Yearbook of Private International Law: Yearbook of Private International Law Vol. XXIII - 2021/2022 9783504388072

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YEARBOOK OF PRIVATE INTERNATIONAL LAW

YEARBOOK OF PRIVATE INTERNATIONAL LAW VOLUME XXIII – 2021 / 2022

Founding Editors PETAR ŠARČEVIĆ † PAUL VOLKEN

Editors ANDREA BONOMI

ILARIA PRETELLI

Professor at the University of Lausanne

Legal Counsel at the Swiss Institute of Comparative Law

GIAN PAOLO ROMANO Professor at the University of Geneva

Published in Association with SWISS INSTITUTE OF COMPARATIVE LAW LAUSANNE, SWITZERLAND

The Deutsche Nationalbibliothek lists this publication in the Deut­sche Na­tio­nalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. Verlag Dr. Otto Schmidt KG Gustav-Heinemann-Ufer 58, 50968 Köln Tel. +49 221 / 9 37  38-01, Fax +49 221 / 9 37  38-943 [email protected], www.otto-schmidt.de ISBN (print)  978-3-504-08019-8 ISBN (eBook)  978-3-504-38757-2

©2023 by Verlag Dr. Otto Schmidt KG, Köln and Swiss Institute of Comparative Law, Lausanne All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior per­mis­sion of the publisher. The paper used is made from chlorine-free bleached materials, wood and acid free, age resistant and environmentally friendly. Printing and binding: Beltz Grafische Betriebe GmbH, Bad Langensalza Printed in Germany.

Advisory Board JÜRGEN BASEDOW Hamburg

HUANG JIN Wuhan

GENEVIÈVE BASTID-BURDEAU Paris

THOMAS KADNER GRAZIANO Geneva

MICHAEL BOGDAN Lund

EVA LEIN London/Lausanne

SIR LAWRENCE COLLINS London

YASUHlRO OKUDA Tokyo

DIEGO P. FERNÁNDEZ ARROYO Paris

LINDA J. SILBERMAN New York

RICHARD FRIMPONG OPPONG San Diego (California)

SYMEON C. SYMEONIDES Salem (Oregon)

RUI MANUEL GENS DE MOURA RAMOS Lisbon/Coimbra

HANS VAN LOON The Hague

LUKAS HECKENDORN URSCHELER Lausanne

Production Assistant FRANÇOISE HINNI Swiss Institute of Comparative Law

Assistant Editors ALEXANDRA BECHEIKH Research Assistant, University of Lausanne

VITO BUMBACA Research Assistant, University of Geneva

CHRISTINA BLANCHET Research Assistant, University of Lausanne

CORINNE MAMMINO Research Assistant, University of Lausanne

English Revision KAREN TOPAZ DRUCKMAN Lecturer, University of Lausanne

HELEN SWALLOW Former Head of Editing Unit, DG TRAD, European Parliament

TABLE OF CONTENTS ________________

Foreword ......................................................................................................... ix Abbreviations .................................................................................................. xi Doctrine Cristina CAMPIGLIO Circulation of Public Documents and Recognition of Civil Status Situations – Lights and Shadows ............................................................... 1 Gerald GOLDSTEIN The Legal Certainty Exception – Towards a New Subjective Localisation in the Conflict of Laws Methodology ....................................................... 25 Thomas KADNER GRAZIANO 50 Years of the 1971 Hague Traffic Accident Convention – Time to Say Goodbye .................................................................................................... 59 Christian KOHLER Judicial Cooperation in Civil Matters after Brexit – The Case of the British Application to Rejoin the Lugano Convention of 2007 ................ 81 Jan VON HEIN / Cristina M. MARIOTTINI The “Lisbon Guidelines on Privacy” – A Path Forward for the Protection of Privacy in Private International and Procedural Law ........ 103 Nicolas NORD The International Commission on Civil Status – Present and Future of International Cooperation in Civil Status Matters .................................. 135 Gian Paolo ROMANO European Family Courts and Inter-Country (Arbitration?) Courts to Deal with Cross-Border Custody Disputes ............................................. 155 Business and Human Rights Symeon C. SYMEONIDES Rome II and Cross-Border Violations of Human Rights, Infringements of Personality Rights, and other Cross-Border Torts .............................. 171 Robert BRAY / Ilaria PRETELLI / Diana WALLIS Access to Justice in the EU for Victims of Socio-Environmental Damages Occurring in Non-EU Countries – The Proper Law of Torts in the Value Chain ....................................................................................................... 211 Fabienne JAULT-SESEKE The French Duty of Care after a few Years of Application .................... 245

Madeleine Petersen WEINER / Marc-Philippe WELLER The “Event Giving Rise to the Damage” under Art. 7 Rome II Regulation in CO2 Reduction Claims ..................................................... 261 National Reports Bebizuh MULUGETA MENKIR Reciprocity and Execution of Foreign Judgments under Ethiopian Law – Latest Development ................................................................................ 281 Paulina TWARDOCH Composite Marriage Contracts in Polish Private International Law ....... 295 Tamir BOLDBAATAR / Batzorig ENKHBOLD The Hague Conference and the Perspectives of Mongolian Private International Law .................................................................................... 323 Court Decisions Anna WYSOCKA-BAR Same-Sex Parenthood in a Cross-Border Landscape in Pancharevo....... 333 Carmen RUIZ SUTIL International Removals in Contexts of Violence between European Asylum Law and the Best Interests of the Child – The CJEU Case A. V. B., of 2 August 2021 ..................................................................... 349 Forum Vito BUMBACA The Hague Convention on the Protection of Adults – Plea for and Practice of an “Adult” Approach ............................................................ 365 Olivier GAILLARD The Professio Iuris in Swiss Private International Law .......................... 393 Corinne MAMMINO Recent Developments in International Mediation ................................... 439

FOREWORD ___________ The new Volume XXIII of the Yearbook of Private International Law addresses many of the questions that are leaving in trouble legal practitioners who are active in – and, more importantly, human beings who are party to – cross-border relationships and litigation. The Doctrine section includes two contributions on the circulation of public documents attesting to a civil status – read: birth certificates – and on the desirable cooperation among States parties to the International Commission on Civil Status. The very divisive and “euro-disruptive” crux of the full recognition of civil status within “rainbow families” hides behind what appears to be an eminently bureaucratic problem. However, the real question is: to what extent can such recognition be considered as required by universal human rights? Unfortunately, in the present moment in history, every step forward in this direction needs to be duly pondered against the existing radical disfavour not only of Eastern European countries, but also of some Western European countries run by conservative majorities or subject to religious influence. These countries tend to regard the recognition of some of the civil statuses stemming from non-conventional families (LGBTIQA+ marriages and filiations) as contrary to their public policy. On the eve of the publication of the present volume, the European Commission is pushing in the direction of full recognition by  proposing  a tentative regulation, which would offer a welcome remedy to the compromise solution devised by the Court of Justice of the European Union. The Pancharevo judgement is commented in the “court decisions” section of this volume. The connections between human rights and private international law are also at the core of the section dedicated to “Business and Human Rights”, with several contributions on the need to adjust the current rules of private international law so as to ensure more effective protection of workers, indigenous people and victims of environmental damages, by compelling companies to fully implement their duty of care within their whole value chain. As proposed by one of our authors, this reflection could also lead to rethinking the basic philosophy of the Rome II Regulation. Moving on in the same line, we anticipate that a revision of torts law is also considered essential, in the light of the new technological developments, by an article on the 1971 Hague Traffic Accidents Convention with the eloquent title “time to say goodbye”. We are also delighted to present to you the Lisbon guidelines on privacy, among other significant highlights of this volume. From a more methodological perspective, an in-depth analysis is devoted to the “legal certainty exception”, included in the general part of the

Dutch Private international law codification, and on its relations to other more traditional mechanisms derogating from the application of choice of law rules. Cross-border custody disputes and parental child abduction are treated by our co-editor, who proposes overcoming the sad experiences of irreconcilability of decisions on custody by instituting intercountry courts, be they judicial – typically European courts within the EU – or arbitration courts. The topic is also considered by the CJEU in another significant case attempting to resolve the existing incoherence between EU harmonised rules on jurisdiction in private international law and in migration law. Our traditional section on comparative private international law, will take you to Africa, Asia, and then back to Europe with contributions illustrating the path that led Ethiopian courts to recognise an American divorce, a comprehensive Mongolian analysis of the country’s participation in the Hague Conference, and the Polish attitude towards cross-border premarital agreements. As every year, we are delighted to offer you inspiring proposals from promising young scholars. On a final note, we hope you are not disappointed by our decision to suppress, as of the present volume, the “Index” that has traditionally appeared in our previous publications. Since most of us now prefer cherrypicking what we read by using a “CTRL F” search instead of scrolling through the pages of the index, we have decided to simplify the production of the volume by abandoning a practice which has become old-fashioned in our digital times. Andrea Bonomi

Ilaria Pretelli

Gian Paolo Romano

ABBREVIATIONS ________________

Am. J. Comp. L. Am. J. Int’l L. Arb. Clunet Comm. Comp. ECR I.C.L.Q. I.L.M. ibid. id. Int’l IPRax

American Journal of Comparative Law American Journal of International Law Arbitration Journal de droit international Commerce Comparative European Court Reports International and Comparative Law Quarterly International Legal Materials ibidem idem International Praxis des internationalen Privat- und Verfahrensrechts J. Journal L. Law OJ Official Journal PIL Private International Law Q. Quarterly RabelsZ Rabels Zeitschrift für ausländisches und internationales Privatrecht Recueil des Cours Recueil des Cours de l'Académie de la Haye de droit international = Collected Courses of The Hague Academy of International Law Regulation (EU) No 2019/1111 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) OJ L178/1, 2.7.2019 Regulation (EU) No 2201/2003 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338/1, 23.12.2003 REDI Revista española de derecho internacional

Rev. Rev. crit. dr. int. pr. Riv. dir. int. priv. proc. Riv. dir. int. RIW RSDIE

Tech. this Yearbook Un.

Review Revue critique de droit international privé Rivista di diritto internazionale privato e processuale Rivista di diritto internazionale Recht internationaler Wirtschaft Revue suisse de droit international et européen = Schweizerische Zeitschrift für internationales und europäisches Recht Technology Yearbook of Private International Law University

DOCTRINE ________________

CIRCULATION OF PUBLIC DOCUMENTS AND RECOGNITION OF CIVIL STATUS SITUATIONS – LIGHTS AND SHADOWS Cristina CAMPIGLIO*

IV. V. VI. VII.

Less Bureaucracy for EU Citizens Regulation (EU) No 2016/1191 on Public Documents The Unsolved Problem of Recognition of “Civil Effects Connected with the Situation” Recorded in a Civil Status Document The Mutual Recognition of Situations in the Case-Law of the Court of Justice A New Possession of Status – EU Civil Status Towards a European Certificate of Parenthood? The Split Personal Identity of EU Citizens

I.

Less Bureaucracy for EU Citizens

I. II. III.

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EU institutions have long felt the problem of excessive bureaucracy in Member States, especially in transnational situations. “Every person holding the nationality of a EU Member State is now also automatically a citizen of the European Union. EU citizenship does not replace national citizenship. Instead, it confers upon all EU citizens an additional set of rights, guaranteed by the EU Treaties, which lie at the heart of their everyday lives …. EU citizenship rights are firmly anchored in primary EU law and substantially developed in secondary law. Those who are taking advantage of the European project by extending aspects of their life beyond national borders, through travel, study, work, marriage, retirement, buying or *

Full Professor at the University of Pavia (Italy). This contribution is an extended version of the Paper “Recognition of Civil Status Records in the Aftermath of Regulation (EU) 2016/1191 on Public Documents: A New Functional Identity for EU Citizens” presented at the DXB (Identities on the Move – Documents Cross Borders: EU Project 2014-2020) Final Conference, A.N.U.S.C.A. Academy, Castel San Pietro Terme, Bologna (Italy), June 23-24, 2022. 1

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 1-24 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Cristina Campiglio inheriting property, voting, or just shopping online from companies established in other Member States, should fully enjoy their rights under the Treaties. However, a gap still remains between the applicable legal rules and the reality confronting citizens in their daily lives, particularly in cross-border situations... It is paramount for citizens who move to other Member States to have recognition of civil status documents concerning their ‘life events’ (e.g., birth, marriage, registered partnership, divorce, adoption or name). Member States’ registries and administrative systems vary across the EU, causing problems for such cross-border recognition. Moreover, these life events might not be recognised by all Member States. Citizens are thus obliged to go through cumbersome and costly formalities (translation, additional proof of authenticity of documents) which might even make it impossible for them to enjoy their rights.” These were the terms used by the European Commission in its “EU Citizenship Report 2010 – Dismantling the obstacles to EU citizens’ rights,”2 in response to requests from the European Council. Within the framework of the Stockholm Programme – An open and secure Europe serving and protecting citizens, published in May 2010,3 the European Council actually invited the Commission to “submit appropriate proposals taking into account the different legal systems and legal traditions in the Member States. In the short term, a system allowing citizens to obtain their own civil status documents could easily be envisaged. In the long term, one might consider whether mutual recognition of the effects of civil status documents could be appropriate, at least in certain areas. Work developed by the International Commission on Civil Status should be taken into account in this particular field.”4 Reference is made here to the conventions promoted by the International Commission on Civil Status (ICCS), aimed at abolishing legalisation.5 Strangely enough, the Commission makes no mention of another international organisation, the 2 COM (2010) 603 final, 27.10.2010, EU Citizenship Report 2010 – Dismantling the obstacles to EU citizens’ rights, 3 and following. 3 OJ 2010 C 115/1, 4.5.2010, para 3.1.2. 4 Many conventions have been adopted within the ICCS framework, although they have not been very successful. In its response to the 2010 Green Paper, the ICCS noted that the solutions put forward therein were largely inspired by the ICCS Conventions. Therefore, it would have been better to impose their compliance by the EU Member States than having the EU, which has no specific technical competence in this area, issue its own provisions. See note 20 below. 5 Convention (No 2) on the issue free of charge and the exemption from legalisation of copies of civil status records (Luxembourg, 26.9.1957), Convention (No 16) on the issue of multilingual extracts from civil status records (Vienna, 8.9.1976); Convention (No 17) on the exemption from legalisation of certain records and documents (Paris, 15.9.1977); and Convention (No 34) on the issue of multilingual and coded extracts from civil-status records and multilingual and coded civil-status certificates (Strasbourg, 14.3.2014).

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Yearbook of Private International Law, Volume 23 (2021/2022)

Circulation of Public Documents and Recognition of Civil Status Situations Hague Conference on Private International Law, to which we owe the important Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, replacing the often long and costly legalisation process with the issuance of a single Apostille certificate by a competent authority.6 The fact that the 1961 Hague Convention has been ratified by all EU Member States, that not all EU Member States have ratified the ICCS Conventions, and that some have also ratified the Brussels Convention of 25 May 1987 abolishing the legalisation of documents in the Member States of the European Communities,7 results in different solutions depending on the State that issued the public document and on the State in which it is to be presented.8 This is undoubtedly a huge complication for legal practitioners. Therefore, the European Commission presented the Green Paper, “Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records,”9 in which it underlined that

6 In 2006, the electronic Apostille Programme (e-APP) was launched to support the electronic issuance and verification of Apostilles around the world. 7 Mention should also be made of the European Convention on the Abolition of Legalisation of Documents executed by Diplomatic Agents or Consular Officers (London, 7.6.1968). 8 In principle, in Italy, civil status documents drawn up abroad must be legalised and translated in order to be transcribed (Articles 21.3 and 22 of Presidential Decree No 396/2000, 3.11.2000). Legalisation, as is well known, is the certification of the legal status of the person who signed the original document drawn up in a foreign language (Article 1, para 1, Lett. l, Presidential Decree No 445/2000, 28.12.2000), which is the responsibility of the Italian diplomatic or consular authority abroad (Article 33, para 2, Presidential Decree No 445/2000). The translation must be accompanied by a certification of conformity with the foreign text signed by the diplomatic or consular authority or by an official translator. The issue of the circulation of civil status documents in Italy has long been ignored by legal authors. Early writings include P. FEDOZZI, Il diritto amministrativo internazionale, Annali dell’Università di Perugia, 1901, and ID., De l’efficacité extra-territoriale des lois et des actes de droit public, Collected Courses vol. 27, 1929, p. 165 et seq.; G. CANSACCHI, L’efficacia probatoria dei certificati amministrativi stranieri, Giurisprudenza comparata di diritto internazionale privato 1938 III, p. 266 et seq.; and especially G. BISCOTTINI’s works concerning international administrative law, in particular, I procedimenti per l’attribuzione di efficacia degli atti amministrativi stranieri, Diritto internazionale 1959, p. 36 et seq.; Sulla rilevanza degli atti amministrativi stranieri, Pubblicazioni dell’Università di Pavia 1951; L’efficacité des actes administratifs étrangers, Collected Courses vol. 104, 1961, p. 635 et seq., p. 690 et seq. (where he distinguishes between the value to be attributed to foreign certificates and the value to be attributed to the legal situations created by foreign public documents); Diritto amministrativo internazionale, t. I, La rilevanza degli atti amministrativi stranieri, Padova 1964, p. 24 et seq.; La rilevanza internazionale degli atti di stato civile, Rivista del notariato 1968), p. 1 et seq. On this subject, see R. CAFARI PANICO, Lo stato civile ed il diritto internazionale privato, Padova 1992. Il diritto internazionale privato applicato allo stato civile (Santarangelo di Romagna 2019) by R. CALVIGIONI has a practical approach. 9 COM (2010) 747 final, 14.12.2010: italics added. See C. KOHLER, Towards the Recognition of Civil Status in the European Union, this Yearbook 2013/2014, p. 13 et seq.

