Archive for category: Books

María Victoria Cuartero Rubio (University of Castilla-La Mancha) and José Manuel Velasco Retamosa (University of Castilla-La Mancha) edited El Derecho de Familia a la luz del derecho fundamental europeo al respeto a la vida familiar (Family Law in Light of the European Fundamental Right to Respect for Family Life) with Aranzadi.

The book, part of the project on The Right to Respect for Cross-Border Family Life in a Complex Europe: Open Questions and Practical Challenges, explores how contemporary family realities, diverse, dynamic and at times disruptive, pose a genuine challenge for the law, especially when they acquire a cross-border or international dimension. It adopts an analytical perspective of the right to respect for family life, resulting in a work in an interdisciplinary manner.

From this angle, it revisits family law to identify new issues, reconsider traditional questions and assess the adequacy of existing legal solutions in light of their impact on individual rights, whether these are effectively protected, to what extent and how their protection might be improved. It also considers whether greater legal harmonisation could contribute to this goal.

Authors include María Victoria Cuartero Rubio, José Manuel Velasco Retamosa, Rafael Arenas García, Amèlie Benoistel, Esperanza Castellanos Ruiz, Ana Fernández-Tresguerres García, Enrique Fernández Masiá, David García-Pardo Gómez, María del Carmen González Carrasco, Mónica Guzmán Zapater, Pilar Jiménez Blanco, Ángeles Lara Aguado, Isabel Eugenia Lázaro González, María Teresa Martín López, María del Mar Moreno Mozos, Nicolas Nord, Guillermo Palao Moreno, Afonso Patrão, Ana Quiñones Escámez, Lorena Sales Pallarés, Margherita Salvadori, Lucía Inmaculada Serrano Sánchez, Katarina Trimmings, Isaac de la Villa Briongos and María Ángeles Zurilla Cariñana.

The book is available through RUIdeRA, the open access repository of University of Castilla-La Mancha.

Care Proceedings with an International Element, by Maria Sofia Wright, a practicing English solicitor, has been published by Bloomsbury Publishing.

The blurb reads:

Presenting the findings of a study of 100 care cases, this book provides rigorous analysis of how jurisdictional issues are determined and how information sharing of child protection operates across borders.

It draws on the first empirical study of the operation of private international law instruments (Brussels IIa and the 1996 Hague Convention) in care proceedings in England. It also illustrates how prospective carers are assessed and the routes which are used to secure legal permanence for children living overseas. In so doing, it identifies all the ways in which children’s welfare interests are compromised in the cross-border context. But it does suggest solutions: identifying how private international law instruments, their interpretation and application, should be improved to promote the best interests of children.

Jean-Baptiste Racine (University Paris II Panthéon Sorbonne), Fabrice Siiriainen (University of Nice) and Séverine Menétrey (Free University of Brussels) have published the fourth edition of a manual of French international commercial law (Droit du commercial international).

The book surveys all aspects of international commercial law: private international law of corporations, of contracts, and of guarantees. It also covers international litigation and arbitration. The first part of the book is concerned with the sources of international commercial law, with a distinctive French focus on the lex mercatoria.

More details can be found here.

This post was contributed by Heloise Meur, who is a lecturer at Paris 8 University.

International distribution agreements are a significant source of litigation which result in legal uncertainty. First, these contracts are not typical ones: they belong to a group of contracts which organize a kind of cooperation between the parties. Second, they are particularly subject to emerging forms of economic regulation. That has revealed a mismatch between traditional conflict-of-law methods and the structure of distribution agreements. It was therefore necessary to consider a more appropriate legal treatment of distribution agreements and try to resolve this mismatch.

This topic is central to the reflections presented in this book, which stems from a PhD thesis on Distribution Agreements in Private International Law, supervised by Professor Sylvain Bollée, which was recently published with Bruylant (Les accords de distribution en droit international privé).

To this end, the work first provides an overview of the inconsistencies in the treatment of distribution agreements under current private international law, highlighting the causes of dysfunction in traditional conflict-of-law and jurisdictional rules (Part I). It then proposes a renewed and coherent approach to the treatment of distribution contracts in private international law (Part II).

Critique

The overview of the difficulties raised by current private international law successively addresses the traditional issues, relating to the fragmented treatment of the contractual aspects of distribution agreements (Part I – Title 1), followed by the more recent issues, concerning the uncertain methodological treatment of the competition-related aspects of international distribution (Part I – Title 2).

Distinguishing between Framework and Implementation Contracts?

The traditional difficulties associated with distribution agreements in private international law stem, first and foremost, from the existence of a distinct category of “framework distribution contract,” separate from the implementation contracts that typically comprise the overall distribution arrangement (Part I – Title 1 – Chapter 1). The recognition of a “framework distribution contract” category makes it particularly challenging to apply the connecting factors used in contract conflict of laws. As a result, neither the obligation forming the basis of a claim under Article 7(1) of the Brussels I bis Regulation nor the characteristic performance under the Rome Convention can be identified. Attempts to simplify matters by classifying the framework contract as a “provision of services” under Brussels I bis (Case C-9/12, Corman-Collins), or by applying objective criteria under Articles 4(1)(e) and (f) of the Rome I Regulation did not resolve all difficulties arising from the reduction of the distribution contract to a framework contract. Moreover, these attempts of simplifications have generated new questions: What constitutes a “distribution contract” within the meaning of Article 4(1)(e) of Rome I Regulation? Where is the place of delivery of a “distribution service” under Article 7(1)(b) of Brussels I bis?

Secondly, treating framework distribution contracts as a distinct category in private international law introduces risks of contradiction, resulting from the potential application—possibly by different courts—of different laws to each contract within the overall distribution arrangement (Part I – Title 1 – Chapter 2). The strong interdependence between framework contracts and their implementation contracts makes it difficult to clearly separate issues pertaining to each individual contract. The termination of the framework contract halts the conclusion of implementation contracts. A breach of obligation in one contract may lead to the non-performance of an obligation contained in another one which takes part to the distribution operation. Therefore, a coherent legal treatment of distribution agreements lies on the parties, who must choose the law applicable to the entire contractual arrangement. However, equally complex questions regarding the extension of choice-of-law clauses or jurisdiction clauses—whether state or arbitral—across the entire arrangement appear. No existing remedy adequately resolves this difficulty.

— The distinction between framework distribution contracts and their implementation contracts, posited as an axiomatic starting point, appears as the first source of the difficulties in the legal treatment of distribution agreements.

Competition Law

More recently, the majority of caselaw relates to disputes concerning the competition-related aspects of distribution agreements (Part I – Title 2). These agreements raise broader questions about the relationship between private international law and competition law. First, distribution agreements constitute vertical restraints, which are strictly regulated under European competition law. In addition, the application of French law on restrictive trade practices, as set out in Title IV, Book IV of the Commercial Code (Articles L440-1 to L444-1 A) ), further complicates matters.

Both European competition law and French law on restrictive practices are particularly relevant to distribution and share a common feature: their mandatory nature, which does not easily accommodate territorial boundaries. As a result, distribution agreements have come to exemplify the complexity of the relationship between competition law, broadly understood, and international contract law, which is fundamentally based on the principle of party autonomy. This relationship is marked by a recurring tension between classifying competition-based claims as either tortious or contractual (Part I – Title 2 – Chapter 1), reflecting an underlying uncertainty regarding the appropriate methodological approach. Indeed, classifying such claims as tortious allows them to be removed from the contractual domain and from the principle of party autonomy, which would otherwise often lead to the application of overriding mandatory provisions (lois de police) to ensure the enforcement of competition law in its broadest sense. However, each of these approaches presents implementation challenges that continue to undermine the predictability of legal outcomes (Part I – Title 2 – Chapter 2).

— The tension between party autonomy and the mandatory nature of competition law has emerged as the new source of difficulty in the private international law of distribution.

Proposal

Following these observations, the present work proposes a more coherent treatment of distribution agreements by seeking to resolve both the original and contemporary sources of the identified difficulties. As a preliminary step, this renewed approach led to clearly define contractual and tortious matters within European private international law (Part II – Title 1). Only thereafter was a unified and more consistent treatment of the distribution contract within this clearly defined contractual domain proposed (Part II – Title 2).

After establishing the necessary methodological foundations for the emergence of an autonomous definition (Part II – Title 1 – Chapter 1), a redefinition of the contractual domain in European private international law was advanced (Part II – Title 1 – Chapter 2). Departing from the Jacob Handte solution (Case C-26/91, Jacob Handte), the Court of Justice gradually endorsed the criterion of contractual cause, which has become the sole criterion following the recent abandonment of the party identity requirement (Joined cases C-274/16, C-447/16, C-448/16, Flightrights;, Case C-337/17, Feniks). It is now sufficient to determine whether the claim could have been brought before a court if no contract existed between the parties—thus encompassing both the purely conventional effects of the contract and its statutory effects, such as obligations arising under the law on restrictive trade practices. This definition, which allows for greater autonomy of the contractual domain, has proven to enhance the predictability of legal outcomes. Unfortunately, its application by the Court of Justice remains inconsistent.

Single Category

Building on this clarification, the research undertook to propose a renewed and more coherent treatment of the distribution contract. This coherence was first achieved through a unified qualification of the contract under European private international law (Part II – Title 2 – Chapter 1). The “distribution contract,” encompassing both the framework agreement and its implementation contracts in accordance with applicable international instruments, is defined as the agreement by which an independent distributor obtains products or services from an independent supplier for resale on the market, with this purchase-for-resale operation facilitated by the imposition of vertical constraints. This (re)definition of the “distribution contract” category ensures both material unity—drawing inspiration from definitions found in European competition law—and structural unity of distribution contracts. As thus defined, the distribution contract cannot be reduced to the category of “the provision of services” under Article 7(1)(b) of the Brussels I bis Regulation, contrary to current jurisprudential interpretations.

This renewed treatment of the distribution contract could be the starting point for a rethinking of conflict-of-law rules, particularly by limiting the scope of party autonomy (Part II – Title 2 – Chapter 2). Indeed, the effectiveness of choice of law clauses now appears significantly undermined in light of the growing number of internationally mandatory rules to fight against anti-competitive practices. Moreover, distribution relationships typically involve a weaker economic party and a stronger one, the latter often seeking to choose the law most favourable to its interests, contrary to autonomy ratio legis. Consequently, legal predictability seems to require the abandonment of the principle of party autonomy in favour of an objective connecting factor in conflict-of-law matters—namely, the territory in which the distribution is carried out (see Article L444-1 A of the French Commercial Code).

Since the stronger party would no longer be able to select the applicable law solely based on its own interests, it appears sufficient to regulate the principle of autonomy through the principle of effet utile in matters of jurisdictional conflict. Following the approach of German judicial practice, a jurisdiction clause may only be disregarded if it is demonstrated that the court of a third State designated by such a clause will not apply the relevant internationally mandatory law. In such cases, a court of a Member State seized in breach of the clause may set it aside. Accordingly, the consistent application of protective foreign provisions and new European regulations by all courts within the Union will help foster a culture of loyalty in commercial relations, just as the application of European competition law has facilitated the emergence of a shared culture of competition.

Finally, the (re)definition of contractual and tortious matters can address existing challenges in positive private international law regarding the determination of the internationally competent court. As such, the creation of a specific jurisdictional rule for distribution contracts does not currently appear necessary. Indeed, disputes in international distribution, which primarily concern non-obligational effects, should principally fall under Article 4 of the Brussels I bis Regulation, thereby ensuring satisfactory predictability for the parties in resolving their disputes. At most, one might consider the creation of a special conflict-of-law rule applicable to competition matters, irrespective of whether the action is contractual or tortious in nature, to prevent the instrumentalisation of existing conflict rules—currently evident in the case law of the Court of Justice—for the purpose of advancing private enforcement.

Antonio Leandro has recently published a book titled Jurisdiction in EU Cross-Border Insolvency Law (Edward Elgar Publishing 2025).

The blurb reads as follows:

This book provides an in-depth analysis of the jurisdiction in cross-border corporate insolvency proceedings within EU member states, investigating the rationale, structure and functioning of the grounds to initiate and supervise the proceedings according to the European Insolvency Regulation (Recast). It explores personal, territorial, and substantive scopes of the insolvency courts’ jurisdiction, as well as its interplay with the jurisdiction of other courts and Alternative Dispute Resolution (ADR) mechanisms.

The author discusses national, EU and international case law and legislation, utilising practical and theoretical approaches. Chapters engage with liquidation and restructuring by adopting a combined perspective on European private international law and insolvency law.

Further details available here

Isabelle Jäger-Maillet, a family lawyer who also serves as the International Coordinator for the German Institute for Youth Services and Family Law in Heidelberg (DIJuF), kindly provided a presentation of her dissertation titled Fortentwicklung des grenzüberschreitenden Unterhaltsvorschussregresses, on the improvement of maintenance recovery by public bodies, recently published by Wolfgang Metzner Verlag.

In European countries, advance maintenance payments are a widespread and effective social measure to fight child poverty. As subsidiary benefits, these measures are generally not financed solely by public contributions, but also by the defaulting maintenance debtor being required to reimburse the paid benefits to the public body.

The PhD-thesis, which was submitted to Düsseldorf University in April 2024 and published in August 2025, deals with the cross-border recovery of maintenance reimbursement obligations by German public bodies.

In the first section, the thesis identifies the challenges German Maintenance Advance Agencies encounter when seeking reimbursement of the benefits they disbursed pursuant to the current legal framework.

With regard to national law, the German Advance Maintenance Payments Act (Unterhaltsvorschussgesetz, or UVG) is identified as a hurdle to the cross-border recovery of claims because it does not take enough into consideration, and address, the particularities of the international legal framework. Compared to other systems, the German UVG is relatively generous for beneficiaries but restrictive in terms of recovery. On one hand, benefits are granted without the need for an existing maintenance order for the child. On the other hand, the UVG has only weak provisions requiring beneficiaries to support the recovery efforts.

As to international law, the thesis emphasizes the restraint evident in international instruments on conflict of laws and procedural law – which is guided by concerns of debtor protection. It points out that the different connecting factors in Article 10 and Article 11(f) of the 2007 Hague Protocol on the law applicable to maintenance obligations lead to complex delimitation questions, such as“Which aspects exactly fall under the term “extent” of the reimbursement obligation?”.

This is especially the case when the law to which the public body is subjected and the law applicable to the maintenance obligation do not coincide (which is not uncommon). In terms of procedural law, the thesis notes as significant progress the equal treatment of public bodies and individuals for the purpose of declarations of enforceability and enforcement, as well as the possibility for these procedures to be supported by Central Authorities according to Article 64 of Regulation No 4/2009 on maintenance obligations and Article 36 of the 2007 Child Support Convention. However, the establishment of a maintenance order is still considered to be difficult in cases in which the legal framework of State A does not allow proceedings to be filed in the state where the public body is based, or, when the legal framework of State B, which has been requested to enforce maintenance, does not recognize creditor-based jurisdiction. These jurisdictional [stalemates, deadlocks, etc] are often characterized by high costs of proceedings, little to no support from Central Authorities, lack of experience of program personnel and uncertainty regarding the applicable substantive law.

In the second section, possible solutions to remedy the issues mentioned above and to improve the national and international legal framework are developed.

At the core of reflections regarding the national German law is the need to get beneficiaries more closely involved in the recovery process – at least as long as the international legal framework grants them a more favorable legal position than public bodies. Some of the proposed measures can immediately be realized through better application of existing legislation while other measures could be achieved through minor legislative amendments.

The adjustments suggested for the international legal framework should be considered a longer-term process. They aim to simplify the application of the law in such a way that it better meets the special needs of public bodies for the efficient processing of a large number of cases, without compromising the goal of protecting the debtor’s interests.

In the area of procedural law, it is suggested that a creditor-based jurisdiction be established at the seat of the public body, which would be in line with the privilege granted to individuals. It is simply not justified that the statutory substitution (change of creditor) should result in the maintenance debtor only being able to be sued at his place of residence or at the child’s place of residence (which is not always in Germany).

With regard to conflict of laws, the proposals seek to more clearly link the calculation of reimbursement obligations to the (maintenance) law governing the public body. Admittedly, this solution may result in a certain dissociation of the reimbursement obligation from the maintenance obligation when the maintenance obligation is subjected to foreign law. However, this should not be considered prejudicial because this solution ultimately allows the particularities of maintenance recovery by public bodies to be taken into account without jeopardizing the concern for protecting the debtor’s interests. The calculation remains pursuant to maintenance law and Article 14 of the 2007 Hague Protocol still applies.

Finally, the thesis is focused upon legal policy perspectives and is primarily addressed to academics and legislators. However, section 1 also deals in detail with challenging issues of the daily practice of German Advance Maintenance agencies, such as (a) how to deal with maintenance waivers declared abroad, (b) the binding (or non-binding) effect of foreign maintenance orders for the public bodies as legal successor of the child and (c) which law is applicable when a public body applies for the establishment of a maintenance order abroad (see, Article 4(3) of the Hague Protocol). This makes the book particularly suitable as a working aid for maintenance agency case workers.

The table of contents and an extract of the book are accessible through the publisher’s website.

A collection of essays titled Europäisierung des Zivilrechts, edited by Guido Kosmehl, Steffen Pabst and István Varga, has been published by C.H. Beck to celebrate the 70th birthday of Thomas Rauscher.

It comes with some thirty contributions, mostly in German, dealing with a variety of topics in the area of private law and private international law.

Those focusing on private international law include the following: Thomas Garber and Matthias Neumayr, Zum Grundsatz der perpetuatio fori internationalis im Familienverfahrensrecht unter besonderer Berücksichtigung des KSÜ und der Brüssel IIb-VO; Andreas Geroldinger, Zur Missbrauchskontrolle im Rahmen des Art. 8 Nr. 1 Brüssel Ia-VO – Überlegungen aus Anlass der Entscheidungen OGH 9 Ob 18/22w und 5 Ob 73/23f; Sven Groschischka, Der Gerichtsstand des gewöhnlichen Arbeitsortes in der Brüssel Ia-VO und dessen Bestimmung beim fliegenden Personal; Anna Gürtler, Anerkennungsfähigkeit polnischer Gerichtsurteile nach der Brüssel Ia-VO nach Inkrafttreten der Justizreformen; Jan von Hein, Neues zum Kollisionsrecht der Patientenverfügung; Perrine Kobsik, Die Europäisierung des Erwachsenenschutzrechts; Line Olsen-Ring, Elternschaftsvermutung und Implikationen im internationalen Privat- und Prozessrecht am Beispiel des schwedischen Rechts; Tamás Szabados, Forum Shopping und die EU-Insolvenzverordnung – Das Galapagos-Urteil des Europäischen Gerichtshofs; Matthias Weller and Achim Czubaiko, Die Urteilsdefinition im Haager Anerkennungs- und Vollstreckungsübereinkommen (HAVÜ 2019) – Zur Einrahmung eines Schlüsselbegriffs im Spannungsfeld zwischen international einheitlicher Auslegung und nationaler Entscheidungstypologie.

See here for more details on the volume, including the full table of contents.

The second edition of International Asset Tracing in Insolvency, edited by Felicity Toube, has recently been published by Oxford University Press.

The publisher’s blurb reads as follows.

