violation of human rights to invoke, similar to a victim of a violation of environmental damage under Article 7 of Regulation 864/2007 (Rome II), also the law of the country in which the event giving rise to the damage occurred, and does not prevent companies from invoking a less strict rule of safety or conduct within the meaning of Article 17 of Rome II;
  • The provision of the Proposal on the mandatory nature of the provisions of national law transposing the Directive (Article 22 (5)) is insufficient because (1) the words “in cases where the law applicable to actions for damages to this effect is not that of a Member State” are redundant and (2) all these provisions of national law transposing the Directive should apply irrespective of the law applicable to companies, contractual obligations or non-contractual obligations.

GEDIP therefore, on the occasion of its meeting in Oslo, 9-11 September 2022 adopted a Recommendation concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021. The text of the Recommendation can be found here.

ILA Guidelines on Privacy Endorsed

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Marta Requejo Isidro
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On 23 June 2022, the Lisbon Guidelines on Privacy, drawn up by the ILA Committee on the Protection of Privacy in Private International and Procedural Law, have been formally endorsed by the International Law Association at the 80th ILA Biennial Conference, hosted in Lisbon (Portugal).

The Committee was established further to a proposal by Prof. Dr. Dres h.c. Burkhard Hess to create a forum on the protection of privacy in the context of private international and procedural law. It comprised experts from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Luxembourg, Portugal, Spain, the United Kingdom, and the United States of America. Prof. Hess chaired the Committee; Prof. Jan von Hein and Dr. Cristina M. Mariottini were the co-rapporteurs. The documents of the meetings held by the Committee in the past years, and of the Guidelines and commentary as presented in Lisbon, are publicly available here. A related publication on ssrn and in the MPI Luxembourg’s Working Paper Series will follow.

The creation of the Committee was triggered by a simple factual evidence, which is described in the Conception Paper. By reason of the rapid computerisation and automatisation in the handling of personal information, traditional expectations for the protection of one’s privacy have undergone major changes. The dynamics and the dimension of the potential intrusions into one’s personal life have been significantly transformed, bringing forth new challenges for legislators, courts and practitioners. Questions arise concerning jurisdiction, applicable law, recognition and enforcement of judgments, but also legal standing, protection of vulnerable parties, and remedies, among others. Intuitively, it was felt that simply adapting the existing general rules on torts and contracts would not provide satisfactory answers to the new setting. Hence, exploring private international and procedural law issues was considered of utmost significance, with a view to (i) providing a set of principles/framework for regulating privacy in private international and procedural law, and (ii) developing concepts that could constitute a point of reference for legislators, the judiciary and legal counsels.

The document submitted for endorsement in Lisbon is the outcome of several meetings  of experts at ILA conferences (Johannesburg and Sydney) and in-between (Luxembourg), and of many on-line exchanges. It consists of two parts. The introductory one describes the scope and objectives of the Committee and the methodology followed. Then, the Guidelines themselves follow in the form of a Preamble and of 13 so-called articles, each accompanied by a thorough explanatory comment with references to pertinent legal acts and case law of different jurisdictions. The provisions are distributed under the headings General Part (Articles 1 and 2); Jurisdiction (Articles 3 to 6); Applicable Law (Articles 7 to 11); and Recognition and Enforcement of Foreign Judgments (Article 12 and 13).

The Guidelines define their nature and aims in the Preamble: their purpose is multifold in the sense that they may be used as a model for national, regional or international instruments (thus the word “article” in the operative text), but also simply to interpret, supplement or develop rules of private international law.

From the point of view of the scope, it is of interest to highlight that the Guidelines focus only on privacy: after careful reflection (and a conference organized by the Brussels Privacy Hub in collaboration with the MPI Luxembourg, held in Luxembourg in 2017) data protection-related issues were deliberately excluded. Also worth mentioning is the fact that the Committee did not intend to address all procedural and private international law concerns arising out of cross-border litigation in relation to privacy. It preferred rather to concentrate on those aspects which appeared to be more relevant under several considerations, one of them being exclusion from PIL international conventions (the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, Article 2, k) and l)) or regional instruments (the Rome II Regulation, see Article 1, paragraph 2, g)). Against this background, the Guidelines provide rules on jurisdiction, applicable law and the recognition and enforcement of judgments regarding compensatory and injunctive relief (to the exclusion of negative declaration actions), as well as provisional measures, both in contractual and non-contractual claims.

Very briefly, I would like to recall some points of the contents of the Guidelines, which are too rich to be commented in a single post. Most notably, as far as jurisdiction and applicable law are concerned two basic principles permeate the solutions chosen, namely (i) foreseeability, and (ii) parallelism between jurisdiction and applicable law. The limited heads of jurisdiction and the decision to repudiate the so-called Mosaïc principle under Article 3, as well as the forum-ius rule of Article 7, clearly correspond to those principles. In the same lines, choice of court is accepted and presumed to be exclusive except in case the parties agreed to the contrary. Specific attention is paid to provisional measures, with a solution in Article 6 deviating from the Brussels I bis Regulation and the Court of Justice decision in C-581/20, Toto. The choice of the applicable law is also permitted; here, a particular answer is given to the case of disputes among users of social media. In addition, for conflict of law purposes, the right of reply is addressed separately under Article 10. Article 11 allows resorting to the ordre public exception to refuse the application of the law designated under the Guidelines, in particular when the effects of applying said law would be manifestly incompatible with fundamental principles of the forum as regards freedom of expression and information, as well as the protection of privacy and human dignity.

It is clear that some of the solutions finally adopted by the Committee will not be fully convincing from a European perspective, especially against the backdrop of statutory prescriptions currently in force. However, one should not forget that the Guidelines represent a compromise among experts of different legal backgrounds, and that they are meant to talk to a public not necessarily rooted in the European Union. At the same time, they can perfectly work here as a model where no rules exist at all, or where there is a window open to amending partially dysfunctional rules (as it may be contended is the case of Article 7, paragraph 2, of the Brussels I bis Regulation). In this regard, it is submitted that none of the Guidelines run contrary to fundamental principles or values of the European Union, and that all of them have been carefully drafted with a view to their usability in practice – a precious quality in our too much technical field of law.

Brussels I bis: A Standard for Free Circulation of Judgments and Mutual Trust

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Elena Alina Ontanu
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The JUDGTUST Project (Regulation BIa: a standard for free circulation of judgments and mutual trust in the EU) conducted by the T.M.C. Asser Instituut in cooperation with Universität Hamburg, University of Antwerp and Internationaal Juridisch Instituut has come to its completion. The findings of the this research are available online here.

The project was animated by the aim to identify best practices and provide guidelines in the interpretation and application of the Brussels I-bis Regulation (also known as Brussels Ia). For this the analysis carried across the EU Member states sought to evaluate to what extent the changes introduced (compared to the Brussels I Regulation) achieved their objective, what are the remaining shortcomings, and how can these be overcome by considering future useful changes. Together with this, the research has analysed how legislative projects at global level – e.g. the Hague Judgment Convention – and political developments – e.g. Brexit – influence the way the Brussels I-bis is applied.

In analysing the interaction between the Brussels I bis Regulation and the other EU private international law instruments, the project combines a primarily comparative legal approach with the use of empirical research methods. The comparative legal research relies on the analysis of legislation, case law of national courts in EU Member States and the Court of Justice of the European Union (CJEU), and scholarly writings. This endeavour identifies the difficulties in the application of the Brussels I-bis provisions and best practices in applying the provisions of the Regulation. This is done without neglecting the outcomes of the previous regulation – the Brussels I – and other closely related private international law sources. The empirical research relies on various methods, both qualitative and quantitative. On the basis of a dedicated Questionnaire, the national reporters from EU Member States provided information on relevant domestic case law and legal literature.

With its findings the JUDGTRUST project seeks to enhance the general understanding of the autonomous nature of the EU legal sources. Further it looks to contribute to the uniform interpretation and application of the Regulation and consequently promotes mutual trust and efficiency of cross-border resolution of civil and commercial disputes. Furthermore, the analysis provides suggestions on how to reach a greater degree of consistency of the EU private international law legislation.

The outputs of the Project include various materials available online such as the National Reports, a Consolidated Report, and materials of the Final Conference.

Together with these open access materials a Handbook on the Interpretation and Application of the Brussels I bis is expected in the coming period.

In addition to the comparative and analytical research, the project also contributed to the development of a Moot Court Competition (PAX Moot) for law students. With this the project seeks to contribute to the education of a new generation of practitioners dealing with EU private international law.

HCCH Special Commission Issues Conclusions & Recommendations on Child Support and Maintenance

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The Editors of the EAPIL blog
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This post was contributed by Francesco Pesce, who is an associate professor at the University of Genoa.

The very first meeting of the Hague Conference on Private International Law’s (HCCH) Special Commission (SC) on the Practical Operation of the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol was held from 17 to 19 May 2022. The event was attended by over 200 delegates representing HCCH Members, Contracting Parties and Observers from all regions of the world.

Following an invitation coming from the Secretary General of the HCCH, for the first time EAPIL participated as an Observer to a meeting of the Hague Conference.

The meeting resulted in the adoption of over 80 Conclusions & Recommendations, providing guidance on a wide range of issues relating to the implementation and practical operation of these instruments.

Among other things, the Special Commission took into a specific consideration some issues raised in the Position Paper on Child Support and Maintenance Obligations prepared by the EAPIL Working Group specifically created for that purpose.

More in detail, HCCH Members and Contracting Parties discussed some problems concerning the effective access to legal assistance for children under the Convention, for the recovery of maintenance obligations arising from a parent-child relationship.

Firstly, the interpretation of the concept of ‘residence’ (Article 9) was reaffirmed to be necessarily consistent with Article 53, which prescribes uniformity in the interpretation and application of the Convention, due to its international character. In this perspective, it has been recalled that the intention behind the use of (simple) ‘residence’ is to provide the easiest and the widest access to Central Authorities and make it is as easy as possible to apply for international recovery of child support, so that a child has the possibility to require financial support wherever he or she may be living and should not have to satisfy a strict residence test in order to apply for assistance to receive it (cf. Borrás-Degeling Report, para. 228). Based on this assumption, the SC confirmed that Article 9 does not always indicate a single national Central Authority: when the creditor/child is permanently living in two different Contracting States, then it does not prevent a choice of most appropriate (State, and subsequently) Central Authority to submit the application. The creditor may take into account many factors in making this decision, bearing in mind that support is usually needed for a prolonged period of time. Such a case is considered under para. 7 of the Conclusions & Recommendations, expressly referred to the situation of a child studying abroad, when the debtor habitually resides or has assets in another Contracting Party than the State of either the residence or habitual residence of the creditor.