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Cristina Campiglio “(t)he mobility of European citizens is a practical reality, evidenced in particular by the fact that some 12 million people study, work or live in a Member State of which they are not nationals. This mobility is facilitated by the rights attached to citizenship of the European Union: in particular the right to freedom of movement and, more generally, the right to be treated like a national in the Member State of residence. These rights are enshrined in primary EU law and implemented by means of secondary legislation. However, … European citizens are still confronted each day with many obstacles to the exercise of these rights.”10 To overcome these obstacles, the Commission envisaged, on the one hand, the abolition of administrative formalities for the authentication of public documents, the cooperation between the competent national authorities and limiting translations of public documents; on the other, the introduction of a European civil status certificate, along the lines of European driving licences and passports.11 In this regard, it should not be forgotten that, shortly before, the Commission had already proposed the creation of a European certificate in the private law sector: the European certificate of succession.12 In other words, the purpose was to offer EU citiGreen Paper cit., para 3.3. Until then, standard forms, sometimes annexed to the Regulation, were used to facilitate the recognition and enforcement of public documents (see for example Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7/1, 10.1.2009, which contains 8 relevant Annexes). 12 COM (2009) 154 final, 14.10.2009, Proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession. As is well known, with Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201/107, 27.7.2012, instead of relying on the mutual recognition of national certificates of inheritance, the EU decided to create a completely new instrument by directly regulating its content and effects in all Member States, without the need for any recognition and acceptance procedure, without any grounds for refusal (including for public policy) and without the need for legalisation or an apostille (Article 74). The introduction of uniform rules for identifying the authority competent to issue the Certificate and the preparation of a standard form justify the legitimate expectations towards the certificate itself. The effects of the Certificate are of an evidentiary nature: the Certificate does not constitute a title for the acquisition of succession rights, but only highly reliable evidence of the status of heir, legatee, or executor of the will or administrator of the estate. The Certificate “shall be presumed to accurately demonstrate elements which have been established under the law applicable to the succession or under any other law applicable to specific elements” (Article 69, para 2) and “shall constitute a valid document for the recording of succession property in the relevant register of a Member State” (Article 69, para 5). The authorities of the receiving State will not be able to challenge either the prerequisites, the content, or the effects of the Certificate: any challenge can only be raised before the judicial authorities of the Member State of the issuing authority under the law of that State (Article 72). Regulation (EU) No 650/2012 was implemented with Commission Implementing Regulation (EU) No 1329/2014 of 10 11

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Circulation of Public Documents and Recognition of Civil Status Situations zens the possibility of requesting the issue of a European civil status certificate – with a public law value – which would not replace their national certificates (which differ in both form and substance). However, and this is undoubtedly the most innovative part, the Commission pointed out the need “to guarantee the continuity and permanence of a civil status situation to all European citizens exercising their right of freedom of movement” and proposed, in the name of legal certainty, “to remove the obstacles which they face when asking for a legal situation created in one Member State to be recognised in another … in order to benefit from the civil rights connected with the situation in the Member State of residence.” Moreover, a precedent already existed: Regulation (EC) No 2201/200313 provides for the automatic updating of “the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State” (Article 21, para 2). As to the methods for ensuring the recognition of effects, excluding, due to lack of jurisdiction, the adoption of uniform substantive rules on the matter, the Commission proposed three different solutions: a) assisting national authorities in the quest for practical solutions; b) automatic recognition in one Member State of civil status situations established in other Member States (leaving Member States’ legal systems unchanged);14 c) harmonisation of conflict-of-law rules (enshrining 9 December 2014 establishing the Forms referred to in Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 359/30, 16.12.2014, which contains, in Annex V, the European Certificate of Succession form (see S. MARINO, Use of standard forms in EU civil judicial cooperation: the case of the European Certificate of Succession, Cuadernos de Derecho Transnacional 2020, p. 627 et seq.). As already noted, the harmonisation of conflict of law rules will significantly reduce (if not eliminate) the “structural fragility” that previously characterised national certificates: see A. DAVÌ/ A. ZANOBETTI, Il nuovo diritto internazionale privato europeo delle successioni, Torino 2014, p. 234, which refers to P. LAGARDE, Présentation du règlement sur les successions, in G. KHAIRALLAH/ M. REVILLARD (eds), Droit européen des successions internationales, Le Règlement du 4 juillet 2012, Paris 2013, p. 5 et seq., p. 15, according to which the “fragilité structurelle” should even disappear. The Certificate, which does not appear to be a subcategory of authentic instruments, is intended to facilitate the exercise of individual rights or the protection of individual interest and therefore “shall not be mandatory” and “shall not take the place of internal documents used for similar purposes in the Member States” (Article 62). Lastly, also for bibliographical reference, see F. MAOLI, Il certificato successorio europeo tra regolamento (EU) No 650/2012 e diritto interno, Napoli 2021, especially p. 191 et seq.: at p. 235 et seq. the author analyses the effects of the Certificate under Article 69, which are less pronounced than those set out in the 2009 proposal for a regulation. 13 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Regulation Brussels II bis), OJ L 338/1, 23/12/2003. 14 H.-P. MANSEL, Methoden des internationalen Privatrechts – Personalstatut: Verweisung und Anerkennung, in M. GEBAUER/ H.-P. MANSEL/ G. SCHULZE (eds), Die Person

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Cristina Campiglio the rules which would be applicable to a cross border situation when a civil status event takes place, rules thus foreseeable and known in advance). The road to harmonisation should have been “accompanied by a series of compensatory measures to prevent potential fraud and abuse and take due account of the public order rules of the Member States,” which can be found in sensitive matters, such as marriage and filiation, and which may have an impact on nationality (and therefore on EU citizenship) of the interested person. Following the public consultation “in terms of the movement of public documents and the application of the principle of mutual recognition in relation to civil status matters,” the Commission decided to reduce the scope of the planned regulation and, in 2013, presented a proposal “on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union”:15 thus, a proposal which “does not address the issue of recognition of effects of public documents between the Member States nor does it introduce full harmonisation of all public documents existing in the Member States or situations in which they are needed in cross-border scenarios by EU citizens and businesses.” The basis of the regulation was identified in Article 21, Para 2 TFEU – and not in Article 81, Para 2 TFEU on judicial cooperation in civil matters – in that “(a)dministrative obstacles to the cross-border use and acceptance of public documents have a direct impact on the free movement of citizens … removing these obstacles would facilitate the exercise of the free movement of citizens as foreseen in Article 21(2) TFEU.” Along the lines of several regulations adopted in the field of judicial cooperation,16 the proposal merely provides (in Articles 1 and 4) for a im Internationalen Privatrecht. Liber Amicorum Erik Jayme, Tübingen 2019, p. 27 et seq. and 36-37, challenges this statement. 15 COM (2013) 228 final, 24.4.2013, Proposal for a Regulation of the European Parliament and of the Council on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012. P. LAGARDE (The Movement of Civil-Status Records in Europe, and the European Commission’s Proposal of 24 April 2013, this Yearbook 2013/2014, p. 1 et seq., at p. 10) points out the failure of the EU to keep civil-status records up to date and to organize the international exchange of data. “It is not simply a question of agreeing on the type of data that may be exchanged. Identifying the appropriate means of exchanging data is the most difficult aspect”. 16 For example, Regulation (EC) No 2201/2003, Article 52; Regulation (EC) No 4/2009, Article 65; Regulation (EU) No 650/2012, Article 74; Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast: OJ L 351/1, 20.12.2012), Article 61, exempt from legalisation. In general, see J. FITCHEN, The Private International Law of Authentic Instruments, London 2020. On the circulation of authentic instruments in succession matters, see M. KOHLER/ M. BUSCHBAUM, La “reconnaissance” des actes authentiques prévue pour les successions transfrontalières, Rev. crit. dr. int. pr. 2010, p. 629 et seq.; J. FITCHEN, “Recognition,” acceptance and enforcement of authentic instruments in the Succession Regulation, J. Private International Law 2012, p. 323 et seq.; and D. DAMASCELLI, La “circulation” au

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Circulation of Public Documents and Recognition of Civil Status Situations dispensation from legalisation (conceived, under Article 3, Para 3, as “the formal procedure for certifying the authenticity of a public office holder’s signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears”) or similar formality (which means, under Article 3, Para 4 “the addition of the certificate foreseen by the Hague Convention of 1961 abolishing the requirement of legalisation for foreign public documents”) and “a simplification of other formalities related to the acceptance of certain public documents issued by authorities of the Member States” (reference is made here to “the issuance of certified copies and certified translations of public documents”: Article 3,Para 5). “Union multilingual standard forms concerning birth, death, marriage, registered partnership and legal status and representation of a company or other undertaking” are also established (Articles 1 and 11) and attached to the proposal: standard forms relating to names, filiation and adoption are postponed to a later stage, as the norms on these matters vary greatly from one State to another. The text, as mentioned above, “does not apply to the recognition of the content of public documents issued by the authorities of other Member States” (Article 2, Para 4). As a result, Union multilingual standard forms provided for by the proposal will have “the same formal evidentiary value as their national equivalents as regards their authenticity”: their primary purpose will be the reduction of the remaining translation requirements for Union citizens and businesses.17 Under Articles 7 and following, in case of “reasonable doubt as to … authenticity” of a foreign public document or its certified copy, national authorities may submit a request for information to the relevant authorities of the Member State where these documents were issued, either by using the Internal Market Information System (IMI) established by Regulation (EU) No 1024/2012,18 or by contacting the central authority of their Member State.

II.

Regulation (EU) No 2016/1191 on Public Documents

Regulation (EU) No 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 is dated 6 July 2016 and took effect on 16 February 2019. Those with initial expectations were disappointed by the very title of the Regulation: the European Commission moved from the “recognition of the effects of civil status records” provided for in the 2010 Green sein de l’espace judiciaire européen des actes authentiques en matière successorale, Rev. crit. dr. int. pr. 2013, p. 425 et seq. 17 COM (2013) 228 final, para 1.3.2. 18 Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on administrative cooperation through the Internal Market Information System and repealing Commission Decision 2008/49/EC (“the IMI Regulation”), OJ L 316/1, 14.11.2012.

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Cristina Campiglio Paper to the 2013 proposal aiming at the “simplification of the acceptance of certain public documents” to end up with the mere “simplification of the requirements for presenting certain public documents.”19 The Regulation clarifies from the outset that it “does not apply to the recognition in a Member State of legal effects relating to the content of public documents issued by the authorities of another Member State” (Article 2, Para 4) and that it “should not oblige Member States to issue public documents that do not exist under their national law” (Recital 7). Its aim “is not to change the substantive law of the Member States relating to birth, a person being alive, death, name, marriage (including capacity to marry and marital status), divorce, legal separation or marriage annulment, registered partnership (including capacity to enter into a registered partnership and registered partnership status), dissolution of a registered partnership, legal separation or annulment of a registered partnership, parenthood, adoption …” (Recital 18), where parenthood means “the legal relationship between a child and the child’s parents” (Recital 14, however, defining the notion of “parent” remains an unresolved issue). In short, Brussels’ institutions exclude any form of indirect harmonisation. Regulation (EU) No 2016/1191 mainly concerns civil status documents but also public (administrative and notarial) documents relating to domicile and/or residence, nationality, and absence of a criminal record (Articles 2 and 3). As already set out in the proposal, the simplification consists firstly in the exemption of public documents and their certified copies from legalisation and similar formalities (Articles 4 and 5). It is usually sufficient to provide the original of the document, with no need for a certified copy (Article 5, Para 1): where a Member State does not require the original but only the presentation of a certified copy of a public document, the authorities of that Member State shall accept a certified copy made in another Member State without legalisation (Article 5, Para 2). With a view to overcoming language barriers, the Regulation also simplifies other formalities relating to the translation of public documents, which, at the request of the interested party, are accompanied by standard multilingual forms in each of the official languages of the EU (Articles 6-12). These forms are only intended to facilitate the understanding of the document to which they are attached (Recital 22): the forms, in other words, “have no autonomous legal value” (Article 8, Para 1).20 19 Unlike the proposal, the final text does not provide for the free movement of businesses and public documents that concern them. 20 The proposal, which was largely inspired by ICCS Conventions Nos 16 and 34 (see note 4 above) gave the form “the same formal evidentiary value as the equivalent public documents drawn up by the authorities of the issuing Member State” (Recital 17). It is worth noting that the envisaged multilingual standard forms covered only birth, death, marriage, registered partnerships, legal status and representation of companies. Only at a later stage would forms relating to name, filiation, adoption and other matters be introduced (Proposal, para 3.1).

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Circulation of Public Documents and Recognition of Civil Status Situations Electronic versions of multilingual standard forms can be found on the European e-Justice Portal (https://e-justice.europa.eu) although “(i)t should be possible to integrate the electronic version of a multilingual standard form from the European e-Justice Portal into a different location accessible at national level, and to issue it from there” and “(t)he Member States should have the possibility of creating electronic versions of multilingual standard forms using a technology other than that used by the European e-Justice Portal, provided that the multilingual standard forms issued by the Member States using that other technology contain the information required by this Regulation” (Article 12, Recitals 28 and 29). As mentioned above, the Regulation (Articles 13 et seq.) introduces a mechanism for administrative cooperation between the authorities designated by the Member States based on the Internal Market Information System (“IMI”), established by Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (in the Annex to which reference to Regulation (EU) No 2016/1191 is therefore added).21 If national authorities have a reasonable doubt as to the authenticity of a public document or its certified copy, they can “check the available models of documents in the repository of IMI” and also submit a request for information through IMI to the authority that issued the document or certified copy or to the relevant central authority designated pursuant to Article 15 (Article 14). This is a mechanism, which does not appear in the regulations on judicial cooperation. It appears neither in those exempting judgments and authentic instruments from legalisation22 nor in the judgment or instrument dealing with registers, in which information concerning insolvency proceedings is published (insolvency registers). As a matter of fact, Regulation (EU) No 2015/848 of 20 May 2015 on insolvency proceedings (recast), provides “for the interconnection of … insolvency registers via the European e-Justice Portal” (Recital 76), “which shall serve as a central public electronic access point to information in the system” (Article 25). The interconnection of registers was already set forth in Directive 2012/17/EU of 13 June 2012 amending Council Directive 89/666/EEC and Directives 2005/56/EC and 2009/101/EC as regards the interconnection of central, commercial and companies’ registers. One should also mention the project started by the European Network of Registers of Wills Association and funded by the European Union, intended to create an interconnection of the European registers of wills:23 after the In this respect, each Member State must designate “at least one central authority” to provide information (Article 15) In Italy, this authority is the European Policies Department, Internal Market and Competition Office. Lists of country-specific entry headings received from the Member States of the European Union pursuant to Article 24, para 2, are published in OJ 2021 C 339/1. 22 See note 16 above. 23 It is worth mentioning the Convention on the Establishment of a Scheme of Registration of Wills, signed in Basel, 16 May 1972, which, however, was not very successful: apart from Italy, only 12 States, some of which are non-EU, have ratified it. 21

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Cristina Campiglio entry into force of Regulation (EU) No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, the interconnection of registers facilitates the search for the European certificates of succession issued in any Member State. The interoperability of civil registry systems among different jurisdictions is of crucial importance24 and creation of an interconnected network of civil status records could indeed be envisaged. This would however imply the digitisation of these records by each Member State and the storage of the civil-status data of each person in a centralised database. Actually, a platform for the international communication of civil-status data by electronic means already exists and is co-financed by the EU: it is the Platform set up by the Convention on the use of the International Commission on Civil Status Platform for the international communication of civil-status data by electronic means (signed in Rome on 19 September 2012, Convention No 33). The idea of using the ICCS Platform was probably discarded by Regulation No 2016/1191 because multilingual standard forms under the Regulation do not have legal value and do not overlap with the multilingual standard forms provided for in ICCS Conventions (Nos 16, 33 and 34) or with the life certificates provided for in ICCS Convention (No 27). The Regulation “should not affect the application … as between Member States or between a Member State and a third country” (Recital 49) of all these Conventions.25 In the future, a collaboration could be initiated between the ICCS and the Hague Conference (of which the EU is a Member) to enhance the ICCS Platform, by involving other actors such as UNICEF and UNHCR, and NGOs such as the European Association of Civil Registry Officials.

III. The Unsolved Problem of Recognition of “Civil Effects Connected with the Situation” Recorded in a Civil Status Document As mentioned above, Regulation (EU) No 2016/1191 introduces uniform provisions for the circulation of public documents, overcoming the fragmentary and complex nature of the previous rules. However, the European institutions have 24 See H. VAN LOON, Requiem or transformation? Perspectives for the CIEC/ICCS and its work, this Yearbook 2018/2019, p. 73, p. 74. 25 E. BONIFAY, La circulation des citoyens européens entre États membres au lendemain de l’adoption du règlement “documents publics”, Clunet 2017, p. 515 et seq., p. 521, believes that it would have been better to invite all the EU Member States to adhere to Convention No 16 and to the following Convention No 34, rather than proposing a “pâle copie” thereof. The Regulation allows Member States to conclude agreements with third countries on the legalisation of public documents (Article 19, para 4): see A. VETTOREL, EU Regulation No 2016/1191 and the circulation of public documents between EU Member States and Third States, Cuadernos de Derecho Transnacional 2017, p. 342 et seq.

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Circulation of Public Documents and Recognition of Civil Status Situations been hesitant, limiting themselves to encouraging the “presentation” of public documents and not the recognition of “the civil effects connected with the situation” recorded in a civil status document. In other words, they have acted at a purely procedural level, betraying the spirit that seemed to initially animate the Commission i.e. to enshrine the method of automatic recognition of legal situations created in another Member State in a text dedicated to the circulation of public records, based on the assumption that freedom of movement should be understood as freedom to move with one’s personal and family status.26 Anchored to the distinction between instrumenta and negotia, the EU focused on the circulation of the former (not by chance qualified as “les parents pauvres du droit international privé”),27 eliminating all forms of legalisation, simplifying other administrative formalities and thus reducing time and costs.28 The Regulation’s failure to mention the negotium is undoubtedly linked to the difficulties connected with the recognition of the effects of family negotia (first and foremost marriage and same-sex unions), of which the Commission was aware from the outset. Moreover, it is no coincidence that the legal basis of the Regulation was identified in Article 21, Para 2 TFEU on the free movement of citizens within the territory of the Member States and not in Article 81 TFEU on judicial cooperation in civil matters. Therefore, the Regulation does not regulate jurisdiction and applicable law, and does not introduce uniform rules for situations having cross-border implications. Furthermore, and understandably, it does not lay down a provision similar to that contained in Regulation (EU) No 650/2012 (Article 59, Para 3) according to which “(a)ny challenge relating to the legal acts or legal relationships recorded in an authentic instrument shall be made before the courts having jurisdiction … and shall be decided upon under the law applicable” under the Regulation itself. Regulation (EU) No 2016/1191 lays down rules inspired by those developed by the ICCS but specifies that “it should not apply to civil status documents issued on the basis of the relevant International Commission on Civil Status (ICCS) Conventions” (Recital 11), which have followed one another from the mid1950s to the present day. However, it should be noted that the organisation is experiencing a period of crisis due to the withdrawal of Austria, first (2008), and then of Italy (2014), the Netherlands (2018) and France (2019).29 Hence the idea of Proposal, cit., 3.2. CH. PAMBOOUKIS, Les actes publics et la méthode de la reconnaissance, in P. LAGARDE, La reconnaissance des situations en droit international privé, Actes du colloque international de La Haye du 18 Janvier 2013, Paris 2013, p. 133 et seq. 28 The Executive Summary of the Impact Assessment – SWD (2013)145 def., 25.4.2013, p. 5 – estimates the expenditure for EU citizens and businesses for obtaining Apostilles for intra-EU use at over € 25 million, and the expenditure for obtaining legalisation of public documents at between € 2.3 and € 4.6. 29 H. VAN LOON (note 24), p. 73; and P. LAGARDE/ H. GAUDEMET-TALLON/ C. KESSEDJIAN et al., La Commission internationale de l'état civil en péril, Recueil Dalloz 2020, p. 2355 et seq. See also the Resolution adopted on 25 September 2019 by the Bureau concerning the evolution of the ICSS, calling for the accession of the European Union, the Council of Europe, the Hague Conference on Private International Law and the UN High Commissioner for Refugees. 26 27

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Cristina Campiglio modernising the organisation to adapt it to new challenges and to open membership “to any international organisation, any regional economic integration organisation” (Article 2, 2020 of the ICCS Rules).30 The ICCS clearly intends to follow the path taken by the Hague Conference on Private International Law, which in 2005 amended its 1951 Statute to allow for the accession of the European Community, which actually took place in 2007. EU membership in the ICCS would have the advantage of systematising the measures in this area – formalising a cooperation that dates back to 1983 – and making the experience gained by the ICCS in a highly technical sector available to EU Member States. Alternatively, gradually transferring the functions of the ICCS to the Hague Conference is conceivable; one might begin by posting on the Hague Conference website some relevant ICCS Conventions (namely the above-mentioned Conventions Nos 16 and 34). The simplification of the circulation of civil status records brought about by Regulation (EU) No 2016/1191 results in an easier circulation of the situations certified therein, removing the indirect obstacles to the free movement of people within the EU territory arising from the differences in national family rules. The legal assessment of the existence of the situation certified in the public document (the negotium from which the personal status originates) remains at the discretion of individual Member States, each of which will apply its own conflict of law rules.31 Therefore, the impact of Regulation No 2016/1191 on the mobility of EU citizens is simply a reflex. The pragmatic approach of Regulation No 2016/1191 is nevertheless remarkable and could induce the Court of Justice to favour the recognition of the family situations of EU citizens certified in their public documents, consolidating a practice that has already been initiated,32 although this practice, as we will see, is not without problems.