This is the only book to provide comprehensive coverage of the legal issues involved in asset tracing in insolvencies. Both corporate and personal insolvencies are covered in domestic and international cases. The second edition incorporates recent developments in case law and statutory frameworks in six key jurisdictions-the United States, England and Wales, the British Virgin Islands, the Cayman Islands, Jersey, and Guernsey. It analyses the latest legal developments in cross-border insolvency and general asset tracing initiatives, as well as jurisdiction-specific developments. Developments include the treatment of cryptocurrency insolvencies, legislative shifts in the UK post Brexit, Black Swan injunctions and the effect of the 2024 amendments to the Companies Act, the latest on the restructuring officer regime, and the positions on insolvent trusts. Featuring analysis from experienced specialists in key offshore and onshore financial centres, each chapter deals with a different national framework, setting out statute and case law, and identifying the international tools available to trace assets. These experts identify the specific tools available for tracing and recovering assets-for asset tracing inside or outside of bankruptcy or insolvency processes-and those available for cross-border international cooperation.

Additional information can be found here.

It has not yet been reported on this blog that a few months ago an interesting collection of essays, under the title Die Achtung des Fremden – Leerformel oder Leitprinzip im Internationalen Privatrecht? (Deference to the Foreign – Empty Phrase or Guiding Principle of Private International Law?), has been published by Mohr Siebeck.

Edited by Florian Heindler and Martina Melcher, the volume contains the papers presented at the 4th Private International Law Conference for Young Scholars in Vienna. The contributions, in German and English, cover a range of topics from family and succession law to the law of obligations, while adddressing matters of principle and methodology.

Authors include Shahar Avraham-Giller, Tabea Bauermeister, Tess Bens, Raphael Dommermuth, Victoria Garin Giménez, Vanessa Grifo, Lena Hornkohl, Selina Mack, Horatia Muir Watt, and Sophia Schwimmer.

The full table of contents is here. See here for more information on the book.

The general course given by Louis d’Avout (Université Paris-Panthéon-Assas) in 2022 at the Hague Academy of International Law on Searching for Worldwide Legal Coherence (La cohérence mondiale du droit) was published in Volume 443 of the Collected Courses of the Academy and is soon to be published as a pocketbook.

The author has provided the following English summary of the book.

Abstract

Transnational lives and flows frequently cause legal systems to overlap, increasing both technical conflicts and collisions of institutional views. Humanity has a long history of developing mechanisms for overcoming these divergences. A cardinal property of law is thus maintained in cross-border or trans-community relations: coherence, i. e. the rationality and predictability of the rules applicable to civil conduct, and consequently their effectiveness in properly addressing the interests of both individuals and political communities.

These specific mechanisms, created by lawyers to resolve international conflicts of laws, jurisdiction or authority (particularly as parallel proceedings are concerned), historically emerged at the state level. They have evolved in line with the problems encountered and general changes in legal phenomena. Nowadays, conflicts are no longer confined to the narrow field of private law. They also relate to legal discrepancies in public law or in hybrid regulated areas. In addition, a-national and transnational legal systems are offering themselves as alternatives to state laws; and private methods of dispute resolution, such as arbitration (or other ADR methods), are giving rise to new frictions and sowing fresh discords with states’ judicial institutions. Above all, increased individual mobility, forced or voluntary, added to technological advancements eroding geographical distance, call for greater cooperation between political powers (both spontaneous or formalised), which, in turn, give rise to “supra-state” institutions. The end of closed and self-sufficient legal systems (autarkies), national or otherwise, is a natural consequence of globalised lives.

At the start of the third millennium, the quest for coherence must be approached from two different, yet complementary, perspectives. First, on a horizontal plane, the classic interactions between independent legal spheres make it possible to find legal coherence within transnational or ubiquitous private situations, ensuring these spheres take reciprocal notice of the other and then interact. Subsequently, and more remarkably, institutional verticalization can resurface, enabling certain authorities to act above states and for the benefit of individuals, businesses and other private entities. This sometimes gives rise to new types of conflicts, but primarily provides a means of addressing inconsistencies observed within or at the intersection of particular legal spheres. Pursuing the coherence of the law on a global scale is therefore a matter of legal methodology, which is age-old and yet still capable of responding to the legal frictions of the 21st century. It is equally a matter for international institutions to perfect in the common interest.

Overview of the Book Chapters

After a first chapter dedicated to definitions (Private international law, historically and under various doctrines, Legal Coherence), the First Part (Horizontalities) is divided in three successive chapters, each describing one founding concept of a millennial discipline: Fairness, Connecting rules and factors, and Cooperation. These three concepts, jointly, explain the foundations of private international law, understood as techniques of interaction of independent political and legal spheres.

Chapter II, whose title could best be translated as Fairness and the Softening of Lex Fori, describes, in a legal world without modern tools of private international law, how a spirit of relativity could appear in both private and criminal law, as applied locally to foreigners and crossborder relations. It then explains the spontaneous roots of conflict of laws through general legal techniques (interpretation, unilateral limitation of statutes, creation of transnational rules of jus gentium), creating international justice within particular legal systems.

Chapter III concentrates on the core-concepts of Connecting Factors and Rules. These concepts are discussed as such, and as they appear in both the modern law of international civil procedure (jurisdiction, recognition and enforcement) and that of choice of law. Their fundamental nature and justification are discussed from both a historical and a comparative perspective in the context of modern democracies. In short, the emphasis is put on the fact that there is no spontaneous supranational and a-political private international law. Modern PIL-rules do not localise transnational events or disputes; rather, they try to correctly regulate them. Modern techniques, like escape clauses or fine-tuning mechanisms (forum non conveniens, injunctions), are discussed incidentally in this chapter (as well as the modern vested rights theory and the apparently new recognition paradigm).

Chapter IV analyses the law of transnational cooperations. After a short focus on classical techniques and formal mechanisms (e.g. letters rogatory), this chapter describes the various forms of communication and co-action of authorities belonging to different legal spheres (states, international organisations, arbitrators), spontaneously or under integrated mechanisms for transnational cooperation (Hague Conventions, administrative networks). The nowadays frequent use of interim decisions, injunctive relief and forum non conveniens exceptions is significant of this new trend of transnational dispute resolution through judicial stimulation and dialogue. The reasons underlying this new form of concrete transnational dialogue are explained, and its efficiency in securing final and globally coherent dispute resolutions is questioned. The final section asks: is there a duty for states and disputes resolution bodies, under international law, to co-operate?

The Second Part (“Verticalization”) examines the desirability and reality of supra-state institutions that can better achieve, and guarantee for individuals, transnational and worldwide legal coherence.

In this respect, Chapter V studies achievements within federative organisations (primarily but not exclusively the European Union). These organisations can systematically connect particular legal spheres and authorities with the aim of making the consequences of states’ frontiers invisible for private actors, both citizens and businesses. This is especially remarkable in the field of criminal, public and regulatory law (with the help of tools like full faith and credit or the automatic recognition of legal acts). Federative organisations sometimes create not only specialised supranational judges, but also integrative bodies permitting an automatic cooperation between states (semi-horizontal, semi-vertical). Bearing in mind these models of transnational administrative or criminal law, Chapter V turns again to the more classical private law question of the renewed choice of law approach linked to the ab alto perspective of federative organisations. What is the benefit of procedural verticality above states? Do “diagonal conflicts” really exist within those integrative spheres, besides purely vertical and purely horizontal conflicts? What is to be expected from regional judges resolving conflicts through general principles like economic freedom and fundamental rights? The desirable answer is not necessarily that of legal uniformity, erasing local policies as applied to cross-border situations.

Chapter VI offers a final development, called Law and Justice Above the States. The focus is on classical, as well as forgotten, supranational mechanisms and judicial institutions, that lie at the border of public- and private international law (e.g. Mixed arbitral tribunals). The well-known topic of fragmented legal regimes is developed at the intersection of public and private law. Is, more generally speaking, the UN Organisation benefitting individuals claiming their right to continuity of legal treatment? The Chapter stresses, with the help of examples and case-law, some modern interactions between individual mobility and state sovereignty. Not everything appears as renewed, and the individual has no right to unconditional cross-border coherence and continuity of legal treatment. Conflict of laws situations turn to conflicts among legal spheres and regimes of all kinds (public and private; national, supra- and extra-national) and among the different values they pursue; coordination is still a possibility with the ultimate aim of delivering justice to individuals and communities. Coordination tools and mechanisms remain unchanged; they should now simply apply in a different context.

Stefan Arnold (University of Münster) and Bettina Heiderhoff (University of Münster) edited Children in Migration and International Family Law – The Child’s Best Interests Principle at the Interface of Migration Law and Family Law with Springer.

The book, part of the EU-funded FAMIMOVE project, explores the challenges faced by children and families migrating to the EU, focusing on the interplay between international family law and migration law.

The book is available in open access and features the following contributions.

Introduction

Bettina Heiderhoff, Stefan Arnold, Children in Migration and International Family Law: An Introduction

This introductory chapter gives an overview over the aims and topics of the book. The key contents of the contributions to the book are briefly presented.
The authors begin by describing the complexity of the interface between migration law and family law and then highlight some crucial, overarching issues. In particular, they show that the best interests of the child are interpreted differently by different actors. The divergence of approaches in migration and family law is striking.
Also, some central case law of the CJEU and ECtHR for the topics covered by FAMIMOVE is discussed. The article concludes with an overview of the main actors at the interface between migration law and family law and their roles or activities.

Marta Pertegás Sender, An Introduction to FAMIMOVE, Its Accomplishments and Its Challenges

The author summarises the genesis, working methods and objectives of the FAMIMOVE project.

General Topics

María González Marimón, The Child’s Best Interests in International Jurisdiction Under the Brussels IIter Regulation

Cross-border conflicts dealing with parental responsibility matters have a wide diversity which is projected in the Brussels IIter Regulation international jurisdiction model. In particular, the system is articulated on the principle of the best interests of the child, linked to the criterion of proximity. Following this logic, the Brussels IIter Regulation, inheriting the system from its predecessor, reflects a much more accurate balance between the two conceptions of the best interests of the child, in abstracto and in concreto. The aim of this chapter is to present the jurisdiction model on parental responsibility matters of the Brussels IIter Regulation, from the necessary children-based approach that should be paramount in any case involving children, including Private International Law rules. This overview will allow to reflect on how the jurisdiction rules seek to answer to the complexity of international movement of families through the articulation of the best interest of the child principle.

Iris Goldner Lang, The Principle of the Child’s Best Interests in EU Law on Third-Country Nationals

This chapter demonstrates that the principle of the child’s best interests is an integral value of EU law and serves as an underlying rationale for EU legislation and judgments. It is analysed how the principle of the best interests of the child affects the rights of third country nationals in the EU, with a focus on decisions relating to family reunification and EU migration and asylum law. In this chapter a multidimensional conception of the child’s best interests principle is developed, emphasising its threefold function as a substantive right, as an interpretative tool and as a procedural rule. The article concludes that the principle of the child’s best interests will continue to grow in importance in EU law on third-country nationals.

Kai Hüning, Binding Effect of an Age Assessment

The assessment of age is one of the most challenging aspects when unaccompanied refugees, who are potentially minors, arrive in their country of destination. A particular problem arises when authorities in different countries or different authorities within the same country have doubts about whether a refugee is a minor.

Guardianship for Unaccompanied Minor Refugees

Orsolya Szeibert, Guardianship of Children in the Context of Migration in Hungary

This chapter explains the legal framework on guardianship for unaccompanied minor refugees in Hungary and deals with the real-life experiences of being an unaccompanied minor. The legal framework is fragmented and has continuously been such in the last decade. The situation of these children in Hungary was severely altered in the mid-2010s by several legal acts that contained special provisions for the “crisis situation caused by mass immigration”, and the (negative) effects of these provisions on minors are clearly pointed out in the chapter. These effects have been seen in the field of guardianship and other child protection measures and the prolongation of the crisis situation caused by mass immigration influences all legal sources which determine children’s rights. The chapter highlights the amendment of the child protection law and the implementation of children’s rights in case of unaccompanied minors. Some special legal protections of refugees from Ukraine are analysed as well. The chapter can be considered as a snapshot of how the situation of unaccompanied children is developing, and to which legal and temporal changes they and children’s rights are exposed to.

Bettina Heiderhoff, Guardianship and Other Protective Measures for Minor Refugees in Germany

This chapter explains the legal framework on guardianship and other protective measures, especially the so-called provisional taking into care, for unaccompanied minor refugees in Germany and explores the central terms “minor” and “unaccompanied”. Significant problems are highlighted in this chapter, in particular a conflict of interest on the part of the Youth Welfare Office, a lack of specific knowledge of asylum law on the part of guardians, the handling of cross-border guardianships, and certain problems in assessing age and responsibility.

Bettina Heiderhoff, A European Approach to Cross-Border Guardianship

This chapter considers whether the practice of appointing guardians could be improved by regulation at European level. It takes a pessimistic view of the future in the light of the New Pact on Migration and Asylum.

Early Marriage

Ulf Maunsbach, Early Marriages in Sweden

This chapter explains the recent developments in the Swedish legal framework on early marriage. It is shown, that early marriages are generally not recognised and only a narrow exception exists. This chapter argues for allowing individual exceptions to enable authorities and courts to make carefully considered decisions.

Stefan Arnold, Early Marriage in Germany: Law and Politics of Cultural Demarcation

This chapter examines the legal framework on early marriage for unaccompanied minor refugees in Germany. The article focuses on a critical analysis of the Federal Law to combat child marriages and its adjustments through the Law for the Protection of Minors in Foreign Marriages effective from 1 July 2024. It is demonstrated that the situation of those in need of protection, particularly the young women concerned and the children born from such marriage, has worsened as a result of the law.

Martina Melcher, Early Marriages in Austria: Private International Law and Ordre Public Assessment

This chapter explains the legal framework on early marriage in Austria. It is outlined, that the Austrian legal situation allows the courts to pursue a case-to-case approach in which the individual circumstances can be taken into account. The article argues in favour of the case-by-case approach, but emphasises that consequences of the non-recognition of an early marriage should be regulated.

Stefan Arnold, Early Marriage: A European Perspective

This article provides an overview and comparison of the findings of the contributions in this chapter and an outlook on possible European improvements. To protect the persons involved, the article argues against symbolic law-making and emphatically proposes a case-by-case approach.

Kafāla

Nadjma Yassari, Beyond Kafāla: How Parentless Children Are Placed in New Homes in Muslim Jurisdictions

Kafāla is just one of many systems used in the different Islamic laws in order to integrate a parentless child into a “foster” family. This article gives an overview of the different institutes and their functions.

Fabienne Jault-Seseke, Kafāla in France

This chapter explains the handling of kafāla-cases in France. The practical significance of kafāla in France is underlined, as many people of Moroccan or Algerian nationality living in France assume responsibility for a child born in their country of origin through kafāla. It is argued that although kafāla is not adoption, it should be treated in a similar way to ensure the protection of the fundamental rights of all parties concerned. It is stressed that the necessary framework for this regulation is provided by Article 33 of the 1996 Chid Protection Convention.

María Mayela Celis Aguilar, Kafāla in the Netherlands

This chapter explains the handling of kafāla-cases in the Netherlands, including the respective case law and migration legal framework. A change in policy in 2013 is noted, whereby kafāla is no longer handled in the same way as adoption but, with some caution, in a similar way to foster care measures. The Dutch policy on the recognition of kafāla is assessed as generally cohesive and in line with applicable international instruments. However, concerns are also raised about the use of kafāla to circumvent adoption and immigration policies and regulations.

Leontine Bruijnen, Kafāla in Belgium: Private International Law as an Essential Tool to Establish Migration Law Consequences?

This chapter explains how kafāla-cases are handled in Belgium, including the respective migration case law and migration legal framework. This article emphasises that a kafāla should be characterised as a child protection measure under the 1996 Child Protection Convention but that the Convention does not solve all issues relating to kafāla. The Belgian general recognition rules offer a solution for kafālas outside the scope of the 1996 Child Protection Convention. It is suggested that the private international law framework should be considered when determining whether a makfūl (ward) can be regarded as an unaccompanied minor.

Giovanna Ricciardi, Jeannette Wöllenstein-Tripathi, Principles to Ensure a Cross-Border Kafāla Placement Is in the Best Interests of the Child

This contribution aims at highlighting principles as well as recommended practice to guide states in ensuring a cross-border kafāla placement is in the best interests of a child. These principles stem from the ISS’ conviction that, from a child rights perspective, both public international and private international law provisions must inform approaches concerning cross-border kafāla. This joint approach is based on ISS’ long-standing casework experience in working daily and across the globe on complex cross-border child protection cases.

Fabienne Jault-Seseke, Recognition of Kafāla in European Member States: Need for a Uniform Approach?

This article provides an overview of the different approaches adopted by EU member states and highlights the lack of a uniform EU legislative approach. It is emphasised that any European solution must comply with the EU Charter, the 1996 Child Protection Convention and respect the cultural context of the child.

Additional Topics

Alessia Voinich, The Role of the Court of Justice in Shaping the Right to Maintain Family Unity for Beneficiaries of International Protection

The right to maintain family unity is one of the inherent guarantees of the content of international protection provided for in Chapter VII of the Qualifications Directive. This right extends to both refugees and beneficiaries of subsidiary protection, safeguarding the integrity of family units already present within the member state offering protection.
This inclusion of family unity within the framework of international protection reflects a more specific application of broader principles enshrined in instruments like the EU Charter of Fundamental Rights (Art. 7 and 24) and the European Convention on Human Rights (Art. 8). Notably, the Geneva Convention itself lacks an analogous provision, though the Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons emphasizes family unity as an ‘essential right’ for refugees and urges the States to protect it.
However, ensuring the practical application of this right presents significant challenges. The Qualifications Directive (Directive 2011/95/EU) mandates member states to uphold family unity yet setting specific conditions and delegating aspects to national laws (para. II).
This has resulted in a complex body of case law from the Court of Justice, which has navigated this tension and developed innovative legal solutions within asylum law.
This Chapter delves into this landscape and examines how the Court has addressed issues such as the flexibility of member states in establishing more favorable national regimes (para. III), the complex link between family member rights and the asylum right of their relative who is a beneficiary of international protection (para. IV), and situations where responsibility for international protection and for ensuring family unity falls on different member states (para. V).
Finally, the Chapter will examine the impact of recent reforms within the Common European Asylum System (CEAS) on this evolving legal landscape (para. VI) and some concluding remarks will be drawn (para. VII).

Giovanni Zaccaroni, Polygamous Marriages and Reunification of Families on the Move Under EU Law: An Overview

Polygamous marriages are usually associated with countries outside the EU. However, their recognition and the rights attached to the status of spouse, both civil and social, gave rise to a debate both in case law as well as in scholarship. The existing prohibition of family reunification under EU law represents an obstacle to free movement and family reunification of migrant families, and, potentially, also to the best interest of the child. At the same time, such a prohibition is rooted in the necessity to protect and promote equal treatment between men and women, enshrined in the EU Charter as well as in the national constitutions. As it will be seen, the debate on the balance to be found between these competing rights is far from being over.

Olivier Cachard (University of Nancy), Walid Ben Hamida (University of Lille) and Rémi Dalmau (University of Nancy) are the authors of the fourth edition of Cachard’s texbook on international commercial and investment law (Droit des affaires internationales – Commerce international et investissement).

In line with the French tradition, the book was initially dedicated to commercial conflicts and uniform law (CISG, conventions on carriage of goods and persons, etc…) and covered essentially international company law (including insolvency), international contracts and international commercial arbitration. These topics are still covered, but a new part focusing on international investment law is added, which explains the addition of Prof Ben Hamida. The title of the book aims at reflecting the extension of its scope.

The French blurb reads:

Le droit des affaires internationales régit les opérations du commerce international (l’établissement, la vente ou le transport…) et l’investissement étranger dans un État d’accueil. L’investissement étranger a conquis une place centrale durant les 20 dernières années. Il gagne à être présenté après le droit du commerce international car, en pratique, l’investissement étranger protégé par les traités internationaux d’investissements se concrétise par des mécanismes classiques du commerce international tels que l’établissement de filiales communes ou les contrats de Build Operate Transfer, de construction, ou encore de joint-venture.