Secondly, the SC noted that some doubts were raised by the responses to the Questionnaire of August 2019 on the practical operation of the 2007 Child Support Convention, on the concept of ‘creditor’ with reference to the existing difference between those systems where it is the child him/herself who qualifies as ‘creditor’ acting for the protection of his/her own interests (even if procedurally through an adult (parent) acting on his/her behalf) and, on the other hand, those States providing that a dependent child cannot be the creditor, so that the action for the maintenance recovery is brought by the parent on his/her own In this respect, the SC recalled that, in the case where the child is an applicant, information concerning the name of the non-debtor custodial parent should be written under “Other information” in Section 10 of the Recommended Form (cf. Conclusions & Recommendations, para. 8);

Lastly, the SC addressed the issue of family status, with a specific reference to recognition and enforcement of maintenance decisions concerning relationships not provided by the law of the requested State. On this matter, para. 24 of the Conclusions & Recommendations simply reaffirms that, in accordance with Article 19(2) of the 2007 Convention, maintenance obligations arising from these relationships can still be recognised and enforced without recognising such relationships per se. The specific issue of (same-sex) marriages and other relationships – such as cohabitations – that could be equated to marriage in the national law of the State of origin was raised by the Position Paper, but it was not deepened during this first meeting of the SC: in fact, spousal support was not considered a priority at this stage (cf. para. 67).

Study to Support the Preparation of a Report on the Application of Brussels I bis Regulation

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Marco Pasqua
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On behalf of the European Commission (DG JUST), Milieu Consulting is conducting a study on the application of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I bis Regulation). The aim of the study is to provide solid evidence and analysis of legal and practical issues to assist the European Commission in preparing a report on the application of the Brussels I bis Regulation. To this end, the study will analyse the application of the Brussels I bis Regulation in the Member States and identify the main legal difficulties and practical challenges encountered in practice.

As part of this study, Milieu Consulting is conducting a stakeholder consultation, which includes a series of targeted surveys with key stakeholder individuals and organisations involved in or confronted with the application of the Brussels I bis Regulation. In particular, Milieu developed a technical survey that targets legal practitioners (i.e., judges; lawyers; notaries; bailiffs), academia (i.e., scholars in private international law and relevant sectors, such as consumer protection or business and human rights), and national authorities (i.e., ministries of justice, ministries in charge with consumer protection, ministries of economy) in each Member State. Stakeholders’ views are an important source of information for gaining a concrete understanding of the difficulties in applying rules on jurisdiction, as well as the recognition and enforcement of judgments, in cross-border civil and commercial cases in the EU.

The survey is available here. For more information on the study, please refer to the accreditation letter here.

Children from Ukraine: New EU Information Page about Civil Judicial Cooperation

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Marion Ho-Dac
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On 19 April 2022, the European Commission has launched a new page on the e-Justice Portal concerning children from Ukraine (available here in all EU languages).

It is an operational extension, in a dramatic context, of the work undertaken by the Commission to strengthen the protection of migrant children.

Background

According to the European Commission:

Russia’s military aggression against Ukraine raises questions about the situation of refugee children who are displaced in the European Union from Ukraine. The issue becomes even more complex when these children are separated from their families, either because they have remained in Ukraine or because they are refugees in another Member State.

It is now urgent to be able to ensure that these children are protected against the risk of violence, exploitation, illegal adoption, abduction, sale or child trafficking. For this reason, it is essential to use the instruments that protect the rights of these children.

There are instruments in European and international law to ensure the protection of children, with special provisions for the protection of and assistance to children temporarily or permanently deprived of their family environment, including in emergency situations, such as an armed conflict.

EU and International Rules on Civil Judicial Cooperation 

The new webpage contains clear and practical information on the rules applicable to judicial cooperation in cross-border cases involving Ukrainian children, including issues of jurisdiction, applicable law, recognition of decisions, and cooperation between authorities, in particular via the European Judicial Network in civil and commercial matters (EJN-civil).

It provides for many useful links to key legal instruments and information on Ukrainian law provided directly by the Ukrainian Ministry of Justice.

This page is intended for judges, lawyers, notaries, central authorities, but also for social workers in charge of child protection and staff in charge of registering minors arriving from Ukraine.

More information here.

EC’s Initiative on Recognition of Parenthood – An Update

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Anna Wysocka-Bar
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The European Commission (EC) set out an initiative Recognition of parenthood between Member States. As underlined by the EC, the initiative aims to ensure that parenthood, as established in one EU country, is recognised across the EU, so that children maintain their rights in cross-border situations, in particular when their families travel or move within the EU. Currently, in certain circumstances they might see the parenthood not recognised, which in turn might result in adverse consequences for the child (for example, obstacles in obtaining a passport or an identity card).

These problems might be easily illustrated by the background of the case, which resulted in a very recent judgement of the Court of Justice in Stolichna obshtina, rayon “Pancharevo” (C-490/20). See posts on this blog on the attitude of administrative authorities of some Member States, on the example of Bulgaria and AG Kokott’s opinion as to its implications in EU law, especially the Charter of Fundamental Rights of the EU – respectively – here and here.

Inception Impact Assessment

As reminded in the inception impact assessment published in Spring 2021, there is currently no instrument on the recognition of parenthood at the international level. The Hague Conference on Private International Law (HCCH) is engaged in exploring the possibilities of tackling this issue (information about these works might be found at HCCH website here). In the EU, each Member State applies its own law on the recognition of civil status records/judgements on parenthood handed down in another Member State. On the one hand, under EU treaties, substantive family law falls within the competence of Member States. Their substantive rules on the establishment and recognition of parenthood differ. On the other hand, the EU has competence to adopt measures concerning family law with cross-border implications pursuant to Article 81(3) TFEU. These measures can include the adoption of common conflict rules and the adoption of common procedures for the recognition of judgments issued in other Member States. The EC plans to present a proposal of the regulation by the third quarter of 2022.

Public Consultation

The EC has also lunched a public consultation. The outcome of the consultation was recently published (and is available here). Although collected answers are not necessary representative for the whole EU (interestingly, out of 389 answers 112 come from Slovakia), they indicate that indeed there are instances where parenthood was not recognised as between Member State.

(…) the cases mainly involved a child born out of surrogacy (37% or 116 responses), followed by a child born out of assisted reproductive technology (ART) (23% or 73 responses) and second parent adoption by the partner of the biological parent (21% or 65 responses). Other cases in which parenthood was not recognised included parenthood established by operation of law (14% or 45 responses) and adoption by two parents (10% or 30 responses). Adoption by one single parent and establishment of parenthood over an adult were not recognised according to 6% (or 18 responses) and 3% (or 8 responses) respectively.

As specified by respondents, the primary reason for not recognising parenthoods established in another Member State is that the recognition of parenthood is contrary to the national law of the Member State [or rather a public policy of that Member State? – AWB] where recognition is sought (72% or 184 responses) (…)

Expert Group

The Expert Group was set up to advise EC on the preparation of this new legislative initiative. The Group has met already on several occasions. As  minutes of these meeting reveal (see here for details), the Group was discussing, inter alia, the very notion of “recognition” with respect to parenthood, which often is confirmed by an administrative document, for example the birth certificate.

(…) existing Union instruments address the circulation of authentic instruments under three possible forms: acceptance, only enforcement and recognition and enforcement, and that by definition enforcement is not applicable to the status of persons. The group considered that acceptance may refer only to the evidentiary effects of the facts recorded in the document but not to the existence of a legal relationship, such that only recognition would be relevant for the purposes of the planned regulation on parenthood. 

It was thus agreed that the term ‘recognition’ should be used in the proposal as it refers not only to the factual elements but also to the legal effects of the authentic instrument. 

Enhanced Cooperation?

It might be added that adoption of a regulation under Article 81(3) TFEU requires unanimity. As a result, so far regulations aimed at unifying international family law were adopted within enhanced cooperation, due to lack of such unanimity (for example, the Divorce Regulation). The side effect is that these regulations are applied only in participating Member States, which undermines the unification efforts of the EU. Hence, there is a risk that non-participating Member States could be the ones, in which the problem of non-recognition of parenthood established in another Member State is more pressing than in other ones.

Law Commission of England and Wales’s New Project on Conflict of Laws and Emerging Technology

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The Editors of the EAPIL blog
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The author of this post is Burcu Yüksel Ripley, who is a Senior Lecturer in law and the Director of the Centre for Commercial Law at the University of Aberdeen.

On 25 November 2021, the Law Commission of England and Wales announced, as part of an update on its work on smart contracts, that it has agreed with the Government to undertake a project on conflict of laws and emerging technology. This project will look at conflict of laws rules as they apply to emerging technology (including smart legal contracts and digital assets) and consider whether law reform is required. The Commission hopes to be able to begin work in the first half of 2022.

Conflict of laws and emerging technology was among the ideas for potential areas of law reform within the scope the Law Commission’s 14th programme of law reform. In the area of commercial and common law with a focus on emerging technology, the Commission has been working on three projects on smart contracts, digital assets and electronic trade documents which are, to some extent, interconnected. Its work on these projects has identified certain difficulties with the application of conflict of laws rules (covering both jurisdiction and applicable law rules in this context) in relation to emerging technology, including distributed ledger technology (DLT):

  • In the context of its work on smart contacts, which the Commission concluded with a confirmation that the existing law of England and Wales is able to accommodate and support smart legal contacts, it devoted Chapter 7 of its advice to Government on smart legal contacts (published on 25 November 2021) to ‘Jurisdiction and smart legal contracts’. The Commission considered various issues concerning jurisdiction and applicable law in relation to smart contacts and assessed that “the problem of digital location – that is, the difficulty of ascribing real-world locations to digital actions and digital objects – is amongst the most significant challenges that private international law will have to overcome in relation to emerging technology, including smart legal contracts.” (see paragraph 7.145 of the advice).
  • In the context of its work on digital assets, which seeks to support and facilitate the development of digital assets and ensure that the law recognises and protects them in a digitised world, conflict of laws is mentioned in the call for evidence (published on 30 April 2021) as an area which is likely to be affected by the issues covered by the call for evidence. The Commission therefore sought to hear more details from respondents on conflict of laws issues relating to digital assets (see para 2.80 of the call for evidence on digital assets). The digital assets project is currently at the pre-consultation stage, with the expectation that the consultation paper will be published in mid-2022. An interim update paper on this project is available here.
  • In the context of its work on electronic trade documents, which seeks to make recommendations for law reform to allow for legal recognition of electronic trade documents (eg bills of lading and bills of exchange), some conflict of laws issues relating to electronic trade documents were highlighted in the consultation paper (published on 30 April 2021, see in particular pp.124-127 of the consultation paper on digital assets: electronic trade documents). There were two main questions specifically mentioned in the consultation paper: 1) “Where is an electronic trade document located at any given time (and related questions such as where does a transfer take place)?” and 2) “How will an electronic trade document issued in England and Wales be treated in a country that does not recognise the validity of electronic trade documents?”. The Commission, in this consultation paper, provisionally proposed to consider the private international law aspects of digital assets, including electronic trade documents, as part of a separate project that could be taken as part of its 14th programme of law reform. The electronic trade documents project is currently at the policy development stage.

The Commission’s new project on conflict of laws and emerging technology is a very timely project. The Law Commission of England and Wales can only make recommendations for the law of England and Wales. However, some of its recommendations might have a UK-wide impact. This project should also be seen as an opportunity to help facilitate the development of internationally widely accepted private international law rules in relation to emerging technology given the current work of the Hague Conference on Private International Law concerning private international implications of the digital economy, including DLT and its applications (including digital assets).