30 The ICCS was established by the Berne Protocol of 25 September 1950, signed only by Belgium, France, Luxembourg, the Netherlands and Switzerland. The accession of other States was only envisaged after the additional Luxembourg Protocol of 25 September 1952. 31 Article 10:17, para 2, Dutch Civil Code (“Civil status of aliens”) according to which “(t)he rights acquired by such alien (foreigner) in the past and which result from his civil status, in particular the rights resulting from marriage, shall be respected” deserves mention here. Also interesting is Article 10:9 dedicated to “Unacceptable violation of parties’ confidence or of legal certainty”: “Where a fact has certain legal effects under the law that is applicable according to the private international law of a foreign State involved, a Dutch court may, even when the law of that foreign State is not applicable according to Dutch private international law, attach the same legal effects to that fact, as far as a nonattachment of these legal effects would be an unacceptable violation of the parties’ justified confidence or of legal certainty”. 32 According to É. PATAUT (Chronique Citoyenneté de l'Union européenne – Et le statut personnel?, Rev. trim. dr. eur. 2016, p. 648 et seq., p. 652), the effects of the Regulation, which are actually limited, will be felt in the long term: once civil status records begin to circulate automatically, the situations referred to therein will probably no longer be questioned.

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Circulation of Public Documents and Recognition of Civil Status Situations

IV. The Mutual Recognition of Situations in the CaseLaw of the Court of Justice The recognition of situations, as is well known, originates from the mutual recognition established in case-law as a “principle” of administrative law of the economy within the European Community.33 In order to overcome the obstacles to the movement of goods and services, the strategy of harmonising national regulations was abandoned at the end of the 1970s in favour of coordination of these regulations. In the leading case “Cassis de Dijon” of 197934 the Court of Justice held that “[a]ny product imported from another Member State must in principle be admitted to the territory of the importing Member State if it has been lawfully produced, that is, conforms to rules and processes of manufacture that are customarily and traditionally accepted in the exporting country, and is marketed in the territory of the latter.”35 In other words, the European Community has begun to think – so to speak – in horizontal terms rather than vertical terms, and to consider the rules of the Member States (specifically, of the State of origin and the State of destination) as “equivalent,”36 i.e., on an equal footing. In short, we have moved closer to the typical approach of conflicts of laws. As from 2000, the technique of recognition has also been used by the Court of Justice to remove obstacles to the movement of individuals and has therefore been extended to other non-harmonised areas of law, such as that relating to names37 and, more recently, to family relationships. 33 On a strictly private-international-law level, some authors had reached the same conclusions by other means, i.e., the recognition of the situation originated abroad without any control as to the rules applied: we refer to the theories of acquired rights (PILLET), vested rights (DICEY and BEALE), unilateralism (NIBOYET) and systemic conflicts (MEIJERS and FRANCESCAKIS): see P. LAGARDE, La méthode de la reconnaissance est-elle l’avenir du droit international privé?, Collected Courses vol. 371 2014, p. 9 et seq., p. 21 et seq. See also the proposed reconstruction of L. RASS-MASSON, The Foundations of European Private International Family Law, this Yearbook 2018/2019, p. 521 et seq., p. 530 et seq. 34 CJEU, 20 February 1979, Rewe / Bundesmonopolverwaltung für Branntwein, ECLI:EU:C:1979:42. 35 Communication from the Commission concerning the consequences of the judgment given by the Court of Justice on 20 February 1979 in Case 120/78 (“Cassis de Dijon”), in OJ C 256/2, 3.10.1980, p. 3. 36 See V. HATZOPOULOS, Le principe communautaire d’équivalence et la reconnaissance mutuelle dans la libre prestation de services, Athènes-Bruxelles 1999. 37 Reference should be made to CJEU, 2 October 2003, Carlos Garcia Avello v. Belgian State, ECLI:EU:C:2003:539; 14 October 2008, Stefan Grunkin and Dorothee Regina Paul, ECLI:EU:C:2008:559; 22 December 2010, Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien, ECLI:EU:C:2010:806; 12 May 2011, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others, ECLI:EU:C:2011:291; 2 June 2016, Nabiel Peter Bogendorff von Wolffersdorff v Standesamt der Stadt Karlsruhe and Zentraler Juristischer Dienst der Stadt Karlsruhe,

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Cristina Campiglio A few years earlier (1997), in fact, the Court of Justice was [already] called upon to rule on the effects of foreign certificates of civil status, albeit for very limited purposes, with respect to the date of birth in proceedings concerning entitlement to social security benefits. In that context, Advocate General La Pergola stated as follows: “recognition must be accorded to the principle of the uniformity of a person’s civil status; he must be able to ‘move’ within the Community precisely as he is individualized by that status ... Only in that way can citizens effectively exercise freedom of movement, now established – by design – as a right of citizenship of the Union, throughout the entire territory of the Community… [T]hose aspects of personal status that affect the acquisition or exercise of a right under Community law are not governed directly by the Community legal order but are implicitly and of necessity a matter for the legal system of the particular Member State that determines the status of the person concerned. A court or administrative authority of a Member State that is called upon to consider a case concerning an aspect of a person’s status that is governed by the law of another Member State may not therefore disregard the facts as determined by the authority vested, under that law, with the power to bring about, with respect to the aspect of status in point, a special form of legal certainty and cause it to have effect in legal relations.”38 On the basis of this Opinion, the Court of Justice ruled that “exercise of the rights arising from freedom of movement for workers is not possible without production of documents relative to personal status, which are generally issued by the [person’s] State of origin.” As a result, “the administrative and judicial authorities of a Member State must accept certificates and analogous documents relative to personal status issued by the competent authorities of the other Member States, unless their accuracy is seriously undermined by concrete evidence relating to the individual case in question.”39 ECLI:EU:C:2016:401; 8 June 2017, Proceedings brought by Mircea Florian Freitag, ECLI:EU:C:2017:432. 38 Opinion of Advocate General LA PERGOLA, 3 December 1996, Eftalia Dafeki v. Landesversicherungsanstalt Württemberg, ECLI:EU:C:1996:462, para 8. 39 CJEU, 2 December 1997, Eftalia Dafeki v. Landesversicherungsanstalt Württemberg, ECLI:EU:C:1997:579, para 19. This statement seems to suggest that civil status records enjoy greater evidentiary force among the Member States: see E. BONIFAY (note 25), p. 515 et seq., p. 525, who wonders whether all public documents whose submission is facilitated by Regulation (EU) No 2016/1191 currently enjoy the same force. The text seems to exclude this, since “the evidentiary value of public documents” does not fall within the scope of the Regulation (Recital 47). The proposal, on the other hand, specified that the scope covered public documents meant as “documents issued by authorities of a Member State and having formal evidentiary value” (Article 3 (1)). In France, Article 47 of the Code Civil reads: “Tout acte de l’état civil des Français et des étrangers fait en pays étranger et

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Circulation of Public Documents and Recognition of Civil Status Situations When applying Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, national authorities have increasingly been called upon to rule on the recognition of the status of European citizens as “family members,” specifically on the status of “spouse”40 and “direct descendant” (Article 2, Para 2, Lett. a) and c)).41 Failing harmonisation and given the difficulty of reconstructing an autonomous notion, they resorted to a lex fori characterisation but soon had to face family situations unknown to them. This led to litigation, which inevitably ended up in Luxembourg. The Court of Justice ruled upon the notion of “spouse” in 2018 (Coman case),42 pointing out that “the term ‘spouse’ within the meaning of Directive 2004/38 is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned.” After reaffirming, on the one hand, that “a person’s status, which is relevant to the rules on marriage, is a matter that falls within the competence of the Member States and EU law does not detract from that competence” and, on the other hand, that “in exercising that competence, Member States must comply with EU law, in particular the Treaty provisions on the freedom conferred on all Union citizens to move and reside in the territory of the Member States,” the Court clarifies that rédigé dans les formes usitées dans ce pays fait foi, sauf si d’autres actes ou pièces détenus, des données extérieures ou des éléments tirés de l’acte lui-même établissent, le cas échéant après toutes vérifications utiles, que cet acte est irrégulier, falsifié ou que les faits qui y sont déclarés ne correspondent pas à la réalité. Celle-ci est appréciée au regard de la loi française.” 40 The notion was debated at that time by the European Parliament, which voted in favour of an explicit reference to same-sex spouses, but the Commission considered that any reference to forms of marriage other than the traditional one was premature, although it did not rule out any future more progressive interpretation (see Explanatory Memorandum, Amended proposal, COM (2003) 199 final, 15.4.2003, p. 10 and 11). The Commission referred to the decisions of the Court of Justice (especially to judgements of 31 May 2001, Joined cases D and Kingdom of Sweden v. Council of the European Union, and Sweden v D and Council, ECLI:EU:C:2001:304) which highlighted that most Member States were still bound by the heterosexual notion of the marriage bond. 41 In Lett. (b), the Directive clarifies the notion of “partner,” specifying that it is the “the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State.” A somewhat similar formulation can be found in Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177/6, 4.7.2008 (Article 1, para 2, Lett. c) and in Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ L 199/40, 31.7.2007 (Article 1, para 2, Lett. b), which exclude from their scope “non-contractual obligations arising out of … property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage.” 42 CJEU, 5 June 2018, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, ECLI:EU:C:2018:385, paras 35, 37, 38, 45 and 46.

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Cristina Campiglio “the obligation for a Member State to recognise a marriage between persons of the same sex concluded in another Member State in accordance with the law of that State,43 for the sole purpose of granting a derived right of residence to a third-country national, does not undermine the institution of marriage in the first Member State, which is defined by national law” and “does not require that Member State to provide, in its national law, for the institution of marriage between persons of the same sex.” It is actually an obligation “confined to the obligation to recognise such marriages, concluded in another Member State in accordance with the law of that State, for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law.” Precisely because it has limited effects, such an obligation “does not undermine the national identity or pose a threat to the public policy of the Member State concerned.” Less than one year later,44 the Court clarified the concept of “direct descendant,” which “commonly refers to the existence of a direct parent-child relationship connecting the person concerned with another person.” However, a teleological interpretation of the directive leads us to apply the notion – which “primarily focuses on the existence of a biological parent-child relationship” – to “any parent-child relationship, whether biological or legal” and, therefore, also to adoptive affiliation. “By contrast, that requirement for a broad interpretation cannot justify an interpretation … whereby a child placed in the legal guardianship of a citizen of the Union is included in the definition of a ‘direct descendant’ for the purposes of Article 2 (2) (c) of Directive 2004/38”.45 The reference to the legislation of the Member State in which the marriage was celebrated suggests that this is not in fact an autonomous concept. Instead, in his Opinion, the Advocate General M. WATHELET dwelled on the search for an autonomous definition. 44 CJEU, 26 March 2019, SM v Entry Clearance Officer, UK Visa Section, ECLI:EU:C:2019:248, especially paras 52-55. The case concerned the qualification as “direct descendant” of a child placed under the permanent guardianship of a EU citizen under the Algerian Kafala. A comment can be found in J. SÁNCHEZ CANO, La aplicación de la directiva 2004/38/CE en supuestos de kafala internacional, Cuadernos de Derecho Transnacional 2020, p. 713 et seq. 45 The interpretation referred to by the Court is set out in the “Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States” (para 2.1.2): COM (2009) 313 final, 2.7.2009. The Communication also includes among direct descendants “minors in custody of a permanent legal guardian:” the extent to which they may enjoy the rights provided for in the Directive varies, however “depending upon the strength of the ties in the particular case”. As to the notions of “spouses” and “partners” (para 2.1.1), the Communication reads: “Marriages validly contracted anywhere in the world must be in principle recognized for the purpose of the application of the Directive. Forced marriages, in which one or both parties is married without his or her consent or against his or her will, are not protected by international or Community law. Forced marriages must be distinguished from arranged marriages, where both parties fully and freely consent to the marriage, although a third party takes a leading role in the choice of partner, and from marriages of convenience, defined in Section 4.2 below (as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the 43

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Circulation of Public Documents and Recognition of Civil Status Situations The Court returned to the concept of “direct descendant” in 2021 (Pancharevo case), in a dispute concerning a child born in Spain to a same-sex BulgarianBritish couple married in Gibraltar and residing in Spain. The Spanish birth certificate showed the names of two mothers, “mother” and “mother A”. In dealing with an application for the issue of a birth certificate to obtain a Bulgarian identity document, the Civil Registrar in Sofia requested evidence of the identity of the biological mother, since the Bulgarian model birth certificate has a box for the “mother” and another for the “father”, and only one name can appear in each of these boxes. The applicant did not provide any evidence and the Civil Registrar refused to issue the birth certificate. The applicant then started proceedings, during which a request for a preliminary ruling was made to the Court of Justice, which broadened the notion of “direct descendant”, holding that “(a) child, being a minor, … whose birth certificate, issued by the competent authorities of a Member State, designates as her parents two persons of the same sex, one of whom is a Union citizen, must be considered, by all Member States, a direct descendant of that Union citizen within the meaning of Directive 2004/38” regardless of any (evidence of) biological parentage and, more generally, of the issue of a new birth certificate.46 The Court specifies once again that the obligation for a Member State to recognise the parent-child relationship between a child and each of the parents of the same sex mentioned in the birth certificate issued in a Member State, in the context of the child’s exercise of her rights under Article 21

Directive that someone would not have otherwise). Member States are not obliged to recognise polygamous marriages, contracted lawfully in a third country, which may be in conflict with their own legal order. This is without prejudice to the obligation to take due account of the best interests of children of such marriages. The Directive must be applied in accordance with the non-discrimination principle enshrined in particular in Article 21 of the EU Charter. Partners with whom an EU citizen has a de facto durable relationship, duly attested, are covered by Article 3(2)(b). Persons who derive their rights under the Directive from being durable partners may be required to present documentary evidence that they are partners of an EU citizen and that the partnership is durable. Evidence may be adduced by any appropriate means. The requirement of durability of the relationship must be assessed in the light of the objective of the Directive to maintain the unity of the family in a broad sense. National rules on durability of partnership can refer to a minimum amount of time as a criterion for whether a partnership can be considered as durable. However, in this case national rules would need to foresee that other relevant aspects (such as for example a joint mortgage to buy a home) are also taken into account. Any denial of entry or residence must be fully justified in writing and open to appeal.” M. BOGDAN (The Relevance of Family Status Created Abroad for the Freedom of Movement in the EU, Acta Universitatis Carolinae, Iuridica 2020, p. 4 et seq., p. 85 and 92-93) wonders whether, after the Coman judgement, there is room for the recognition of polygamous marriages as well. 46 CJEU, 14 December 2021, V.М.А. v Stolichna obshtina, rayon „Pancharevo“, ECLI:EU:C:2021:1008, especially para 68. On this occasion, the Court reaffirmed that the notion of “spouse” is gender-neutral and stems from a marriage validly celebrated in the State of origin. See also the Opinion of Advocate General J. KOKOTT, 15 April 2021, ECLI:EU:C:2021:296, paras 61, 108 and 154.

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Cristina Campiglio TFEU and secondary legislation relating thereto, “does not undermine the national identity or pose a threat to the public policy of that Member State.”47

V.