Le manuel présente ainsi successivement les deux piliers du droit des affaires internationales en mettant l’accent sur leur réalisation contentieuse au moyen de l’arbitrage commercial international et transnational d’investissement. Conforme aux programmes de master 1 et 2, il est adapté à la préparation de l’examen du CRFPA, en particulier l’option droit international et européen. Véritable couteau suisse, il servira aussi au praticien et aux activités de formation continue en entreprise.

More details on the book can be found here.

This post has been written by Dalia Palombo, Assistant Professor of Human Rights Law, Department of Public Law and Governance, Tilburg University. It is the fifth post in the EAPIL blog on-line symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). The others contributions, by Ekaterina Aristova, Peter Muchlinski, Geert Van Calster, Mukarrum Ahmed and Ekaterina Aristova can be found here, here, here, here and here respectively. Readers are encouraged to participate in the discussion by commenting on the posts.

Dr Ekaterina Aristova wrote an insightful book that is a must-read not only for private international law scholars but for anyone interested in the business and human rights field or in English tort law. It is a privilege to comment on Chapter 6 of the book ‘Private and State Interests in Foreign Direct Liability Claims’. However, I will start my brief analysis from an argument introduced in Chapter 5 and further developed in Chapters 6-7-8: private international law is a neutral and apolitical body of law that needs to catch up with globalization and address complex jurisdictional conflicts in the twenty-first century-world dominated by transnational companies.

I do not agree with the assumption that private international law is neutral and apolitical. If one zooms out of the private law realm, it becomes clear that such a ‘neutral’ system is actually determining the difference between winners and losers in a multitude of lawsuits.

Indeed, the picture of the private international law field that appears from Dr Aristova’s careful analysis is far from neutral, as demonstrated by a helpful example provided in Chapter 6 of the book. On the one hand, it was not possible for indigenous people from Ecuador to assert jurisdiction against Chevron/Texaco in US courts to claim environmental damages caused by massive oil pollution. The US District Court for the Southern District of New York ruled that the case belonged to Ecuador, a country that was found to have a functioning judicial system. On the other hand, once, after over ten years of litigation, the indigenous people were able to hold Chevron/Texaco to account in Ecuadorian courts (this included a judgment delivered by the Ecuadorian Constitutional Court), Chevron/Texaco filed an ISDS (investor-state dispute settlement) claim against Ecuador, alleging that Ecuadorian courts were not independent and unjustly (through corruption, bribery and fraud) ruled against them. Chevron/Texaco received the award. It ordered Ecuador to cease enforcing the judgment. Although Ecuador challenged the arbitral decision, and continued to consider its judgment enforceable, Chevron/Texaco no longer had substantial assets in Ecuador. Thus, the indigenous people attempted to enforce the Ecuadorian judgement against Chevron/Texaco in several jurisdictions where the multinational held its assets (including the US). However, they were always unsuccessful. In Dr Aristova’s words ‘[..t]he claimants were prevented from commencing proceedings in the US because Ecuador had an independent judiciary but were also prevented from enforcing a judgment because it did not’ (pp. 200-201 of the book).

Notwithstanding the merit of this particular case (which is not for this post to analyse), this is a remarkable example of a glaring double standard in terms of procedural rights. Multinationals benefit from a public international law system at their disposal to sue foreign host states when they violate their property rights. This includes not only clear-cut cases of expropriation but also situations when a host state court holds an investor responsible for environmental damage or when a host state enacts environmental laws that reduce the investor’s profit (even if potential). However, when a foreign investor violates the human rights of people in a host state, victims have to engage in complex transnational litigation to convince a foreign home state court that it has jurisdiction over their case. They could sue the investor in the host state, but as convincingly argued by Dr Aristova, this is often not possible because of a variety of legal hurdles, including the limited liability of parent companies, the difficulty of enforcing host state judgements in the home state and the possible denial of justice in host state courts.

Furthermore, this unequal system enables multinationals to use their corporate structure to either enhance or shield themselves from the jurisdiction of a tribunal, depending on whether they want to claim their rights or limit their liability. In most bilateral investment treaties, the term ‘investment’ includes shares in a company. This makes, under investment law, any parent company incorporated in a home state (such as the UK) a foreign investor towards the host state (such as Nigeria) where its subsidiary is located. Thus, owing a subsidiary in Nigeria opens up the possibility for a UK parent company to file a request for arbitration against Nigeria. In essence, parent companies can use their corporate structure as a jurisdictional basis to initiate proceedings against a host state for the violation of their property rights under public international law. However, under private international law, as exhaustively analysed in the book, the same corporate structure represents a jurisdictional shield for parent companies to avoid liability in respect of the harm inflicted by their subsidiaries on people and the planet. Owing a foreign subsidiary in Nigeria limits a UK parent company’s prospective liability not only because most subsidiaries are limited liability companies but also because incorporating a subsidiary in a foreign jurisdiction makes it particularly difficult for potential victims to file a transnational claim against the parent company.

Furthermore, since its inception, ISDS has been developed and used to circumvent host state judicial systems, often considered weak, corrupted or biased. In order to avoid host state domestic justice, under most investment treaties, investors can simply file an arbitral claim without the need to exhaust local judicial remedies. However, as explained in Chapter 6 of the book, when victims harmed by multinationals claim that host state courts cannot ensure access to justice, this is perceived as an attack on the host state’s sovereignty. Indeed, as the book explains, post-Brexit, without the benefit of the Brussels I Regulation, litigation in the UK will often depend on the application of the forum non convenience doctrine. A pivotal element of the forum non convenience analysis in this context is whether or not foreign tort victims can demonstrate a lack of substantial justice in the host state. The burden of proof is on the victims. Instead, investors do not even have to start an argument concerning the fairness of host state domestic courts because ISDS typically enables them to avoid dealing with the host state judicial system.

Despite these apparent inequalities of arms, we lawyers keep saying to each other that the law is neutral. It is just having difficulty adapting to an increasingly complex world. If it is neutral, then why are multinationals benefiting from the legal system whilst stakeholders harmed by corporate abuses are not?

Maybe the answer could be found in history. Indeed, as demonstrated by a number of scholars, such as Erika George and Doreen Lustig, multinationals are not a new phenomenon of the XX and XXI centuries. They are, at least, as old as the British colonial Empire. Transnational companies such as the East Indian and Hudson’s Bay companies were creatures of the British empire, conflating both the power of dominium and imperium (which could be translated as the precursors of property and sovereignty) in their hands. In different decades, they were regulated by a mix of public and private, national and international law designed to further the interest of the Crown in British colonies. Analogous arrangements were made by other colonial states that also had their commercial interests secured by transnational companies.

A lot has changed since that time, as we are in a postcolonial world. Increasingly, the public and private divide has captured the discourse, and most legal scholars now believe that a private company cannot be regulated by public international law, let alone human rights. Of course, investment law represents the exception confirming the rule. Against this background, Dr. Aristova’s book investigating the business and human rights implications of private international law was very much needed. Nevertheless, it should be acknowledged that multinational corporations are still benefiting from an international legal system that is far from neutral because it shields them from liability (through private international law), by making it extremely difficult for any victim to assert jurisdiction on a fragmented enterprise, but at the same time, enables that same fragmented enterprise to easily reclaim its rights through ISDS.

In sum, Chapter 6 of the book very well addresses the complex questions related to the perceived imperialism of home-state laws in host-state countries. But it does so in isolation from the bigger picture of the benefits that multinationals have historically enjoyed and still enjoy today when conducting transnational trade. Dr Aristova nicely identifies the shortcomings of transnational litigation, such as the growing number of transnational cases that could overwhelm home state courts, or the fact that an English court accepting jurisdiction over the Zambian subsidiary of a UK corporate group could be perceived as an imperialistic imposition of home state laws on the host state. However, I am afraid that these shortcomings are not the result of an increasingly complex system emerging from globalization, but of an historically biased system that benefits multinationals at the expense of people and the planet. Globalization made this inequality of arms just more visible to our eyes. Recognising this reality could trigger new and interesting normative questions as to how the system could change in order to achieve this so-called neutrality.

This post has been written by Geert Van Calster, Professor of Private International Law, KU Leuven and member of the Belgian Bar. It is the third post in the EAPIL blog online symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). The others contributions, by Ekaterina Aristova, Peter Muchlinski, Mukarrum Ahmed, Dalia Palombo and Ekaterina Aristova can be found here, here, here, here and here respectively. Readers are encouraged to participate in the discussion by commenting on the posts.

In Chapter 4 of Tort Litigation against Transnational Corporations, Dr Aristova discusses jurisdiction of the English courts in foreign direct liability claims. The focus in this Chapter is on the material rules (and their application), not on the substantive question whether as such it is warranted for English courts to exercise such jurisdiction: that question is considered in Chapter 6 in the volume.

The jurisdictional leg of foreign direct liability claims clearly is a crucial one: it is literally a knock-out point. Chapter 4 discusses the legal issues as they apply in the English courts in an accessible fashion. It justifiably reviews the pre- and post-Brexit situation in two separate sections.

Pre-Brexit, the application of the common law’s forum non conveniens mechanism as applied in England (like Dr Aristova, I return to the Australian application later) could only be applied to the parent company’s subsidiaries and other non-EU incorporated defendants. Against the EU defendants (seeing as the book focuses on England: England-incorporated defendants), forum non of any kind could not be applied following CJEU Owusu prior to the adoption of Brussels Ia. Under Brussels Ia, a type of forum non light can be applied under Articles 33 and 34 of that Regulation and the limited authority on that Article (most of it English indeed) is discussed briefly in the Chapter. It is certainly not wrong for the Chapter to state that ‘the exact operation of the discretion to stay proceedings to prevent injustice to the claimants in the foreign forum is yet to be seen and may require the CJEU’s guidance and clarification’. However, given the references to substantive justice in the authorities so far, and to ‘sound administration of justice’ in the statutory instruction, this is a point that I would have liked Dr Aristova herself giving instruction on.

As Dr Aristova documents, defendants’ attempts pre-Brexit to bring in via the backdoor what Owusu had closed the front door on (to use the expression of Purle J in Jong v HSBC [2014] EWHC 4165 (Ch)) either by case-management decisions or by reference to abuse of EU law, failed among others in Municipio De Mariana v BHP Group (UK) Ltd [2022] EWCA Civ 951.

Post-Brexit, forum non conveniens has returned with a vengeance for England-incorporated defendants and non-incorporated defendants alike. England-incorporated defendants can be sued as of right but the defendant can ask the court to stay the proceedings on the basis of forum non conveniens. In order successfully to seize an English court of a claim over a non-incorporated defendant, claimant must show firstly ‘a good arguable case’ that the claims fall within one of the gateways in the civil procedure rules – CPR, introduced by Statute; further a serious issue to be tried on the merits (this is designed to keep out frivolous suits); in case the claim makes use of an anchor defendant, the case against the anchor defendant, too, must be shown to have merit; and finally that England is the appropriate forum for trial and the court ought to exercise its discretion to permit service out of the jurisdiction: that is the forum non conveniens test.

Chapter 4 summarises the extensive case-law in admirable fashion, and Dr Aristova concludes at one stage ‘One can only hope that the transition from a harmonised and predictable Brussels I regime to a complex service based model will be smooth.’ I appreciate that court practice needs further settling, however, all in all, I am a touch more pessimistic when it comes to judging the post-Brexit outcome. In FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45) the Supreme Court has widened the scope of potential gateways to establish jurisdiction in England, with ‘forum non’ considered to be the necessary gatekeeper. Despite the same Supreme Court’s instruction in Vedanta Resources Plc v Lungowe [2019] UKSC 20 that there should be no ‘mini-trial’ at the jurisdictional stage, deep-pocketed defendants do use the jurisdictional thresholds to force claimants into lengthy, and expensive argument on jurisdiction alone. Lord Briggs’ suggestion [40] in Vedanta that a defendant’s guarantees of submission to jurisdiction in the ‘host’ States (where the multinational corporation and /or its subsidiaries operate) ought to feature in the forum non assessment, in my view is a crucial get-out off jail free card and one which features among others in the Dyson litigation heard in the last week of November upon appeal. (Dr Aristova refers to the High Court case in footnote 292 (the case came late in the publishing process of the book) and reminds us justifiably of her critical reception of the judgment).

The Chapter’s suggestion at 4.81 that jurisdictional issues have not been a significant obstacle to foreign direct liability cases in England, refers in support to 2013 and 2014 sources (i.e. pre-Brexit) and again I think is optimistic. It may be correct on the final outcome of many of the heavily litigated cases where in the end and usually after having gone all the way to the Supreme Court, the English courts did eventually accept jurisdiction. Yet the efforts in getting to that result undoubtedly have had a freezing effect on other claims that might have been brought.

Dr Aristova confirms a suggestion she has made earlier elsewhere, namely to replace the English forum non test with the Australian model: (4.92) ‘The classic [English, GAVC] Spiliada inquiry of the most appropriate forum thus becomes a question of why England is the clearly inappropriate forum to try FDL claims.’ While indeed there are plenty of reasons why Australia is not the natural home of many FDL claims, its forum non test does not feature chiefly among them. I would also argue that the Australian test aligns with the sentiment of Brussels Ia’s Articles 33-34 test, with the latter’s strong presumption against a stay of the European proceedings.

In Chapter 6, the volume then turns more conceptually to the factors that in the view of the author ought to be considered when defining the legitimate scope of the English courts’ jurisdiction in FDL claims. This includes

– strategic reasons for forum shopping;

– procedural fairness to the corporate defendant (Dr Aristova is to be commended for developing a set of criteria (6.21) ff which in her view should guide this factor, such as the avoidance of parallel litigation in several fora and the advantage of consolidation, as well as the Brussels regime-type expectation of predictability);

– the impossibility in practice (different from: a call to embrace them) to avoid policy implications in the exercise, or rejection, of jurisdiction: despite the English and other courts’ attempts to avoid to do so. The discussion of this issue invites comparison with US developments both in classic, domicile-based jurisdiction and in the application of the Alien Tort Statute; and it links directly to developments such as the EU’s Corporate Sustainability Due Diligence Directive CS3D; and

– the flip side of the coin, namely the policy considerations of preferring jurisdictions for the host as opposed to the home state of the corporation. In this section, Dr Aristova convincingly engages ia with Third World Approaches to International Law (TWAIL) scholars, and proposes solutions closely connected to her proposal for reform to the English FNC test, in Chapter 4.

While Chapter 4 is extremely informative to the non-conflicts scholar yet harbours no surprises to those of us who are in the conflicts-know, Chapter 6 speaks to all constituencies when discussing the why (at a policy level) and how (in suggesting acceptable models for doing so) of home state regulation and adjudication of corporations’ activities abroad. It is a very strong chapter, in a very strong book, which practitioners and students of the law as well as policymakers would do well to read when they consider the wider implications of their litigation, studies and political views.

This post has been written by Ekaterina Aristova, Leverhulme Trust Early Career Fellow, Bonavero Institute of Human Rights, Faculty of Law, University of Oxford. It is the first post in the EAPIL blog online symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). The others contributions, by Peter Muchlinski, Geert Van Calster, Mukarrum Ahmed, Dalia Palombo and Ekaterina Aristova can be found here, here, here, here and here respectively. Readers are encouraged to participate in the discussion by commenting on the posts.

I am delighted that the EAPIL blog is hosting a symposium on my book, Tort Litigation Against Transnational Corporations: The Challenge of Jurisdiction in English Courts, published earlier this year in the Oxford University Press Private International Law Series. This symposium provides a unique opportunity to reflect on the book’s key themes and to engage in meaningful dialogue about the crucial questions it raises.

At its core, the book examines how English courts navigate jurisdictional challenges in cases involving transnational corporations (TNCs). Specifically, it focuses on tort litigation brought against parent companies registered or having their headquarters in England and their foreign subsidiaries for alleged human rights violations and environmental harm that occurred overseas. These claims leverage the frameworks of tort law and private international law, illustrating how civil remedies can serve as a vital mechanism for accountability when other avenues are unavailable or ineffective.

While the book is written from the perspective of English law, it also draws on examples of similar claims in other jurisdictions to broaden the discussion. For instance, it examines high-profile cases such as the Nevsun litigation in Canada concerning forced labour in Eritrea; the Shell  case in the Netherlands concerning environmental pollution in Nigeria; the KiK case in Germany addressing the deaths of factory workers in Pakistan due to a devastating fire; and the Chevron case in Ecuador involving environmental devastation in the Amazon region. These examples underscore the transnational nature of business and human rights litigation and the common challenges faced across different legal systems.

The Challenge of Jurisdiction

A central question explored in the book is whether English courts should exercise jurisdiction over mass tort claims when England is the home state of a TNC. My research demonstrates that this decision often carries significant consequences: if such claims cannot proceed in English courts, they frequently cannot proceed in any forum. This reality underscores the stakes of jurisdictional determinations, which serve not only as procedural thresholds but also as gateways to substantive justice.

English courts’ decisions on jurisdictional issues reveal critical tensions inherent to cross-border disputes. These cases often involve a delicate balancing act: on one side are victims who face profound obstacles to obtaining redress in their home states due to systemic power imbalances, weak governance or lack of effective remedies. On the other side are corporate defendants, whose legal strategies frequently invoke concerns about predictability, fairness and the alleged risks of judicial overreach or forum shopping.

I argue in the book that the approach of the English courts to the operation of the rules of jurisdiction in business and human rights litigation is workable in practice.

In the pre-Brexit framework, the application of the Brussels I Regulation and the principles of English common law secured a few important wins for the claimants. For instance, the landmark Supreme Court judgments in Vedanta and Okpabi cleared several hurdles necessary to successfully establish the jurisdiction of the English courts against both the local parent and the relevant foreign subsidiary. This approach proved to be viable for many claimants.

Nevertheless, I still aim to demonstrate that the rules of jurisdiction are characterised by a conceptual challenge – a lack of normative recognition that these claims are substantially connected with England. In practice, this is problematic in the context of the wide discretionary powers of the English courts to stay proceedings in favour of the foreign forum or refuse service out of the jurisdiction. The change in the UK’s status under the Brussels I Regulation does not mean that overseas claims against British multinationals are now banned in England. The claimants are able to rely on the common law rules to initiate proceedings against English parent companies as well as foreign subsidiaries as necessary or proper parties. At the same time, as evidenced by the ongoing proceedings against Dyson, a revival of the forum non conveniens control may weaken the position of foreign claimants before the English courts. If the claimants fail to produce cogent evidence that no substantial justice will be obtainable in the foreign forum, the English courts may decline jurisdiction over claims against both local parent companies and foreign subsidiaries.

I argue that the position of claimants would be improved if greater recognition were afforded to the underlying nature of the dispute when identifying the appropriateness of England for trying business and human rights claims. These cases should not be viewed as a dispute arising solely from the subsidiary’s operations and, as such, having forum connections solely with the foreign state. Rather, they are about allocating liability between the parent company and the subsidiary, and the jurisdictional inquiry could and should reflect it.

Private Claims, Public Interest

An important theme running through the book is the dual nature of these claims: while they are framed as private disputes, they often serve broader public interest purposes. Tort litigation against TNCs is more than a matter of resolving liability between claimants and corporate defendants – it also functions as a tool for advancing corporate accountability for human rights and protecting emerging public norms.

By situating these cases at the intersection of private law and public interest, the book highlights how tort litigation challenges traditional distinctions between public and private norms. It argues that English courts’ approaches to jurisdiction in these cases have far-reaching implications for the global regulatory landscape, particularly in the field of business and human rights.