EU Parliament Briefing on the UK’s possible re-joining of the Lugano Convention

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Gilles Cuniberti
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The European Parliamentary Research Service of the European Parliament has issued on November 18th, 2021, a Briefing on The United Kingdom’s possible re-joining of the 2007 Lugano Convention.

The summary of the briefing reads as follows:

The 2007 Lugano Convention is an international treaty that regulates the free movement of court judgments in civil cases between the Member States of the EU, on one hand, and the three EFTA states (Switzerland, Norway and Iceland), on the other. The convention effectively extends the regime of quasi-automatic recognition and enforcement of judgments that was applicable between EU Member States at the time under the Brussels I Regulation (No 44/2001).

Whereas the EU rules currently in force regulating the free movement of judgments in civil cases between the EU Member States – the 2012 Brussels I-bis Regulation (1215/2012) – bring about an even higher level of integration and presume, therefore, a very high level of mutual trust between the national judiciaries of the Member States, relations between the EU and EFTA Member States remain at the level of integration prescribed in 2001 by the Brussels I Regulation.

Following the expiry of the transition period provided for by the Withdrawal Agreement between the United Kingdom (UK) and the EU, the UK is no longer bound by either the Brussels I-bis Regulation or the 2007 Lugano Convention. Given the fact that the latter is open not only to EU and EFTA Member States, but also explicitly to third countries, the UK has made a bid to re-join the Lugano Convention. For a third country to become part of this legal regime, all parties to the convention must give their explicit consent. Whereas this has been the case with Switzerland, Norway and Iceland, the European Commission, acting on behalf of the EU as a party to the 2007 Lugano Convention, has indicated that it is not prepared to grant such consent, effectively blocking – for the moment – the UK’s reintegration within the Lugano regime of mutual recognition of civil judgments.

For the Commission, accession to the Lugano regime is bound up with the notion of close economic integration with the EU, presupposing a high level of mutual trust. Participation in the Lugano system should not therefore be offered to any third country that is not part of the internal market.

GEDIP Recommendation on the PIL Aspects of the Future EU Instrument on Corporate Due Diligence and Accountability

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The Editors of the EAPIL blog
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This post was contributed by Hans van Loon, a member of GEDIP and of the Institut de Droit International and a former Secretary General of the Hague Conference on Private International Law. 

The European Group for Private International Law at its annual – virtual – meeting in September 2021 adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability.

The GEDIP adopted this Recommendation although the Commission has not yet published its legislative initiative on mandatory human rights and environmental due diligence obligations for companies, to which EU Commissioner for Justice, Didier Reynders, committed on 19 April 2019. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”.  As the Commission will likely draw inspiration from this document, the GEDIP considered the EP Resolution when drafting its Recommendation. The GEDIP also took into account various legislative initiatives taken by Member States such as the 2017 French Loi sur le devoir de vigilance and the 2021 German legislative proposal for a Sorgfaltsplichtengesetz (see II Background to the Proposal, 3), as well as recent case law in the UK and the Netherlands (See II Background to the Proposal 2).

The Recommendation starts from the premise that the future EU Instrument (whether a Regulation or a Directive) will have a broad, cross-sectoral scope, and will apply both to companies established in the EU and those in a third State when operating in the internal market. In order to accomplish its aim, the Instrument, in addition to a public law monitoring and enforcement system, should create civil law duties for the relevant companies. Since such duties may extend beyond Member States’ territories, they will give rise to issues of private international law. To be effective, the Instrument should not leave their regulation to the differing PIL systems of the Member States. Ultimately, the proposed rules may find their place in revised texts of EU regulations, including Brussels I recast, Rome I and Rome II. But since revisions of those regulations are unlikely to take place before the adoption of the Instrument, and as these rules are indispensable for its proper operation, the proposal is to include them in the Instrument itself.

The Recommendation therefore proposes that the Instrument extends the current provision on connected claims (Art. 8 (1) Brussels I) to cases where the defendant is not domiciled in a Member State, creates a forum necessitatis where no jurisdiction is available within the EU, determines that the Instrument’s provisions have overriding mandatory effect whatever law may apply to contractual and non-contractual obligations and companies, and extends the rule of Art. 7 of Rome II to claims resulting from non-compliance in respect of all matters covered by the Instrument, while excluding the possibility of invoking Art. 17 of Rome II by way of exoneration (The Annex to the Proposal contains suggestions concerning the form and the substantive scope of the future EU instrument).

European Parliament Report on the Proposal for a Regulation on e-CODEX System

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Marion Ho-Dac
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On 15 October 2021, the two Rapporteurs of the European Parliament, Emil Radev and Nuno Melo (following a Joint committee procedure, i.e. Committee on Legal Affairs and Committee on Civil Liberties, Justice and Home Affairs) released a Report on the Proposal for a Regulation of the European Parliament and of the Council on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system, already mentioned on the blog here and here), amending Regulation (EU) 2018/1726 eu-LISA (see the Regulation Proposal here).

The Explanatory Statement presenting the main reasons for the proposed amendments on the Regulation Proposal reads as follows:

Introduction

E-Justice is one of the cornerstones of the efficient functioning of judicial systems in the Member States and at the European level. It is an essential instrument to facilitate the access to justice and provide legal protection to European citizens and companies in the digital era. It is thus important that appropriate channels are developed to ensure that justice systems can efficiently cooperate in a digital way.

The Commission’s Communication on the digitalisation of justice, A toolbox of opportunities, of 2 December 2020, sets out a new approach to the digitalization of justice based on a comprehensive set of financial and IT legal instruments to be used by various actors in the judicial systems. The Commission also presented the “Proposal for a Regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system)”, the e-CODEX Regulation.

On 29 April 2021 it was announced that the file shall be dealt with jointly by two committees – the Civil Liberties, Justice and Home Affairs Committee (LIBE), and the Legal Affairs Committee (JURI). MEP Emil Radev (JURI) and MEP Nuno Melo (LIBE) were appointed rapporteurs for the referred Regulation. E-CODEX is a golden standard/key technological enabler for modernising, through digitalisation, the communication in the context of cross-border judicial proceedings. Since the start of the project in December 2010, e-CODEX has transformed from an ambitious project to an operational Digital Service Infrastructure (DSI) in the judicial domain. Currently, the focus lies on the transition of the e-CODEX project towards a long-term sustainable and secure solution for the maintenance of e-CODEX.

The Rapporteurs believe that this Regulation, as an instrument which is directly applicable in all Member States and binding in its entirety, will guarantee a uniform application of the rules on e-CODEX across the EU and their entry into force at the same time. They welcome the aim to offer legal certainty by avoiding divergent interpretations in the Member States, thus preventing legal fragmentation. By establishing the e-CODEX system, the adoption of the Regulation will contribute to the uptake of e-CODEX by more Member States for procedures in which the system is already used as well as for future ones. The E-CODEX project aims to improve the cross-border access of citizens and businesses to justice in European Union as well as to improve the interoperability between judicial authorities within the European Union. It is designed as a decentralized system based on a distributed architecture that enables connectivity between national systems.

The rapporteurs believe that the e-CODEX system should be seen as a preferred solution for the establishment of interoperable and secure decentralised communication networks between national IT systems in cross-border judicial cooperation in civil and criminal  matters. The Proposal aims to entrust the further development and maintenance of e-CODEX to the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) as of July 2023.

  1. Scope

The scope of this Regulation is the electronic exchange of data in the context of cross-border judicial cooperation in civil and criminal matters (Article 2). The e-CODEX system should be viewed as the preferred solution for an interoperable, secure and decentralised communication network between national IT systems in this field.  The rapporteurs are of the opinion that Annex I, containing a list of instruments providing for judicial procedures subject to eCodex, should be deleted. The scope of the Regulation should instead be established by reference to the judicial cooperation in civil and criminal matters (Article 2). This allows for avoiding any risk of leaving out of the scope judicial procedures for which it is appropriate to foresee the possibility to use e-Codex. Moreover, a simple reference to Article 81 and 82 TFEU would have not been sufficient as instruments predating the Lisbon Treaty would not have been covered. Finally, the Regulation should only deal with the use of e-Codex for procedures in civil and criminal matters. Other uses of e-Codex that may be established by future legislative acts should not be addressed by this Regulation as they would require adaptations that cannot be foreseen at present (Recital 11; Article 2).

  1. Definitions

The Commission proposal does not contain clear and concrete provisions regarding the operating conditions of access points. The rapporteurs further developed the terminology of e-Codex to give more clarity to the following expressions: “authorised e-Codex Access point”, “e-Codex correspondents” and “digital procedural standards” (Article 3).

  1. Allocation of responsibilities

It is necessary to ensure the long-term sustainability of the e-CODEX system and the efficiency of its governance while ensuring the independence of the national judiciaries; therefore, an appropriate entity for the operational management of the system is to be designated. The proposal provides for the creation of an e-CODEX Advisory Group and a Programme Management Board for e-CODEX (Article 12). Safeguards have been introduced for the independence of the judiciary that shall never be negatively impacted on by the e-CODEX system (recitals 7 and 9; Article 12a new). For a sound and clear operation of the eCodex system, further amendments have been tabled to precisely delineate the roles of the Commission, the Member States and eu-Lisa (Recitals 5, 12, 15, 21; Articles 3(1)b, 3(1)ba new, 6(4)a new, 7, and 16a new).

  1. Optimisation of the e-CODEX system

The rapporteurs introduced, for the sake of efficiency of e-Codex, some specifications on the authorized access points and on the designation of correspondents by Member States (Article 3(1)b, Article 3(1)ba new and Article 7).

  1. Delegation of powers to COM

Since the scope of the eCodex Regulation should be limited to the judicial cooperation in civil and criminal matters, but given that in the future it could be appropriate to make other procedures subject to the eCodex system, the two Rapporteurs are of the view that a certain flexibility is needed when it comes to the scoping of the Regulation itself. This is why provisions on delegated acts have been introduced. These provisions allow for further expanding the operation of eCodex while fully preserving the prerogatives of the Parliament on the scoping of the Regulation (Article 5(3a) new and 16a new). 

In the Commission Financial Statement, reference is made to the expansion of the eCodex system to other procedures via implementing acts (point 2.2.3). This would be neither desirable nor legally appropriate. However, since the Financial Statement cannot be amended by the co-legislators, the insertion of the provisions empowering the Commission to adopt delegated acts is sufficient to keep parliamentary scrutiny intact.

  1. Private entities operating the access points and data protection

Judicial authorities and public prosecutors in many Member States usually have recourse to the services of contractors. Therefore, providing for the involvement of private entities and limiting it to the functioning of the e-Codex system does not set a dangerous precedent. However, safeguards should be in place given the sensitivity of the administration of justice and of the data and information dealt with by judicial authorities. This is the reason why the two Rapporteurs have foreseen that private entities can operate the access points only if authorised by Member Stated and provided that they fully comply, like public authorities possibly charged with that same task, with existing legislation on data protection (Recital 15, 15a new, 17; Article 12a new).