A New Possession of Status – EU Civil Status

In the above-mentioned cases, the Court of Justice focuses on the outcome – the free movement of EU citizens – and, from this perspective, proposes a dynamic interpretation48 of the notions used in Directive 2004/38, so as not to deprive the latter of its useful effect49 and not to discriminate against EU citizens on account of the legislative differences of the Member States. The Court employs EU citizenship not as a traditional conflict-of-laws connecting factor, but rather as a starting point for mutual recognition and, not surprisingly, addresses the issues brought to its attention regardless of the technical categories of private international law, focusing on the substance and on the respect for the fundamental rights. The solution it reaches represents a compromise between the individual rights of EU citizens exercising their freedom of movement and the national identity of a Member State: a compromise that recalls the balance that the European Court of Human Rights usually seeks between individual rights and collective/public interests.50 The outcome is the recognition of the possession of a European status,51 of a personal identity functional to the exercise of the rights deriving from the EU primary law and meeting the social need to have a personal status, which – as CJEU, 14 December 2021 (note 46), para 56. “EU law must be interpreted ‘in the light of present day circumstances’, that is to say, taking the ‘modern reality’ of the Union into account. In fact, the law ‘cannot cut itself off from society as it actually is, and must not fail to adjust to it as quickly as possible. Otherwise, it would run the risk of imposing outdated views and taking on a static role”. These were the words of Advocate General WATHELET (11 January 2018, Relu Adrian Coman, Robert Clabourn Hamilton, Asociaţia Accept v Inspectoratul General pentru Imigrări, Ministerul Afacerilor Interne, Consiliul Naţional pentru Combaterea Discriminării, ECLI:EU:C:2018:2, par. 56), who went on to state (para 57): “That is why the solution adopted by the Court in the judgment of 31 May 2001, D and Sweden v. Council (note 40), by which ‘according to the definition generally accepted by the Member States, the term marriage means a union between persons of the opposite sex’, now seems to me outdated … It is not something associated with a specific culture or history; on the contrary, it corresponds to a universal recognition of the diversity of families.” 49 CJEU, 5 June 2018 (note 42), para 39. See also M. GRASSI, Sul riconoscimento dei matrimoni contratti all’estero tra persone dello stesso sesso: il caso Coman, RDIPP 2019, p. 739 et seq., p. 748 et seq. 50 P. KINSCH, European Courts and the Obligation (Partially) to Recognise Foreign Same-Sex Marriage. On Orlandi and Coman, this Yearbook 2018/2019, p. 47 et seq., p. 58, who evokes the doctrine of national margin of appreciation. 51 See R. BARATTA, La reconnaissance internationale des situations juridiques personnelles et familiales, Collected Courses, vol. 348, 2010, p. 253 et seq., p. 463 et seq. 47 48

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Circulation of Public Documents and Recognition of Civil Status Situations predicted by La Pergola – accompanies individuals anywhere within the EU.52 The circulation of this possession of status is, of course, easier if the status is supported by an act issued by a public authority which plays an active or even just a receptive role (consider, for example, the role of the Civil Registrar in Italy in relation to the celebration of marriage and, respectively, to filiation).53 The possession of this EU status is based, on the one hand, on the protection of fundamental rights – namely the right to personal identity under Article 7 of the EU Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights (according to the evolutionary interpretation by the EHR Court) – and, on the other hand, on EU citizenship “destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law”.54 The personal status validly55 acquired in a Member State, if meant as a prerequisite for the exercise of EU citizens’ rights, under Article 20 TFEU, first and foremost the right to move and reside freely within the territory of the Member States,56 seems to be on its way to 52 I. BLASQUEZ ROGRIGUEZ, Libre circulación de personas y derecho internacional privado: un análisis a la luz de la jurisprudencia del Tribunal de Justicia de la Unión Europea, Cuadernos de Derecho Transnacional 2017, p. 106 et seq., p. 111. 53 P. MAYER, Les méthodes de la reconnaissance en droit international privé, in Le droit international privé: esprit et méthodes. Mélanges P. Lagarde, Paris 2005, p. 547 et seq., p. 562; P. LAGARDE (note 33), p. 38. 54 CJEU, 20 September 2001, Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve, ECLI:EU:C:2001:458, para 31. 55 The Court does not clarify the procedure necessary to verify the validity of the acquisition of the status. There are several possible solutions: the status could be considered validly acquired if it complies with the substantive and/or private international law of the State of origin; if it is officially provided for by a public document and/or entered in a public register; if it is acquired in a State with which the person concerned had a sufficient connection; or if it is not contrary to the public policy of the State of destination. Article 10 of the Resolution of the Institute of International Law on “Human Rights and Private International Law”, 4 September 2021 (rapporteur F. POCAR) is interesting: “Respect for the rights to family and private life requires the recognition of personal status established in a foreign State, provided that the person concerned has had a sufficient connection with the State of origin … as well as with the State whose law has been applied, and that there is no manifest violation of the international public policy of the requested State”. 56 A more extensive analysis is offered by J.-Y. CARLIER (Vers un ordre public européen des droits fondamentaux. L’exemple de la reconnaissance des mariages de personnes de même sexe dans l’arrêt Coman, Rev. trimestrielle droits de l’homme 2019, p. 203 et seq., p. 216 et seq.), who believes that the recognition of the status of spouse applies to all the rights under EU law, and therefore also to the maintenance, financial and inheritance rights conferred by the various European Regulations on private international law. The scope of the recognition is uncertain: the fact that the Court only dealt with the effects in relation to the freedom of movement could in fact be explained by the specific question put to it. See É. PATAUT, Intégration et ordre public: Nouvelles variations sur un vieux couple, Rev. trimestrielle droit européen 2018, p. 661 et seq., p. 678; P. HAMMJE, Obligation de reconnaissance d’un marriage entre personnes de même sexe conclu dans un État membre aux fins d’octroi d’un droit de séjour dérivé, Rev. crit. dr. int. pr. 2018, p. 816 et seq., p. 820. According to M. GRASSI (note 49), p. 764 et seq.), the Court’s decision on same-sex marriages cannot affect secondary legislation adopted in the context of judicial cooperation

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Cristina Campiglio automatic recognition throughout the EU, in the name of mutual trust and equivalence of the functions exercised by administrative authorities in the Member States. In recent years, the Court of Justice has improved its recognition technique by highlighting its special features as compared with the traditional method of resolving horizontal conflicts among national legal systems, which is typical of private international law systems. The recognition disregards the application of conflict-of-law rules and is therefore indifferent to applicable law, focusing rather on the situation as it stands in another Member State. Moreover, it exceeds even the limit of public policy, except in very exceptional cases involving a serious threat to national identity, whose respect by the EU is enshrined in Article 4, Para 2 TEU. The exercise of the rights associated with EU citizenship would seem to result in a counter-limit or even in a limit of positive (European) public order.57 The method followed in Luxembourg seems to be aimed at resolving the multilevel58 diagonal59 conflicts among national legal systems and EU law, in an area – family law – where the EU has very limited room to manoeuvre:60 Thus, its in civil matters (Article 81 TFEU). This legislation sometimes expressly excludes from its scope the assessment of the existence and validity of the matrimonial bond, leaving it to national legislation. P. KINSCH (note 50, p. 57) doesn’t rule out that in the future the Court of Justice “will decide to generalise the obligation to recognise same-sex marriages, including as to their private law effects”, maybe even assimilating them to civil unions: “it will be difficult to hold, in a future case, that the assimilation of a foreign marriage to a civil union, with all the incidents …, is an unjustifiable restriction of the right to freedom of movement”. 57 The relationship between national public policy and European public policy is not self-evident. It is premature to say that European public policy replaces national public policy, especially as such a replacement would infringe Article 4, para 2 TEU, according to which “(t)he Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional.” Undoubtedly, as the Court of Justice has made clear on several occasions and in different contexts, in relations between Member States the limit must be reconsidered in particularly restrictive terms and applied in very exceptional circumstances: in the European judicial area, the rule is the free movement of acts. It is more realistic to think of an integration of national public policy by the founding values of the European Union, and therefore of the coexistence of national public policy and European public policy, which would thus remain autonomous. 58 M. GRÜNBERGER, Alles obsolet? Annerkennungsprizip vs. klassisches IPR, in S. LEIBLE/ H. UNBERATH (eds), Brauchen wir eine Rom 0-Verordnung? Überlegungen zu einem Allgemeinen Teil des europäischen IPR, Jena 2013, p. 81 et seq., p. 120. 59 D. BUREAU/ H. MUIR WATT, Droit international privé, 4th ed, I, Paris 2017, p. 539-1. J. HEYMANN (The Relationship between EU Law and Private International Law Revisited: of Diagonal Conflicts and the Means to Resolve Them, this Yearbook 2011, p. 557 et seq., p. 575 et seq.), distinguishes between diagonal conflicts arising out of an original horizontal (cross-border) situation - in the matter of freedom of movement of legal entities and of individual entities - and diagonal conflicts arising out of an original vertical situation (lois de police). 60 In the area of family law, acts in the field of judicial cooperation are adopted following a special legislative procedure that requires unanimity in the Council (Article 81, para 3 TFEU) and respects the cultural identity and the irreplaceable values of the Member States (which often include the family as the basis of society and which are protected by

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Circulation of Public Documents and Recognition of Civil Status Situations purpose is to “correct” the traditional approach of coordinating national legal systems.61 It is worth emphasising that this is a material and result-oriented remedial action, which does not require any formality or public intervention since it can be taken without the participation of either the Registrar or the courts.62 This is also why some see the recognition of situations as a “rival” or as a “stepchild”63 of private international law.

VI. Towards a European Certificate of Parenthood? The idea of creating a European certificate in family matters has not, however, been abandoned. Having set aside, at least for the time being, the creation of a European civil status certificate, the European Commission is now considering the creation of a European certificate of parenthood. Filiation is undoubtedly the most delicate area as it involves the fundamental rights of an individual, the child, who is universally considered as weak and therefore in need of maximum protection (Articles 7 and 8 of the United Nations Convention on the Rights of the Child). Uncertainty as to the existence of parenthood has a major impact on the child’s life, as concerns both public law aspects (citizenship, right of residence) and private law aspects (parenprimary EU law). In order to overcome the impasse of Article 81, para 3 TFEU, since 2010 recourse has sometimes been made to enhanced cooperation (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 343/10, 29.12.2010; Council Regulation (EU) No 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183/1, 8.7.2016; Council Regulation (EU) No 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, OJ L 183/30, 8.7.2016). It is also worth noting that Regulation (EU) No 2016/1103 “does not define ‘marriage’, which is defined by the national laws of the Member States” (Recital 17). 61 “In principle, it is immaterial, from the point of view of EU law, under which national provision or procedure the applicant is able to assert his rights concerning his name”: CJEU, 8 June 2017 (nota 36), para 41. 62 This method, developed by the Court of Justice, can be found in Article 48 of the Introductory Act to the German Civile Code (EGBGB) which – with regard to the “Choice of a name obtained in another Member State of the European Union” – makes no mention whatsoever of the fact that the name was “lawfully” obtained abroad, i.e., it disregards the review of the merits (“Where the name of a person is subject to German law, that person can, by declaration before the Registrar of Births, Marriages and Deaths, choose a name that he or she obtained when he or she had habitual residence in another Member State of the European Union, where that name was registered in a register of civil status, unless this is manifestly incompatible with the fundamental principles of German law …). 63 L. HÜBNER, Die Integration der primärrechtlichen Anerkennungsmethode in das IPR, RabelsZ 2021, p. 106 et seq., p. 108 and 140 et seq.

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Cristina Campiglio tal responsibility, maintenance obligations, succession). Therefore, to ensure protection in cross-border situations, the Commission has published the Inception Impact Assessment about a proposal concerning the recognition of parenthood between Member States.64 A public consultation was subsequently launched (and concluded on 19 August 2021) on a proposal to facilitate the recognition of parenthood by laying down common conflict-of law rules on parenthood as well as common rules on the recognition of judgments on parenthood.65 The aim is to avoid children suffering negative consequences and having their rights diminished whenever they must travel or move to another Member State.66 Article 81, Para 3 TFEU will be used as the legal basis, and consequently action will be taken in the field of judicial cooperation in civil matters. As previously mentioned, consideration will be given as to whether to introduce an optional European certificate of parenthood and, if so, whether to provide for public policy limits. Much will depend on the value that will be attributed to this certificate, i.e., a merely evidentiary value or a substantive value, as well.

VII. The Split Personal Identity of EU Citizens Regulation (EU) No 2016/1191 has undoubtedly left a gap as regards the recognition of the effects of civil status records – where possible in electronic form – although the Court of Justice is currently filling this gap. Recent case-law from 64 Ares (2021)2519673 – 14.04.2021. The Commission’s starting point is the State of the European Union Speech, in which President von der Leyen (September 2020) said that “(i)f you are [a] parent in one country, you are [a] parent in every country.” With this statement the Commission President referred to the need to ensure that the parenthood established in a Member State is recognised in all other Member States. The Hague Conference on Private International Law has been working on the new forms of parenting since 2015: the aim is to draft a private international law Convention on parenthood, accompanied by an Additional Protocol on the recognition of legal parentage established as a result of an (international) surrogacy arrangement. See also the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – EU strategy on the rights of the child, Brussels, COM (2021) 142 final, 24.3.2021. 65 The Inception Impact Assessment, 4 (Ares (2021) 2519673 – 14.04.2021) reads as follows: “The proposal would cover biological parenthood, parenthood by operation of law and domestic adoption. The recognition of intercountry adoption is already covered by the 1993 Hague Convention on Intercountry Adoption, to which all Member States are parties. Within this policy option, the Commission will examine in particular the following issues: whether the proposal should cover only the recognition of public documents (such as a birth certificate) through the adoption of common conflict rules or also the recognition of court decisions through the adoption of common rules on the recognition of judgments on parenthood; the connecting factors on which conflict rules should be based (for example, nationality and/or habitual residence); possible legal safeguards; and the possibility of introducing an optional European certificate of parenthood.” 66 Ares (2021) 6847413 – 08.11.2021.

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Circulation of Public Documents and Recognition of Civil Status Situations Luxembourg has shown that Member States are obliged to attribute extraterritorial legal effect to civil status documents originating from another Member State, thus ensuring the continuity of (marital/parental) status across borders on which the parties legitimately rely.67 Arguably, the next step will be the recognition as a “direct descendant” of the child born to a surrogate mother.68 Recognition, however, is limited to the exercise of the rights deriving from EU citizenship69 and of the fundamental rights concerning the respect for private and family life (protected by Article 7 of the EU Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights). Recognition, on the other hand, is not intended to promote the exercise of the rights provided for by national laws, and specifically by the legislation of the host Member State. For private law purposes, in short, the status resulting from foreign civil status documents, as well as its effects, remain subject to the traditional conflict-of-law method, including the limit of public policy. In other words, the recognition of personal status appears now to be heading towards a double track: no control for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law (first and foremost the right of free movement enshrined in Article 21 TFEU), while still subject to the traditional limit of public policy for the purpose of exercising the rights conferred under national law. The citizens of the Member States thus end up having not only two citizenships – the national one and the EU one, which “shall be additional to and not replace national citizenship” (Article 20, Para 1 TFEU) – but also two identities: the national one, which is a full one, and the EU one, whose sole function is to confer on the EU national the rights granted under EU law. The foundations have thus been laid for the emergence of a new form of limping legal relationships, which do not take place, as do the traditional ones, at a transnational level (the same person may be considered married or a parent in State A, while unmarried or not a parent in State B) but precisely at a national level (in a Member State, the same person may be considered married or a parent for the purposes of circulation within the EU, while unmarried or not a parent for civil purposes). Personal identity thus loses its uniqueness and the individual ends up expressing a multiple identity.70 Beyond practical utility, the compatibility of such On this subject, see F. SALERNO, The Identity and Continuity of Personal Status, Collected Courses vol. 395, 2019, p. 20 et seq. 68 As for the quality of "spouses" of those who have celebrated an early marriage, some German judgments (even prior to the Coman case) have already been reported: OLG Oldenburg 18.4.2018, AG Frankenthal 15.2.2018 and AG Nordhorn, 29.1.2018, Praxis des Internationalen Privat- und Verfahrensrechts, 2019, p. 160, 161 and 162; OLG Frankfurt am Main, 28.8.2019, Zeitschrift für das gesamte Familienrecht, 2019, p. 1853. See J. CROON-GESTEFELD, Der Einfluss der Unionsbürgerschaft auf das Internationale Familienrecht, RabelsZ 2022, p. 32 et seq., p. 46 et seq. 69 “Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence” (Directive 2004/38/EC, Recital 3). 70 M.-P. WELLER, Die Datumtheorie. Die “personne plurielle” der Postmoderne als Herausforderung des binären IPR in M. GEBAUER/ H.-P. MANSEL/ G. SCHULZE (eds) (note 14), p. 53 et seq., p. 64 et seq.; L. HÜBNER (note 63), p. 144, deals with conflicts of personal 67

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Cristina Campiglio a split personal identity with the EU Charter of Fundamental Rights and the European Convention on Human Rights standards may be called into question. The broad interpretation of the right of free movement can, on the one hand, turn into “a weapon … used against almost any diverging provisions of national laws”71 and, on the other hand, seriously compromise the harmony of the solutions within individual Member States. Once again, therefore, the activity of the Court of Justice produces uncoordinated effects, giving rise to distortions in the usual functioning of private international law rules.72 As it has rightly been observed,73 the feeling is that the Court of Justice aims to ensure the mobile EU citizen a “single, permanent civil status within the EU”, and to transform such a status “into a true right to a single identity which must be recognized” throughout the EU’s area of freedom, security and justice. This would promote the creation of an open European society, which goes beyond the national identities of the Member States.

identity. See also É. PATAUT, Chronique Citoyenneté de l’Union européenne – Reconnaissance des documents publics: vers un état civil européen?, Rev. trimestrielle droit européen 2013, p. 920 et seq., p. 926 et seq.. 71 M. LEHMANN, “What’s in a Name? Grunkin-Paul and Beyond”, this Yearbook 2008, p. 135 et seq., at p. 146. 72 See P. BARTOLI, The Court of Justice, European Integration and Private International Law, this Yearbook 2008, p. 375 et seq,, p. 411 et seq. 73 J. MEEUSEN, Cross-Border Mobility of European Union Citizens and Continuity of Civil Status – Balancing National and Individual Identities in An Open European Society, this Yearbook 2020/2021, p. 1 et seq., p. 4 and 32.

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THE LEGAL CERTAINTY EXCEPTION – TOWARDS A NEW SUBJECTIVE LOCALISATION IN THE CONFLICT OF LAWS METHODOLOGY 1

Gerald GOLDSTEIN* I. II. III. IV.

V.

VI.

Introduction – The Legal Certainty Exception – A New General Rule Relating to Conflict of Laws Resolution The Foundation and Function of the Legal Certainty Exception The Effects of the Legal Certainty Exception The Conditions of the Legal Certainty Exception A. A Legitimate Error by the Parties Relating to the Applicable Law B. A Legitimate Error or Belief C. The Involvement of the Foreign State whose Rule Is at Issue D. Unacceptable Violation of the Expectations of the Parties or of Legal Certainty The Nature of the Legal Certainty Exception A. The Legal Certainty Exception and the Public Policy Exception The Legal Certainty Exception and the Exception Clause B. C. The Legal Certainty Exception and the Vested Rights Theory D. The Legal Certainty Exception and Conflict of Systems Theory E. The Legal Certainty Exception and the Recognition Method F. The Legal Certainty Exception and a Unilateralist Subsidiary System of Conflict Resolution G. The Legal Certainty Exception and the Excusable Ignorance of the Applicable Law Conclusion – Towards a Subjective Localisation

1 This paper is based on a presentation given by the author on 26 April 2018 at Doshisha University, Kyoto (Japan), during an international symposium entitled “Current issues of Private International Law”, organized by Prof. Naoshi Takasugi (Doshisha University) and the RECITAL (Research Center for International Transactions and Law, Doshisha University). It also draws most of its substance from an article published by the author under the title: “L'exception de prévisibilité”, Rev. crit. dr. int. pr. 2018, pp. 3-29. The author is very grateful to Professor Andrea Bonomi, for his very sharp and thought-provoking comments, to Judy Fan (B.C.L., Univ. of Montreal) and Meir Hersson-Edery (B.C.L., Univ. of Montreal) for their very competent help in the production of this text in English and to Karen Topaz Druckman for her thorough and careful revision. This paper was produced with a grant awarded by the University of Montreal to the author. * Maîtrise, D.E.S.S. (Paris I, Panthéon-Sorbonne), PhD (McGill Un.); Professor (Law faculty, Université de Montréal).

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 25-57 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Gerald Goldstein

I.