Looking Ahead

The book concludes by advocating for a more nuanced approach to jurisdiction in tort litigation against TNCs, one that complements rather than replaces substantive legal rules on corporate accountability. It argues that private international law when applied thoughtfully, can serve as a powerful tool to bridge governance gaps in the business and human rights field. While litigation is not a perfect solution, it plays an important role in the absence of binding international frameworks. It offers victims a means of asserting their rights, challenging power imbalances and seeking remedies in otherwise inaccessible contexts.

I am thrilled to have an esteemed panel of discussants – Professor Peter Muchlinski, Professor Geert van Calster, Dr Dalia Palombo and Dr Mukarrum Ahmed – join the symposium. Each brings a unique perspective to the debates sparked by the book, from legal theory to regulatory practice, and I am eager to hear their insights.

This symposium is an opportunity to engage critically with the questions at the heart of my book: How should courts balance competing interests in cross-border tort claims? What role should home states play in regulating their corporations’ overseas conduct? And how can private international law evolve to meet the challenges of globalisation? I look forward to these discussions and hope they will inspire new thinking about the intersections of law, business and human rights.

Paola Nabet, who is a senior lecturer at the University of Metz/Lorraine, is the editor of a book on the requirement of internationality in private international law (L’internationalité du litige – de l’élément d’extranéité en droit international privé).

The book, which was published with Legitech earlier this year, collects the proceedings of a conference hosted in Metz in 2022.

The contributors include Barbara Palli, Clémentine Legendre, Gilles Cuniberti, Jean-Luc Vallens, Marie Fernet, Natalie Joubert and Olivier Cachard.

They discuss the requirement of internationality from the perspective of contract law in general, torts, family law, labour law, arbitration, customs and insolvency.

More information is available here, including a blurb in French.

Christian von Bar (University of Osnabrück), Oliver L. Knöfel (European University Viadrina Frankfurt (Oder)), Ulrich Magnus (University of Hamburg), Heinz-Peter Mansel (University of Cologne) and Arkadiusz Wudarski (European University Viadrina Frankfurt (Oder) and University of Szczecin) edited Gedächtnisschrift für Peter Mankowski with Mohr Siebeck.

The commemorative volume honours the late Peter Mankowski, who served as a professor of civil law, comparative law, and private international law at the Faculty of Law, University of Hamburg. Peter Mankowski passed away on 10 February 2022, at the age of 55.

Compiled by his friends, students, and colleagues, the volume includes contributions from both Germany and abroad. Covering a broad spectrum of topics, the collection is organized into eight sections that address international private and procedural law, international insolvency, international arbitration, international supply chain law, comparative law, uniform law (with a focus on the UN Convention on Contracts for the International Sale of Goods), and a final miscellaneous.

The volume celebrates Peter Mankowski’s impact on these fields, reflecting his academic achievements and honouring his legacy as a respected scholar and professor.

More information and the full details of the contributions contained therein are available here.

A collection of essays has been published by Intersentia, a few months ago, under the title Climate Change Litigation in Europe – Regional, Comparative and Sectoral Perspectives, edited by Ivano Alogna, Carole Billet, Matteo Fermeglia and Alina Holzhausen.

The blurb reads:

Climate change litigation is emerging as a global response to the unfolding climate crisis. As global warming increases and the catastrophic consequences of climate change become apparent, individuals and civil society as a whole are increasingly looking to the judiciary to uphold public and private entities’ obligations to fight global warming and step-up actions to protect present and future generations.

Climate change litigation is particularly pertinent in Europe. Since the landmark decision in Urgenda v. The Kingdom of The Netherlands in 2015, climate cases have been filed across European jurisdictions and reaching European regional courts, such as the Court of Justice of the European Union and the European Court of Human Rights. Consequently, climate change litigation is also emerging as a consolidated body of knowledge and practices, with the common objective of enhancing climate change mitigation and adaptation action. It is a multi-faceted phenomenon, engaging with a wide array of substantive and procedural legal challenges and issues. Legal architectures and strategies for climate cases include, among others, environmental law, tort law, constitutional law, consumer law, administrative law and human rights law.

Against such a backdrop, Climate Change Litigation in Europe provides, for the first time, a comprehensive account of the most relevant developments around climate change litigation, with a specific focus on Europe. To this end, the book aims to address the phenomenon of climate change litigation from a threefold perspective. First, it unpacks the supranational dimension of climate change litigation within Europe, with a particular focus on European regional courts. Second, it provides a comparative analysis of climate change litigation from different European jurisdictions, in order to understand points of convergence and departures among the different approaches to the common problem of tackling global warming. Finally, it analyses relevant substantive and procedural issues underpinning both existing and future climate change litigation, ranging from human rights to state and corporate responsibilities, international trade and investment and procedural rights.

Various contributions will likely appeal to those interested in the private international law aspects of climate change litigation, including Rhonson Salim’s Collective Redress and Climate Change Litigation in the EU: A Promising Future or More of the Same?, and the two contributions featured in in the section of the book devoted to Corporate Responsibility and Climate Change Litigation, namely From State to Corporate Liability in Climate Litigation: How Can Urgenda-Type Cases Inform the Responsibility of Private Companies to Mitigate Climate Change?, by Maria Antonia Tigre, and The Liability of Financial Institutions for Climate Change: Legal Mechanisms and Principles for Assessing the Financial Industry’s Responsibility for Global Warming, by Marta Zamorska.

See here for the full table of contents. Further information on the book is available here.

Adrien Tehrani, who is professor of private law at the University of Montpellier, has published Droit européen de l’insolvabilité (European insolvency law) with Bruylant.

The book offers a comprehensive treatment not only of the Insolvency Regulation but also of the Restructuring and Second Chance Directive. It is thus not only focused on private international law, and delves into substantive European insolvency law.

The book does not only rely on French sources, but also on the leading commentaries written in English of the Insolvency Regulation and of the Directive and on US scholarship.

The blurb reads as follows:

Le droit européen de l’insolvabilité est en construction. Présenter au sein d’un unique ouvrage les règles générales applicables à ce jour, qui prennent pour l’essentiel leur source dans le règlement Insolvabilité bis et dans la directive Restructuration et Insolvabilité, contribue à en mesurer l’avancée. Sans doute les différences entre ces deux textes sont-elles nombreuses : le règlement, d’application directe, édicte des règles uniformes de détermination des juridictions compétentes et de la loi applicable, alors que la directive, d’harmonisation minimale, s’efforce de rapprocher au fond, sur certains points, les droits nationaux dans lesquels elle doit être transposée. Il convient toutefois de prêter attention au fait que les domaines d’application des textes commentés se recouvrent en partie, sans oublier non plus que le règlement ne se désintéresse pas du fond du droit, dans la mesure où il édicte plusieurs règles matérielles de droit international privé. Des liens pourront ainsi être établis, au fur et à mesure, entre le règlement Insolvabilité bis et la directive Restructuration et Insolvabilité.

À ce propos, s’il est permis de se réjouir, dans une certaine mesure, que l’entreprise européenne d’harmonisation des droits nationaux se poursuive, avec la proposition de directive Insolvabilité III, l’on sera aussi tenté d’appeler à consolider les premiers acquis. Il ne faudrait pas que le dynamisme actuel du droit européen de l’insolvabilité conduise à ériger un colosse normatif aux pieds d’argile.

Centrée sur le règlement Insolvabilité bis et sur la directive Restructuration et Insolvabilité, prenant notamment appui sur la jurisprudence de la Cour de justice de l’Union européenne, l’analyse entend en tout cas contribuer à la bonne compréhension des textes en vigueur, comme à l’identification de zones d’ombre dont l’on ne voudrait pas qu’elles fragilisent l’ensemble.

More details can be found here.

Wolfgang Hau (Ludwig Maximilian University of Munich), Bart Krans (Leiden University) and Anna Nylund (University of Bergen) edited European Law and National Organisation of Civil Justice with Nomos. The book is part of the Streitbeilegung und Streitvermeidung im Zivilrecht – Schriftenreihe des Munich Center for Dispute Resolution.

The book explores the interplay between European law and the civil justice systems within EU Member States. Through various lenses, the authors investigate how both EU primary and secondary law, as well as rulings from the European Court of Justice and the European Court of Human Rights, shape not only national civil procedural laws but also the structure of national judicial systems.

Topics dealt with include providing answers to questions such as when a body qualifies as a court under EU law, what is a judicial decision from an EU law perspective, identifying the specific tasks that EU law reserves for formal courts, and examining judicial protection as protection against the judiciary discussing if there is a right of appeal against court judgments in European civil procedure.

Contributors include Wolfgang Hau, Bart Krans, Anna Nylund, Aleš Galič, Wolfgang Hau, Anna W. Ghavanini, Piet Taelman, Jarich Werbrouck, Jordi Nieva-Fenoll, Laura van Kessel and Bart Krans.

As announced on this blog, Xandra Kramer (Erasmus University Rotterdam and Utrecht University) and Laura Carballo Piñeiro (University of Vigo) edited Research Methods in Private International Law – A Handbook on Regulation, Research and Teaching.

Following the previous online book launch, an additional one is scheduled for 23 September 2024, from 10am to 11:30am CEST. Similar to the first session, this event will feature several contributors to the book, who will offer their insights on methods of regulation, research, and education in private international law.

Participants in the online book presentation, moderated by Jie (Jeanne) Huang, in addition to the editors Laura Carballo Piñeiro and Xandra Kramer, include Veronica Ruiz Abou-Nigm, Ramani Garimella, Chukwama Okoli, Abubakri Yekini and Aukje van Hoek.

For more information, see here.

Private International Law in Russia, by Anton Asoskov, Daria Levina and Milana Karayanidi, has just been published by Bloomsbury Publishing.

The blurb reads:

This book provides the first comprehensive introduction to Russian private international law (PIL) for the foreign lawyer.

The book carefully examines the applicable conflict of law and jurisdictional rules on the basis of the relevant statutory provisions, case law, and doctrinal writings developed in Russia for the purposes of dealing with cross-border commercial issues. It covers topics that will be of particular interest to comparative scholars, for instance the sources of PIL in Russia, including international conventions and treaties; party autonomy and the choice of law by the parties; determination of applicable law in the absence of choice by the parties; public policy exceptions and overriding mandatory provisions; and many more. These and other topics serve as an entry point to the hybrid system of law that Russian PIL is: modelled on European law but characterised by its Soviet past.

Johannes Ungerer (University of Oxford and Notre Dame Law School) has published recently his article German Law’s Dilemma with Punitive Damages: German Federal Court of Justice, Judgment of 4 June 1992, Case IX ZR 149/91 (BGHZ 118, 312) on SSRN.

The article is included also in the volume edited by James Goudkamp and Eleni Katsampouka titled Landmark Cases in the Law of Punitive Damages published by Hart in 2023.

The abstract reads as follows:

German law faces a dilemma when it comes to punitive damages, which potentially exposes it to the criticism of hypocrisy. On the one hand, doctrinally, the German law of damages is intended to be strictly compensatory and free from punitive damages. In order to protect its domestic system, the German Federal Court of Justice (Bundesgerichtshof) held in its 1992 landmark decision that German law does not recognise and enforce foreign judgments awarding punitive damages. Yet, on the other hand, developments in German law both before and after this landmark decision have possibly watered down the doctrinal insistence on damages being solely compensatory. These domestic developments might have made it difficult for German law to maintain the refusal to recognise and enforce foreign judgments in which punitive damages have been awarded. Thus, the question to be answered is: can German law confidently claim that punitive damages are still sufficiently foreign to the domestic system and that punitive damages awarded by foreign courts can thus be rejected without self-contradiction?  To respond, the chapter will, after a short explanation of the doctrinal situation in German law, analyse the landmark case. The discussion will afterwards address the caveats that have been made by German courts for dealing with punitive damages. Finally, and changing the perspective slightly from the issue of recognition to applicable law, consideration will be given to how German courts handle claims that are governed by foreign law which allows awarding the remedy of punitive damages.

Giovanni Chiapponi (University of Florence; previously Bologna University and Max Planck Institute in Luxembourg) has published a book titled Interfaces between National and EU Law. Time Limits in Cross-Border Civil Proceedings and Their Impact on the Free Circulation of Judgemen31t. The book is published by Nomos, in the Luxembourg Legal Studies series.

The blurb reads:

This book aims at exploring possible solutions to remove the obstacles to the free circulation of judgments in the civil justice area which arise from the remarkably different national rules on procedural time limits. The interplay between national and EU law reveals that time limits raise significant challenges connected with the right to a fair trial under Art. 6 ECHR and Art. 47 CFR, which negatively impact EU cross-border civil litigation. To overcome some of the weaknesses of the current legal framework governing the cross-border enforcement of judgments and strengthen the parties’ procedural rights, the book intends to determine whether and to what extent time limits can be harmonised at EU level.

The book is based on the PhD thesis defended in the Max Planck Institute in Luxembourg in 2023. It can be ordered here.

Janeen M. Carruthers (University of Glasgow) and Bobby W.M. Lindsay (University of Glasgow) edited Research Handbook on International Family Law.

Published by Edward Elgar in its Research Handbooks in Family Law series, the book addresses legal topics pertaining to family relationships in a cross-border context, and international family law disputes. It shows how this field of study has developed, and continues to develop, and adeptly surveys the practice and regulation of international family law.

It takes an international approach, examining various jurisdictions and viewpoints, and demonstrates that as the number of international families grows, so does the potential for cross-border family law disputes. It provides an overview of current research in international family law, analysing topics such as legal parentage, intercountry adoption, habitual residence, parental responsibility, child and family relocation, international child abduction, forced marriage, and the financial and property consequences of adult relationships.

Contributors include Janeen M. Carruthers, Bobby W.M. Lindsay, Laura Carpaneto, Onyója Momoh, Magdalena Pfeiffer, Susanne Lilian Gössl, Kirsty J. Hood KC, Ruth Lamont, Rhona Schuz, Maria Caterina Baruffi, Lauren Clayton-Helm, Janeen M. Carruthers, Felicity Belton, Lara Walker, Máire Ní Shúilleabháin, Ilaria Viarengo, David Hodson OBE KC (Hon), Cristina González Beilfuss, Ann Laquer Estin, Verónica Ruiz Abou-Nigm and María Mercedes Albornoz.

Vesna Lazić (Associate Professor at Utrecht University and Senior Researcher at T.M.C. Asser Institute in The Hague) and the late Peter Mankowski (formerly Professor at the Faculty of Law, University of Hamburg, Germany) published  in 2023 a book titled ‘The Brussels I-bis Regulation: Interpretation and Implementation’.

The book is a part of the JUDGTRUST Project titled ‘Regulation Brussels Ia: a standard for free circulation of judgments and mutual trust in the European Union’ funded by the European Commission’s Justice Programme (JUST-AG-2017/JUST-JCOO-AG-2017). More information about the project was  reported earlier on the EAPIL Blog here. The findings of this research are available online here.

The work carried out by the authors provides an in-depth analysis on the provisions regarding international jurisdiction and recognition and enforcement of judgments taking into consideration the relevant CJEU case law, as well as the results of the empirical research gathered for the JUDGTRUST Project from the National Reports from all EU Member States.

Within this context, the book identifies difficulties in the application of the Brussels Ia Regulation, as well as shortcomings and inconsistencies of the current legal framework, and provides suggestions for improvements.

Given the richness of information that was used to produce this volume, the book may be of assistance to scholars in private international law, legal practitioners, and students. Also, it may prove useful to legislators involved in the process of a future revision of the Brussels Ia Regulation.

Critical views expressed throughout the book and suggestions for the improvement are likely to trigger discussions that will certainly contribute towards advancing the effectiveness of this Regulation.

Anna Nylund and Antonio Cabral are the editors of Shaping Civil Litigation Using Procedural Agreements, recently published by Eleven.

Procedural agreements hold the potential to effectively customise and expedite civil proceedings. However, their impact on access to justice, particularly for weaker litigants, and the potential erosion of the court’s role raise significant concerns. Despite the growing acceptance of procedural contracts, it is still unclear how courts should interpret and when they should enforce these agreements. This book delves into the critical examination of choice-of-court, evidentiary, costs, appeal, and alternative dispute resolution agreements, offering a discussion on the boundaries between procedural and contract law. It interrogates the entanglements between procedural agreements, flexible procedural rules, case management, and the increasing complexity of litigated cases. Additionally, it examines the interrelations between procedural contracts and current trends in civil litigation, including the obligation of European courts to safeguard consumers against unfair terms and the emergence of international commercial courts. The book provides valuable insights on procedural agreements for both academics and practitioners, illuminating the dynamics of ‘contractualisation’, ‘flexibilisation’, ‘diversification’, and ‘arbitralisation’ of civil litigation.

The authors include Alain Ancery, Henrik Bellander, Antonio Cabral, Florian Eichel, Rorick Tovar Galván, Wolfgang Hau, Shushuke Kakiuchi, Bart Krans, Anna Nylund, Magne Strandberg, Alan Uzelac and Vigita Vebraite.

More information, including the table of contents, are found here.

Xandra Kramer (Erasmus University Rotterdam and Utrecht University) and Laura Carballo Piñeiro (University of Vigo) edited Research Methods in Private International Law – A Handbook on Regulation, Research and Teaching.

The book, which has just been published by Edward Elgar in its Handbooks of Research Methods in Law series, offers perspectives on the diverse methodological approaches to private international law, examining both regulatory and educational aspects.

Contributors include Laura Carballo Piñeiro, Adriani Dori, Diego P. Fernández Arroyo, Sai Ramani Garimella, Marco Giacalone, Paola Giacalone, Nuria González Martín, Christoph A. Kern, Mary Keyes, Patrick Kinsch, Xandra Kramer, Dulce Lopes, Cristina M. Mariottini, María Mercedes Albornoz, Ralf Michaels, Chukwuma Samuel Adesina Okoli, Marta Pertegás, Giesela Rühl, Veronica Ruiz Abou-Nigm, Maria Carlota Ucín, Aukje A.H. van Hoek, Christopher A. Whytock, and Abubakri Yekini.

For more details, see here.

A new book titled Tort Litigation against Transnational Corporations has been published in the Oxford University Press Private International Law series. The author, Ekaterina Aristova, is Leverhulme Trust Early Career Fellow at the Bonavero Institute of Human Rights at the University of Oxford.

The description of the book on the publisher’s website reads as follows:

There is an emerging trend of private claims being brought against parent companies of transnational corporations for their alleged involvement in human rights and environmental abuses committed abroad. These cases form part of an international effort aimed at strengthening responsible business conduct, the success of which depends on the rules governing domestic courts’ power to adjudicate disputes. However, in an increasingly globalised environment, the territorial focus of the adjudicative jurisdiction is often contrary to the transnational nature of the business activities.

To address this puzzle, Tort Litigation against Transnational Corporations seeks to answer three questions: Firstly, to what extent can English courts, under existing rules, exercise jurisdiction over an English parent company and its foreign subsidiaries as co-defendants? Secondly, is England a suitable forum for deciding transnational human rights claims? And, finally, should the jurisdictional competence of the English courts be broadened through a new connecting factor derived from the ‘economic enterprise’ theory?

While the book is written from the perspective of English law, it also draws on examples of similar claims in other jurisdictions to broaden the discussion. It offers a new angle to the business and human rights discourse by placing the discussion of parent company liability cases in the context of the topical debate about the changing role of private international law in a globalised world.

A new book titled Brussels II-ter – Cross-border Marriage Dissolution, Parental Responsibility Disputes and Child Abduction in the EU has been published by Larcer-Intersentia. The authors of the book are Nigel Lowe (Cardiff University), Constanza Honorati (Milano-Bicocca University) and Michael Hellner (Stockholm University).