  1. e-Justice Core Vocabulary

With a view to strongly and thoroughly encourage judicial cooperation and mutual trust, interoperability should be ensured not only as regards Information and Communication Technology, but also in relation to terminology. Otherwise, even the most efficient system of interconnection would not be sufficient to make judicial authorities, legal practitioners, citizens, businesses and stakeholders properly understand each other. It is in the light of this that the two rapporteurs have chosen to insert the reference to the e-Justice Core Vocabulary in the definition of the “digital procedural standard” (Article 3, paragraph 1, point ga, new).

Conclusion

The two rapporteurs find that the proposal put forward by the Commission goes in the right direction by putting the question of interoperability at the heart of the EU efforts to stimulate and enhance the judicial cooperation across the continent.The proposal itself can be considerably improved to find a delicate and vital balance between interoperability and judicial independence, efficiency and data protection, speed and fundamental rights, technology and the rule of law.

More information here.

European Parliament Proposes to Regulate Private Funding of Litigation

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Gilles Cuniberti
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In June 2021, the Committee on Legal Affairs of the European Parliament issued a Draft Report with recommendations to the Commission on Responsible private funding of litigation.

The Report was accompanied by a Study on Responsible private funding of litigation of the European Added Value Unit (authors: Jérôme Saulnier with Ivona Koronthalyova and Klaus Müller) of the European Parliament, issued in February 2021. Such studies are mandatory for proposals made by the European Parliament under Art. 225 TFEU.

The opinion of the Parliament is that, while Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers identifies certain safeguards relating to litigation funding, they are limited to representative actions on behalf of consumers taken under that Directive, and therefore exclude many other types of action or categories of claimants. The Parliament proposes to establish effective safeguards to all types of claims.

Regulatory Scheme

The Parliament proposes first to regulate the activities of litigation funders within the EU by establishing an authorisation system by supervisory autorities. Individual Member States could decide that funding litigation would be prohibited for proceedings in their Member State, or “for the benefit of claimants or intended beneficiaries resident within their Member State”.

Funders should conduct business from a registered office in a Member State, from which they would have to seek the authorisation.

Funding agreements entered into by unauthorised funders would be invalid.

Rules Governing Third Party Funding Agreements

The Parliament then proposes to adopt rules governing the content of third party agreements and disclosure obligations.

In particular, the following mandatory rules would apply:

  • Any clause in third party funding agreements granting a litigation funder the power to take or influence decisions in relation to proceedings would have no legal effect.
  • Agreements in which a litigation funder is guaranteed to receive a minimum return on its investment before a claimant or intended beneficiary can receive their share, would have no legal effect.
  • Absent exceptional circumstances, where a litigation funding agreement would entitle a litigation funder to a share of any award that would dilute the share available to the claimant and the intended beneficiaries to 60% or below of the total award (including all damages amounts, costs, fees and others expenses), such an agreement should have no legal effect.
  • Provisions that purport to limit a litigation funder’s liability for costs should have no legal effect.
Applicable Law

While the proposed directive does not include express choice of law rules, it provides that funders would commit to submit funding agreements to the law of the Member State of the intended proceedings “or , if different, of the Member State of the claimant or intended beneficiaries”.

Article 5(1) of the proposed Directive reads:

Member States shall ensure that supervisory authorities only grant or maintain authorisations, whether for domestic or cross-border litigation or other proceedings, to litigation funders who comply with the provisions of this Directive, and who meet, in addition to any suitability or other criteria as may be set out in national law, at least the following criteria: 

(b) they commit to concluding third-party funding agreements subject to the laws of
the Member State of any intended proceedings, or, if different, of the Member
State of the claimant or intended beneficiaries;

So, it seems that the law of the claimant (or intended beneficiaries) should always apply. Since the competence to allow the activity is attributed to the State where the claimant would be resident (see above), it seems that the intent of the drafters of Art. 5(1)(b) was to designate the law of the residence of the claimant (or intended beneficiaries).

The obvious problem with this rule is that there could be several claimants, and that the text expressly contemplates the possibility that there would be intended beneficiaries, who could also have their residence in a different State.

Another problem is that the rule seems to exclude claimants based outside of the EU (would at least a branch in the EU suffice?).

Finally, it would quite remarkable that a Member State prohibits third party funding, but then would have to accept it for claimant based in more permissive States, under the law of those other States.

Overall assessment on choice of law: peut mieux faire.

E-Commerce Meets Justice

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Elena Alina Ontanu
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According to Frank Woud (e-CODEX Community and External Relations Manager, Ministry of Justice and Security, The Netherlands):

The full potential of the European e-commerce market has not yet been reached. While consumers feel safer buying from online stores within the borders of their own country rather than from other European countries, European traders experience a range of challenges of their own, such as the lack of a level playing field and the overwhelming complexity of the legal and judicial system. Justice is the sine qua non for trade, and e-commerce will only be able to reach its full potential in Europe when justice permeates the digital realm. e-CODEX, the digital platform for cross-border legal data exchange within the European Union (EU), plays an important role in this regard. The mission of e-CODEX is to make cross-border justice accessible for all citizens and businesses within the EU.

To further this pursuit, e-CODEX hosted on 25 November 2020 an online roundtable discussion about e-justice as an enabler for cross-border e-commerce in Europe. The webcast of the roundtable discussion can be viewed here.

The e-Commerce Meets Justice White Paper is a representation of the facts and opinions expressed by the panel members. The panel was composed of Margarita Touch (Information Officer at DG JUST), Luca Cassetti (Secretary General of Ecommerce Europe), Marco Velicogna (Researcher at Institute of Legal Informatics and Judicial Systems of the National Research Council of Italy), and Hans van Grieken (Senior Technology Researcher at Capgemini, Gartner and Deloitte).

Their contributions to the White Paper discuss: e-commerce and developments triggered by the pandemic, the SMEs heavy reliance on platforms for cross-border e-commerce, the legal aspects of inter-European e-commerce, alternative dispute resolution means, and the role of e-justice in supporting cross-border e-commerce and building consumers’ trust.

More information on e-CODEX can be found here.

The Use of SLAPPs to Silence Journalists, NGOs and Civil Society

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Marta Requejo Isidro
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Strategic Lawsuits Against Public Participation (SLAPP) can be defined as lawsuits intended to intimidate and silence critics by burdening them with the cost of a legal defense, until they abandon their criticism or opposition.

Some jurisdictions have already passed anti-SLAPP laws. In its Action plan for democracy, of 2020, the Commission had already announced its intention to present an initiative to protect journalists and civil society against SLAPPs in 2021. An Expert group was created in December 2020.

The topic is of course not new. It has gained momentum again – possibly following the assassination of Daphne Caruana Galizia in October 2017- also at the Council of Europe, and within the civil society (see, for instance on the need for a EU legislative proposal to protect public watchdogs from legal harassment  here and here.)

On 5 July 2020, a study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee on SLAPP and PIL instruments was published, authored by J. Borg-Barthet (who is one of the members of the Expert Group mentioned above), Benedetta Lobina and Magdalena Zabrocka.

The document analyses legal definitions of Strategic Lawsuits Against Public Participation (SLAPP), assesses the compatibility of anti-SLAPP legislation with EU law, and recommends that an anti-SLAPP Directive be adopted.

Of special interest for PIL is that it also recommends that the Brussels I bis Regulation and Rome II Regulation be recast to limit the incidence of SLAPPs. The final conclusion in this regard reads as follows:

In addition to the adoption of an anti-SLAPP Directive, it is recommended that the Brussels Ia Regulation be recast with a view to adopting a bespoke rule concerning defamation claims and thereby to distinguish jurisdiction in defamation cases from ordinary torts. To this end, it is recommended that jurisdiction should be grounded in the forum of the defendant’s domicile unless the parties agree otherwise. This would enable public interest speakers to foresee where they will be expected to defend themselves, and would be in keeping with the core values of the Brussels Ia Regulation, namely predictability and the limitation of forum shopping.
Greater predictability as to the outcomes of choice of law processes is also needed to dissuade meritless litigation intended to suppress public participation. Accordingly, it is recommended that a new rule be included in the Rome II Regulation which would harmonise national choice of law rules in defamation cases. It is recommended that this rule should focus on the closest connection with the publication and its audience, namely the law of the place to which the publication is directed.

I  expect comments – here or elsewhere- to both proposals and their underlying rationale.

The first impression is a little bit disappointing. The proposal regarding the applicable law is a general one for defamation cases, i.e., it is not SLAPP-specific. On jurisdiction, I would be cautious to spouse the assertion on page 39:

(…), the Court of Justice has developed a body of case law whose net effect is to afford further opportunities for forum shopping and vexatious litigation strategies in defamation cases, particularly where the claimed defamatory content is posted online.

Moreover  a solution which entails giving up eDate and Martinez looks unrealistic to me (in this regard, though, C-800/19 is worth considering; the Opinion was available in February 2021). Vexatious claims have always existed. The lis pendens and related actions rules provide a solution at the jurisdictional level for a plurality of claims within the EU: a word on why they would (or not) be fit in an anti-SLAPP scenario is missing. In addition, and more important, the Brussels regime does not prevent reacting against vexatious claims with the procedural tools available at the national level, such as abuse of process. That is why I am not convinced either by the following sentence, on page 42:

‘In particular, judgments concerning the deployment of antisuit injunctions reveal a Court that is reluctant to replace the ex ante general analysis deployed by the legislator with its, or a national court’s, judgement of the merits of jurisdictional justice in individual cases‘

Even if the bottom line was correct, antisuit injunctions would not have provided the pertinent example.

Beyond the EU borders, with the exception of Articles 33 and 34 of the Brussels I bis Regulation, which have no parallel in the Lugano Convention, the situation is left to the Member States; simultaneous proceedings before the courts of the UK and the USA is simply a situation that cannot be solved by the European lawmaker.

There is indeed a need to balance the interests of the claimants and of the defendant (the target of the strategic lawsuit) also in relation to international jurisdiction and to the conflict of law rule.

In my opinion, achieving the goal requires a more grounded examination; also, and mainly, to acknowledge that the problem is to be addressed at a different level – something that the Study does in its 5th part devoted to an anti-SLAPP directive.

But, just like the authors say, the adoption and implementation of such a directive may take too long. The time to react is now, and it is not imperative (not even for reasons of distribution of competences) to wait for Brussels to take the lead.

(Photo: The use of SLAPPs © Image used under the license of Adobe Stock)

IDI Draft Resolution on Human Rights and Private International Law

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Marta Requejo Isidro
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In spite of the numerous studies and decades of analysis, the interface between private international law and human rights keeps scholars busy.

No surprise, thus, that the (current) 4th Commission of the Institut de Droit International is presenting a new Draft Resolution next August, on the occasion of the IDI biannual meeting, held on line.

The Resolution, whose reporter is Fausto Pocar, will be based on the preparatory documents – including the
Report of Jürgen Basedow, Rapporteur until The Hague session in 2019 -, the previous draft resolutions, the written proposals of amendments submitted at The Hague that could not be discussed, and the plenary discussions as they result from the minutes of the Hague session.