Introduction – The Legal Certainty Exception – A New General Rule Relating to Conflict of Laws Resolution 2

New legislation was implemented in the Netherlands in January 2012,3 which aimed to codify in one single instrument all rules relating to Conflict of Laws resolution, which were previously dispersed among several laws.4 Thus, Book 10 of the Civil Code of the Netherlands joined a general movement towards a codification of Conflict of Laws. As is the case with a number of such codifications, it includes a general part where general principles and rules are presented. Among those rules, one should mention Article 8, which states the following: 1. The law that is designated by a legal provision that is based on a presumed close connection with that law will be exceptionally inapplicable if, given all circumstances, the presumed connection is hardly existent and a much closer connection exists to another law. In such a case, the other law will be applied. 2. The provisions of paragraph (1) do not apply in case of a valid professio iuris between the parties. Following Article 15 of the 1987 Swiss Federal law, Article 8 adds a general escape clause (also called “exception clause”) to the general methodology of conflict of laws resolution adopted by Dutch law. Under such a clause, exceptionally, if the governing law designated by conflict of law forum rules is only slightly connected with the legal relationship concerned, and if it is clear that the law of another country is most closely connected with that legal relationship, the law of the other country shall apply.5 The aim of all exception clauses is to reach the objective centre of gravity of each situation according to all the circumstances of the specific case, even when 2 This paper uses the following abbreviations: Arch. phil. droit, Archives de philosophie du droit; Collected Courses, Collected courses of The Hague Academy of International Law; Colum. J. Transnat’l L, Columbia Journal of Transnational Law; ELR, European Law Review; LQ, Lois du Québec; J.D.I., Journal du droit international; O.J. E. U., Official Journal of European Union; par., paragraphe; RabelsZ, RabelsZeitung; Rev. crit. dr. int. pr., Revue critique de droit international privé; Trav. com. fr. d.i.p., Travaux du comité français de droit international privé; Tul. L. Rev., Tulane Law Review. 3 Wet 19 mei 2011 tot vaststelling en invoering van Boek 10 (Internationaal privaatrecht) van het Burgerlijk Wetboek (Vaststelling – en Invoeringswet Boek 10 Burgerlijk Wetboek), Staatsblad (BGazteet officielle) 2011, 272, English non official translation by M.H. TEN WOLDE/ J.G. KNOT / N.A. BAARSMA, this Yearbook, Vol. 13, 2011, pp. 667-694. See: M.H. TEN WOLDE, Codification and consolidation of Dutch Private International Law: The Book 10 Civil Code of the Netherlands, this Yearbook, Vol. 13, 2011, pp. 389-411. 4 See M.H. TEN WOLDE (note 3), p. 390. 5 See among others: C. DUBLER, Les clauses d’exception en droit international privé, Georg, 1983.

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The Legal Certainty Exception the general conflict of law rule concerning forum points towards another legal system in consideration of the general connecting factor chosen to localise objectively this type of situation. Exception clauses are used in order to correct the application of any general conflict rule whose broad connecting factor (domicile, habitual residence, etc.) exceptionally, will not be able to reach the objective centre of gravity for some specific motive due to the circumstances. Exception clauses are based on the so called “proximity principle”6 since they lead to the centre of gravity of the situation in a peculiar case which would not be well served by the general conflict rule. Since such proximity principle has been widely accepted as the dominant one in solving conflict of laws, it is common to find general exception clauses in many modern legislations,7 such as Article 3082 of the 1994 Civil Code of Québec,8 Article 19 of the 2004 Belgium Code of private international law,9 Article 8 of the 2001 law of Korea.10 However, Article 9 of the same Book 10 shows much more originality,11 since it states: “In the Netherlands, the same legal consequences may be attributed to a fact to which legal consequences are attributed ensuing the law which is applicable under the private international law of a foreign state involved, in contravention to the law applicable according to Dutch private international law, as far as not attaching those consequences would constitute an unacceptable violation of the legitimate expectations of the parties or of legal certainty”. See P. LAGARDE, Le principe de proximité en droit international privé, Collected Courses 1986, Vol. 196, p. 9. 7 See G. GOLDSTEIN, Forum Non Conveniens and Exception Clauses: Coordinating Conflicting Legal Systems in Civil Law Jurisdictions in a Global Context, this Yearbook 2017-2018,Vol. 18, pp. 1-29. 8 Code civil du Quebec, Livre X, CQLR, C-1991; LQ 1991, c 64: http://www.canlii.org/en/qc/laws/stat/cqlr-c-c-1991/latest/cqlr-c-c-1991.html [accessed on 20.06.2022]; see: J.A. TALPIS/ J.-G. CASTEL, Le Code civil du Québec: Interprétation des règles du droit international privé, in La réforme du Code civil, t. 3, Presses de l’Université Laval 1993,p. 801; G. GOLDSTEIN/ E. GROFFIER, Traité de droit civil. Droit international privé, t. 1, “Théorie générale”, Yvon Blais 1998; G. GOLDSTEIN, Commentaires sur le Code civil du Québec, Le droit international privé (art. 3176 à 3133 C.c.Q.), Y. Blais, 2011, par. 3082 550 et seq. 9 Loi portant le Code de droit international privé, 16 juillet 2004, http://www.juridat.be/cgi_loi/legislation.pl; http://www.dipr.be/databank.aspx [accessed on 20.06.2022]; Code de droit international privé, Loi du 16 juillet 2004, in N. WATTÉ/ C. BARBÉ (eds), Droit international des affaires. Recueil de textes, Brussels 2005, pp. 17-46. See: F. RIGAUX/ M. FALLON, Droit international privé, 3ème éd., Brussels 2005. 10 Law amending the Conflict of Laws Act of the Republic of Korea, (Law No 6465, 7 avril 2001, enforced on July 1st 2001, non official translation by K. H. SUK, this Yearbook, Vol. 5, 2003, pp. 315-336. See: K.H. SUK, The New Conflict of Laws Act of the Republic of Korea, this Yearbook, Vol. 5, 2003, pp. 99-141. 11 See art. 21, draft of the Benelux project of a uniform law on private international law, Rev. crit. dr. int. pr. 1951, p. 710; Rev. crit. dr. int. pr. 1968, p. 812 et s., J.D.I. 1969, p. 358. 6

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Gerald Goldstein Under this rule, the situation involved is the following. Parties to an international relationship believed in a legitimate manner that the law of A applied under the conflict rule of country X. However, the courts of the Netherlands are seised of a dispute stemming from this relationship and the law of B is applicable under Dutch private international law rules. The legal consequences under the laws of A or B are different. If it is considered by the Dutch courts that not attaching the consequences of the law of A would constitute an unacceptable violation of the legitimate expectations of the parties or of legal certainty in general, then Dutch courts will apply the law of A (instead of the law of B). Under this surprising new rule, besides the classic public policy exception and the more modern exception clause, it is therefore possible to find a third exception to the application of the conflict rule which will add to the very sophisticated theory of private international law based on legal certainty and, in general, predictability. The apparent novelty and originality of this concept justify a theoretical and critical analysis of its foundation (II), its effects (III) and its requirements (IV), which would help determine whether its nature is similar to an already known concept (V), and, in conclusion, determine to what extent its adoption would be desirable in other legal systems (VI).

II.

The Foundation and Function of the Legal Certainty Exception

The purpose of Article 9 of Book 10 of the Civil Code of the Netherlands is to correct a severe lack of foreseeability stemming from the legal consequences of the applicable law under the classic conflict of laws rule, which either constitutes an unacceptable violation of a legitimate but false belief of the parties, or, more broadly, results in a legal uncertainty. This uncertainty can be expressed notably by the establishment of a limping situation, if the facts have already given rise to the application of a foreign law not designated by the law of the forum. In a first approximation, it can be said that the “legal certainty exception” has a prospective function of realising the coordination of systems12 by a means other than following the principle of proximity. The name attributed to this exception by some commentaries, that of the “fait accompli exception”, points to another basis: that of legal effectivity. In this perspective, the question at stake would be that of respecting the legal consequences already given in a foreign State – which would materialise the accomplishment of the fact – under a law arising from the foreign rule of private international law, because not abiding by such consequences would constitute a violation of the legitimate expectations of the parties, or more broadly, of the stability of

12 P. MAYER, Le phénomène de la coordination des ordres juridiques étatiques en droit privé, Collected Courses, 2007, Vol. 217, p. 9 et seq.

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The Legal Certainty Exception legally established situations. Based on this reading, the legitimacy of the parties’ expectations stems from the effectivity of the foreign law. The fact remains that Article 9 does not require the legal consequences to have already been established in a foreign State. It is sufficient that the legitimate expectations be born from the situation, which is broader. In this case, the possibility of social unrest created by the refusal to consider the parties’ error would justify the exception. According to a commentator13 of Article 9, its application could have been considered in a case judged in 1993 by the Supreme Court of the Netherlands (Hoge Raad).14 Two Dutch individuals were married in Rhodesia in 1965, the place of their residence. They then moved to South Africa in 1976, and subsequently moved to the Netherlands in 1980. During their divorce, the question regarding their matrimonial regime arose. According to the Dutch conflict rule, the law of their common nationality is applied, i.e. that of the Netherlands, which uses the community property regime. However, the wife invoked the fact that both spouses had always considered that their regime was one of separation of property, according to the Rhodesian conflict rule, designating the law of their first domicile after marriage. Thus, Article 9 could possibly have led to a decision pursuant to which the spouses were subject to the regime of separation under the Rhodesian conflict rule, rather than the regime of community of the Netherlands designated by the Dutch conflict rule. However, it would first be necessary to prove that the spouses had indeed believed that the Rhodesian law was applicable at the time of their marriage, even though it appeared, in a deed of sale, that the wife was married under the regime of community of property (in accordance with the Dutch regime). If this condition were met, it would then be necessary to prove that the application of Dutch law would constitute an unacceptable violation of the legitimate expectations of the spouses or of foreseeability, which is not evident, given that they had moved to the Netherlands a while ago and that their lives had an eminently international character.15 In any case, in this situation, the jurisdiction of Rhodesian law does not derive from any effectivity in Rhodesia. The idea of defending foreseeability and the legitimate expectations of the parties is therefore linked to the notion of justice and preservation of acceptable social behaviour – but what kind of justice is the legal certainty exception intended to promote? The “justice of private international law” or substantive justice? It is well known that, while substantive justice means the concrete achievement of the forum’s ideal of justice (the protection of a weak party, etc.), justice in private international law or “justice de rattachement”16 is limited to seeking the certainty of the connection and the appropriateness and relevance of this connection in this perspective, that is to say, foreseeability in relation to the application of the law that has the closest connection with the issue. M.H. TEN WOLDE (note 3), p. 404. H.R. 19.3.1993, NJ 1994.187. 15 M.H. TEN WOLDE (note 3), p. 405. 16 H. BATIFFOL/ P. LAGARDE, Traité de droit international privé, t. I, 8ème éd., Paris 1993, No 265, p. 446. 13 14

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Gerald Goldstein Article 9 sets aside the “legal effects arising from a fact, attributed by the [normally] applicable law”. The level of correction considered thus remains very close to the material fact triggering the legal effect. Indeed, the goal of the intervention of the exception is to determine the practical material consequences of the situation, i.e. the material solution obtained, rather than simply adressing the abstract concept of the relevance of a particular legal system. Nevertheless, the injustice that is sought to be avoided arises from the unforeseen nature for the parties or uncertain nature, in general, of the application of the law normally designated by the private international law rule. Furthermore, according to Article 9 of the Dutch Civil Code, the law to be applied as a replacement of such normally designated law remains the law designated by the private international law of a State connected with the situation. This exception is therefore directly involved in the process of designation of the applicable law. Moreover, it does not matter whether setting aside these effects favours one or the other of the parties. The content or direction of the solution determined by the applied law is not the direct focus of this article. Its position in the general rules of Dutch private international law, rather than in a specific chapter devoted to a concrete field, reflects this orientation well. It completes the structure of Dutch private international law, like the escape clause which is intended to ensure that the principle of proximity is achieved in each case, and which is another facet of private international law justice. The legal certainty exception of Article 9 is thus grounded in the justice of private international law by addressing a fundamental objective of this discipline: the coordination of legal systems by means of a general rule allowing for some flexibility in the resolution of conflict of laws. More precisely, the Dutch legislator has thereby ranked the principle of proximity in second place, after that of foreseeability. This is so, even though the parties have not directly or necessarily chosen a law, which is the tool most used to ensure this foreseeability. But whereas the function of Article 8(2) – the provision stating that the exception clause has no place when the aim is foreseeability – is to distribute situations between these two general foundations, namely the principle of proximity and the principle of foreseeability, Article 9 states that, even in the case of conflict rules based on the principle of proximity (no choice of law is required in Article 9), it may be necessary/desireable for the principle of proximity to occasionally give way to the principle of foreseeability. From a substantive point of view, the legal certainty exception also responds to the consequences of globalisation in private international law since it contributes to the privatisation of law sources. According to Professor Basedow,17 J. BASEDOW, The law of Open Societies. Private Ordering and Public Regulation in the Conflict of Laws, Collected Courses, 2015, No 100. See also: E. JAYME, Le droit international privé du nouveau millénaire: La protection de la personne humaine face à la globalisation, Collected Courses, 2000, Vol. 282 , pp. 9-40; R. WAI, Transnational Lift-off And Juridical Touchdown: The Regulatory Function Of Private International Law In An Era Of Globalization, Colum. J. Transnat'l L., Vol. 40, p. 209; Y. NISHITANI, Global Citizens and Family Relations, ELR 2014, Vol. 3, p. 134; H. MUIR WATT, Globalization and Private International Law, in J. BASEDOW/ G. RÜHL, F. FERRARRI/ P. DE MIGUEL ASENSIO (eds.), Encyclopedia of Private International Law, chapter G3, Edward Elgar Publishing, 2017; 17

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The Legal Certainty Exception globalisation leads to several consequences in private international law. The first of which would be the loss of knowledge by States of the specific features of international transactions, which removes the State’s justification for the application of their rules and leaves room for private initiative. In the same line of thought, the legal certainty exception will give individuals a greater role in the conflict of laws resolution. They can plead it to explain to the court seised that the normal conflict rule designated by the legislator is not appropriate, in this specific case, to ensure compliance with their legitimate expectations.18 This awareness of new ideals is reflected in the Dutch judge’s discretionary power19 to reverse the hierarchy of private international law principles. Since the legal certainty exception is one of the general instrumental rules of private international law, its effects must be considered in more detail.

III. The Effects of the Legal Certainty Exception The direct effect of the legal certainty exception is to give the judge a discretionary power, when certain concrete conditions are met, to set aside the legal consequences of the law designated by the normal conflict rule provided by the legislator and to maintain the legal effects of another law that was not directly or necessarily chosen by the parties to govern the international relationship. In practical terms, it is as if the judge decided not to apply the normal private international law rule to a specific situation because the rule belongs to a system that currently has no geographical contact with the territory under his jurisdiction, or because it currently has such a contact but did not have it previously at a time deemed decisive in triggering legal effects. In the first case, a spatial selflimitation on the international law rule of the forum is considered, while a selflimitation in time and an absence of retroactivity is relevant in the second case. The effects of the legal certainty exception are quite similar to those of the exception clause: the law normally designated by the conflict rule of the forum – either that of the forum or of a foreign system – is set aside and replaced by another law which is not necessarily that of the forum. In both cases, setting aside the result of the forum's conflict rule is merely incidental, without calling the rule into question. Nevertheless, these two clauses may point to a defect in the rule that could, in the long run, lead to the formulation of a new, more specific, or better formulated rule. Indeed, if the error is legitimate and the failure to consider it is unacceptable, then it might be appropriate to rethink the conflict of laws resolution in this type of cases. H. MUIR WATT, Les modèles familiaux à l’épreuve de la mondialisation (aspects de droit international privé), Arch. phil. Droit 2001, Vol. 45, p. 272; R. MICHAELS, Globalisation and Law: Law Beyond the State, in R. BANAKAR/ M. TRAVERS (eds), Law and Society Theory, Oxford 2013, p. 287. 18 See also: G. GOLDSTEIN (note 7), p. 12. 19 M.H. TEN WOLDE (note 3), p. 401.

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Gerald Goldstein However, unlike the exception clause, the law used under the legal certainty exception is not necessarily or objectively the one with the closest connection with the issue. It is the law that is subjectively applicable according to the expectations of the parties, or the law whose effectivity should not be altered. It is indeed possible that these expectations are not based on an objective grouping of contact points, but on an error (regarding, for example, the determination of the place of conclusion), on a widespread but erroneous belief (regarding, for example, the decisive importance of a single factor, such as the place of conclusion of a contract) or on an appearance of res judicata abroad. It would initially seem that these effects also differ from those of the public policy exception: it is not a question of finding a concrete opposition of concepts between a foreign system and that of the forum, and then setting aside the former in favour of the latter. On closer examination, setting aside the normally applicable law derives from a court’s finding that the result (the “consequences”) of the application of the normally designated law constitutes an “unacceptable violation of the legitimate expectations of the parties” or of legal certainty. Since Dutch law elevates this violation of legitimate expectations of the parties or of legal certainty into a ground relating to the fundamental concepts of the law of the forum, this is a concretisation of Dutch public policy. However, in this case, this public policy could even exclude the Dutch law in favour of a foreign law. The unacceptable nature of this violation corresponds to the requirement of sufficient gravity to make use of public policy. In concrete terms, one might posit that this unacceptable character will result from the potential occurrence of a serious social disturbance caused by a refusal to accept an unjust decision20 if the individuals’ error is not taken into consideration. It should be noted to what extent the Dutch legislator adopts an internationalist perspective... It has accepted a general rule allowing the Dutch judge to selflimit and relativise the national private international law rules. As illustrated in the example given above of the Dutch couple from Rhodesia, the rule allows the judge to dismiss the law designated by his own conflict rule, including that of the Netherlands, in favour of another, possibly foreign, law whose competence contemplated by the individuals results from a foreign private international law rule, assuming that ignoring this circumstance might constitute an unacceptable violation of their expectations, even though they had not directly or necessarily chosen that law! In this same example, the dispute also involves Dutch nationals currently residing in the Netherlands, whose situation thus escapes the conflict rule of the forum leading to Dutch law... This is far from the result that the exception clause would normally achieve. To achieve this result, certain conditions must be met.

20 See also: M.-N. JOBARD-BACHELLIER, L’apparence en droit international privé: essai sur le rôle des représentations individuelles en droit international privé, Paris 1984, p. 5.

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The Legal Certainty Exception

IV. The Conditions of the Legal Certainty Exception In order to invoke the legal certainty exception as it results from Article 9 of the Dutch Civil Code, at least six conditions must be met: 1° a law other than the one designated by the Dutch rule of private international law is applicable according to the private international law of another State; 2° these two laws have different legal effects; 3° the foreign State whose private international law rule is at issue must be involved in the international relationship; 4° the individuals must have erroneously believed in its application or in its relevance to govern the relationship; 5° that belief must be legitimate; 6° failure to apply that law would constitute an unacceptable violation of those expectations or, more generally, of legal certainty. The rather large number of conditions is undoubtedly intended to limit the application of this concept, due to the disruption it may cause. In that respect, the official commentaries indicate that Article 9 should only be applied in exceptional cases.21 However, Article 9, which is integrated as a general principle in the rules of Dutch private international law,22 is not formally presented as an exception, even though it is placed right after the escape clause in Article 8, which is instead expressly mentioned as an exception.23 Contemplating the last four conditions will suffice since the first two conditions are common in a conflict of laws hypothesis. A.