The description of the book at the publisher’s website reads as follows.

The ‘Brussels II’ Regulations have a long history and provide the EU’s rules on jurisdiction, recognition and enforcement of matrimonial matters, matters of parental responsibility, and international child abduction. In 2016, the EU Commission published its Proposal for recasting what was then Council Regulation No 2201/2003 (‘Brussels II-bis’). There followed lengthy negotiations that resulted in the recast Council Regulation No 2019/1111 (‘Brussels II-ter’), which came into force in August 2022. Brussels II-ter has made substantial changes. Brussels II-ter is the key EU instrument for dealing with cross-border issues involving recognition of divorce, custody and access disputes over children, international abduction and the placement of children from one Member State to another.

This book provides an in-depth discussion of this complex Regulation. Written by three renowned experts, this comprehensive analysis benefits from the collective scope of their experience and knowledge, not only of their respective jurisdictions (Italy, Sweden and the UK) but also more generally of international family law and private international law. Brussels II-ter: Cross-border Marriage Dissolution, Parental Responsibility Disputes and Child Abduction in the EU provides not only a clear exposition of the Regulation’s provisions, but also a critical evaluation of them.

Rather than an Article-by-Article analysis, the book instead comprises separate chapters on discrete parts covered by the Regulation—namely, on the history and scope of Brussels II-ter; common rules on court proceedings; jurisdiction in matrimonial matters; parental responsibility; coordination of proceedings; international child abduction; the hearing of the child; recognition, enforcement, authentic instruments and agreements; and cooperation in matters of parental responsibility. An exposition of the relationship between the EU and the UK following Brexit concludes this volume, which discusses, among other issues, the often problematic inter-relationship between Brussels II-ter and the 1996 Hague Child Protection Convention.

Marcel Zernikow (University of Pau and Pays de l’Adour) has kindly prepared this presentation of his recent book titled Les règles de conflit de lois confrontées au marché intérieur. Étude en droit international privé européen du travail (Conflict of Law Rules Confronted with the Internal Market. A Study of the European Private International Law of Employment) published by L’Harmattan in 2024. 

What has become more evident over the past years has always existed in isolated cases. The international character of the work relation adds a supplementary complexity to employment law litigation. Let us only mention the examples of transnational teleworkers, crew members, mobile workers or posted workers to illustrate common legal issues. Starting from the relevance of Private International Law (PIL) of Employment in an integrated market, the monograph deals with the specific conflict of law rules of the European Union (EU). Its title also refers to the possible confrontation between the solutions given to the conflict of law and the law of the internal market of the EU. Thus, alongside other studies on European PIL, this research has chosen its field of analysis for reasons of coherence between PIL and the legal order into which the relevant rules for worker mobility are enshrined. From this point of view, this book will also serve as a starting point for reflecting on regionalism and PIL.

Precisely, our study, which is an updated version of a dissertation defended at the University Paris I Panthéon-Sorbonne in 2019, searches to establish the appropriate mechanisms in PIL of employment for the integration of the internal market as a legal concept. To respond to this problematic, it is necessary to read the conflict of law rules in the light of the substantive law of the EU in a broad sense. In other words, PIL should be understood as a means to achieve the integration of the EU.

The thesis proceeds in a binary dialectic which, in the first part, establishes a link between conflict of law rules and EU law. We know that the relevant conflict of law rules in our (European) jurisdictions are those adopted by the EU. For understanding and interpreting them, one must, first, remind oneself of their foundations. What has first arisen in the form of international conventions has then been adopted as proper EU legal acts relying on the competence of the treaty (article 81, § 2 TFEU). The latter refers expressly to the link between PIL and the proper functioning of the internal market. Even if the existing EU PIL rules should nowadays have integrated the requirements of EU law, our purpose is to underline that the confrontation between the solutions of the conflict of law mechanisms with internal market law still takes place, more particularly, when (national) unilateral overriding mandatory rules (lois de police) are at stake. Paradoxically, the latter are promoted by the EU instruments in PIL, such as the Posted Workers Directive (and its last amended version). In this sense, they are an indicator for a missing harmonisation of the multilateral conflict of law rules for this subject matter. Namely, article 8 of the Rome I Regulation is imprecise when it comes to determining the connecting factor for posted workers and is – only insufficiently – supplemented by the Posted Workers Directive. In other contexts, unilateral rules can also be identified, as a mechanism to compensate the missing harmonisation of private law in the branch of labour law, where a strong divergence (e.g. the scope of collective labour law or even the scope of labour law as such) is observed. In general, from the perspective of the freedoms of movement, unilateral rules are put under scrutiny because they promote the territoriality of the conflict of law reasoning.

Positively, while considering the foundations of the EU conflict of law rules, our aim is to identify the principles that the European conflict of law rules should reflect. The law of the internal market, initially understood, in our context, as referring to the free movement of workers and services, has over the past 25 years, been completed by the law of the area of freedom, security and justice whose provisions are nowadays the seat of the EU’s competence for adopting PIL rules. Moreover, the Charter of fundamental rights interacts with the conflict of law rules. Gradually, the analysis of the evolution of EU law should bring us to the identification of what characterises the concept of the internal market and influences the EU’s competence for adopting conflict of law rules.

The second part of the study has the objective to apprehend the European conflict of law mechanisms in a concrete manner. To conclude on how EU law characterises the conflict of law rules, one must draw some lessons from the concept of the internal market with respect to the mobility of workers. The internal market has evolved as an area of free movement for workers. This also brings up the serious question of its articulation with other freedoms such as those of services and of establishment. Eventually, their articulation leads us to the definition of the worker protection principle which is enshrined in the internal market and to which the relevant PIL regulations refer by mentioning the protection principle. In other words, EU law is both substantive law in the sense that it harmonises the national legislations and PIL in the sense that it regulates the applicable law. Both share common principles such as the worker protection principle.

From a theoretical point of view, this conclusion has further implications on the function of the European conflict of law rule which is regulatory insofar as it also contributes to the proper functioning of the internal market. More precisely, it is limited to regulating the internal market internally. Concerning the function of the conflict of law rule in legal relationships implying a third State, it has been noted that the conflict of law rule would have a more distributive function, as it would decide on the application of an EU vs. a non-EU substantive legislation.

As part of a mass of European PIL acts (contractual and non-contractual obligations, maintenance obligations, divorce, legal partnerships, successions, etc.), the specific conflict of law rules in employment matters are the object chosen for our study on the characteristics of EU PIL. From this perspective, the book necessarily develops the different characteristics and possible evolutions of the European conflict of law rules that may have relevance beyond the field of employment law. The reference to more general considerations such as that on harmony of decisions implying itself legal certainty and predictability is inevitable. However, the focus is the substantive orientation of the specific conflict of law rule in employment matters.

The EU conflict of law rule responds to the characteristics of a result-oriented conflict of law rule. Our book suggests witnessing the process of matérialisation of the conflict of law rule through a case study that analyses the absorption of the substantive rationale formerly expressed in the unilateral conflict rules by result-oriented rules. Technically speaking, the European conflict of law rule uses multilateral and alternative connecting factors. These are mostly – but not exclusively – contained in article 8 of the Rome I Regulation. One must note beforehand, that in the specific context of employment matters, the presence of freedom of choice raises serious doubts for the national judges who seem to radically restrict the choice of law. As a result of the influence of the principle of proximity in an interplay with the worker protection principle, the habitual workplace evolves as the principal connecting factor whereas the closest connection remains a possible connecting factor. The place of business through which the worker was engaged should be limited to specific cases. Eventually, against the background of the substantive harmonisation of labour law at the EU level, this study also insists on the need of autonomous notions for this context (e.g. who is a worker?).

In conclusion, this panorama distinguishes the arising European conflict of law rules, while we have learnt from Gamillscheg’s Course that the former (national) conflict of law mechanisms of European countries were different. One should repeat that what is identified here are the proper EU conflict of law mechanisms which follow the rationale of EU law. Thus, our analysis is proper to this context, and we would come to slightly different results if we took the PIL in another (e.g. regional or global) context.

Augustin Gridel (University of Lorraine) has kindly prepared a presentation in English of his monograph titled Marchés et instruments financiers en droit international privé (Financial Markets and Financial Instruments in Private International Law), published by Bruylant in 2023.

The aim of this book is to describe the relationship between the law of financial markets and instruments and private international law.

In the presence of a foreign element, the rules of financial law are most often presented as overriding mandatory rules (lois de police) or administrative rules. The establishment of a national supervisory authority with executive, normative and repressive powers is likely to amplify this perception, as is the appearance of financial law rules in litigation where they seem to derogate from the normally applicable solution rather than coherently form a new category.

However, this presentation by means of the overriding mandatory law does not allow for an overall understanding of the body of legislation put in place by financial law, nor does it provide a key to the application of these rules, and even less does it allow for an overall understanding of the international application of financial law. This perception of financial law as a set of heterogeneous and derogatory rules, presented using the lois de police method, did in fact correspond to the reality of this law at the beginning of its development. It has now reached a stage of maturity.

As well as taking place in a new legislative and institutional environment, this study does not limit its scope to one or other aspect of the internationalisation of the law of financial markets and instruments. By taking a synthetic look at the rules studied, it aims to renew the presentation of financial law rules by placing them, if not within bilateral rules of conflict, at least within unilateral conflict rules whose unity derives not only from the links between the rules, but also from the common objective they pursue. The result of the thesis is to affirm that market infrastructures are subject to a singular connection to the State and that this connecting factor provides a basis for the connecting factor of transactions between private persons who make use of them (I.). On the one hand, such a connecting factor makes it necessary to delimit the field of financial market law (II.). On the other hand, this connecting factor makes it possible to establish the one of financial instruments: the securities settlement system would give a particularly secure connecting factor to the proprietary status of the securities admitted to it, while the clearing system already constitutes the connecting factor of the vast majority of financial contracts which use it (III.).

I. In these circumstances, the method followed was to base oneself on the substantive legislation in question, potentially applicable to the international financial relationship, to the financial instrument or to the regulated person, in order to analyse the objective pursued and the means used to achieve it in order to deduce the method of international application. Comparative law, particularly English and US law, was an essential source of inspiration for international solutions. The difficulty quickly identified, however, was that the rules of financial law are often based on market infrastructures, whose regulations are not those usually applicable to private individuals. It was therefore necessary to study private international law beyond private law relationships in order to observe how market infrastructures are connected to the State, even though there is no longer any apparent geographical connection. This difficulty has been exacerbated by the diversification of these infrastructures, which now rely on four different managers, each of whom provides a specific system: trading, clearing, settlement of securities and payment.

These systems are not subject to identical regimes and have their own conflict-of-laws rules; at the same time, their administrative supervision is not unequivocal. In this respect, the federalisation of administrative supervision has taken on an unprecedented scale: studying it was necessary because it is likely to have an influence on the international location of the market infrastructure. Finally, the relationship with infrastructures from third countries shows the political importance of issues traditionally left to private international law: the decision to recognise foreign infrastructures is now attributed to the European Commission, using a new method known as the “equivalence method”. The objectives pursued by this method, between coordination of legal orders and protection of the social order of the forum, are nevertheless those of private international law.

II. Once the institutional connecting factor had been defined, it was still necessary to determine its scope, i.e. the situations in which the law of the financial market actually applies on the basis of the trading platform, in order to promote the proper functioning of the system it establishes. A distinction was quickly made between cases where financial market law applies to issuers or to investors.

In the first case, the law of the financial market most often seeks to protect investors; its jurisdiction is then that of the law of the place of solicitation. In these circumstances, the law of the financial market does not seek to deprive the law of the issuer of its pre-eminence with regard to the issue of securities; at most, it imposes material requirements, compliance with which is a condition of admission to trading. It does, however, attach consequences to the negotia represented by the securities as soon as they have an impact on the control of the issuer, and may therefore affect the operation of the company, but also that of any restructuring procedure. These two aspects, which are specific to the relationship between financial market law and the issue of securities, are those in which the objectives of market operation are added to those of investor protection.

Traditionally, the law of the financial market alone has jurisdiction to regulate the marketing of foreign securities on its territory, the consequence of which is to impose disclosure obligations on the issuer. We have defended the idea that the pursuit of the objective of investor protection has an influence on the international regime of these rules: they are likely to be self-limiting when the company’s home regulations provide equivalent protection. However, it is argued that such rules should not have the consequence of limiting the jurisdiction of the local regulatory authority, which remains best placed to control such information.

Furthermore, the information provided should be such as to give rise to liability on the part of the issuer. The nature of this liability is variable and will depend, on the one hand, on the beneficial ownership of the financial instrument in the person of the claimant and, on the other hand, on the basis of the claim. If the investor’s liability action against the issuer is contractual, the applicable law will be, depending on the circumstances, that of the contract resulting from the acceptance of the offer to the public, or of the contract of issue, and the jurisdiction of the court will depend on the presence of a choice of court clause or of a consumer. On the other hand, the thesis is that if the liability action is in tort, the legal system of the place of the tort will have global jurisdiction, where its residents have been approached, in order to compensate them for the damage they have suffered, i.e. the effective alteration of their investment decision.

When it applies to investors, the law of the financial market pursues the objective of the proper functioning of the financial market. It is in this sense that there is a lex mercatus, subject to the law of the trading platform.

This body of law is primarily made up of obligations incumbent on the market operator and its members in order to encourage trading and enable price formation; however, it does not extend to contracts concluded between members and their clients. The protection of the latter is ensured by the rules of good conduct applicable to the professional status of members, irrespective of their membership status.

Secondly, the lex mercatus is identified with the regulation of market transactions, both those that relate to the control of the issuer, i.e. the law on threshold crossings and takeover bids, and those that aim to prevent the artificial alteration of price, such as the rules on the repurchase of shares by the company or short selling. All of these rules should therefore be subject solely to the law of the financial market, rather than to an inappropriate mix with the lex societatis.

Thirdly, the lex mercatus consists of the prohibition of market abuse. These rules, between the functioning of the market and the repression of criminal behaviour, are subject to criminal law. This is one of the reasons why market abuse can be understood in the light of “compétence réelle”, as this concept is understood in international criminal law, and should be subject to it as soon as a French trading platform is affected. Alternatively, “compétence réelle” could be used when a European trading venue is troubled and the French authority is best placed to act, particularly in cases where the French regulatory authority receives information that could detect market abuse. Market abuse are, however, subject to the inevitable interference of international criminal law, which makes it desirable, in certain residual cases, to apply local regulations on market abuse to offences committed on foreign markets in order to avoid possible impunity for the French.

III. Having studied the area of financial market law, it was appropriate to compare the institutional connecting factor identified with financial instruments. Admittedly, their status is, at first sight, independent of the law of the financial market. Nevertheless, the latter makes its influence felt by linking the fate of the instruments to the other market infrastructures, the securities settlement system and the clearing system.

In the case of financial securities, by requiring issuers to deposit their securities with a central depository, the law governing the financial market paradoxically renders their ownership structure unstable. Indeed, the latter is now subject to criteria that have the effect of multiplying the laws applicable to their transfer. The thesis seeks to demonstrate that these criteria, which arose under the direct holding system, were not necessary, and were even manifestly harmful, whereas it was possible and highly desirable to subject financial securities to a unitary law, that of the central depository’s securities settlement system.

The status of financial contracts is a response to the dynamics of contract law, between contractual freedom and public policy (ordre public). Projected into the international order, however, public policy follows different methodological paths depending on the interests involved. First, it restricts freedom of choice of law to genuinely international contracts, and excludes it in the case of consumers. Secondly, it intervenes to protect residents against contracts whose stakes are often beyond the comprehension of neophytes. Public policy operates in French law not through the enactment of an incapacity regime, but through the professional rules to which direct marketers and investment firms are subject, and which are applicable independently of the lex contractus. Moreover, financial contracts have the peculiarity of being able to disrupt the operation of companies and financial markets; the laws governing their operation are therefore likely, in a spirit of reciprocity, to disrupt the formation or performance of such contracts.

It is argued, however, that such laws are more often than not unable to apply to the contract itself, and are better suited to sanctioning the persons who enter into them. Nevertheless, it is in order to protect the legal order as a whole that public policy is most intense, and justifies the submission of financial contracts to prudential rules. These are applicable depending on the location of the parties involved, and require the intervention of a clearing house, whose operation conditions the very possibility of choice of law.

The book concludes with a list of one hundred and twenty proposals as to the positive or desirable international scope of financial law.

— I am preparing an English version of the book. I wanted to pay a tribute to the English doctrine, not only because I spent one of my fruitful year in Oxford during the PhD, thanks to the generosity of John Cartwright and Birke Haker at the Institute for European and Comparative Law, but because the depth of their thoughts have allowed for this book to flourish : the first inspiration of the book was Maisie Ooi’s incomparable essay, and then the writings of English professors, notably Louise Gullifer and Jennifer Payne, as well as all the authors of the Dicey&Morris who have been, through articles and books, a constant inspiration.

Justin Borg-Barthet, Katarina Trimmings, Burcu Yüksel Ripley and Patricia Živković, from the University of Aberdeen, have accepted the invitation of the editors of the blog to present their co-edited book, titled ‘From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen’, published by Bloomsbury Publishing. The text below is cross-posted on Conflictoflaws.net.

When our colleague and friend Prof Jonathan Fitchen passed away on 22 January 2021, we were comforted in our grief by an outpouring of messages of condolence from private international lawyers around the world. We had known, of course, of the impact and importance of Jonathan’s work to the world of private international law scholarship. His monograph on authentic instruments, for example, will remain an essential reference on that subject for many years to come. Jonathan’s impact on the world of private international law scholars was, to a degree, less obvious. He was an unassuming man. He did not seek to command the attention of every gathering he attended, and he might have been surprised to realise how often he did just that. He was tremendously well-liked and well-respected for his wit, his self-deprecating sense of humour, and his empathy.

This book seeks to capture in it some of the immense esteem in which Jonathan was held. That much will of course be of interest to the many scholars and practitioners who had the privilege of Jonathan’s acquaintance. The intellectual generosity of the contributing authors will ensure, however, that this volume will also be of great value to those who encounter Jonathan for the first time in these pages. Taken together, the chapters in this book address the major conceptual and practical challenges of our time: from stubborn definitional dilemmas, such as the deployment of key terms in international child abduction cases, to contemporary concerns about disruptive technologies like cryptocurrencies, to core conceptual challenges regarding the unintended consequences of our discipline’s professed neutrality.

The collection is divided into three main parts. Following a preface in which Prof Xandra Kramer paints a vivid picture of Jonathan’s humanity, humour and wit, and an introduction by ourselves as the editors, Part I includes four chapters which address conceptual matters relating to the nature and scope of private international law. Part II is made up of seven chapters concerning civil and commercial matters in private international law. Part III includes two chapters on family matters in private international law.

Part I: The Evolving Nature and Scope of Private International Law

The first substantive chapter is a tour de force by Alex Mills in which he explores the unsettled relationship between private international law and legal pluralism. Mills observes that private international law is both a product and producer of pluralism, in addition to being internally pluralist in its self-conception. Mills’ analysis will be of great interest to readers seeking to discern private international law’s place in the taxonomy of the study of law, whether they are observing that taxonomy from the perspective of a comparatist, a conflicts scholar, or a public international lawyer.

The following chapter also engages with the problem of pluralism in private international law. Thalia Kruger focuses specifically on mediated settlements with a view to illuminating their meaning for the purposes of transnational law. Kruger does a wonderful job of building on Jonathan Fitchen’s work by providing technical and normative analysis of the public faith to be accorded to private agreements. Ultimately, she welcomes a movement towards the upholding of settlement agreements but cautions against potential abuse of vulnerable parties.