The text in its version of 27 January 2021, is available on line. It is preceded by a thorough introduction to the work done until that date and to the general and specific issues dealt with. For a proper understanding of the Draft Resolution, it is worth noting that it addresses, without necessarily espousing, the two main points of criticism at the Hague session: “the Draft Resolution then discussed did not capture sufficiently the relationship between private international law and the public international law dimension of human rights protection, sometimes indulging in technical descriptions of private international law issues that had no or a too limited human rights component”; and “it was observed that the consideration of human rights in that Draft Resolution might appear to the reader exceedingly influenced by western values rather than focused on a global vision which would better suit an Institute’s Resolution” (NoA: Having read the documents available online regarding the first draft resolution I personally fail to understand the first reproach, but I am probably too much familiar with PIL technicalities myself. No opinion on the second ground for criticism).

The current Draft Resolution consists of 20 provisions. In a nutshell, like the former one it addresses the impact of human rights on international jurisdiction, applicable law and recognition: the tripartite division typical to cross-border settings underlies indeed the narrative of the Resolution – although not in the unsophisticated way I am describing it. Also like the former text, the present one includes provisions devoted to specific heterogeneous areas (name, identity, marriage, parentage, property, corporate social responsibility…), to explicitly tackle human rights concerns germane to each area. By way of example: under the heading “Marriage” the following is written:

(1) Child marriage and marriage agreed upon in the absence of the free and full consent of the two spouses infringe upon human rights and shall not be recognized

Or, under the heading “Protection of property”:

(2) Where a change of the applicable law resulting from private international law is conducive to the loss of such right, the forum State shall grant the holder an equivalent right to the extent possible.

The Resolution is short; so are its articles, separately taken. The wording is clear, attention is paid to stay in the realm of PIL and, I believe, to avoid assertions that may not be palatable to the IDI majority of Public International Law members. The scholarly distinction still exists (not only at the IDI), whether one likes it or not, and the gap does not seem to be without consequences.

I fear human rights activists will feel a little bit deceived by the Draft Resolution, should it be adopted as it stands. It may indeed be in the nature of this kind of document not to be too ambitious. This one remains to a large extent programmatic; it defers to other instruments or fora; it openly prefers to promote the accession to, and the respect of existing international conventions instead of coming up with detailed, statutory-like proposals. It is soft in the proper sense of the word. However, to my mind, it is no less relevant because of this character, which is obviously a conscious choice following in-depth analysis and reflections. It may be the only one possible to date.

– Picture: Session of The Hague 2019. ©Marieke Wijntjes)

French Committee Proposes to Abandon Real Seat as a Connecting Factor in Company law

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The Editors of the EAPIL blog
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This post was contributed by Thomas Mastrullo, who is a lecturer at the Sorbonne Law School (Paris 1)

On 31 March 2021, the Legal High Committee for Financial Markets of Paris (“Haut Comité juridique de la Place Financière de Paris” – HCJP) has published a report on the applicable law to companies  (Rapport sur le rattachement des sociétés – see here). This report is of great interest for those who are interested in the evolution of international company law.

Context

For several years, there has been a reflection in France about the conflict-of-law rule in corporate matters.

We know that two theories coexist in international company law: the theory of incorporation, which consists in applying to the company the law of the State where it was incorporated and where its registered office, or statutory seat, is located; the real-seat theory, which submits the company to the law of the State where its head office, or central administration, is localised.

In French law, the conflict-of-law rule in corporate matters is laid down in unilateralist terms, with almost the same drafting, in Article 1837 of the Civil Code (see here) and in Article L. 210-3 of the Commercial Code (see here).

The doctrine is divided on the interpretation of these texts, which have been bilateralized by French Cour de cassation (e.g. Com. 9 mars 1993, n° 91-11.003, Bull. civ. IV, n° 94 ; see here). The traditional view among French writers is that the connecting factor is in principle the real seat, because the statutory seat is not enforceable against third parties in case of dissociation of the registered office and the head office. But the modern view is that the connecting factor is in principle the statutory seat, considering that third parties have an option between the registered office and the head office in case of dissociation.

In this context, by letter dated 18 February 2020, the HCJP was jointly seized by the Ministry of Justice and the Ministry of the Economy with a request for a study on the “Opportunity, feasibility and conditions of turning to the theory of incorporation”. This initiative takes place in an environment of increased economic and legal competition: the adoption of the theory of incorporation might strengthen the legal attractiveness and economic influence of France. But the referral letter does not ignore that such a liberal conflict-of-law rule might also encourage opportunistic behaviors by economic actors and departure of French companies abroad.

Several questions were therefore raised in the referral letter: Consequences of adopting the theory of incorporation in terms of attractiveness? Experience of other EU Member States? Compatibility with EU law? Risks of forum and law shopping? Consequences for matters related to company law?

Finally, the letter requested that “the necessary legislative and regulatory changes” be proposed.To meet this demand, a working group was set up under the chairmanship of Professor Hervé Synvet, composed of academics and legal practitioners.

The result of the working group’s reflection is the report under consideration, which is divided into two parts.

Impact of a New Conflict-of-law Rule in Corporate Matters on Other Matters

In the first part, the HCJP studies the impact that the evolution of the French connecting factor in corporate matters would have on other branches of law. Several matters are taken into consideration: tax law, insolvency law, social law, capital market law, regulation of foreign investments, banking and financial law. The conclusion is that the adoption of the theory of incorporation would have little impact on these different branches of the law, and in any case no negative effects likely to prevent a reform. Indeed, these different disciplines have their own conflict-of-law rules and the connecting categories are quite clearly defined in French private international law. In addition, each of these matters has a specific approach to the company seat.

Proposed Reform

In the second part, the working group argues in favor of an evolution of the French conflict-of-law rule. More precisely, it proposes to adopt a new connecting factor relying exclusively on the statutory seat – or registered office, and to abandon any reference to the real seat.

Arguments in favor of the adoption of the connecting criterion by the statutory seat

Several arguments are advanced in support of this proposition.

Firstly, this conflict-of-law rule would be simpler and, as a consequence, more favorable to legal certainty. Indeed, on the one hand, it would eliminate the touchy question of the place of the real seat and, on the other hand, it would guarantee respect for the operators’ choice of the law to rule their company or even their group of companies. Thus, France’s attractiveness might be reinforced. Secondly, the solution is inspired by the comparative private international law (German, Irish, Luxembourg, Dutch, British, Swiss and Delaware law are studied) which reveals a strong tendency towards the generalization of the theory of incorporation or connecting criterion by the registered office. Thirdly, the solution is presented as more suited to the development of EU law which, through the jurisprudence of the CJEU – and in particular the Centros, Uberseering, Inspire Art and Polbud judgments – and some regulations – such as European Regulation n° 2157/2001 on SE (see here), tends to favor the registered office as a connecting factor.

Although it is not unaware of the risk of law shopping, the HCJP considers that this risk should not be overestimated since the laws of the EU’s Member States have “a common base” because of the European directives adopted on corporate matters, which is likely to prevent a “race to the bottom”. Moreover, the transfer of registered office from one Member State to another is still difficult, which is an obstacle to law shopping.

Proposed new texts

The HCJP recommends amending the Civil Code, and in particular Article 1837, and repealing Article L. 210-3 of the Commercial Code.

The new bilateral conflict-of-law rule, applicable to all companies with legal personality, is set out in Article 1837, paragraph 1, of the Civil Code. It provides that the company would be governed by the law of the State in which it has its statutory seat – or registered office. Rather than a reference to the company’s incorporation, this formulation is chosen because it would ensure terminological continuity with the current Article 1837 and would model the French conflict-of-law rule on that of the European Regulation on the SE.

Besides, the HCJP devotes paragraph 2 of Article 1837 to companies without statutory seat. For these companies, the conflict-of-law rule would be inspired from the solutions provided by the Rome 1 Regulation: the applicable law would be the law chosen by the partners or, in the absence of choice, the law of the country with which the company is most closely connected.

The proposed Article 1837 reads:

Article 1837 du Code civil

La société est régie par la loi de l’État dans lequel elle a son siège statutaire.

À défaut de siège statutaire, la société est régie par la loi choisie par ses associés ou, à défaut de choix, par la loi de l’État avec lequel elle présente les liens les plus étroits.  

The HCJP proposes also to introduce a new article 1837-1 of Civil Code devoted to the lex societatis’ scope of application, inspired from Swiss law. The aim is to increase the readability and, as a result, the attractiveness of French law. A list of questions falling within the scope of lex societatis would be drawn, this list being non-exhaustive as suggested by the use of the French adverb “notamment” (which can be translated by “in particular”).

The proposed Article 1837-1 reads:

Article 1837-1 du Code civil

La loi applicable à la société en vertu de l’article précédent régit notamment : a) la nature juridique de la société ; b) la capacité juridique de la société ; c) la dénomination ou la raison sociale ; d) la constitution de la société ; e) la nullité de la société, ainsi que celle des délibérations sociales ; f) la dissolution et la liquidation de la société ; g) les opérations emportant transmission universelle de patrimoine et le transfert du siège statutaire ; h) l’interprétation et la force obligatoire des statuts ; i) la modification des statuts, en particulier la transformation de la société ; j) l’organisation et le fonctionnement de la société, ainsi que sa représentation ; k) les droits et obligations des associés ; l) la preuve, l’acquisition et la perte de la qualité d’associé ; m) la détermination des titres susceptibles d’être émis par la société ; n) la détermination des personnes responsables des dettes sociales et l’étendue de leur responsabilité ; o) la responsabilité civile encourue en cas de violation des règles gouvernant la constitution, le fonctionnement ou la liquidation des sociétés, ou d’obligations statutaires. 

In addition, the HCJP considers the introduction of an Article 1837-2 which includes a substantive rule aiming at protecting “French” contracting parties of foreign companies. More precisely, the legal or statutory restrictions on the capacity or the powers of the representatives of a company under foreign law, which would produce effect in external relations according to the foreign law, would be unenforceable against “French” co-contractors, as long as they are of good faith. This rule aims mainly to protect the co-contractors of companies incorporated outside EU – such as American companies which apply the ultra vires doctrine ; the risk is indeed lower in EU, thanks to the protective regime of directive 2017/1132/UE (see here).

The proposed Article 1837-2 reads:

Article 1837-2 du Code civil  

Les restrictions légales ou statutaires à la capacité juridique ou aux pouvoirs des représentants d’une société de droit étranger concluant un acte juridique en France qui, selon la loi régissant la société, produiraient effet dans ses relations externes, sont inopposables au cocontractant ayant légitimement ignoré ces restrictions. 

In conclusion, the HCJP’s “Report on the connecting factor of companies” appears to be a stimulating contribution for the modernisation of French international company law.

European Parliament Briefing Paper on Computerised System for Communication in Cross-border Judicial Proceedings (e-CODEX)

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Marion Ho-Dac
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On 14 June 2021, the Research Service of the European Parliament released a briefing paper related to the proposal for a regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system), authored by Rafał Mańko (EP Research Service).

The abstract reads:

The e-CODEX system is the digital backbone of EU judicial cooperation in civil and criminal matters. e-CODEX comprises a package of software products that allow the setting up of a network of access points for secure digital communication between courts and between citizens and the courts, while also enabling the secure exchange of judicial documents.