A Legitimate Error by the Parties Relating to the Applicable Law

To invoke Article 9, the parties must have mistakenly believed that the law designated by a foreign conflict of laws rule would apply and bring certain legal effects before the court seised. While the question may arise as to how to determine the law in question,24 in practice, the answer will simply depend on the evidence presented by the party seeking to use the exception. One may wonder whether Article 9 of the Dutch Civil Code is aimed directly at an error or belief of the parties themselves, who, in principle, are totally ignorant of the subtleties of private international law, or rather at an error or belief induced by their legal advisor. Otherwise, this provision will almost never be applied since the parties will not even think about applying any conflict rule.25

M.H. TEN WOLDE (note 3), p. 402. M.H. TEN WOLDE (note 3), p. 403. 23 However the public policy exception (art. 6 of the same Code) does not mention it 21 22

either. 24 25

M.-N. JOBARD-BACHELLIER (note 20), No 210. M.H. TEN WOLDE (note 3), p. 402.

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Gerald Goldstein One may first consider, as an example, the case where the parties, once they changed residence, simply believed that the foreign local law of the place where a material fact occurred (place of celebration of a ceremony, place of an accident, etc.) would still govern the situation: this is a case of pure ignorance of the mechanisms of private international law and the divergence between the conflict rules of various States. Alternatively, this erroneous belief in the application of a law deriving from the use of a foreign rule of private international law may arise from a connection between the situation and that foreign State at the time of the relevant facts, whereas that situation is now being analysed before the court of another State (that of the Netherlands), by applying other rules of private international law. The time factor will then be an essential factual element26 in the possibility of establishing the effects of the law applicable by virtue of the foreign private international law rule. These are therefore errors of law, not of fact, arising from the particular difficulties of conflict of laws resolution.27 The divergence between the resolution rules will normally relate either to the content of a connecting factor of a conflict rule, or to the nature, determination or meaning of the connecting factor of that rule. There may also be a divergence in method: the law of the foreign State involved would, for example, resolve the conflict by applying a mandatory rule, whereas the court seised (the Dutch court) would use a conflict rule. With regard to the first hypothesis, it is possible to imagine, for example, that the foreign conflict rule that the parties considered applicable was a rule pertaining to successions or to contractual obligations, whereas the court seised uses a rule pertaining to matrimonial regimes or a rule governing extracontractual obligations. This will result in the use of connecting factors different from those contemplated by the parties, and therefore will result in the application of a different law and its practical consequences. In the event that the parties believed in the application of a conflict rule pertaining to contractual obligations, whereas, according to the qualifications of the seised court, the claims at issue are to be dealt with by means of the extracontractual conflict rule, it is possible that they have chosen the law that is applicable and this expectation could be respected under Article 9.28 As an example of the second type of error, regarding the nature of the connecting factor, one could imagine that the parties knew that the foreign conflict rule designates the law of a party's domicile whereas, according to the conflict rule of M.-N. JOBARD-BACHELLIER (note 20), No 67 et seq. One might think that the exception of excusable ignorance of the content of foreign law (a Lizardi type of exception) concerns an error not included in the hypothesis envisaged by the legal certainty exception (Art. 9), because the application of the personal law of the incapable person is not based on a foreign private international law rule. The error simply relates to the content of the personal law applicable under the conflict rule of the forum. The solution adopted, then, consists of admitting an alternative connecting factor to the conflict rule leading to the law of the place of conclusion of the act, on condition that it establishes capacity, i.e. a substantive solution corresponding to the belief of the cocontracting party. 28 Assuming that the applicable extra-contractual conflict rule does not allow the possibility of choice in these circumstances. 26 27

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The Legal Certainty Exception the court seised, its national law or the law of the common domicile of the parties would be applicable. One can also imagine that the choice of law was permitted before the court of a foreign State, whereas it was not permitted before the court seised, or that the permitted option before the court seised excludes a connection contemplated, but also permitted, under the foreign conflict rule. The error may also arise from the divergence between two systems in the resolution of a transitory conflict in time impacting conflict rules. Finally, the meaning of the connecting factor may differ according to the systems involved. For example, the option or choice of law permitted does not extend in the same way in the various systems involved in the situation (e.g. in matters of succession). As illustrated by these examples, this condition is “subjective” because it comes from the parties involved. Nevertheless, for this subjective error to be deemed sufficient justification for setting aside the use of the conflict rule, it must be considered legitimate. B.

A Legitimate Error or Belief

The legitimacy of an error implies that the parties must, at least, have acted in good faith, as defined by the law of the seised court (in this case, Dutch law). Here we are faced with an objective dimension of the situation, independent of the parties, which may constitute a reason to justify supporting the law in consolidation of the parties’ expectations. This objective element justifies the possibility that their subjective ignorance of the law be taken into account; however, the analysis must take into consideration, notably, their personal situation, the deeply international (or not) character of the situation, their professions,29 as well as the advice that they objectively received.30 Other elements may come into play in the analysis of this legitimacy, such as the appearance objectively created by the facts, including, most notably, the situation where the civil officer of a State acted in conformity with local law in applying its law. Thus, the parties could have believed that this legal intervention by a foreign officer would be sufficient for the court seised in another country (for example, in the Netherlands) to apply the same solution, whereas, according to its conflict rule, another law should govern the legal effects in question. However, if the parties were consciously aware that the act of the foreign civil officer would not have been legal in the country of their social environment, i.e. if they voluntarily circumvented the law that would have naturally been applied to them, their expectations should not be considered legitimate.31 In any case, this instance of legitimacy indicates which directions the analysis of the nature of the legal certainty exception can take.

M.-N. JOBARD-BACHELLIER (note 20), No 218 et seq. M.H. TEN WOLDE (note 3), p. 402. 31 On the impact of fraud on a concept close to that of our study, the exception of ignorance of the applicable law, see M.-N. JOBARD-BACHELLIER (note 20), No 90. 29 30

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Gerald Goldstein One can attempt to compare the legal certainty exception with the conflict of systems theory,32 by which a judge may avoid the application of the forum's conflict rule in order to respect the validity of a right created abroad or its legal effects, when at the time of its creation or its effects, there was no connection with the legal order. Because of this lack of connection, the parties therefore could not objectively foresee that the forum’s court would be seised and would apply the rules of private international law designating a law other than that of the location where the situation was created.33 One could also think of the exception of excusable ignorance of the applicable law analysed in depth by Marie-Noëlle Jobard-Bachellier in her work dating back to 1984.34 In the case of intervention of a public officer, one could wonder instead whether this legal certainty exception would not constitute a general codification of the new recognition method.35 According to this new method, a legal situation created abroad is recognised by a State, without any prior verification of the law applicable to that creation under its own conflict rule.36 32 On this theory, see: C. DUBLER (note 5), No 136 and 137; Machet c. Revelu, Rev. crit. dr. int. pr. 1952, p. 89, note PH. FRANCESCAKIS, J.D.I. 1951, p. 894 et seq., note B. GOLDMANN; Patino c. dame Patino, Rev. crit. dr. int. pr. 1954, p. 552, note PH. FRANCESCAKIS; J.D.I. 1955, p. 636, note B. GOLDMANN/ A PONSARD; Bakalian et Hadjithomas c. Banque Ottomane, Rev. crit. dr. int. pr. 1967, p. 85, note P. LAGARDE, J.D.I. 1966, p. 136, note B. GOLDMANN. 33 M.-N. JOBARD-BACHELLIER (note 20), No 85, p. 62 (comments on the Patino case). 34 M.-N. JOBARD-BACHELLIER, ibidem. 35 On this method, see: CH. PAMBOUKIS, L’acte public étranger en droit international privé, Paris 1993; L. BARNICH, Les actes juridiques en droit international privé. Essai de méthode , Brussels 2001, especially p. 311; P. LAGARDE, Développements futurs du droit international privé dans une Europe en voie d’unification: quelques conjectures, RabelsZ., 2004, p. 225; P. MAYER, Les méthodes de la reconnaissance en droit international privé in Mélanges P. Lagarde, Paris 2005, p. 547; G.P. ROMANO, La bilatéralité éclipsée par l’autorité. Développements récents en matière d’état des personnes, Rev. crit. dr. int. pr. 2006, p. 457, bibliography note 2, p. 458; G. GOLDSTEIN, La cohabitation hors mariage en droit international privé, Collected Courses, 2006, Vol. 320, 9, pp. 55-88; S. BOLLÉE, L’extension du domaine de la méthode de reconnaissance unilatérale, Rev. crit. dr. int. pr. 2007, p. 307; D. BUREAU/ H. MUIR WATT, Droit international privé, t. 1, Thémis, 2007, No 575; P. MAYER (note 12), No 337-345; H. MUIR WATT, European Federalism and the “New Unilateralism”, Tul. L. Rev., Vol. 82, 2008, 1983; P. LAGARDE, La reconnaissance, mode d’emploi in Liber Amicorum Gaudemet-Tallon, Paris, 2008, p. 479; CH. PAMBOUKIS, La renaissance-métamorphose de la méthode de reconnaissance, Rev. crit. dr. int. pr. 2008, p. 513; G. GOLDSTEIN/ H. MUIR WATT, La méthode de la reconnaissance à la lueur de la Convention de Munich du 5 septembre 2007 sur la reconnaissance des partenariats enregistrés, J.D.I. 2010, pp. 1085-1125; R. BARATTA, La reconnaissance internationale des situations juridiques personnelles et familiales, Collected Courses, 2010, Vol. 348, p. 9 et seq.; P. LAGARDE, (ed.), La reconnaissance des situations en droit international privé, Actes du colloque international de la Haye du 18 janvier 2013, Pédone, 2013; La méthode de la reconnaissance est-elle l’avenir du droit international privé? Collected Courses, 2014, Vol. 371, p. 9 et seq. 36 V. ainsi P. LAGARDE (note 35), p. 19.

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The Legal Certainty Exception We will return to these questions when we attempt to compare this exception with other known concepts, but we note already that the following condition may support this last hypothesis. C.

The Involvement of the Foreign State Whose Rule Is at Issue

According to Article 9, the reasoning does not take into consideration the private international law rule of just any State: that State must be specifically involved. Evidently, if the State whose law is being applied has no connection with the relationship, the expectations of the parties regarding this point would not be legitimate. Even so, the requirement of involvement probably goes further than just reinforcing the condition of legitimacy. Indeed, two conceptions of the involvement of the State in question can be considered. According to a broad and more theoretical conception, it would be sufficient if the State had one or more objective connecting factors with the situation, such as the place where an act was signed, or the nationality of one of the parties. This conception is still linked to the requirement of the legitimate character of the parties’ expectations. According to the official commentaries on Article 9, it is not necessary for the facts to have materially occurred in the State involved.37 However, the State should be one with which the parties have a connection: it would be sufficient, for example, if it were the State of their nationality or of their common domicile. Moreover, the time of the creation of the legal effects should be decisive to determine these contacts.38 Under a more restrictive and material conception, the involvement of the State must be real, effective – that is, the law of the State has already been invoked or applied to trigger legal effects in that State. This will notably be the case where a public officer of that State has intervened in the relationship. This approach responds to the objective of realism and, for this reason, has already been called the fait accompli exception in Dutch doctrine39 to underline its concern for effectivity. It may be thought that this second conception is more in line with the intention of the Dutch legislator. However, Article 9 does not seem to require that the legal effects have already occurred in a foreign State; it may suffice that these effects would theoretically follow if one were to apply this law. In the Rhodesian case, the registration of the marriage probably should not be considered an effective application of local law regarding matrimonial regimes in particular (if one takes into account that under the common law, which was in principle applicable in Rhodesia at the time of the marriage in 1965, the marriage had no effect on the property of the spouses). Nevertheless, its theoretical application may suffice on this point. If the effective conception of the involvement of the State whose conflict rule is at issue becomes the one adopted by Dutch courts, then Article 9 will come very close to the codification of the recognition method, since that method generalM.H. TEN WOLDE (note 3), p. 401. M.H. TEN WOLDE (note 3), p. 401. 39 M.H. TEN WOLDE (note 3), p. 400. 37 38

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Gerald Goldstein ly requires that a public officer has intervened and applied his law to the facts so as to create legal effects abroad, a situation deemed more worthy of respect in another country, from the point of view of effectivity and legitimacy, than the mere erroneous belief of individuals emanating from their intellectual representations. D.

Unacceptable Violation of the Expectations of the Parties or of Legal Certainty

The unacceptable character of the violation of the subjective expectations of the parties corresponds to the requirement of an injustice of sufficient gravity, which is reminiscent of the public policy exception. Alternatively, Article 9 can also be interpreted as preventing an unacceptable violation of legal certainty. For this mention to have any logical meaning, it can be argued that it is then a matter of remedying situations that are more objectively and generally envisioned than the subjective expectations of the parties. In our view, this broader interpretation justifies the expression “legal certainty exception”. Article 9 could then show a much higher creative potential. Irrespective of which branch of the rule is considered, it is difficult to indicate when this condition will be considered fulfilled by the Dutch courts,40 which have a discretionary power (Article 9 uses the verb “may” rather than a mandatory verb). In this respect, it should be specified that Dutch domestic law already admits the possibility of correcting the result of the application of a legal rule based on reason and equity.41 This acceptance of the relativity of rules clearly favours the adoption, in an international situation, of such a legal certainty exception, as a general rule, with the same effect. While it is not certain that the principle of correcting the legal rule by means of equity and reason is clearly shared by all legal systems, concretely, it is clear that not all of them will have the same conception of equity and reason. This may very well lead to a greater lack of coordination of results in international situations, which will not favour its adoption by other legislators. In the perspective of coordination, one can ask whether this exception is close in its function or similar in its formulation to some other notions.

V.

The Nature of the Legal Certainty Exception

This exception may be compared with several already known concepts or theories: the public policy exception (A), the exception clause (B), the theory of vested rights (C), the conflict of systems theory (D), the recognition method (E), the method of a subsidiary unilateralist system of private international law (F) and, finally, the excusable ignorance of the applicable law exception (G). 40 41

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M.H. TEN WOLDE (note 3), pp. 405-407. M.H. TEN WOLDE (note 3), p. 404, note 27.

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The Legal Certainty Exception

A.

The Legal Certainty Exception and the Public Policy Exception

The legal certainty exception is apparently quite similar to the public policy exception in that it requires that the application of the law designated by the normal private international law rule would result, for the court seised, in an unacceptable violation of legal certainty or of legitimate expectations of the parties, and thus of justice in an international situation. However, unlike the public policy exception, the legal certainty exception can set aside the law of the forum in favour of a foreign law designated by the foreign rule, which is itself considered relevant by the court seised because of its sufficient implication. In addition, the content of the law applicable but discarded under Article 9 is only indirectly the motive for its exclusion. Such exclusion arises from the unfair difference in results between the excluded law and that applicable under the foreign conflict rule. Moreover, the legal certainty exception, such as enacted in Article 9, does not limit its scope to correcting the application of a conflict rule, but may intervene outside the conflict method. It is therefore impossible to equate it with public policy. B.

The Legal Certainty Exception and the Exception Clause

Functionally, the legal certainty exception is also comparable to the exception clause (or escape clause) since it sets aside the law normally designated by the conflict rule of the forum. However, the legal certainty exception is not based on the proximity principle, but rather on the legitimate expectations of the parties and on legal certainty. While the formulation of the connecting factors of the conflict rules based on the objective localisation and the proximity principle, as well as the determination of the applicable law persuant to the exception clause, should also incidentally correspond to their expectations,42 the foundational difference between the two concepts remains profound. In this perspective, however, one can cite Article 19, paragraph 1 of the 2004 Belgian Code of Private International Law,43 which admits a general exception clause in the following terms: § 1. By way of exception, the law designated by the present statute does not apply if from the combined circumstances it appears manifestly that the matter has only a very slight connection with the State of which the law was designated, but is very closely connected to another State. In such case, the law of that other State will be applied. When applying §1 special consideration is given to the need 42 On the localizing and material functions of the conflict rule, see: H. MUIR WATT, La fonction de la règle de conflit de lois, Thèse Paris II, 1985. 43 English non official translation by Caroline CLIMANS, this Yearbook 2004, 319, p. 325.

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Gerald Goldstein of predictability of the applicable law and to the circumstance that the relevant legal relationship was validly established in accordance with the private international law of the States with which the legal relationship was connected when it was created. § 2. Paragraph 1 does not apply if parties made a choice of law in accordance with the provisions of the present statute, or if the designation of the applicable law is based on its content. Thus, the Belgian legislator mentions that the application of the exception clause based on the principle of proximity must not neglect the need for predictability of the applicable law. That need is manifested, in particular, by an exclusion in the case of a choice of law by the parties in the second paragraph of this Article, and the consideration of a valid legal relationship established under the systems of the States concerned, which represents the renewal of the conflict of systems theory44 (as expressed in Article 21 of the 1968 version of the Benelux private international law project45). This two-branch formulation is essentially a precursor to the future Article 9 of the Dutch Civil Code. One might think that because of the difference in approach between this conflict of systems theory, based on effectivity or predictability, and the exception clause, based on proximity, it would have been more coherent not to include them in the same general rule, unless the relationship between the two theories was expressly stated. This was properly done in the situation of predictability created by clauses allowing choice of law: the second paragraph of Article 19 states that the exception clause no longer applies. Yet, Article 19 does not stipulate what should be the consequence of the requirement that “special consideration” should be given to the “circumstance that the relevant legal relationship was validly established in accordance with the private international law of the States with which the legal relationship was connected when it was created”. The logical solution is, probably, once again to avoid applying the exception clause when legal certainty would suffer notably in cases where a right has been validly acquired under the law with which it was connected at the time of its creation; but this solution is only implicit. Under this interpretation, predictability or the existence of validly acquired rights would be regarded as limits on the application of the exception clause. However, it does not seem to exclude the possibility of using such exception in a positive way to promote predictability or respect vested rights, as long as the law applicable would also promote the proximity principle. This second option is precisely the express aim of Article 9 of the Dutch Code. In the same perspective, it is therefore relevant to cite the exception clause adopted in Article 2597 of the Argentinian Civil Code, which has obviously been inspired by Article 19 of the Belgium law. Article 2597 states the following (our translation):46 P. LAGARDE (note 35), p. 24 note 15. Rev. crit. dr. int. pr. 1968, p. 812; J.D.I. 1969, p. 358. 46 The original text is as follows: “Excepcionalmente, el derecho designado por una norma de conflicto no debe ser aplicado cuando, en razón del conjunto de las circunstancias 44 45

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The Legal Certainty Exception Exceptionally, the right designated by a conflict rule should not be applied when, due to the set of factual circumstances of the case, it is clear that the situation has few relevant ties to that right and, instead, has very close links with the law of another State, the application of which is foreseeable and under whose rules the relationship has been validly established. This provision went a step further than Article 19 of the Belgium Code by expressly requiring that the exception clause also respect foreseeability and validly established rights (that is to say, vested rights) under the law displacing the law which was normally designated by the Argentinian conflict rule. Article 2597 thus expressly makes a link between the exception clause based on the proximity principle and the requirements stemming from the need to respect foreseeability. In so doing, this provision takes a cumulative approach which renders the application of such clause much more limited. It also excludes a positive and direct use of the exception clause merely to promote foreseeability or to respect vested rights, a latent possibility which is somewhat obscurely kept open under the Belgian rule. One could wonder whether such decision, which is the exact opposite of what the Dutch legislator decided to do, was wise. At least, Article 9 is clearer than Article 19, which only went half-way and seemed to hover between two possible positions without giving clear-cut indication of what its application requires. In the absence of support to that effect by the Swiss law of 1987 – the recognised model codification in private international law – the 2004 Belgian legislator does not seem to have wanted to positively express such a rule setting aside the proximity principle, which would have created a provision close to Article 9 of the Dutch Civil Code. One can therefore appreciate the much bolder solution of the 2011 Dutch codification. For the sake of clarity, I believe it was better to adopt two separate rules, one for the exception clause and another for the legal certainty exception, as embodied in Articles 8 and 9 of the Dutch Civil Code. However, in so doing, the Dutch legislator crossed the Rubicon and positively expressed a rule that has the potential to overturn the classic conflict methodology.47 As a result, far from wanting to assimilate the exception clause and the legal certainty exception, despite their formal fusion, or rather, “lumping together” in Article 19 of the 2004 Belgian Code and Article 2597 of the Argentinian Civil Code, in the Dutch Civil Code they remain properly grounded on different foundations, as expressed in Articles 8 and 9.

de hecho del caso, resulta manifiesto que la situación tiene lazos poco relevantes con ese derecho y, en cambio, presenta vínculos muy estrechos con el derecho de otro Estado, cuya aplicación resulta previsible y bajo cuyas reglas la relación se ha establecido válidamente”. On this new Argentinian law, see among others: D.P. FERANDEZ AROYO, A new autonomous dimension for the Argentinian Private International Law system, this Yearbook, 2014-2015, Vol. 16, pp. 411-428. 47 See, concerning the recognition methodology, (which, in the author’s opinion, is close to Art. 9 of the Dutch Civil Code: P. LAGARDE (note 35).