The problem of vulnerability is the central focus of the next chapter, by Lorna Gillies. Gillies provides robust, systematic analysis of the theory and practice of our discipline’s treatment of vulnerable parties. This is, of course, one of the central problems in a discipline whose professed neutrality is capable of furthering and entrenching inequalities. Gillies argues persuasively that the application of Fredman’s four pillars of asymmetrical substantive equality would equip private international law better to address inherent risks of vulnerability.

Asymmetries of private power remain the focus of discussion in the following chapter on the under-explored relationship between our discipline and feminist scholarship, authored by two of the editors. Justin Borg-Barthet and Katarina Trimmings set out to contribute to a nascent discussion about sex-based vulnerability and how this is (un)seen by much of the literature and law. It is argued, ultimately, that private international law requires more sustained engagement with feminist scholarship if it is to avoid acting as an instrument for the entrenchment of substantive inequalities.

Part II: Civil and Commercial Matters in Private International Law

Unsurprisingly, given the focus of much of Jonathan Fitchen’s written work, Part II on civil and commercial matters makes up around half of the volume. It begins with Andrew Dickinson’s meticulous analysis of the meaning of “damage” in EU private international law. Dickinson notes that, despite the central importance of the term to the operation of much of EU private international law, there is little clarity as to its meaning. His chapter sets out to remedy this shortcoming through the articulation of a hitherto undeveloped taxonomy of “damage” which promises to become an essential tool in the arsenal of students, teachers, practitioners, and adjudicators of private international law.

Another editor, Burcu Yüksel Ripley, authored the next chapter, which addresses cryptocurrencies. Our discipline’s continued preoccupation with definitional clarity remains very much in evidence in this discussion of challenges posed by disruptive technologies. Yüksel Ripley notes that attempts to characterise cryptocurrencies as a thing/property are unsatisfactory in principle, and that they therefore lead to conceptually unsound outcomes. She proposes instead that analogies with electronic fund transfers provide more promise for the determination of the applicable law.

In the next chapter, by Laura Carballo Piñeiro, the volume returns to another major theme of Jonathan Fitchen’s scholarly output, namely the effectiveness of collective redress mechanisms. Carballo Piñeiro observes that access to justice remains restricted in most jurisdictions, and that a common EU approach remains lacking. Although the courts have provided some routes to collective redress, Carballo Piñeiro argues that a robust legislative response is paramount if corporate accountability for environmental harm is to be realised in Europe.

Private international law’s ability to engage with concerns regarding environmental sustainability remains a key focus of analysis in Carmen Otero García-Castrillón’s chapter concerning the discipline’s place in international trade agreements. The chapter advocates the bridging of an artificial systemic separation between the private and the public in the international system. It is argued that the extent of private power in the international system merits attention in trade agreements if sustainable development goals are to be attained.

Giesela Rühl also addresses concerns regarding private international law’s ability to be deployed in matters which are traditionally reserved to public and public international law. Her chapter considers innovations introduced through the German Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG) which establishes mandatory human rights due diligence obligations in German companies’ international supply chains. Rühl laments the lack of attention paid to private international law in German law. She makes an especially compelling case for any future EU interventions to recognise the need to engage with private international law if legislation is to be effective.

The uneasy public-private divide in transnational law remains in evidence in Patricia Živković’s chapter concerning what she describes as “creeping substantive review” in international arbitration. Živković decries a lack of conceptual clarity in courts’ treatment of arbitral determinations, particularly insofar as public policy is deployed as an instrument of substantive review of private adjudication. She argues that international legislative intervention is needed if prevailing inconsistencies of treatment are to be resolved.

Fittingly, Part II is rounded off with a discussion of that part of private international law to which Jonathan Fitchen made his most enduring scholarly contribution, namely authentic instruments. Zheng Tang and Xu Huang discuss authentic instruments in Chinese private international law. Like Jonathan’s work, this chapter provides readers of English language scholarship with a rare example of in-depth analysis of concepts which are unfamiliar in the Anglo-American tradition. The chapter’s compelling arguments for legal refinements will also be of use, however, to readers who wish to identify possible improvements to Chinese law.

Part III: Family Matters in Private International Law

The final part of the book turns to family law, an area in which Jonathan provided ample instruction to students, but which was not especially in evidence in his written work. In keeping with the previous parts of the book, our discipline’s need for definitional clarity and consistency are very much apparent in the chapters in this part, as is the somewhat existential concern regarding the proper delineation of the public and the private. As the authors in this part observe, each of these matters has far-reaching effects on the apportioning of rights and obligations in circumstances which are deeply meaningful to the lives of litigants.

Aude Fiorini’s chapter considers flawed reasoning in the US Court of Appeals judgment in Pope v Lunday. Fiorini illustrates the substantive flaws in the Court’s treatment of the habitual residence of neonates, but also highlights a broader concern regarding the potential for unconscious bias in judicial decision-making. Through the judgment in Pope, Fiorini raises alarms regarding inconsistent judicial treatment of similar situations which turn on appreciation of circumstances establishing the habitual residence of a child. She argues, particularly compellingly in our view, that the interests of justice require greater conceptual clarity and consistency.

In the final chapter, by Anatol Dutta, the interactions of the public and the private return to the fore. Taking his cue from Jonathan Fitchen’s work on authentic instruments, Dutta explores the concept of private divorce under the Brussels IIter Regulation. Concerns regarding decisional autonomy are very much in evidence in this chapter, which considers the meaning of private divorces and the extent to which they enjoy recognition in the EU private international law system. Ultimately, Dutta welcomes measures which restrict private divorce tourism in the EU.

Conclusions

This book was born of a collective wish to remember and honour a much-loved scholar of private international law. In that, we trust that it has already fulfilled its purpose. However, each chapter individually and the book taken as a whole also capture the state of the art of private international law. Ours remains a discipline in search of systemic normative clarity and in episodic need of technical refinement. This collection provides tantalising glimpses of possible answers to both the essential question of the treatment of the private in the attainment of public goods, and in relation to longstanding vexing technical questions.

To preserve and further Jonathan Fitchen’s legacy as an educator of private international lawyers, editorial royalties from the sale of the book will be donated to the Jonathan Fitchen Fund of the Development Trust at the University of Aberdeen. Direct individual donations to the fund are also welcome and appreciated.

Geert De Baere (judge at the General Court of the EU and professor at KU Leuven) and Johan Meeusen (professor at the University of Antwerp) have just published with Larcier-Intersentia a new edition of their handbook, in Dutch, on the law of the European Union: Grondbeginselen van het recht van de Europese Unie.

The book provides an overview of the core elements of EU law, including the Union’s institutional organization and judicial protection, its fundamental principles, sources and decision-making procedures, the internal market, Union citizenship, competition law and external relations.

New in this second edition is a chapter on the European Union’s area of freedom, security and justice, which inter alia covers its historical development, the TFEU’s “general provisions” concerning the area and the specific Treaty provisions concerning its respective subfields. Readers are introduced to, inter alia, the institutional and substantive aspects of the judicial cooperation in civil matters and the Union’s action with respect to private international law.

Further information on the book, and on the simultaneous publication of new editions of Johan Meeusen’s books on the case law of the Court of Justice of the European Union and other sources of EU law, can be found here.

The fourth edition of European Private International Law – Commercial Litigation in the EU, authored by Geert van Calster (KU Leuven), is out. The book is published by Bloomsbury.

This classic textbook provides a thorough overview of European private international law. It is essential reading for both practitioners and students of private international law and transnational litigation, wherever they may be located: the European rules extend beyond European shores.

Opening with foundational questions, the book clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore private international law and insolvency, freedom of establishment, and the impact of private international law on corporate social responsibility. The relevant Hague instruments, and the impact of Brexit, are fully integrated in the various chapters.

Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

Fabian Kratzlmeier (Chicago) has accepted the invitation of the editors of the blog to present his recent book, titled ‘Die Grenzüberschreitende Unternehmensrestrukturierung im Europäischen Rechtsrahmen’ (Cross-border corporate restructuring and European private international law), published by Mohr Siebeck.

Reorganizing viable firms (instead of liquidating them) has been the state of the art in U.S. bankruptcy law for decades now, and it has become increasingly popular throughout Europe in recent years. This trend is reflected in legislative activities, such as the repeated reform efforts to the German bankruptcy code aiming at rescuing profitable, but over-indebted firms within the traditional insolvency procedure. It is also evidenced by practical patterns, most notably (not only) German companies using foreign restructuring instruments, in particular the English Scheme of Arrangement, to amend their financing structure while continuing trading in the 2010s. Even then – more than a decade ago – the wide-reaching impacts of such cross-border restructurings were heavily discussed in bankruptcy and private international law scholarship by some scholars, showing the (not only political) brisance of private international law in the area of restructuring law.

Whenever the earnings of a debtor company no longer cover its financial obligations, the creditors (and the shareholders) share a common interest in maximizing the pool of distributable assets. Where the continuation of the business under the old legal entity promises a higher present value compared to the liquidation of the debtor – be it piecemeal or through a business sale – economic logic demands a legal framework to resolve the underlying collective action problem. It is therefore the task of a modern insolvency and restructuring law to provide the parties involved with an appropriate set of rules that facilitates negotiations in order to adjust the debtor’s liabilities to the prospective earnings of the company (e.g. through debt reductions, deferrals or debt-equity-swaps).

In terms of the (continental) European landscape, the Restructuring Directive 2019 (hereinafter “Directive”) has set new standards in restructuring law, requiring Member States to reform and, in many cases, modernize their insolvency and restructuring laws. It mandates all Member States to maintain preventive restructuring instruments, enabling financially distressed companies to temporarily protect their business assets against collection or enforcement actions, and providing a majority voting scheme in order to cram down (groups of) dissenting creditors. In accordance with its minimum harmonization concept, however, the Directive leaves the Member States with a large number of choices and deviation options. Thus, the national restructuring frameworks differ widely from one another in some key aspects; e.g. regarding the entry threshold (the extent of financial distress required to access), the duration and scope of the moratorium, and the conditions and limits to the cram down mechanism (in particular as to group formation and priorities), to name but a few. The legal and economic positions of the various groups of stakeholders – and, consequently, their negotiating power in the immanent struggle over the distribution of going concern value – depend to a large extent on the jurisdiction in which the reorganization takes place and what options for action the local restructuring law offers to the respective stakeholders. It is obvious, that decision makers, when looking for suitable restructuring options, will not limit themselves to their home state’s reorganization tools, but explore foreign instruments as well, as past experiences with the English Scheme of Arrangement have proven before. As long as there is legal certainty, i.e. the reorganization is likely to be recognized by the relevant (i.e. asset-intensive) jurisdictions, decision makers have in incentive to choose the restructuring location that best serves their interests, ultimately resulting in a regulatory competition between national restructuring regimes throughout the EU. Private international law, in this context, regulates this competition by limiting (or unlocking) such choice of foreign insolvency and restructuring venues (and their respective laws). Against this background, the present study undertakes to comprehensively review and, building on its findings, further develop the legal framework for cross-border corporate restructurings within Europe, presenting a solution that is both coherent with existing European legislation, and consistent with the underlying principles of European insolvency law.

There is, however, another reason why further research in this area is desperately needed: Thanks to the ever-growing integration of the internal market and, thus, the establishment of international trade relations and supply chains, purely nationally operating companies (other than micro-enterprises) have long become the exception. It does not take much to make a national restructuring case an international one, i.e. the cross-border element does not need to amount to a foreign branch or similarly consolidated business structures. A foreign creditor or a third-party debtor based abroad suffices to turn a national company into an international restructuring case. Hence, the minimum harmonization of the substantive law by the Directive alone is not going to achieve the underlying goal set by the Union legislator, that is to provide all European companies with access to effective and efficient restructuring instruments. Rather, in cases with cross-border exposure, the question inevitably arises as to whether the financial crisis can be overcome in a single procedure – hauling all (including foreign) affected parties into one procedure and having it recognized across all (relevant) jurisdictions – or whether several procedures are necessary in order to implement a sustainable restructuring of the company and thus safe the going concern value.

Unfortunately, this need for international coordination and harmonization of cross-border corporate reorganizations, arising from the very conceptual nature of collective proceedings, has been hardly taken into account by the legislator when drafting the Directive. There are only three recitals (12 to 14) dealing with these issues in the first place, and even they contain only rudimentary (and hardly expedient) considerations regarding the relationship between the Directive and existing regulations in European private international law. In particular, they reference the European Regulation on Insolvency Proceedings (EIR) as well as the center of main interest (COMI), which is of paramount importance to the current international insolvency regime, to which it serves as the central connecting factor determining both jurisdiction and applicable law. In terms of (reliable) conclusions regarding the classification of the new restructuring frameworks and their integration into the existing private international law framework, however, the recitals only provide limited guidance. The recitals make it clear, though, that at least some of the proceedings created in transposing the Directive (i.e. those that are to be publicly announced) shall be subject to the EIR and, therefore, be included in the latter’s Annex A.

The study takes this as its starting point to demonstrate that the EIR provides a tailor-made set of rules for public proceedings, providing clear and (for the most part) fitting rules on international jurisdiction and applicable law while also guaranteeing EU-wide recognition. At the same time, however, there are some drawbacks in the EIR’s application to restructuring proceedings mainly resulting in setbacks to the collectivization mechanism aimed at on a substantive level. These issues, including rights in rem and secondary proceedings, are discussed in depth, and appropriate solutions are presented both de lege lata and de lege ferenda.

Turing to confidential restructuring frameworks, to which the recitals are silent, the scholarly debate is still evolving. Due to their private nature, they are increasingly popular in practice. At least in part motivated by the onsetting regulatory competition in the field, therefore, many Member States (including Germany, the Netherlands, and Austria) opted for a dual transposition enacting both a public and a private alternative. Since confidential procedures will not be included in Annex A and, thus, will prima facie remain outside the scope of the EIR, there are considerable hurdles to overcome in order to embed such procedures into the existing European private international law framework. First and foremost, the so-called bankruptcy clause enshrined in Art. 1 (2)(b) Brussels I bis Regulation challenges the integration into the existing secondary law altogether. A closer look at the issue reveals, however, that this provision excludes only those procedures, which qualify as “insolvency proceedings” under Art. 1 EIR, regardless of whether such proceeding is included in Annex A. Turning to international jurisdiction, the study is building on the controversy and the different propositions surrounding international jurisdiction to restructure foreign companies under an English scheme of arrangement. In that context, the arguments previously put forward in support of Art. 8 (1) (jurisdiction wherever at least one affected party has her domicile) and 24 (2) Brussels I-bis Regulation (jurisdiction at the place of the registered seat) are discussed and assessed as to their validity with regard to the new restructuring instruments. After all, the Directive differs in key respects from its English blueprint, and, thanks to its EU-law origin, requires special considerations concerning the coherence of (secondary) European law. Ultimately, the study finds that neither of the international jurisdiction rules provided for in the Brussels-I-bis Regulation are well-suited (or even practicable) for collective procedures such as the preventive restructuring instruments under the Directive. Therefore, it calls for a concentration of restructurings at the debtor’s COMI, which is in line with (and, upon a detailed examination, even envisioned by) both the EIR, and the Directive itself. In this respect, the study, using state-of-the-art European Union law methodology, extracts a coherent and consistent private international law framework for confidential restructuring procedures, centered at the debtor’s COMI, and recognized throughout the EU. At the same time, it proposes legislative amendments to the current system to clarify the private international law rules on cross-border restructurings – both for parties involved and Member States experiencing competitive pressure – and to improve the (few) inadequacies under the current legal regime.

Overall, the study reveals that the applicable law concentrates – public and confidential – restructuring proceedings at the debtor’s COMI on the one hand, but on the other hand also guarantees EU-wide recognition of the restructuring results achieved. The collectivization of creditors and shareholders implemented – in substantive terms – by the Directive, thus, continues on the level of private international law, enabling the continuation of viable companies even in a cross-border context.

Dr Mihail Danov, Associate Professor at the University of Exeter, has accepted the invitation of the editors of the blog to present his recent book, titled ‘Private International Law and Competition Litigation in a Global Context’, published in the Hart Publishing series on Studies in Private International Law.

The book examines the private international law issues in competition law claims which are issued by private parties and which arise out of infringements that distort the process of competition in different countries. The issues are important because many private antitrust damages claims would raise regulatory issues concerning the nature of the conduct as well as tortious issues concerning the causation and quantification of damages that may be sustained by numerous consumers and businesses (that may be up or down the chain of commerce).

The private international law aspects matter in practice because the jurisdiction rules (predetermining the applicable procedural rules) and the choice-of-law rules (ascertaining applicable law/s which are used to determine whether the conduct is anticompetitive as well as to quantify damages) would both have an impact on the outcome of a cross-border competition law dispute. More importantly, the book demonstrates that private international law issues are closely intertwined with injured parties’ access to legal remedies in private antitrust damages claims. For example, since many competition law infringements may last for several years and cause harm to various injured parties, the procedural rules (concerning case-management; disclosure; standard of proof) at the place where the parties litigate would be key for judges to quantify damages by applying the applicable substantive law rules. This means that the injured parties’ access to justice might often depend on where the proceedings are issued.

A major layer of complexity, which signifies the importance of private international law, is that competition law infringements may frequently be committed by multinational groups of companies that would naturally engage in transnational economic activities. Since the relevant anticompetitive conduct would potentially cause antitrust damages to many consumers and businesses in different jurisdictions, multiple and related private antitrust damages claims (and public enforcement actions) may be issued against different subsidiaries forming part of the same infringing undertaking/s (i.e. group/s of companies). A regime for judicial cooperation is needed because competition laws would reflect the national public policy (being classified as overriding mandatory rules for the private international law purposes). In order to determine whether the conduct is anticompetitive, judges may apply extra-territorially their own competition laws (without necessarily factoring in foreign regulatory interests). This means that an important question is how any related competition law claims – which arise out of the same competition law infringement/s and which raise common issues (concerning the nature of the conduct or causation or damages) – are to be governed in a global context. A closely connected policy choice concerns any preclusive effects of foreign judgments / decision, establishing competition law infringements and/or dealing with certain common issues.

The existing private international law rules are considered along with their implications for the resolution of cross-border competition law disputes before the English courts with a view to suggesting how a regime for judicial cooperation should / could be developed. The issues – which need to be considered by injured parties, defendants, judges and which should be addressed by policy-makers with a view to promoting a level of judicial cooperation in antitrust matters – are identified. The book goes further to advance an argument for a new approach to governance by suggesting that private international law techniques may be key to attaining a level of judicial cooperation in a global context.

Lydia Lundstedt, Senior Lecturer in Private International Law at the Stockholm University and in Intellectual Property Law at the Linköping University, has accepted the invitation of the editors of the blog to present her recent book, titled ‘Cross-Border Trade Secret Disputes in the European Union: Jurisdiction and Applicable Law’, published by Edward Elgar.

In today’s knowledge-based and data-driven economy, information is a company’s most valuable asset. The most common form of legal protection for information are laws that protect trade secrets. In contrast to patents, copyright, and trademarks, whose importance for protecting intangible assets is well-recognised, trade secret protection has often come in their shadow as the less important form of protection. The importance of legal protection for trade secrets is however gaining acceptance and many states have sharpened their laws on trade secret protection. In determining the form and level of trade secret protection, states consider (often constitutional) rules on the freedom of information, the freedom to compete and operate a business, employee mobility, and privacy. Depending on the social, political, and economic environment of the state, the form and level of protection may vary considerably.