The project, which was launched in 2010 with EU grant funding, is managed by a consortium of Member States and other organisations and is coordinated by the Ministry of Justice of the German Land of North Rhine-Westphalia. Even though it is currently used by 21 Member States, e-CODEX lacks a clear, uniform and EU-wide legal basis. To remedy this situation, on 2 December 2020 the Commission put forward a proposal for an e-CODEX legal instrument (a regulation) to formally establish the e-CODEX system at EU level. The management of the project would be entrusted to eu-LISA (the EU Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice).

Within the European Parliament, the LIBE and JURI committees are jointly in charge of the file, and the draft report is expected shortly.

The Briefing can be freely downloaded here.

Thanks to Jorg Sladic for the tip-off.

New Tripartite Legal Guide for International Commercial Contracts

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Marion Ho-Dac
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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).

European Group of Private International Law’s 2020 Meeting: Minutes and Proposals

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Gilles Cuniberti
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The European Group of Private International Law (EGPIL-GEDIP) has published the minutes (in French) of its 2020 Meeting.

The topics discussed during the meeting included a proposal for a regulation concerning the applicable law to in rem rights, the codification of the general part of EU private international law and the accession of the European Union to the Hague Judgments Convention.

The EGPIL has also published separately a draft proposal for a regulation on the law applicable to rights in rem in tangible assets and Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments.

Kyoto Guidelines on Intellectual Property and Private International Law

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The Editors of the EAPIL blog
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The following text has been kindly provided by professors Toshiyuki Kono, Pedro de Miguel Asensio and Axel Metzger.

The International Law Association’s Committee on Intellectual Property and Private International Law has finished its work with the adoption and publication of the Kyoto Guidelines on Intellectual Property and Private International Law.

The Guidelines are the outcome of an international cooperation of a group of 36 scholars from 19 jurisdictions lasting for ten years under the auspices of ILA. The Kyoto Guidelines have been approved by the plenary of the ILA 79th Biennial Conference, held (online) in Kyoto on 13 December 2020.

The Guidelines provide soft-law principles on the private international law aspects of intellectual property, which may guide the interpretation and reform of national legislation and international instruments, and may be useful as source of inspiration for courts, arbitrators and further research in the field. Different from older regional projects, the Kyoto Guidelines have been prepared by experts from different world regions.

The Guidelines have now been published with extended comments as a special issue of the Open Access journal JIPITEC.

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

In the initial stages of the activities of the Committee it was agreed that its overall objective should be to draft a set of model provisions to promote a more efficient resolution of cross-border intellectual property disputes and provide a blueprint for national and international legislative initiatives in the field. Therefore, the focus of its activities has been the drafting of a set of guidelines with a view to provide a valuable instrument of progress concerning private international law aspects raised by intellectual property.

Furthermore, the Committee conducted a number of comparative studies and monitored the developments in different jurisdictions around the world.

The Committee also worked in collaboration with several international organizations, particularly the World Intellectual Property Organization and the Hague Conference on Private International Law.

The final text of the Guidelines consists of 35 provisions, which are divided in four sections: General Provisions (Guidelines1-2), Jurisdiction (3-18), Applicable Law (19-31) and Recognition and Enforcement of Judgments (Guidelines 32-35).

As suggested by the term “Guidelines”, this instrument contains a set of provisions intended to guide the application or reform of private international laws in this field. The Guidelines restate certain well-established foundational principles such as the lex loci protectionis rule and aspire to provide concrete solutions for pressing contemporary problems, in areas such as multi-state infringements and cross-border collective copyright management.

In order to make explicit the influence of the previous projects in the field and to facilitate the comparison with them, the short comments are preceded by the reference to the similar provisions adopted previously in the ALI Principles (American Law Institute, Intellectual Property: Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes, ALI Publishers, 2008), CLIP Principles (European Max Planck Group on Conflict of Laws in Intellectual Property, Conflict of Laws in Intellectual Property (Text and Commentary), OUP, 2013), Transparency Proposal (Japanese Transparency Proposal on Jurisdiction, Choice of Law, Recognition and Enforcement of Foreign Judgments in Intellectual Property, see the English text in J. Basedow, T. Kono and A. Metzger (eds.), Intellectual Property in the Global Arena – Jurisdiction, Applicable  Law, and the Recognition of Judgments in Europe, Japan and the US, Mohr Siebeck, 2010, pp. 394-402) and Joint Korean-Japanese Principles (Joint Proposal by Members of the Private International Law Association of Korea and Japan, see The Quarterly Review of Corporation Law and Society, 2011, pp. 112-163).

As an additional instrument to facilitate the uniform interpretation of the Guidelines, the Committee has prepared a set of extended comments to all the provisions.

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

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

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Marion Ho-Dac
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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.

Asian Principles for the Recognition and Enforcement of Foreign Judgments

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The Editors of the EAPIL blog
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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.

European Parliament Study on Cross Border Nuclear Safety, Liability and Cooperation in the EU

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Gilles Cuniberti
by

EPIn February 2019, Michael G. Faure (Maastricht University and Erasmus Law School Rotterdam) and Kévine Kindji (Maastricht University) presented to the European Parliament a Study on Cross-border nuclear safety, liability and cooperation in the European Union.

The abstract reads:

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the PETI Committee, aims at gaining deeper insights into the legal aspects of cross border nuclear safety and cooperation in the European Union. It analyses the legal framework of nuclear safety as well as the liability and insurance schemes for nuclear accidents. The study examines the current liability and insurance framework and formulates possibilities for a further involvement of the EU in the liability regime. Specific attention is paid to citizen and NGO involvement in decision-making concerning nuclear power plants. The study analyses the case law in that respect and formulates various recommendations to improve the regime concerning cross-border nuclear safety, liability and corporation in the EU.

The study can be freely downloaded here.

The Child Perspective in the Context of the 1980 Hague Convention

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Elena Alina Ontanu
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Marilyn Freeman (University of Westminster, London) has written an in-depth analysis on the Child Perspective in the Context of the 1980 Hague Convention at the request of the Committee on Legal Affairs (JURI Committee) of the European Parliament.

The abstract reads as follows:

This in-depth analysis, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Legal Affairs in the context of the Workshop to mark the 40th Anniversary of the Hague Convention on the Civil Aspects of International Child Abduction, examines the way in which subject children feature within Convention proceedings. It considers the aims of the Convention, and the lack of supranational control of its application. It draws on empirical research relating to the effects and consequences of child abduction to discuss the opportunities for children and young people to participate within Convention proceedings, and highlights the international obligations for such participation within the United Nations Convention on the Rights of the Child, The Charter of Fundamental Rights of the European Union, and other regional instruments. Different jurisdictional approaches are explained, and the role of culture in this context is probed. The impact of COVID-19 on abducted children is also explored.

Here’s an overview of the analysis.

The 1980 Hague Convention considers as paramount children’s interest in matters relating to their custody as well as their protection from the harmful effects of their wrongful removal or retention, and the procedures to secure their prompt return to the State of habitual residence. According to Article 12(1) of the Convention an abducted child under the age of 16 should be returned in less than one year since his/her wrongful removal or retention unless one of the limited exceptions to return under the Convention is established (see Articles 12(2), 13 and 20), and there are opportunities for children’s involvement in the far-reaching decisions which are taken in those proceedings.

The way in which these relevant provisions are interpreted and applied within the 101 Contracting States determine both the extent to which children’s rights are recognised and upheld under the Convention, as well as the success of the Convention in its aim of protecting children from the harmful effects of child abduction.

The present in-depth analysis relies on a small-scale qualitative study based on 34 interviews carried out by Professor Freeman (more about this can be read here). The empirical research sought to reveal more about ‘the lived experiences of those who had been through an abduction many years earlier’ and ascertain ‘whether, and how, the participants felt that the abduction had affected their lives, and if those effects had continued long-term’.

The results indicate that there is often still a lack of awareness by children and young people, and their families, about the opportunities to participate in the proceedings, as well as on how to ensure that their rights are recognised and protected. Furthermore, to observe the right of the children to benefit from meaningful opportunities to participate in the proceedings and prevent harm, it appears that a closer integration of children’s rights’ principles in the application of the Convention is desirable.

The impact of COVID-19 on children subject to abduction proceedings is also discussed. The international nature of these cases and the difficulties and limitations created by the pandemic meant that children had to spend an undesirable period after the decision waiting for return to be carried out. Additionally, a procedure of return can involve periods of quarantine, a situation that can exacerbate the child’s distress due to the separation from the abducting parent who may be a primary or joint primary carer and who may choose not to return with the child or be unable to do so. According to the analysis, the emotional effect of a return ordered in these circumstances may be very difficult for the child to manage. The remote conduct of return hearings can also create challenges for subject children and reflect on their decision about participating in a hearing that concerns them. According to Professor Freeman ‘children should have opportunities to express their views within abduction proceedings whether or not an objection to return has been raised, and regardless of whether or not the jurisdiction involved is governed by a regulatory regime, like Brussels IIa and the upcoming Recast, which specifically address the rights of children to be heard within a specific jurisdictional area’. Thus, to protect children from the harmful effects of child abduction, it is paramount to give children who wish to participate in the proceedings about their abduction the opportunity to be heard when the decision has the potential to impact significantly on their lives.

The analysis concludes that further discussions are necessary in this area as well as a ‘closer incorporation of children’s rights’ principles in the 1980 Convention framework’.

EAPIL Position Paper on the EEO Regulation

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The Editors of the EAPIL blog
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The EU has developed a common judicial area where judgments given in one EU Member State are recognised and can be enforced in all others. To this end, the EU has adopted a number of legal instruments that regulate and ease cross-border enforcement, ensuring legal certainty for all parties and making these processes easier. One of them is Regulation (EC) 805/2004 creating a European Enforcement Order for uncontested claims (the EEO Regulation).

When it was adopted, the Regulation was a ground-breaking instrument that was the first to abolish the need for obtaining a declaration of enforceability in the requested state (the so-called ‘exequatur’). The EEO certificate has replaced it.

Other similar legal instruments were adopted in quick succession, leading to the ‘exequatur’ being abolished by Regulation (EU) 1215/2012 (the Brussels I bis Regulation), although with different conditions than those in the EEO Regulation.

In 2020, the Commission decided to evaluate the EEO Regulation, and to carry out a consultation as a part of the evaluation process. The Commission sought opinions on how the Regulation is working, also with regard to the Brussels Ibis Regulation. It also aimed to collect practical experiences with the EEO Regulation and views on its use in the future.

Upon an invitation by the Commission, the EAPIL formed a Working Group chaired by Jan von Hein (University of Freiburg/Germany). This Working Group presented a position paper in November 2020 that is now available here.

Members of the Working Group will also participate in the upcoming Commission’s online workshop on the revision of the EEO Regulation in January 2021.

Second Edition of the SIFoCC Multilateral Memorandum on Enforcement of Commercial Judgments for Money

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Pietro Franzina
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In December 2020, the Standing International Forum of Commercial Courts (SIFoCC), which brings together the commercial courts of several countries across the world, launched the second edition of its Multilateral Memorandum on Enforcement of Commercial Judgments for Money.

The memorandum is the result of a collaborative effort from judges sitting in the courts involved, and outlines the way in which the judgment of one jurisdiction can be enforced in another. Over 30 jurisdictions have contributed, including Australia, Brazil, Canada, France, Germany, Hong Kong, Japan, Kenya, Malaysia, New York, Singapore, South Korea and the United kingdom.