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Gerald Goldstein On a proximity principle scale, Dutch law theoretically allows the widest application of the exception clause whereas in Argentinian law it is much more limited in scope; Belgian law has taken an intermediate position. C.

The Legal Certainty Exception and the Vested Rights Theory

One may wonder whether the legal certainty exception is not closer to the old theory of vested rights,48 especially to one of its versions, i.e. that of the Dutch school (the closest one if one considers the origins of Article 9). According to Huber, the sovereignty of States and their exclusivity concerning the use of force imply a strictly territorial basis of law. Thus, a law can only extend to the territory of the State that enacted it but has no effect outside it. Therefore, a material fact occurring in a foreign State cannot be subject to the law of the court seised since it is not subject to the sovereignty of the forum State. On the other hand, only the foreign State has the power to derive legal consequences from the occurrence of this fact. Nevertheless, as a matter of international comity, the forum State may authorise its judges to give extraterritorial effect to foreign laws in its territory, subject to public policy. However, given the exclusive competence of the foreign territorial law over the facts that occurred locally, at the time of that occurrence, this application is considered by the court seised as prior in time to its intervention and intangible in foreign States, since the moment those facts occurred.49 Thus, the effect imposed by the foreign territorial law is presented as a vested right to which the only action taken by the court of the forum is to give an extraterritorial effect. In this conception, the “created” right already exists abroad, just like a person whose existence cannot be denied. It is implicitly a question of recognizing a certain effectivity. This theory is subject to various serious criticisms. First, the criteria for application of laws are not necessarily territorial but can also be personal (and thus extraterritorial), therefore the very basis of this reasoning does not correspond to reality. Moreover, this reasoning stems from notions of international public law and presents the question as a conflict of sovereignty, thus hiding the judge’s choice to freely decide the case himself, absent any international court of justice competent to decide these disputes among individuals. On the contrary, the private nature of the interests at issue now largely dominates contemporary conceptions. Furthermore, if no law has as yet materially applied abroad (in which case one would give effect to the foreign decision), the vested “rights” would only be subjective, i.e. mere expectations, and would have no effective reality before being taken into consideration by a public officer. If that officer is based in a country other than that where the material act occurred, the forum authority could inde48 See: P. ARMINJON, La notion de droits acquis en droit international privé, Collected Courses 1933, Vol. 44, p. 103; H. MUIR WATT, Quelques remarques sur la doctrine anglo-américaine des droits acquis, Rev. crit. dr. int. pr. 1986, p. 425. 49 H. MUIR WATT (note 48), p. 445.

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The Legal Certainty Exception pendently base its reasoning on the law it considers to be competent: in an international context, no rights are ever “vested”. Thus, even in the Statutist Dutch theory of statutes, the notion of comity, as understood by the seised court constitutes a sufficient justification for “applying” a foreign law, without the logical necessity of referring to the notion of “vested rights”.50 In reality, this theory resolves such a conflict in favour of the petrification of the situation at the time of the occurrence of a material event, which is but one choice among many, but not an obligation imposed by public international law. This theory, whose explanatory value remains extremely doubtful, has thus been largely discredited for quite some time in private international law. However, as certain fundamental social needs for maintaining stability or legal security are felt, it has been revived periodically under various formulations to attempt to justify a self-limitation in space or time of the seised court’s conflict rules. It is therefore necessary to compare it to the legal certainty exception. Contrary to the theory of vested rights, the legal certainty exception of Article 9 does not require a strong material geographic connection, expressing the influence and sovereignty of a State, between the “creation of rights” and the legal system ultimately used. Nevertheless, it must be the conflict law of an involved State, which possesses a certain objective connection with the situation. However, such connection is not necessarily territorial; it can be based on the representations of the parties and be derived from a personal (extraterritorial) attachment such as current or former nationality. The profound difference between the two notions affects the basis for setting aside the normal conflict rule: in the case of the legal certainty exception, it is a legitimate belief of the parties or a more general requirement of predictability, therefore notions related to the private nature of the conflict of interests in question, and not a certain conception of international comity towards a foreign State. Nevertheless, the phrase “exception of fait accompli” includes a certain ambiguity which, once explained, would reconcile the two theories. Article 9 does not expressly require as a condition that an event – the conclusion of a legal act, the celebration of a wedding ceremony or the intervention of a public officer– must have actually materially occurred, even if this event could more easily give rise to the exception of “fait accompli”. In the author's opinion, this figure of speech signifies rather a factual situation, i.e. one which cannot be revisited without violating predictability. This then expresses not a condition, but rather the descriptive affirmation a posteriori of a solution: the absence of retroactivity in the application of the forum rules to a situation belonging to the past. The reason may be that a situation could be envisioned where, at a certain time prior to the facts, the legal system of a State other than that where the court is currently seised has an essential connection with this situation or acquired a certain effectivity in this regard. This idea also underlies the theory of vested rights, although the reasons given for respecting the existing situation are different from those underlying Article 9: international comity, the mythical existence of a right or sovereignty of a foreign state for the former, a legitimate belief of the parties or a requirement of predictability for the latter. 50

H. MUIR WATT (note 48), p. 443.

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Gerald Goldstein Thus there exist a vague kinship between the two theories. Article 9 emits a distant echo, focused on the private interests of the parties, of the theory of vested rights. Nevertheless, this idea of respecting an effective situation or the expectations of the parties are also found, in closer conformity to the current conceptions, in the unilateral method, without the logical necessity of considering the vested rights theory,51 a method which will later be the subject of a direct comparison. First, however, it may prove instructive to compare the legal certainty exception with other more recent echoes of this ancient theory: the conflict of systems theory and the recognition method. D.

The Legal Certainty Exception and the Conflict of Systems Theory

One of the conditions of application of the conflict of systems theory,52 which leads to rejecting the forum’s own private international law system in favour of the system with the tightest connection to the situation, is that the private international law of the forum that was set aside does not have a connection with the situation at the moment of its creation, nor with its legal effects when they occurred. The question could be posed whether the legal certainty exception should be assimilated to an application of this theory since its effects, i.e. the absence of retroactivity of the application of the normal rules of private international law of the forum, seem analogous.53 Are their conditions identical? Is the time factor necessary to justify the conflict of systems theory also found in the legal certainty exception? Regarding Article 9, if the right did not have a connection with the the forum system at the time of its creation, one might consider the belief of the parties in the application of a law other than the one designated to be legitimate. However, the legal certainty exception’s domain is broader than that of the conflict of systems theory. For Article 9 to be applicable, it would be sufficient to determine that the parties had legitimately believed in the application of the conflict rule of a foreign State which had connections to the situation at the time of its creation, even if the excluded system (that of the forum) had connections with it. Still, good justifications must be found to consider this belief legitimate in spite of these connections. One might wonder whether the particular difficulties of private international law will suffice or whether it is necessary to require that the situation never have had a connection with the s legal system of the forum state. In the sense of an assimilation between the two notions, one can cite Article 21 of the 1968 version of the Benelux draft project of private international law H. MUIR WATT (note 48), p. 439. On this notion, in addition to the authors cited in note 32, see E.M. MEIJERS, La question du renvoi, Bulletin de l’Institut juridique international, 1938, p. 191; PH. FRANCESCAKIS, La théorie du renvoi et les conflits de systèmes en droit international privé, Sirey, 1958, p. 189; P. LAGARDE (note 35), p. 24. 53 On this condition, from the perspective of a comparison between the conflict of systems theory and the exception of ignorance of the applicable law, see M.-N. JOBARDBACHELLIER (note 20), No 146. 51 52

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The Legal Certainty Exception which, according to Professor Lagarde, can be compared with the conflict of systems theory.54 This provision is fairly close to the current Article 9 of the Dutch Civil Code. It states: “Where a legal relationship was created or extinguished outside of Belgium/Luxembourg/Netherlands in accordance with the applicable law following the private international law of the countries that the legal relationship concerned essentially at the time of its creation or extinction, this creation or extinction shall also be recognized in Belgium/Luxembourg/Netherlands even by derogation from the applicable law by virtue of the provisions of this Act”.55 One of the conditions of this article is that the situation would be in conformity with the private international law of all the concerned States. On the contrary, Article 9 only requires conformity with the conflict rule of one State, on the condition that it is sufficiently involved to satisfy the requirement of legitimate predictability. Thus, on this issue, Article 9 facilitates the recognition of the effects of a law that is not designated by the Dutch Private international Law. On the other hand, this provision requires a violation either of legitimate expectations of the parties or of predictability: this condition is more demanding and allows one to state more precisely the reasons that justify that solution, elements which are absent from Article 21 of the Benelux project. Thus, while a relationship is clearly seen between the conflict of systems theory and the legal certainty exception adopted in Article 9, since it is obvious that the latter was adopted while consciously taking into account the Benelux project, the two notions still contain non-negligible differences. E.

The Legal Certainty Exception and the Recognition Method

The legal certainty exception also resembles an attempt to codify in a general rule the recognition method. They both dismiss the conflict rule of the forum, basing themselves on respecting the expectations of the parties and especially on the pre-

54 P. LAGARDE (note 35), p. 24. The author also quotes (ibidem) to this effect Art. 7 of the Inter-American convention on the general rules of private international law (Convention interaméricaine sur les règles générales de droit international privé) which states: “Les rapports juridiques validement établis dans un État partie en conformité de toutes les lois auxquelles ils sont liés lors de leur établissement sont reconnus dans les autres États parties, à moins qu’ils ne soient contraire aux principes de l’ordre public de ces derniers États”. 55 Unofficial translation. The original text is the following: “Lorsqu’un rapport juridique est né ou s’est éteint hors de Belgique/du Luxembourg/des Pays-Bas conformément à la loi applicable suivant le droit international privé des pays que ce rapport juridique concernait essentiellement au moment de sa naissance ou de son extinction, cette naissance ou cette extinction sont également reconnues en Belgique/au Luxembourg/aux Pays-Bas même par dérogation à la loi applicable en vertu des dispositions de la présente loi”. cited by P. LAGARDE, (note 35), p. 24.

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Gerald Goldstein dictability and the need for permanence of the status of persons,56 as well as on the effectivity eventually ensuing from the intervention of a foreign public officer. If their effects are similar, what about their conditions? From this point of view, it is difficult to assimilate the two notions, notably because “the” recognition method does not have a unanimous definition and there can be multiple different methods according to different authors, whose field remains largely undetermined and subject to conditions that are also not unanimously accepted. As such, some scholars believe that the use of the recognition method should be limited to the creation of foreign situations (like the creation of a registered partnership), while the effects (for example the patrimonial effects of such a partnership) should remain subject to the usual methods of conflict resolution.57 Others argue, to the contrary, that one must distinguish the validity of situations (which covers what could be described as the creation of rights), still subject to the conflict rules, from their recognition, therefore of their effects abroad, a potential field for the recognition method.58 Whatever the version of the recognition method to which reference is made, at first glance, Article 9 touches the legal effects of international situations, without however ruling out its application to the creation of rights or the status of persons. However, the rule in Article 9 is subject to a wider application than the recognition method since the legitimate expectations of the parties may arise from circumstances other than the intervention of a public authority, and the State whose conflict rules are applied may be involved in a manner other than through such intervention. It is sufficient that there are connections between that State and the situation, e.g. the nationality of the parties. The legal certainty exception thus concerns certain situations that could be dealt with through the recognition method, but their fields do not fully overlap. In this respect, the Dutch law of 2011 more specifically enshrines the recognition method in two articles: Article 31, relating to the validity of marriage,59 and Article 61,60 which relates to the validity of registered partnerships. This shows that, in the conception of the Dutch legislator, Article 9 was not sufficient to deal definitively with certain situations covered by these specific rules. 56 P. LAGARDE (note 35), pp. 26-27. According to the author, three justifications underpin the doctrinal favor for this method: the desire to maintain the stability of personal status, the rise of fundamental rights and the “portability” of European citizenship. 57 P. MAYER (note 35), p. 569. 58 P. LAGARDE (note 35), p. 30: the author considers that the recognition does not govern the issue of the validity of a situation which can always be contested (p. 30): “Le problème de la reconnaissance est distinct de celui de sa validité”: de plus (ibidem, p. 41), “[…] la méthode de la reconnaissance laisse à celle des conflits de lois l’immense champ de la création des situations”. 59 It states: “A marriage lawfully solemnised outside the Netherlands or a marriage which has become lawful thereafter according to the law of the state where the marriage took place will be recognised as such”. 60 It states: “A registered partnership lawfully entered into outside the Netherlands or that has subsequently become lawful under the law of the state where the registered partnership was entered into will be recognised as such”.

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The Legal Certainty Exception

F.

The Legal Certainty Exception and a Unilateralist Subsidiary System of Conflict Resolution

As a provisional conclusion, it may be understood due to its Dutch origins – the Dutch legislator has often shown a great openness towards international situations by admitting a relativity within its own rules61 – that the legal certainty exception shares certain features with the theory of vested rights, with that of conflicts of systems and with the more recent recognition method. It nevertheless retains its originality and cannot be totally assimilated to any other previously recognised general rule or theory. Through the formulation of this new notion, it may appear that the Dutch legislator is envisaging the adoption of a subsidiary system of private international law – exceptional, with a unilateralist nature – due to the fundamental role played by the expectations of the parties and the predictability, possibly linked to the effectivity of the law which “wants” to be applied.62 However, in great contrast with classical unilateralism, under Article 9, the law of the forum, applicable according to its own terms, is not given precedence over the rule leading to foreign laws. According to Article 9, the legal certainty exception might well lead to the application of a foreign law rather than the law of the forum, even if the latter were applicable according to the normal conflict rule of the forum. Moreover, under Article 9 the applicable law under the foreign conflict rule is not necessarily the substantive law of the foreign State, It may be a third State’s law designated by the foreign State’s conflict rule. In other words, and in either case, it is not the will of the law finally applied that directly triggers its application – an essential element of classical unilateralist thinking – but that of the State whose conflict rule leads to that (possibly third State) law. In this respect, there is a greater similarity with the general unilateralist method of the “coordination of legal systems based on the reference to the competent (foreign) legal system” of Professor Picone.63 This method initially requires the determination by the seised forum of the “competent legal system”, which implies that this system exercises effective control over the situation. Because of this “competence”, the solution that the foreign legal system gives to the situation, either by its conflict rules or by a decision, should then be respected abroad. This

61 M.-N. JOBARD-BACHELLIER (note 20), p. 24, No 29. Thus, the admission in positive law of the possible application of foreign mandatory rules. 62 On unilateralism, the role of the expectations of the parties and the effectiveness of the law, see: P. GOTHOT, Le renouveau de tendance unilatéraliste en droit international privé, Rev. crit. dr. int. pr. 1971, 1-36, 209-243, 414-450; La méthode unilatéraliste et le droit international privé des contrats, Trav. com. fr. d.i.p., pp. 1075-77, p. 201; H. MUIR WATT (note 42), No 57-120. 63 P. PICONE, La méthode de la référence à l’ordre juridique compétent en droit international privé, Collected Courses 1986, Vol. 197, p. 229 et seq.; ID., Les méthodes de coordination entre ordres juridiques en droit international privé, Collected Courses 1999, Vol. 276, p. 9 et seq.

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Gerald Goldstein interesting method is criticised because it includes obscure and indeterminate points. In particular, it seems difficult to determine the “competent” legal system.64 On this point, the legal certainty exception in Article 9 is different: it does not require effectivity as a condition sine qua non for its application. As an alternative to the reasoning based on the lack of predictability – which could well be based on the effectivity of a foreign law, by calling it a “fait accompli exception” – it allows the effects of a foreign law based on the legitimate expectations of the parties. Nevertheless, at least one of the branches of Article 9 comes close to the unilateralist philosophy in that it could be based on the effectivity of a right. In this same perspective,65 from a comparative point of view, one can cite Article 5 of the August 6th, 1998 Venezuelan law.66 It states: Legal situations created in accordance with a foreign law that recognizes itself as having jurisdiction according to internationally admissible criteria shall produce their effects in the Republic, as long as they don’t contradict the objectives of the Venezuelan conflict rules, unless Venezuelan law claims exclusive jurisdiction over the matter in question, or unless they are manifestly incompatible with the essential principles of Venezuelan public policy. This rule present a more direct connection to the unilateralist doctrine than Article 9 of the Dutch Civil Code. The competent foreign law is imposed on the Venezuelan legal system by reason of its will (the foreign law recognises itself as competent), provided that “internationally admissible” connections (how are they to be determined?) are manifested by the situation, whereas, as far as Article 9 is concerned, the foreign conflict rules applicable are those of a State involved according to the Dutch conceptions, taking into account the legal predictability and the legitimate expectations of the parties. On the other hand, according to Article 5 of the Venezuelan law, respecting the foreign legal situation is mandatory subject to the exclusive competence of the law of the forum or the violation of the essential principles of Venezuelan public policy, or the contradiction between the recognized situation and the objectives of

64 H. MUIR WATT (note 42), No 487; P. LAGARDE (note 35), p. 33. In addition, this method is criticised from the point of view of its basis, because the competent legal order is designated according to the rules of the State requested to recognise a legal relationship, because the situation there would show a certain effectiveness. However, they do not therefore necessarily designate the legal order that “actually operated” when this legal relationship was created (see CH. PAMBOUKIS (note 35), p. 177, No 248; P. LAGARDE (note 35), p. 33). 65 On the unilateral nature of this rule: P. LAGARDE (note 35), p. 23. 66 The published French version is the following: “Les situations juridiques créées en conformité d’un droit étranger qui se reconnaît compétence d’après les critères internationalement admissibles, produiront leurs effets dans la République, à moins qu’elles ne contredisent les objectifs des règles de conflit vénézuéliennes, que le droit vénézuélien ne revendique sur la matière concernée une compétence exclusive ou qu’elles ne soient manifestement incompatibles avec les principes essentiels de l’ordre public vénézuélien”, Rev. crit. dr. int. pr. 1999 vol. 88, p. 392.