To ensure a ‘sufficient and consistent level’ of protection under the laws of all the Member States, the European Union (EU) enacted Directive 2016/943 on the Protection of Undisclosed Know-how and Business Information (Trade Secrets) against their Unlawful Acquisition, Use and Disclosure. The Directive is in the form of a minimum directive, so Member States may provide for more far-reaching protection. Complicating matters is the fact that trade secret protection is a bit of a ‘strange bird’, which is reflected in the diverging doctrinal basis for trade secret protection. This divergence continues even after the implementation of the Trade Secret Directive, where some Member States continue to provide protection under unfair competition law, others have introduced a sui generis form of protection, and one Member State protects trade secrets as an intellectual property (IP) right. In addition, all Member States continue to protect trade secrets under contract law, and under the legal systems of some Member States, a trade secret holder may raise concurrent claims based on contractual and non-contractual grounds.

Trade secret protection is even more diverse on the international level. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) guarantees only a minimum level of protection for ‘undisclosed information’ and leaves a wide margin of discretion with respect to how Members can afford protection. The inclusion of trade secret protection in a treaty on intellectual property adds to the confusion about the correct classification of trade secrets.

With the ease of digital communications, employee migration, and international trade, trade secret violations can easily have a cross-border, and even a global dimension.  Unlike physical assets, information can move at the speed of light and become ubiquitous instantaneously.  In this respect, trade secrets are like (traditional) IP rights in that trade secrets and IP rights consist of commercially valuable information that are often exploited over national borders in order to take full advantage of their economic potential. In another respect, however, trade secrets differ from IP rights, which pursuant to the territoriality principle, may be in the public domain in some states without affecting their protection in others. This is not the case for trade secret protection because if the information becomes freely accessible, it will no longer fulfil the criterium of secrecy that is required for its continued protection.

Within the EU, one would expect that the environment would be conducive for the litigation of cross-border trade secret disputes because the rules on private international law are harmonised at the EU level. Despite this, cross-border litigation and enforcement of trade secrets is considered to be extremely difficult and is also rare. This may be due to the varying doctrinal bases for trade secret protection and the fact that trade secret violations can take place in contractual and non-contractual contexts. Moreover, if the trader secret holder brings proceedings against a former employee, weaker party rules will affect the choice of forum and applicable law. Another complicating factor is that in some cases, jurisdiction and the applicable law is based on the location of damage, which is difficult to localise as trade secrets are intangible and can be acquired, disclosed, and used everywhere. What is more, there may be a number of potential defendants located in different countries that allegedly violated the trade secrets, and it may be difficult to join them all in one proceeding and under one law.

The book investigates how the EU private international law rules can be interpreted to facilitate the objectives of the EU Trade Secret Directive when trade secrets are litigated and enforced over national borders. A basic assumption for this study is that effective and consistent protection of trade secrets in cross-border situations is facilitated when the parties can resolve their dispute before one court that has jurisdiction over the entire dispute and under one law, resulting in a judgment capable of being enforced in all Member States. When analysing which Member States have jurisdiction and which law or laws are applicable as well as the scope of the jurisdiction and of the applicable law, the book considers the competing interests of the parties and the EU public interest in general.

The book concentrates on three common categories of defendants, namely, contractual partners, employees, and competitors, and describes and analyses where each respective category of defendant can be sued and what law(s) is(are) applicable from an EU private international law perspective. The book also considers whether any of the rules in the Trade Secret Directive might be overriding mandatory rules, public policy (ordre public), or non-excludable rules that displace corresponding rule in the lex causae.

The eleventh edition of the treatise on Droit international privé in the Précis Dalloz series, one of the leading texts on private international law in France, has recently been published (January 2023, 1100 pages).

The previous edition was published ten years ago. The new, fully revised edition has been prepared by Pascal de Vareilles-Sommières (Sorbonne Law school, Paris I University), who was the co-author of the previous editions (alongside the late Yvon Loussouarn and Pierre Bourel), and Sarah Laval (Littoral Côte d’Opale University).

The first part, titled “Common rules governing private international law” (Règles générales de droit international privé), focuses on the general theory of private international law, and adopts an original distinction between “identification of the legal source” (i.e. in the three fields of choice of law, jurisdiction and judgments) and “regime of the foreign norm” (i.e. the regime of the international regularity (or lawfulness) of the foreign norm – law and judgment – and then the regime of the implementation of the foreign norm).

The second part, titled “Special rules governing private international law” (Droit international privé special), is concerned with the special rules applicable in the different fields of private law (i.e. persons, family, property, obligations, businesses). Another sign of originality here is that each of the areas presented contains a preliminary development on the “policy of building connecting factors”.

While the treatise’s foreword is insightful and conceived as a “user’s guide”, I thought it would be interesting to directly ask the two authors about some specific features of this revised edition. They kindly agreed to answer some questions for the readers of the EAPIL blog and I thank them very warmly.

– This treatise takes, in your own words, a “neo-Savignian” approach to private international law. What does this mean?

On the one hand, a neo-Savignian approach to PIL focuses, like under the traditional Savignian approach, on the links between a given legal relationship and a particular country, in order to sort out, in favour of this country, the choice-of-law/choice-of-court issues (including issues related with jurisdiction of foreign courts, in case of a dispute over a foreign judgment dealing with the case) arising out of said relationship. Like Savigny, a neo-Savignian advocate believes that one of these links (or one set of links among them) justifies better than others the precedence of the concerned country as to ruling the relationship at stake through its law or its courts. This creed relies on the idea that the authority of a ruler varies depending on the strength of its links with the governed subject.

When enacting a choice-of-law (or choice-of-court) rule, a lawmaker who follows a neo-Savignian approach picks up the link (or set of links) which, in his opinion, is the most relevant for the kind of relationship covered by the created rule – and which appears to him as showing the “seat” (like Savigny used to say) of the legal relationship in a particular country. This link will therefore become the connecting factor in the choice-of-law rule (or the jurisdictional basis in the choice-of-court rule – including, here again, the jurisdictional standards applied to foreign courts, as provided by the foreign judgment regime) covering the legal relationship at stake. And this “seat country” will consequently have (at least in principle) its law and/or the judgments rendered by its courts enforced, for said legal relationship, by the forum (viz, the country whose choice-of-law/choice-of-court rules apply, assuming that the dispute is brought before that country’s courts).

But on the other hand (and conversely to the Savignian approach), our neo-Savignian approach promotes the idea that legal relationships between private persons in an international setting do not necessarily have only one seat in one country – whose law and courts would thus govern this relationship –, but may well have (and actually often have) several “anchors” or relevant connections to different countries, each of whom being a possible seat or “anchorage”. Two important consequences stem from this: (i) in a given case, the seat relevant for adjudicating the dispute may well prove different from the seat relevant for legislating over it; (ii) moreover, since one must think contemporary choice-of-law and choice-of-court rules (including, as aforementioned, those governing foreign judgments) in terms of domestic rather than international sources (at least in principle), the seat of a given relationship may well vary from country to country.

All this shows that, in our early XXI century, reasoning (as used to do Savigny) in terms of “one seat in one country for one kind of relationship” – at least each time this relationship appears in an international setting – is a bit misleading since it does not correspond to the truth of law as it is experienced by the parties. Our neo-Savignian doctrine admits the possibility of plural seats for a given legal relationship and addresses this occurrence through a set of choice-of-law and choice-of-courts rules which are inspired by Savigny’s thought (search of the most relevant links), as adapted to fit the contemporary legal landscape for private law applying in an international context (plurality of relevant fora enacting varied choice of law and choice of court rules). Accordingly, in a given country, the conflict between the countries (taken as lawmakers or as judgment-makers for the case at stake) with which a legal situation is linked, will be won by the one that has the most relevant relationship with the situation, this relevance being determined by a series of private and public considerations.

Far from being merely neutral, the choice-of-law rules appear as the result of a certain policy implemented by the authors of these rules (the “choice-of-law policy”, distinct from the “substantive policy” enacted by the substantive law chosen as applicable and relevant when it comes to sorting out the substantive issue). The same is true, mutatis mutandis, for the choice-of-court rules.

The neo-Savignian approach also repudiates two popular postulates: (i) the postulate according to which countries are not affected by the solution of conflict of laws (since at a minimum, the authority of the sovereign country, taken as a ruler, vis-à-vis the parties to the legal relationship is at stake when sorting out a choice-of-law/choice-of-court issue); and (ii) also the postulate according to which, in a given case, the applicable law and the jurisdiction of courts are basically disconnected from one another; on the contrary, they are both seen as one side of the exercise of one countries’ power to make “law” (broadly speaking: either by enacting a bill, or by rendering a judgment). The originality of the neo-Savignian approach therefore also lies in a sort of presumption that the country whose courts have jurisdiction over a case often ought to be (and actually, quite naturally) the country whose law governs the relationship (jurisdiction of the forum legis).

– Could you concretely illustrate this neo-Savignian approach?

Let us take one example of a multiple-seat private law relationship; it will be provided by the family chapter of PIL, and more especially, the filiation issue (relation of child to father).

Under French law, the choice-of-law rule points to a country as being the correct lawmaker for filiation where it turns out that the child’s mother has the nationality of that country (C. civ., Article 311-14); whereas the jurisdiction rule points to France as being the correct judgment-maker for filiation where the defendant (often the suspected father) is domiciled in France (CPC, Article 42), or, in case he is not, where he is a French citizen (C. civ., Article 15), or even, as a minimum, where the claimant (the child in a filiation proceeding) is a French citizen (C. civ., Article 14). These rules show that French substantive law on filiation will apply before French courts in a dispute brought before French courts each time that (i) the suspected father is domiciled in France, or at least that he, or the child, has French nationality (so that French courts have jurisdiction); and (ii) the mother is French (so that French substantive law governs the case). In such a case, France gets a plenary power to provide for a substantive regime (both through legislature and through court) for the filiation. The seat of the relation of child to father (at least from the French viewpoint) is located in France, both with respect to the substantive law governing the case and to the court having the final word in the dispute.

Let us assume now that the man is Italian, and the child is a US citizen (since he was born within the US territory, where one assumes also here that his French mother lives with him). In that case, Italian courts claim jurisdiction over the case (Italian Act No 218, 1995, Article 37). Assuming that the claimant brings the dispute against the suspected father before Italian courts, these courts should assert jurisdiction on the filiation issue, since for Italy, the judicial seat of the case is in Italy. As to the legislative seat, it will be provided by the Italian choice-of-law rule, under which the law governing filiation is the law of the country of origin (nationality) of the child (Italian Act No 218, 1995, Article 33), here the law of the relevant US state. Hence the Italian court will not apply the French law, even though the child’s mother is French (and notwithstanding the French choice-of-law rule claiming applicability of French law for that reason).

Typically, under our neo-Savignian approach, the filiation proceeding covers a relation that has not one seat in onecountry, but at least three seats in three countries (France, Italy and the United States), and parties to this relationship should be aware of this data when wondering what is the content of the legal regime governing the substantive issues arising out of their case. One should add here that the country where the filiation proceeding is brought would be well advised not to forget this plural-seat data when it comes to addressing the legal issues arising out of this dispute. It is probably so for France, if recognition of enforcement of the Italian judgment is sought there: even though the French choice-of-law rule claims French substantive law being applicable to the filiation issue (since the mother is French), the foreign judgment regime as set up by French case-law does not rule out the Italian judgment for the mere reason that the Italian court did not enforce French law (but rather the law of the relevant state in the USA).

– The formal presentation of private international law solutions in the treatise is inspired by a “trans-systemic/transnational” pedagogy. The aim is to go beyond the particularistic (i.e., French-oriented) approach to the discipline. Could you elaborate on that?

This presentation divides each PIL development into two parts. The first part is more about rhetoric; it sets the problematics, the principles and the interests at stake for each topic, it lists the different considerations that shall be taken into consideration to solve the choice-of-law/choice-of-court issues, and it suggests a solution according to the neo-Savignian approach. These rhetoric parts are not too deeply invaded by legal data from one particular country or another. Accordingly, at that stage, the book rather sticks to a universalist view of PIL.

The second part of the developments on each issue is a presentation of the rules as they exist in some jurisdictions, would these rules stick to the solutions exposed in the first part or would they differ from them. In this second part, the rules are not only French rules, but European and International (Hague Conventions in particular) rules as well. The purpose of this transnational presentation is to depart from a purely French point of view as well as to understand the extent to which French Law solutions are similar to European and International Law solutions. The outcome of this presentation is that, contrarily to other handbooks on the libraries’ shelves, this recast edition is not merely a book on French PIL, but rather a book on PIL as it is conceived and applied by France, by the European Union and by the international community through international conventions (mainly Hague conventions from the Hague Conference for PIL).

The (private international) law of choice-of-court agreements provides us with a good example of this methodology. In the rhetoric part of the presentation on this issue, the book draws on (i) the relation between the lawfulness of choice-of-court agreements and the question whether the jurisdiction rule is binding or non-binding in law, for the parties; and (ii) the considerations influencing the decision whether such a rule ought to be binding in law or not for the parties. Then, in a series of developments on law as it is in force in some jurisdictions, a quick presentation is made regarding French law, EU law (Brussels I bis Regulation) and the Hague convention on choice of court agreements.

– How do you “present” and “represent” in the treatise the Europeanisation of private international law and, ultimately, EU private international law?

To make a long story short, one can say that there are two possible paths that one can follow in order to present the EU as a lawmaker in the field of PIL.

On the one hand, the traditional way tends to look at the EU from the classical public international law viewpoint. EU member-states are sovereign States bound by an international treaty (Treaty of Rome, 1957 – which was ultimately renamed the Treaty on the Functioning of the European Union by the Treaty of Lisbon, 2007). From that standpoint, EU PIL is fostered by EU institutions and comes into force in the EU member-states through an international treaty. It is on that basis that it becomes part of the law of each member-state and it ought to work as such.

On the other hand, a more unusual analysis of the EU is to see this entity as a political entity having some features of a sovereign State (nevertheless not all of them, so that it cannot claim being a State from the international law standpoint, but, at a maximum, it may qualify as what is sometimes called a “proto-state”). As such, EU PIL in a member-state differentiates from domestic PIL of this member-state, with some consequences like one in the field of characterization, where, for a member-state court, resorting to domestic definitions for interpreting EU legal categories as used in EU PIL regulations is not appropriate (at least in principle). Similarly, the proto-state notion proves useful for the correct understanding of the function of EU PIL, compared to member-state PIL of domestic origin. This last one may be seen as a tool for fixing the ambit of legislative or judiciary action of a member-state. The first one is seen in the book as delineating the outskirts of each member-state’s private law (as made by a legislature or by a court), whether with regards to each other, or even with regards to non-member-states. It may well be used also as a tool for delineating the outskirts of EU private law where it exists, as the case may be. And finally, the proto-state notion is useful to understand another influence of EU law on EU member-state PIL having a domestic origin: to the extent that EU may be seen as a “proto-federal State”, the interference of EU freedom of persons (Article 21 TFEU) on the law of EU member-states, including PIL of domestic origin, appears as one regarding the lawfulness of the legal provisions composing this domestic law.

One must add that the European influence on the PIL of European countries is not limited to EU law, but may come from other organizations or instruments as well, like the Council of Europe. This international organization is much less integrated than the European Union, and for this reason the book does not see it as a proto-state. But of course, this does not prevent us from scrutinizing the possible incidence of the Council of Europe law (and especially the ECHR case-law) on EU (and EU member-state) PIL, particularly through the reshaping of the public policy defence.

– Could you concretely illustrate your “proto-state” approach of EU PIL?

Article 4.1 of Rome II Regulation and Articles 4, 7, and 45 of the Brussels I bis Regulation read as follows, through the proto-State notion as applied to the European Union:

In principle, under Article 4.1 of Rome II regulation, the EU grants (or recognizes) jurisdiction to legislate in matter of non-contractual obligation to any member-state having sovereignty on the territory where the damage occurs. The same jurisdiction to legislate is recognized in principle by EU PIL to any non-EU country exercising sovereignty on this territory. EU member-states are granted jurisdiction to adjudicate a case in non-contractual obligations under the Brussels I.a regulation (article 4 and 7); but countries having rendered a judgment in this subject matter may be seen as providing a regular ground to their judgment, even though they are not a country selected by these articles, and this is so whether they are (i) an EU member-state (since the origin of the EU member-state judgment is not controlled under article 45.3 of Brussels I.a regulation); or (ii) a non-EU country (since EU PIL does not cover recognition and enforcement of non-EU country judgments).

– For the benefit of the private international law community, what are the two or three major issues which, in your book, seem to you to be at the heart of the reflections to be conducted for the private international law of the future? 

The first issue could be a potential harmonization between the answer to the two questions of (i) which law prevails? and (ii) which court has jurisdiction? In France, scholars usually have strong opinions on the separation between these two fields and stick to the postulate that their regulation relies on distinct considerations: whereas the court that has jurisdiction appears to be chosen after purely procedural considerations, the choice of law is usually determined by non-procedural considerations, since the choice-of-law issue may arise outside any proceedings. This presentation neglects the idea that choosing a country’s court instead of another one is not neutral with respect to the outcome of the proceeding and eventually has a strong influence on the solution of the dispute. Therefore, a country exercising a legislative power also has an interest in exercising its judicial power. Taking these elements into consideration might be a good opportunity to review the choice-of-court rules and see to what extent they stick – or could stick – to this approach.

A second issue is about the leeway available to a court when it comes to exercising its jurisdiction over a case presenting relevant links with court’s country. Since the claimant holds a strong sway on the outcome of the proceeding – through the choice of the forum where the dispute is brought –, any country ought to provide its courts with the power to give up the exercise of its jurisdiction over the dispute, each time it turns out that the claimant would have an excessive advantage in suing the defendant before the court of one of the countries whose links with the case are sufficient to trigger its jurisdiction to adjudicate.

A third issue could be the digitalization of international private relations. This digitalization emphasizes the opportunity to depart from a reasoning in terms of mere localization of facts and urges the need to adopt a reasoning in terms of policy advocated for by the choice-of-law/choice-of-court legislature. For these relations, the determination of the applicable law or of the court that has jurisdiction cannot be the result of a search for a country where the facts take place (it is submitted that this country really does not exist), but the result of the comparison between the different public and private interests at stake. Eventually, the relationship arising in a digitalized context has its seat in the country with the most relevant links to it – relevance being here the outcome of an analysis and weighing of the competing interests that one can find, for a country, to be recognized as a ruler (through its laws or courts) for said relationship, and, for the parties to said relationship, that this country be recognized as governing it.

A new anthology titled Applicable Law Issues in International Arbitration has been published in the Hague Academy of International Law’s Centre of Resarch Series.

The book is the result of research undertaken by scholars accepted to the Centre for Studies and Research in International Law and International Relations in 2021.

Giuditta Cordero-Moss and Diego P. Fernández Arroyo were the directors of the research centre.  The two directors have also edited the anthology which includes a selection of 16 works stemming from that research session (authored by Apollin Koagne Zouapet, Ana Coimbra Trigo, Didier Bationo, Wendinkonté Sylvie Zongo, Ali Kairouani, Nicola Strain, Andrea Mackielo, Alexandre Senegacnik, Ludovica Chiussi Curzi, Giulia Vallar, Marco Buzzoni, Yağmur Hortoğlu, Paola Patarroyo, Erik Sinander, Federico Cabona, and Lito Dokopoulou), as well as two chapters written by the specially invited guests Franco Ferrari and Luca Radicati di Brozolo.

In the introduction, the editors reflect on the research results and conclude that “determining the applicable law in arbitration is a manifold task that needs to balance involved interests, which are not necessarily always consistent with each other”.

The table of contents of the anthology can be read here.

Edward Elgar has just published a Research Handbook on International Child Abduction, edited by Marilyn Freeman and Nicola Taylor.

With a focus on the 1980 Hague Convention, this cutting-edge Research Handbook provides a holistic overview of the law on international child abduction from prevention, through voluntary agreements and Convention proceedings, to post-return and aftercare issues.