More information available here.

Towards UNIDROIT Transnational Principles of Effective Enforcement

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Marta Requejo Isidro
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Complaints about the inefficiency of enforcement mechanisms at national and transnational level are not new. The insufficiency of existing national and international legal frameworks is a growing cause for concern at all levels. Academics and practitioners acknowledge the fundamental importance of procedures and mechanisms for the effective enforcement of creditors’ claims both in domestic and in cross border situations. They also agree on the existence of numerous obstacles for enforcement in most jurisdictions, and on the need for a comprehensive and  detailed international instrument providing for guidance for national legislators to overcome such challenges.

In the agenda UNIDROIT (the International Institute for the Unification of Private Law) has published for the triennial period 2020 – 2022, transnational principles of civil procedure are included with
– high priority:  Formulation of regional rules;
– medium priority : Principles of effective enforcement (NoA: priority was moved to “high” by the UNIDROIT Governing Council at its 99th session);
– low priority:  International Civil Procedure in Latin America.

As a matter of fact, UNIDROIT has been actively working towards a soft harmonisation of civil procedural rules – mainly to be applied in transnational disputes but also meant to provide guidance in domestic law reforms- already for a while. In 2004, the Governing Council of UNIDROIT adopted the so-called ALI/UNIDROIT Principles of Transnational Civil Procedure (ALI=American Law Institute), which the organization itself defines as its “landmark instrument in this area”.

The ‘Principles’ consist of 31 provisions accompanied by a commentary. They aim to reconcile differences among various national rules of civil procedure, taking into account the peculiarities of transnational disputes as compared to purely domestic ones. They are intended to serve as guidelines for code projects in countries without long procedural traditions; also, as a basis for reform in countries with long and high-quality procedural traditions. They may also be applied by analogy in international commercial arbitration.

In 2013, UNIDROIT and the European Law Institute (ELI) started working together towards the development of European Rules of Civil Procedure. The ELI – UNIDROIT Rules were presented in an International Workshop Webwinar held as a closing event of the 99th session of the UNIDROIT Governing Council, on 25 September 2020.

In addition, UNIDROIT Work Programme 2017-2019 envisaged the preparation of Transnational Principles of Effective Enforcement to bridge the gaps of the ALI/ UNIDROIT Principles of Transnational Civil Procedure in this regard. A preliminary feasibility study was conducted by Rolf Stürner, Emeritus Professor at the University of Freiburg (Germany) and former co-reporter of the ALI/UNIDROIT Principles of Transnational Civil Procedure, and submitted to the Governing Council at its 95th session (2016). According to its final conclusion

Principles will set common minimum standards of enforcement, they will motivate legislatures to evaluate and improve the quality of their laws and thereby strengthen the efficiency of enforcement in foreign countries. Common minimum standards will be a source of increasing harmonization of enforcement laws, as well as predictability of the results of enforcement measures in foreign countries and facilitation of enforcement in cross border cases. A certain degree of harmonization is a necessary precondition of international cooperation in the field of cross border enforcement, which is designed to avoid conflicts of sovereignty and conflicting or superfluous parallel and cost intensive enforcement measures. Worldwide, there is sufficient common ground for specific principles of individual modes of enforcement and for overarching general principles of an overall system of efficient civil enforcement. The variety of organizational structures should not be considered a decisive obstacle to harmonizing principles. It will be possible to develop principles, which define managerial standards to be met by the enforcement mechanisms and the individual enforcement authorities and which at the same time leave necessary leeway for successful regional traditions and local needs. Co-operation with other organizations dealing with the harmonization of law could result in a helpful increase of human and financial resources. The experience of the first joint project with the American Law Institute was very encouraging.

At the time, the topic was nevertheless accorded low priority, which meant the work would only commence after the completion of the preparation of European Rules of Civil Procedure. In this context, the Secretariat received in December 2018 a proposal for the 2020-2022 Work Programme by the World Bank regarding a project on the “Development of a Working Paper to Outline Best Practices on Debt Enforcement”, which it presented on the occasion of the discussion of the 2020-2022 Work Programme at the 98th Session of the Governing Council. The proposal was discussed as a continuation, and a refinement, of the scope of the  “Principles of Effective Enforcement”, and eventually included in the new Work Programme by the General Assembly.

On 21 September 2020, the UNIDROIT Secretariat, as mandated by the Governing Council at the first meeting of the 99th  session, convened an internal consultation workshop on the project on Best Practices of Effective Enforcement. The UNIDROIT Governing Council, at its 99th session, approved the guidelines provided by the Secretariat regarding the proposed scope of the project, and authorised the establishment of a Working Group, to meet in Rome and on Zoom on 30-November – 2 December 2020. The composition of the group has not yet been disclosed; the MPI Luxembourg will be represented as an observer.

If the initial schedule is kept, the project will be a quick one, coming to an end already in 2022. No doubt it is worth to follow its development and to reflect on its potential impact on the law and practice of cross-border enforcement within the EU and beyond.

ELI Webinar on EU Conflict of Laws for Companies

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Gilles Cuniberti
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In the context of the 2020 Annual Conference of the European Law Institute, the feasibility study on EU Conflict of Laws for Companies: The Acquis and Beyond will be presented by Chris Thomale (proposer), Luca Enriques, Jessica Schmidt and Georg Kodek (Chair) today, 11 September 2020, from 15:15 until 16:15 CET.

International company mobility as well as regulatory competition of company laws depend on clearly cut out rules designating the applicable substantive company law. It would thus seem an integral part of a functioning internal market to provide such conflict of laws rules. Regrettably, however, a ‘Rome IV’ Regulation, ie an EU conflict of laws code for companies, despite manifold initiatives, has not been adopted yet. Instead, the stage has been left to the Court of Justice of the European Union (CJEU), which in well-rehearsed case law from the Daily Mail (C-81/87) until the Polbud (C-106/16) decisions has developed a certain framework for corporate mobility, culminating, of late, in Directive 2019/2121 on cross-border conversions, mergers and divisions. One big shortcoming of the European status quo is that the piecemeal harmonisation acquired through these developments still leaves a fundamental question unanswered: which company law regime by default is applicable to a given company?

This feasibility study will aim at laying the foundations for a prospective project that fully restates EU law on the matter implicit in conflict of laws legislation on adjacent topics like contract, tort, successions, insolvency and capital markets. Further, it will aim at foundations that go beyond CJEU case law and include national adjudicative practice and academic research into the picture. Based upon this acquis communautaire, the project of a future Rome IV Regulation can be investigated, notably putting to use techniques of private international law in order to address Member State reticence towards such an instrument as expressed hitherto.

To register for the webinar free of charge, please contact the ELI Secretariat at secretariat@europeanlawinstitute.eu.

The Unidroit Principles and the Covid-19 Crisis

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Pietro Franzina
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On 21 July 2020 the Unidroit Secretariat released a Note on the UNIDROIT Principles of International Commercial Contracts and the COVID-19 health crisis.

As stated in the website of Unidroit, the Note is to be considered as work in progress, and the Secretariat welcomes any comments or suggestions.

The Note’s presentation reads:

In the context of the outbreak of COVID-19, UNIDROIT has prepared this note as a form of guidance as to how the Principles could help address the main contractual disruptions caused by the pandemic directly as well as by the measures adopted as a consequence thereof. The note analyses whether parties may invoke COVID-19 as an excuse for non-performance, and if so, based on which concepts and under what conditions. The analysis also covers the scenario, likely to be common in practice, where performance is still possible, but has become substantially more difficult and/or onerous under the circumstances.

The document aims to guide the reader through the process, leading her to ask appropriate questions and to consider the relevant facts and circumstances of each case. Naturally, solutions will vary according to the particular context of the pandemic in each jurisdiction and there is no one-size-fits-all approach. In particular, the document, considering the different ways the Principles have so far been used in practice, aims to: (i) help parties use the Principles when implementing and interpreting their existing contracts or when drafting new ones in the times of the pandemic and its aftermath; (ii) assist courts and arbitral tribunals or other adjudicating bodies in deciding disputes arising out of such contracts; and (iii) provide legislators with a tool to modernise their contract law regulations, wherever necessary, or possibly even to adopt special rules for the present emergency situation.

The open nature of the Principles furnishes the parties and interpreters with a much-needed flexibility in such an extreme context, constituting an efficient tool to offer a nuanced solution that can help preserve valuable contracts for the parties. Especially in mid-to-long term contracts, and in view of the – apparently – temporary nature of the impediment, mechanisms that allow for an adequate renegotiation and proportionate allocation of losses could ultimately help preserve the contract and maximise value for the jurisdiction(s) involved.

Arguably, the world of contracts has never suffered such an unforeseeable, global, and intense interference. Extraordinary situations require extraordinary solutions, and there is a global need to ensure the economic value enshrined in commercial exchanges is not destroyed. The Principles offer state-of-the-art, best-practice tools to deal with the problem; a set of rules that result from years of study and analysis, with the participation and consensus of the most prominent academics and practitioners in the field, from civil law and common law traditions.

— Many thanks to Carmen Tamara Ungureanu (Alexandru Ioan Cuza University of Iasi, Romania) for drawing the editors’ attention to this development.

European Parliament Study on Blockchain for Supply Chains and International Trade

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Gilles Cuniberti
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EPBertrand Copigneaux, Nikita Vlasov and Emarildo Bani of IDATE DigiWorld, Nikolay Tcholtchev and Philipp Lämmel of Fraunhofer Institute for Open Communication Systems, Michael Fuenfzig, Simone Snoeijenbos and Michael Flickenschild from Ecorys, and Martina Piantoni and Simona Frazzani from Grimaldi Studio Legale, have written a Study on Blockchain for supply chains and international trade at the request of the European Parliament.

The study was commissioned by the Panel for the Future of Science and Technology (STOA) and managed by the Scientific Foresight Unit, within the Directorate-General for Parliamentary Research Services (EPRS) of the Secretariat of the European Parliament.

The abstract reads:

This study provides an analysis of blockchain technology in the context of international trade. It analyses the potential impacts of blockchain development and applications in eight use cases for supply chains and international trade. It also provides an analysis of the current legislative framework and existing initiatives.

Based on this analysis, and following a broad consultation of relevant organisations, the study identifies several challenges in international trade documentation and processes, and presents a range of policy options for the European Parliament.

The Study concludes by developing 20 policy options, which are organised in six themes.

Customs facilitation through blockchain

1. The European Commission could act as a bridge between EU customs authorities interested in employing blockchain technology for the digitalisation of customs, with a view to jointly developing further proofs of concept.

2. EU Single Window working groups could run through the blockchain key questions to be addressed within the guidelines developed by the World Economic Forum by means of consultations with authorities, private sector groups and mixed focus groups, to explore whether there is a business case for its development.

3. The European Commission could look to its partners in mutual recognition agreements to explore the possibility of sharing Authorised Economic Operator information via blockchain.

Involvement of small and medium-sized enterprises in the blockchain sphere

4. The European Commission could be encouraged to help SMEs keep abreast of blockchain applications relevant for their particular role in the value chain.

5. Funds could be made available to support collaboration between SMEs as both suppliers of solutions and end-users of global value chains. 

Sustainable trade through blockchain

6. The European Commission could be provided with the budget to scale up the solutions being developed under Blockchain for Social Good, particularly those relating to fair trade.

7. The European Commission could include blockchain technology solutions in the considerations for designing the practical aspects of an EU carbon border tax.

Leadership in standardisation of blockchain technology

8. The European Commission could continue to play a leading role in the standardisation process, continue its close collaboration with international partners and strive to provide a platform to enable the various actors working on pilots and standards to engage with each other in order to avoid fragmentation.

9. The European Commission could make use of the Multi-Stakeholder Platform on ICT Standardisation to further collaborate with various stakeholders on blockchain standardisation.

10. Beyond dialogue with third countries on standardisation, the EU could lead by example and set standards itself by introducing blockchain-based services for example in customs or financial transparency, based on which private actors, third countries, and international standardisation organisations could orient themselves.

11. Support could be given to the work of the European Blockchain Partnership, and collaboration encouraged with the International Association for Trusted Blockchain Applications, in order to work towards a comprehensive ecosystem of international supply chains using blockchain technology.

Evidence-based policymaking in the area of blockchain

12. Parliament could engage more actively in the work already going on at EU level with regard to blockchain technology and international trade by observing relevant organisations such as the European Blockchain Partnership or asking the European Commission for regular updates on their work.

13. Networks, such as the European Blockchain Partnership, the Observatory and others could be promoted. To this end the Parliament could also promote and fund further research in the area, including a mapping of regulatory readiness in the EU, its Member States and international partners.

14. The European Commission could be made aware that solutions should include reporting indicators and specific plans on how results will be measured, communicated and developed into lessons learned. 

15. Progress of work already being done in piloting blockchain at EU level could be monitored closely and support given for setting up future use cases and pilots under the European Blockchain Services Infrastructure and the Connecting Europe Facility.

16. Use could be made of funding schemes for research and business to support the EU’s efforts in the early stage development of blockchain-related projects in trade and supply chains.

17. In the context of the International Association for Trusted Blockchain Applications, the European Commission could be supported and encouraged to establish a public–private partnership in the area of blockchain for international trade and supply chains.

Awareness raising for the use of blockchain

18. Regarding blockchain’s potential to improve efficiency and support EU values such as transparency, fair trade, and social and environmental responsibility, the EU could promote recognition of the technology and its use in trade and supply chains.

19. Successful proof of concepts, pilots and the available building blocks on the Connecting Europe Facility platform could be promoted among Member States, private stakeholders and citizens to increase familiarity among stakeholders with the technology and its uptake.

20. The European Commission and Member States could be encouraged to make use of their roles as members of international organisations such as the World Trade Organization, the World Customs Organization and the United Nations Centre for Trade Facilitation and Electronic Business to promote trade digitalisation and the use of blockchain technology.

The Study can be freely downloaded here. A Briefing summarizing the findings of the Study is available here.

COVID-19 Response from The Hague Conference

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Marta Requejo Isidro
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In response to the COVID-19 pandemic and following a video message of the Secretary General, the Permanent Bureau (PB) of the Hague Conference on Private International Law has developed a COVID-19 Toolkit.

The COVID-19 Toolkit spots situations covered by Hague instruments on which the pandemia may have a particular impact, and compiles references to specific HCCH resources and publications thereto relevant in light of the current global situation. It is designed to assist users of the HCCH Conventions and other instruments in these challenging times and beyond.

The HCCH COVID-19 Toolkit is divided into two main categories: International Child Protection and Family Matters, covering, inter alia, child abduction, family maintenance and intercountry adoption, and International Legal Cooperation, Litigation and Dispute Resolution, concerning, among other things, service of documents and the taking of evidence abroad.

Within each category, a short description is made on the presumable effect of the pandemia, followed by a quick access to the most pertinent instruments or guides connected, such as the Guide to good practice on the “grave risk exception” to prompt return under Article 13(1)(b) of the 1980 Child Abduction Convention.

The PB has expressed its hope that “the Toolkit will continue to encourage the effective operation of the HCCH instruments, ultimately ensuring better access to justice for individuals, families and companies across the globe, as well as facilitating cross-border trade, investment and dispute resolution, even in these uncertain times”.

It is indeed a worthy initiative with a helpful, user-friendly outcome (which, when it comes to putting legal rules into practice, is more than welcome).

Impact of the COVID-19 Virus on the Justice Field: Information at the e-Justice Portal

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Marta Requejo Isidro
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European e-Justice PortalConfinement has severely curtailed our freedom of movement, but it has certainly not put an end to disagrements and disputes.

Citizens and businesses needing to take procedural action in a cross-border case may be unable to do so due to emergency measures taken in an EU Member State in order to counter the spread of the COVID-19 virus.

These measures may result in the complete or partial suspension of the work of courts and authorities; the temporary inability to obtain legal aid; difficulty to access information normally provided by the competent authorities; other practical issues, for instance delays in enforcing a decision in a cross-border context or in serving a judicial document; temporary adjustments in terms of communication with the public (by email, by phone or by postal mail).

With this is mind, the e-Justice Portal has opened a page aiming to provide an overview of temporary measures taken within the European Union in relation to the COVID-19 virus. The page gives access to a table (pdf document) with information provided by the EJN contact points – and the usual disclaimer: ‘If you need additional information, please consult the webpages of the Ministry of Justice of the Member State for which you need information’

As the situation is changing rapidly and information on this topic is still evolving, the page is updated regularly to reflect new developments.

The EAPIL blog hosts an ongoing on-line symposium aimed to explore the impact of the coronavirus crisis on the phenomena of mobility and exchange that form the constituent elements of private international law, and to discuss the responses that private international law rules provide to the challenges posed by the crisis itself. Contributions on this topic have been proposed so far by Giovanni Chiapponi, Matthias Lehmann and Tomaso Ferando. Those interested in proposing a guest post for publication on these issues are encouraged to contact the blog’s editorial team at blog@eapil.org. 

ELI Approves Report on the Protection of Adults in International Situations

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Apostolos Anthimos
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On 21 March 2020 the Fellows of the European Law Institute (ELI) have approved a Report on the Protection of Adults in International Situations.

The Report, prepared by Pietro Franzina and Richard Frimston based on the work of a team of academics and professionals, is the outcome of a project launched in 2017. The purpose of the Report is to illustrate the current legal framework applicable in Europe, in cross-border cases, to the protection of persons aged 18 or more who are not in a position to protect their interests due to an impairment or insufficiency of their personal faculties, and to outline the measures that EU institutions might take to enhance such protection.

The Report encourages further ratifications of the Hague Convention of 13 January 2000 on the International Protection of Adults, and suggests a number of legislative and non-legislative measures that the EU could take to complement the Convention and improve its operation in the relationship between Member States.

Mediated Agreements in Cross-border Family Disputes: the AMICABLE Project

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Agnieszka Frąckowiak-Adamska
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AMICABLE, a project co-funded by the European Commission, aims to create Best Practice Tools assisting with the enforceability of mediated agreements in the EU, and a Model for incorporating mediation into child abduction proceedings.

The Best Practice Tool is a sort of legal “roadmap” for judges, legal practitioners and mediators. It will consist of an EU general Best Practice Tool and four country-specific tools for Spain, Poland, Italy and Germany, respectively.

The Model is already operative in Germany, the UK and the Netherlands. The project’s goal is to facilitate the exchange of information and mutual learning and to explore how the model could be introduced in Spain, Poland and Italy.

The Project is led by MiKK, International Mediation Centre for Family Conflict and Child Abduction (Germany) in cooperation with the Universities of Milano-Biccocca (Italy), Wrocław (Poland) and Alicante (Spain).

Registration is open for the Project Seminars, scheduled to take place on 26 and 27 March 2020 in Alicante, on 23-24 April 2020 in Wrocław and on 21-22 May 2020 in Milan.

More information is available through the Project’s website.

New Volume of The Judges’ Newsletter Focusing on Urgent Measures of Protection for Children

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Apostolos Anthimos
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The Permanent Bureau of the Hague Conference on Private International Law has published a new volume of The Judges’ Newsletter, a biannual publication aimed to guarantee circulation of information relating to judicial co-operation in the field of international protection of children.

This volume’s special focus is on urgent measures of protection as provided for under Article 11 of the 1996 Hague Child Protection Convention.

European Group of Private International Law’s 2019 Meeting: Minutes and Proposals

Gilles Cuniberti
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The European Group of Private International Law (EGPIL-GEDIP) has published the minutes (in French) of its 2019 Meeting in Katowice.

The topics discussed during the meeting included a proposal for a regulation in divorce matters, a proposal for a regulation concerning the applicable law to in rem rights and choosing a strategy for the codification of the general part of EU private international law.

Some annexes to the minutes are drafted in English, including the proposal for a regulation concerning the applicable law to in rem rights (annexe 2) and a communication on corporate social responsibility (annexe 6). The EGPIL has also published separately a proposal for a regulation on jurisdiction, applicable law and recognition of judgments and decrees with regard to divorce and legal separation, with an explanatory memorandum, and a recommendation concerning the need to maintain and develop international cooperation in matters of civil status, in particular by maintaining the conventions of the International Commission on Civil Status (ICCS).

Common Minimum Standards of Civil Procedure: European Added Value Assessment

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Apostolos Anthimos
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On 28 November 2019 the European Added Value Unit published a study accompanying the European Parliament’s legislative own-initiative report on Common minimum standards of civil procedure.

The summary reads as follows:

The European Added Value Assessment (EAVA) estimates whether and to what extent adoption of EU minimum standards of civil procedure could generate European added value. The European added value is quantified as a percentage reduction of the total cost of civil procedure. The total cost of civil procedure is estimated based on data on the number of civil and commercial proceedings in the EU-28 and the cost of litigation in the Member States. Based on this analysis, the EAVA estimates that introducing EU common minimum standards of civil procedure could reduce annual costs for citizens and businesses in the European Union by as much as € 4.7 to 7.9 billion per annum. The European added value could be potentially generated through reduction of fragmentation, simplification and filling gaps in the current EU procedural rules. Furthermore, EU common minimum standards would contribute towards building mutual trust between judicial authorities of different Member States. Increasing trust has the potential to enhance legal certainty and stability for citizens and businesses, further reduce uncertainty and delay costs.

European Parliament’s study on EU Patent and Brexit

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Pietro Franzina
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Udo Bux (Policy Department for Citizens’ Rights and Constitutional Affairs of the European Parliament) has written an In Depth Analysis for the JURI Committee of the European Parliament on EU Patent and Brexit.

The abstract reads:

This In-depth Analysis resumes the possible scenarios concerning several Intellectual Property provisions of EU and international law in the event of a withdrawal of the United Kingdom with or without a proper withdrawal agreement. It tries to clarify the question how Brexit may affect the entry into force of the new European Patent with Unitary effect (EPUE), especially, if the Unified Patent Court Agreement (UPCA) can enter into force, even in case the UK has withdrawn from the EU. What would be the necessary steps to be taken by the EU in order to ensure the functioning of the future European Unitary patent and in case the UPC Agreement would have to be revised because of Brexit. 

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