Discussing the repercussions of abduction from the perspectives of both abducted children and the therapeutic and family justice professionals engaged in their cases, chapters consider the contributions of the many professionals and key agencies involved in the field. Identifying the 1980 Hague Convention as the principal global instrument for dealing with child abduction, the Research Handbook traces its role, history, development and impact, alongside the mechanisms required for its effective use. Evaluating current trends, areas of concern in legal/judicial practice and various regional initiatives, it also considers alternatives to high-conflict court proceedings in international child abduction cases. The Convention’s strengths, successes, weaknesses and gaps are discussed, and the Research Handbook concludes by addressing how best to tackle the challenges in its future operation.

Interdisciplinary and accessible in approach, the contributions from renowned subject specialists will prove useful to students and scholars of human rights and family law, international law and the intersections between law and gender studies, politics and sociology. Its combination of research, policy and practice will be of value to legal practitioners working in family law alongside NGOs and central authorities active in the field.

Contributors include: Anna Claudia Alfieri, Sarah Calvert, Stephen Cullen, Jeffrey Edleson, Linda Elrod, Mary Fata, Sarah Cecilie Finkelstein Waters, Marilyn Freeman, Gérardine Goh Escolar, Diahann Gordon Harrison, Michael Gration, Mark Henaghan, Costanza Honorati, Ischtar Khalaf-Newsome, Clement Kong, Thalia Kruger, Suzanne Labadie, Sara Lembrechts, Nigel Lowe, Alistair MacDonald, Anil Malhotra, Ranjit Malhotra, Jeremy Morley, Yuko Nishitani, Christian Poland, Kelly Powers, Joëlle Schickel-Küng, Rhona Schuz, Henry Setright, Sudha Shetty, Ann Skelton, Julia Sloth-Nielsen, Victoria Stephens, Nicola Taylor, Mathew Thorpe.

More information here.

Horatia Muir Watt’s latest book has recently been published by Hart in its Hart Monographs in Transnational and International Law, under the title The Law’s Ultimate Frontier: Towards an Ecological Jurisprudence (the subtitle reads A Global Horizon in Private International Law).

Here’s the publisher’s blurb:

This important book offers an ambitious and interdisciplinary vision of how private international law (or the conflict of laws) might serve as a heuristic for re-working our general understandings of legality in directions that respond to ever-deepening global ecological crises. Unusual in legal scholarship, the author borrows (in bricolage mode) from the work of Bruno Latour, alongside indigenous cosmologies, extinction theories and Levinassian phenomenology, to demonstrate why this field’s specific frontier location at the outpost of the law – where it is viewed from the outside as obscure and from the inside as a self-contained normative world – generates its potential power to transform law generally and globally.

Combining pragmatic and pluralist theory with an excavation of ‘shadow’ ecological dimensions of law, the author, a recognised authority within the field as conventionally understood, offers a truly global view. Put simply, it is a generational magnum opus. All international and transnational lawyers, be they in the private or public field, should read this book.

See here for more information. The publisher offers a 20% discount to those buying the book through its website using GLR BE1US for US orders and GLR BE1UK for all other orders.

Sarah McKibbin (University of Southern Queensland) and Anthony Kennedy (Serle Court Chambers, London; St Edmund Hall and Somerville College, Oxford) edited a book titled The Common Law Jurisprudence of the Conflict of Laws, with Bloomsbury.

This book presents a collection of leading common law cases in private international law ranging from the 18th to the 21st century. The cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile, foreign immovable property and choice of law in contract are just some of the topics that this collection examines. The ‘unusual factual situations’ of some 18th- and 19th-century English cases also reveal compelling human interest stories and political controversies worthy of further exploration.
Drawing on a diverse team of contributors, this edited collection showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa.

The table of contents can be accessed here.

Those ordering the book online at www.bloomsbury.com are offered a 20% discount (the codes are GLR BE1UK for UK orders, and GLR BE1US for US orders).

Edward Elgar Publishing has just published an Advanced Introduction to Cross-Border Insolvency Law, authored by Reinhard Bork (University of Hamburg).

The book is meant both for students who study company, commercial and private international law, and to practitioners who are not specialists of insolvency law. In its approach it provide both in-depth information for advance readers and accessible information for beginners and follows a comparative law approach to explore some of the most important issues of insolvency law.

The blurb of the book reads as follows:

The Advanced Introduction to Cross-Border Insolvency Law provides a clear and concise overview of cross-border insolvency law with particular focus on the rules governing insolvency proceedings that occur between and across countries. Increasingly, such proceedings have an international dimension, which may involve, for example, debtors with assets abroad, foreign creditors, contractual agreements with counterparties in different jurisdictions, or companies with offices or subsidiaries in a different country. The book expertly steers the reader through the complex interactions between national and supra-national rules, international model laws, and the principles that underpin them.

Pablo Quinzá Redondo, Lecturer of Private International Law at the University of Valencia, is the author of this monograph published in 2022 by Tirant Lo Blanch. The author has kindly provided the following abstract.

The European regulations concerning the property consequences of marriages and registered partnerships (Regulations (EU) 2016/1103 and 2016/1104, respectively) entered into application four years ago. Since then, many valuable research studies have been published. Most of them have departed from the provisions of the Regulation (EU) 2016/1103 to explain the Regulation (EU) 2016/1104, given their similarities -both regulations were adopted as a package-. However, not many of them have followed the opposite approach or have analyzed the later instrument independently. Alongside this, in the Spanish legal doctrine, only a few research studies have been focused on the application in Spain and/or to Spanish formalized partnerships under the Regulation (EU) 2016/1104. Pablo Quinzá saw in those circumstances an opportunity for writing the book Uniones registradas en la Unión Europea. El Reglamento (UE) nº 2016/1104 en perspectiva española.

The monograph is divided in three parts, preceded by an introduction, following a classical PIL structure.

In the introductory chapter, the author draws a general overview of the phenomenon of non-matrimonial unions in the European Union, focusing in particular on formalized partnerships and their patrimonial consequences. This substantive-law perspective will facilitate the proper understanding of the content of the Regulation (EU) 2016/1104 at a later stage.

In many jurisdictions, formalized partnerships were conceived and regulated as a functional equivalent to marriage for same-sex couples; in others, as an alternative to marriage open to all couples. In Spain, the regulation of formalized relationships emerged at a time when same-sex marriage was not yet allowed. Besides, it did with notable differences with respect to the legal framework institution for couples, marriage. This general statement, however, should be spelled out in the Spanish reality. There is no Spanish state law dealing with formalized partnerships; legislation have been enacted by the Autonomous Communities Parliaments, with a heterogeneous content -e.g., different requirements to access to the legal institution or different provisions in respect to their patrimonial consequences-. These divergences are per se a source of complexity. The situation is even trickier due to the fact that the Spanish Constitutional Court has declared some regional provisions unconstitutional, while, as of today, very similar ones remain ‘untouched’. For example, the judgment of the Spanish Constitutional Court 93/2013, of 23 April, declared Article 2.3 of the Navarre Act on formalized relationships (Foral Law 6/2000) unconstitutional. In the Court’s view, requiring Navarre civil neighborhood (vecindad civil) of one of the partners is, in fact, a conflict-of-laws rule; per Article 149.1.8 of the Spanish Constitution, only the Spanish lawmaker (as opposed to the regional one) has regulatory competence in conflict of law matters. Meanwhile, other regional laws also make registration as a couple conditional upon the vecindad civil of one of the partners. This is the case, to a greater or lesser degree, of some provisions of the laws dealing with formalized partnerships in the Basque Country, Galicia or the Balearic Islands. Until they are not declared unconstitutional, they continue being applicable in their respective territories.

In light of the foregoing, the introduction to the monograph is essential to understand that the problems of application of the Regulation (EU) 2016/1104 in Spain are strictly connected with the fragmentary regulation of formalized relationships and the internal constitutional problems.

The first chapter of the book addresses the Regulation’s scope of application from four perspectives: substantive, geographical, personal and temporal. The first two approaches are the most controversial ones. From the Spanish point of view, it is unclear which of the formalized partnerships foreseen under regional law correspond to the autonomous definition provided for in Article 3.1.a). In the author’s view, all registered formalized partnerships should fall under the scope of application of the Regulation, regardless of the constitutive or declarative effect of the registration according to regional law. A different opinion would lead to unbearable consequences: only some Spanish formalized partnerships would be covered by the Regulation; other would remain outside. It would not be surprising if, sooner rather than later, a preliminary ruling is requested from the CJEU in this subject matter.

Chapter two is devoted to international jurisdiction rules. This is one of the most complicated parts of the Regulation, since some provisions refer to jurisdictional rules enacted elsewhere (e.g., to Regulation (EU) 650/2012), while in other cases the provisions of the law applicable of the Regulation itself are invoked. For the sake of clarity, a division is made following the main subject areas provided in the Regulation: jurisdiction in the event of the death of one of the partners; jurisdiction in cases of dissolution or annulment of the registered partnership; jurisdiction in other cases (including choice of forum agreements and implicit submission) and alternative jurisdiction. From the Spanish perspective, it is important to bear in mind that the mere dissolution or annulment of Spanish formalized partnerships does not require a judicial procedure. This probably explains -but not justifies- the absence of jurisdictional rules in the Spanish legal system regarding the dissolution or annulment of formalized partnerships. By way of consequence, difficulties in the application of Article 5 of the Regulation in Spain are to be expected.

Chapter three focuses on the determination of the law applicable to the property consequences of registered partnerships under the rules of the regulation. At a first stage, both choice of law agreements and objective connecting point are studied. Later, the application of Spanish law under the conflict-of-law rules of the Regulation is stress-tested, tackling the most relevant situations in which clarification of the applicable regional law will be needed. It is important to bear in mind that in Spain there are not ‘internal conflict-of-laws’ for the dissolution or annulment of formalized partnerships -in terms of Article 33.1 of the Regulation-, so the application of one regional law or another would depend on the subsidiary connections of Article 33.2. Nevertheless, as mentioned before, as of today the validity itself of some regional laws is a very controversial topic, where the constitutional perspective and the solutions of the jurisprudence should be taking into account.

In short, this book raises, and proposes solutions to, the legal problems arising from the application of the Regulation (EU) 2016/1104, from the Spanish legal system point of view. An issue which is not only relevant for Spanish legal operators, but also for foreign ones, as long as a member of the couple is connected with the Spanish legal system or Spanish law is applicable.

The new edition of the Commentary on the Brussels I bis Regulation, edited by Ulrich Magnus and the late Peter Mankowski, part of the European Commentaries on Private International Law series published by Otto Schmidt, has recently been released.

The list of authors includes Alfonso Luis Calvo Caravaca, Javier Carrascosa González, Gilles Cuniberti, Carlos Esplugues Mota, Richard G. Fentiman, Stephanie Francq, Thomas Garber, Mizuki Hashiguchi, Helmut Heiss, Xandra Ellen Kramer, Luís Pedro Rocha de Lima Pinheiro, Ulrich Magnus, Peter Mankowski, Louise Merrett, Horatia Muir Watt, Sarada Nateshan, Guillermo Palao Moreno, Ilaria Queirolo, Pippa Rogerson, Didimi Sturua, Paul Vlas and Patrick Wautelet.

See here for further information.

The number of States which, pressed by the need to relieve and speed up the work of the courts, have de-judicialised the dissolution of the marriage bond and assigned the responsibility thereto to various extrajudicial authorities (Civil Registrars, notaries, mayors, etc.), has considerably increased in recent times.

This has been the case in Spain, where, following the entry into force of Law 15/2015 of 2 July 2015 on Voluntary Jurisdiction, Spanish notarial authorities are competent to grant divorces (Articles 81, 82 and 87 of the Civil Code). Examples exist as well in Latin America (Cuba, Mexico, Brazil, Colombia, Ecuador, Costa Rica, Peru, Bolivia and Nicaragua), Europe (Italy, France, Portugal, Italy, Denmark, Norway, Greece, Russia, Latvia, Estonia, Ukraine, Moldova and Romania), Asia and Euro-Asia (Japan, Kyrgyzstan, China, Armenia).

In fact, a thorough examination of comparative law shows that the regulation of non-judicial divorce is very diverse, even in countries belonging to the same geographical area. Not in all cases does an authority intervene, nor, when it does, does it perform identical functions or is vested with the same competences. With this in mind, a monograph by Nuria Marchal Escalona, titled El Divorcio No Judicial en Derecho Internacional Privado (Thomson Reuters Aranzadi, 2022), analyses the private international law-related problems Spanish notaries face when authorizing a public deed of divorce in cross-border cases. It further deals with the difficulties foreign extrajudicial divorces meet to produce effect in Spain. The study of a per se intricate subject matter becomes even more complex due to the number of legal sources in Spanish private international law in the field.

The monograph addresses, in the first place, jurisdiction – international and territorial – to grant a public deed of divorce. At a second stage, it examines the law applicable both to the dissolution of the marriage and to the issues necessarily associated thereto, such  as the use of the family home, financial regime of the marriage, or maintenance. Lastly, it deals with the problems foreign non-judicial divorces run into to be effective in Spain. In particular regarding the latter point, the analysis is highly topical for three reasons: firstly, due to the  judgment in Case C-646/20, where the CJEU ruled that a divorce certificate issued by a civil registry official constitutes (subject to conditions) a “judicial decision”; by way of consequence, under Regulation 2201/2003 such divorces are to be recognized like a judicial decision. Secondly, Article 65 of Regulation 2019/1111 introduces a relevant novelty in the field, since, in contrast to the twofold combination of judicial decision (Art. 21) and public document (Article 46) of the Brussels I bis Regulation, it also allows for the effectiveness of registered private agreements. Finally, Article 96, paragraph 3, of the Spanish Civil Register Act extends the legal regime it itself accords to foreign judgments to decisions delivered by foreign non-judicial authorities in matters which, under to Spanish law, belong to the remit of judges and courts.

The monograph aims at offering a complete vision of the Spanish private international law rules regarding non-judicial divorce in a clear, praxis-oriented way, with an exhaustive analysis of comparative and case law. Above all, it provides the legal professionals essential guidance to overcome the fragmentation of sources in order to ascertain the rules pertinent to each individual case.

Asif Efrat (Reichman University, Israel) authored a book titled Intolerant Justice – Conflict and Cooperation on Transnational Litigation, with Oxford University Press.

In a globalized world, national legal systems often face dilemmas of international cooperation: Should our citizens stand trial in foreign courts that do not meet our standards? Should we extradite offenders to countries with a poor human rights record? Should we enforce rulings issued by foreign judges whose values are different from our own? Intolerant Justice argues that ethnocentrism—the human tendency to divide the world into superior in-groups and inferior out-groups—fuels fear and mistrust of foreign justice and sparks domestic political controversies. Skeptics portray foreign legal systems as a danger and a threat to local values and interests. Others, however, seek to dispel these concerns, arguing that legal differences among countries should be respected. Such disagreements often make it harder to establish cooperation on litigation.

The book traces this dynamic in a range of fascinating cases, including the American hesitation to allow criminal trials of troops in the courts of NATO countries; the dilemma of extradition to China; the European wariness toward U.S. civil judgments; and the controversy over the prosecution of foreign terrorist fighters for ISIS. Despite the growing role of law and courts in international politics, Intolerant Justice suggests that cooperation among legal systems often meets resistance, but it also shows how this resistance can be overcome. These insights will speak to anyone who seeks to strengthen the rule of law and international collaboration in an era of increasing nationalism. 

The table of contents can be accessed here.

La sustracción internacional de menores en el espacio jurídico europeo (International Child Abduction in the European Union), a monograh by PIL Assistant Professor Maria González Marimón (University of Valencia), has just been released by the Spanish publishing house Tirant Lo Blanch.

The book covers the landscape of sources in force the European Union, in an area characterized by the confluence of instruments of different origin and scope, some of which have recently undergone relevant changes.

It claims that a redefinition of the legal framework and of the interfaces among instruments is needed in order to adapt to new societal patterns as well as to currently prevailing values, in particular to the central role of children rights and to the principle of their best interests.

In addition, after a thorough, critical analysis of the novelties of Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (Brussels II ter Regulation), it argues that the opportunity has been lost of getting rid of the “overriding mechanism” under Article 29 of said Regulation.

The author has kindly provided the following summary of the contents and main thesis of the book:

International child abduction provides a paradigmatic example of the complexity of cross-border cases involving children. The profound societal changes of recent decades (the consolidation of different family models, the preponderance of a children rights-centered approach to the detriment of a parents’ rights-centered paradigm) are prompting to rethink and to reshape the legal framework of child abduction.

The EU traditional response to international child abduction can indeed be described as a complicated and fragmented body of legal sources: judges and practitioners in the field needed (and need) to have in mind the EU rules on the matter together with those of the 1980 Hague Convention, and, punctually, also the 1996 Hague Convention. The EU legislator, aware of the complexity and practical difficulties of the Brussels II bis rules on international child abduction, has tried to improve and refine them in the recast Regulation of 2019 . The obvious first sign of improvement is the completely new Chapter III, focused on international child abduction. This shift in the structure of the Regulation is accompanied by a welcomed explanation of its relationship to the 1980 Hague Convention. Also regarding the return procedure, the Brussels II ter Regulation introduces some (albeit not far-reaching) developments for its functioning in practice.

A further group of rules in the new Regulation reflects the EU legislator’s  commitment to adapting international child abduction rules to new social realities while pushing the children’s rights to the forefront. In this regard, worth noting provisions are the ones related to the age of the child; to reinforcing the child’s right to express his or her views in return proceedings; to the new faculty granted to the courts to guarantee the contact of the child with the parent requesting return; to the promotion of the child’s “safe return”; or to fostering ADR mechanisms to solve the disputes.

In contrast to the progresses alluded to, the EU legislator has missed the opportunity to do away with the very much questioned so-called “overriding mechanism”. Following this special procedure, the last word in relation to the return of a wrongfully removed or retained child is given to the court having jurisdiction under the Regulation; its decision prevails over any non-return previous one adopted by the court of another Member State pursuant to Article 13 of the 1980 Hague Convention. In principle, this priority is reinforced by the elimination of the exequatur requirement, without any ground of refusal of the return decision.

To the extent the “overriding mechanism” has been a source of headaches for legal operators and practitioners, it was legitimate to claim it should be dropped, and regrettable that it has not. A comparison of the respective case law of the CJEU and the ECtHR adds relevance to the matter. In the event of exceptional circumstances questioning the convenience of enforcing the privileged decision (i.e., the one of the court competent according to the Regulation), the Luxembourg Court has reacted backing up the system. By contrast, the ECtHR’s case-law on international child abduction supports a more substantive approach by recalling the need to assess the best interests of the child concerned in each particular case.

The awareness of the Strasbourg case law had led to the conviction that, in order to achieve the European legal integration objective while simultaneously protecting each individual child, a model flexible and predictable at a time was of the essence. In this regard, abolishing the exequatur for all decisions on parental responsibility, but maintaining certain safeguards at the enforcement procedure so as to allow for the assessment of the best interests of the child in the individual case, would strike a delicate, but adequate, balance between the free movement of judgments and the best interests of each child.

In fact, this is precisely the subtle equilibrium reflected in the Brussels II ter Regulation. In spite of retaining the privileged regime for return decisions resulting from the “overriding mechanism”, the Regulation actually tries to temper one of its most controversial aspects identified in practice, namely the automatism of the model, which had proven too rigid. Two are the ways to this aim: first, the possibility of modification and revocation of the certificate; secondly, a new cause of suspension – and even refusal – of the enforcement, in the event of an exceptional change of circumstances linked to the best interest of the child.