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The Legal Certainty Exception the Venezuelan conflict rules (e.g. the lack of protection of a weak party or an irrelevant localisation). These two rules are thus inspired by the same unilateralist philosophy. However, they represent very different attempts to formulate it. In both cases, the departure from the Savignian approach is at first so profound that there are expected limits surrounding the result, formulated in terms of violation of public policy. But the legal certainty exception in Article 9 responds to a modern problem and takes an audacious, if questionable, position on the role to be given to predictability and the will of individuals in a globalised world. In comparison, Article 5 of the Venezuelan law adopts a very broad view of conflict of laws resolution based purely on the will of foreign States without basing it on any justification other than unilateralist thinking, which is still questionable from a number of points of view (foundation in State sovereignty; imprecise limits, etc.). Moreover, this creates a risk of inconsistency in Venezuelan law, which in principle is based on the bilateral determination of legislative competencies. This comparison with unilateralism leads in any case to the question of how to resolve one of its classic problems: the cumulation of laws. How can this legal certainty exception be applied if each of the parties involved claims that he or she had in mind the application of a law applicable by virtue of the conflict rule of one of two different States involved? The usual solution of unilateralism is to respect the law actually applied abroad, rather than the law intended to be effective. It remains possible that neither of them has yet been effectively applied, or that both of them have been applied, but in two different countries. In this case, it is accepted that the right that has had effect first chronologically will be respected. Where the two laws have had simultaneous effect, or in the absence of any actual effect, the court will assess the legitimacy of the parties' expectations in a comparative manner, or it will ask itself which law better respects predictability. This exercise is not particularly problematic if, as in Article 9, the court has a discretionary power. Before concluding, the legal certainty exception can be compared with another rule proposed by doctrine which intends to take into account the expectations of the parties: the excusable ignorance of the applicable law. G.

The Legal Certainty Exception and the Excusable Ignorance of the Applicable Law

The exception of excusable ignorance of the applicable law was proposed as early as 1984 by Marie-Noëlle JOBARD-BACHELLIER as a material rule of private international law with the following content:67 [R]ights arising in the context of situations which have been constituted abroad and have produced effects there must be considered to have been regularly acquired, notwithstanding the contrary solution to which the application of the conflict rule of the forum would lead, 67

M.-N. JOBARD-BACHELLIER (note 20), No 131, p. 95.

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Gerald Goldstein as soon as on the basis of the appearance, created by the applicability of a foreign law which subsequently turns out to be incompetent, the parties were nevertheless induced to legitimately believe in the legal reality of their apparent rights, or in the legal regularity of a situation which appeared to have been properly constituted. In Marie-Noëlle JOBARD-BACHELLIER’s opinion, where there is a “hidden reality” for a certain period of time, it may be justified to set aside the (normally applicable) conflict rule of the forum, in the presence of an apparent situation of international law.68 Where certain conditions exist, particularly in relation to the legitimacy of the parties' mistaken belief in the applicability of a foreign law, this exception of appearance should thus be invoked in order to recognise rights which it admits in violation of the law otherwise designated by the normal conflict rule. The formulation proposed by the author is close to that of Article 9 of the Dutch civil Code and their analyses thus, in theory, present a certain utility. As a result, the exception of appearance, as proposed, has in part the same general basis as the legal certainty exception: the legitimacy of an erroneous belief in the applicability of a law other than that designated by the private international law rule of the court seised and the negative consequences in terms of predictability and justice of the failure to take these expectations into account. From the point of view of their conditions, they also presume the good faith of the parties at a decisive moment. That said, the legal certainty exception has a larger scope of application than the doctrine of appearance: the error of the parties could be independent of such an appearance and, in the Dutch version, the violation of the predictability suffices as a basis for its intervention. Although the two notions remain close, the legal certainty exception includes situations where the exception of appearance could come into play, but it also goes further by also covering situations where the exception of appearance could not apply . Thus, the conditions invoked in the formation of the exception of appearance are not always necessary in order to refer to Article 9. Notably, this article does not require that the law resulting from the foreign conflict rule have already given rise to legal effects, nor that an appearance of a right had existed. From the larger definition of the legal certainty exception provided in Article 9 also ensues a larger uncertainty than that produced by the exception of ignorance of the applicable law. Nonetheless, Article 9 has the advantage of not requiring a definition of a “regularly acquired right” nor of a “situation constituted abroad”. These expressions lead back to century-old debates. Preferring to concretely address “legal consequences attributable to a fact” allows us, with all the necessary clarity, to avoid these expressions that may give rise to interminable discussions. With regards to its nature, as is the case for the exception of appearance,69 Article 9’s legal certainty exception can also be considered a priori as a material rule of private international law, since it independently provides a concrete solu68 69

M.-N. JOBARD-BACHELLIER (note 20), No 74. P. LAGARDE, pref. to the monography by M.-N. JOBARD-BACHELLIER (note 20),

p. XVII.

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The Legal Certainty Exception tion in the event of a conflict of laws when certain substantive conditions are present.70 Both rules can be regarded as examples of general material rules, such as the public policy exception, the escape clause or even the rules regarding international jurisdiction, all of which belong in the category of instrumental rules (or “applicability” rules) of private international law. However, Marie-Noëlle JOBARD-BACHELLIER adds that this nature of material rule is also revealed by the fact that the rule does not attempt to designate by itself which law applies.71 She thus considers that the exception of appearance does not have the function of allocating an international situation to a specific legal system. Instead, she favours a process of « simply » taking into consideration72 the foreign law. The material solutions of this law will eventually be recognised by virtue of a substantive rule of the forum which provides that foreign law be taken into account in order to give affect to apparent international situations.73 For the legal certainty exception, this nature is less certain. Due to the more general terminology in Article 9, which is not subject to a material condition of appearance, it seems more difficult to argue that this article, at least implicitly, does not provide a connection to a legal system based upon predictability. Article 9 is most certainly not a material conflict rule with alternative connecting factors. This does not exclude the possibility that it implicitly adds a second general branch to each of the other conflict laws of the Dutch system, using, in addition to a normal connecting factor – based on the proximity principle – another factor defending the legitimate expectations of the parties or, more generally, legal certainty in this case. The designation of the governing law and of its effects is directly imposed by the legal certainty exception of the judge of the court seised, depending on the expectations of the parties or the needs of the “security of legal commerce”. This stems unambiguously from Article 9. To say that one only “takes into consideration” the effects of a foreign law to reproduce the same effects in application of a general rule of the forum based upon predictability into the legal order of the forum is akin to simply applying it, taking "application¨ in the usual sense of private international law, since the foreign law’s mechanism is used.74 It is M.-N. JOBARD-BACHELLIER (note 20), p. 85, No 117. M.-N. JOBARD-BACHELLIER (note 20), p. 88, No 123: “L’apparence […] n’a pas pour objectif véritable la désignation du droit étranger applicable, mais la réalisation d’un certain résultat. Elle ne vise donc pas à substituer au critère de rattachement ordinaire du système du for un autre critère de rattachement. Elle n’a pas la prétention de contribuer à l’élaboration de ‘super-règles’ de conflit. Elle se situe donc nécessairement hors du domaine du procédé conflictualiste […]” (translation: “Appearance ... is not intended to identify the applicable foreign law as its real purpose, but to achieve a certain result. It does not therefore aim to substitute for the ordinary connecting factor of the forum system by another connecting factor. It does not claim to contribute to the development of ‘super-rules’ of conflict. It is therefore necessarily outside the domain of the conflictualist process”. 72 On this notion, see P. MAYER, Les lois de police étrangères, J.D.I. 1981, 277, p. 307; E. FOHRER-DEDEURWAERDER, La prise en considération des normes étrangères, Paris 2008 (preface by B. AUDIT). 73 M.-N. JOBARD-BACHELLIER (note 20), p. 89, No 123. 74 A scholar (E. AGOSTINI, L’application des règles de conflit étrangères et les conflits de systèmes en droit international, thèse Bordeaux, 1975, No 321 et seq., cited by 70 71

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Gerald Goldstein not a question here of deriving from the law of the forum different and complementary effects from those of a foreign law, a hypothesis which, on the contrary, would correspond to the idea of a “taking into consideration.”75 A “super-conflict rule” can thus be seen in the legal certainty exception, unilateral in nature, whose role is to decide a conflict of systems on the basis of predictability and the expectations of individuals. It would then distinguish itself from the exception of appearance.

VI. Conclusion – Towards a Subjective Localisation Private international law is increasingly under pressure by the admission of new paradigms, more or less centered on the human being and his needs in a world subject to globalisation, and gives rise to new theories or new methods, such as that of recognition, as well as to new instrumental rules, such as the legal certainty exception. Insofar as these paradigms reflect real social needs, we can be satisfied and see in them an illustration of the adaptability of this discipline, of its vitality. However, these new conceptions must be part of a coherent whole, without leading to a post-modern chaos where anything would be accepted. In this perspective, the pertinence of other PIL systems adopting this legal certainty exception is put into question. Some scholars radically contest this idea. As Marie-Noëlle Jobard-Bachellier writes:76 “[…] l’affirmation d’un principe visant au ‘respect des prévisions des parties’ ne peut paraître que comme un souhait; il n’est pas susceptible, à lui seul, de fonder une solution juridique qui serait contraire aux effets d’une application normale des règles du for” [Translation: “[…] the affirmation of a principle seeking the ‘respect of the predictions of the parties’ can only be understood as a wish; it is not, on its own, susceptible to form a basis for a legal solution that would

M.-N. JOBARD-BACHELLIER (note 20), p. 93, No 129) even invokes the idea, in connection with the unilateralist theory of acquired rights, of a passive application of foreign law in order to make it possible to refuse to question the situation “acquired” abroad. 75 Voir D. HOLLEAUX/ J. FOYER/ G. DE GEOUFFRE DE LA PRADELLE, Droit international privé, Masson 1987, No 317, p. 192: “Il faut voir une application de la loi française dans la décision qui tient compte de certaines règles étrangères sans obéir à leur dispositif, mais qui, a contraire met en œuvre le dispositif des règles françaises. Il s’agit alors de l’hypothèse simple de prise en considération de la loi étrangère” (translation: “We must see an application of French law in the decision which takes into account certain foreign rules without obeying their commands, but which, on the contrary, implements the content of French rules. It is then a question of simply taking into consideration the foreign law”) (emphasis added). 76 M.-N. JOBARD-BACHELLIER (note 20), p. 93, No 130.

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The Legal Certainty Exception run contrary to the effects of the normal application of the rules of the forum”]77 In codifying the legal certainty exception, it appears however that the Dutch legislature wanted to achieve a conciliation between these new needs and the coherence of the classical theory without falling within the pure adoption of unilateralism, as is the case in Venezuelan law. Practice will show in what context the use of this legal certainty exception would actually translate into an adequate treatment of the concrete reality. It could easily lead to a multiplication of conflicts and to an increase in the length of proceedings. Paradoxically, because of the discretionary nature of the power granted to the courts, the concern for predictability in the specific case risks adding a general measure of unpredictability to a system of private international law already disrupted by the possible intervention of an escape clause and of the public policy exception. Before the judge’s decision, one will never be certain of the application of the normal conflict rules. The introduction of an additional measure of relativity78 of the conflict rule can only compensate for the unpredictability it entails by limiting its scope to specific situations. One of the scenarios in which this rule will not lead to great unpredictability will be the case where concrete legal effects have already been admitted abroad, such as the decision of a public officer to enter into a registry the new name or the new sexual identity of an individual. Thus, when such an act has been accomplished abroad, it is very likely that the Dutch authorities will take it into account under Article 9. Nevertheless, the latter will still have considerable leeway under the terms “unacceptable violation” and “legitimate” expectation. The question remains if the classic method of conflict of laws resolution can survive this triple-threat caused by this new attempt to relativize the conflict rule, or if the existence of these exceptions will lead to a multiplication of extrajudicial settlements in the attempt by the parties to avoid getting lost in the “sinister swamp” of private international law. Offering a little reassurance, an argument can be made that the intervention of the three “open” clauses cannot be cumulative. In effect, the legal certainty exception should exclude the escape clause, because the basis invoked to resolve the conflict opposes the two: the search for a specific proximity for the latter, the search for a specific predictability in the former. In this case, this legal certainty exception would also, without a doubt, replace the exception of public policy, since the use of the former reflects the seised court’s conception of justice in the specific case, manifesting itself in the refusal to accept an “unacceptable violation of the legitimate expectations of the parties or of the legal predictability”. In addition, this new exception continues to relativise even further the functioning of the conflict rule in theory and brings about an accrued risk of diverging appreciation in situations of courts seised in parallel in different countries. This could prove to be harmful to the coordination of legal systems in situations of relative divergences to what concretely constitutes the “predictability of 77 78

English translation by G. GOLDSTEIN. M.-N. JOBARD-BACHELLIER (note 20), p. 24, No 29.

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Gerald Goldstein law” or to the role given to erroneous representations made by individuals concerning their “legitimate” expectations. It may be thought that it would be more prudent to limit the use of this exception to certain situations (appearance, excusable ignorance of foreign law, etc.) or to certain fields, such as personal status, to the exclusion of patrimonial relationships or the status of obligations. Indeed, in the latter types of cases, the choice of law by the parties is already easily accepted as a simple and more effective solution for achieving predictability. However, since this freedom is further and further extended, notably in matters of personal status, the question can be asked if the adoption of a general exception of legal certainty remains pertinent, given the uncertainty that it could paradoxically lead to. Should it rather be seen as an indication of a future trend to subject everything to the subjective will of the parties? Does this legal certainty exception herald the limit, the decline or the disintegration of objective localisation, and of the Savignian method, in favour of a subjective localisation79 founded upon the will or the predictability of the parties? The Dutch legislator has not backed away from this possibility. He is no longer alone. As a matter of fact, in this perspective, it is interesting to read, first, the recent Article 26 of the Council regulation of 24 June 2016 implementing enhanced cooperation in the area of applicable law in matters of matrimonial property regimes,80 which states: 1. In the absence of a choice-of-law agreement pursuant to Article 22, the law applicable to the matrimonial property regime shall be the law of the State: (a) of the spouses' first common habitual residence after the conclusion of the marriage; or, failing that (b) of the spouses' common nationality at the time of the conclusion of the marriage; or, failing that (c) with which the spouses jointly have the closest connection at the time of the conclusion of the marriage, taking into account all the circumstances [...] (3) By way of exception and upon application by either spouse, the judicial authority having jurisdiction to rule on matters of the matrimonial property regime may decide that the law of a State other than M.-N. JOBARD-BACHELLIER (note 20), p. 95, No 131. Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, O.J.E.U. No. L-183/1, 08.07.2016. Althought they present some similarities[with them], the situations covered by this provision differ notably from the facts of the Dutch-Rhodesian case envisaged above, which is partly due to the different connecting factors involved in both. As a matter of fact, Art 9 of the Dutch Civil Code could aptly cover both types of factual situations. 79 80

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The Legal Certainty Exception the State whose law is applicable pursuant to point (a) of paragraph 1 [law of first common habitual residence after the conclusion of the marriage] shall govern the matrimonial property regime if the applicant demonstrates that: a) the spouses had their last common habitual residence in that other State for a significantly longer period of time than in the State designated pursuant to point (a) of paragraph 1; and (b) both spouses had relied on the law of that other State in arranging or planning their property relations In addition, the exact same type of rule has also been adopted in Article 26 of the European Regulation No 1104/2016 on jurisdiction, the applicable law and the effect of foreign decisions in the contexts of patrimonial effects on registered partnerships,81 which states: 1. In the absence of a choice-of-law agreement pursuant to Article 22, the law applicable to the property consequences of registered partnerships shall be the law of the State under whose law the registered partnership was created. 2. By way of exception and upon application by either partner, the judicial authority having jurisdiction to rule on matters of the property consequences of a registered partnership may decide that the law of a State other than the State whose law is applicable pursuant to paragraph 1 shall govern the property consequences of the registered partnership if the law of that other State attaches property consequences to the institution of the registered partnership and if the applicant demonstrates that: (a) the partners had their last common habitual residence in that other State for a significantly long period of time; and (b) both partners had relied on the law of that other State in arranging or planning their property relations. The law of that other State shall apply as from the creation of the registered partnership, unless one partner disagrees. In the latter case, the law of that other State shall have effect as from the establishment of the last common habitual residence in that other State. The application of the law of the other State shall not adversely affect the rights of third parties deriving from the law applicable pursuant to paragraph 1. This paragraph shall not apply when the partners have concluded a partnership property agreement before the establishment of their last common habitual residence in that other State. Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, O.J.E.U. No L-183/30, 08.07.2016. 81

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Gerald Goldstein These very similar provisions, in terms of formulation, clearly illustrate the subjective context, very favourable to the will of individuals, of which they are a part, even though, in matters of matrimonial property regimes, the parties’ will is already widely accepted in consideration of the non-mandatory rules governing such regimes, as opposed to the often imperative rules concerning the legal effects of registered partnerships or of marriage.82 First, the applicable law may be directly chosen by the spouse (or the partners), pursuant to Article 22 of the same Regulations. In the absence of choice, the “objectively” applicable law in principle is the law of the first common residence after the marriage for the spouses, or the law of “the State under whose law the registered partnership was created”, which in fact corresponds to the law implicitly or indirectly chosen by the spouses or the partners through the choice of their residence or registration location. Finally, exceptionally, one of the spouses or partners, may ask the court to designate another law on which the spouses or the partners had relied to organise or plan their patrimonial relations. The third paragraph of Article 26 of the Matrimonial Property Regulation and the second paragraphs of Article 26 of the Registered Partnerships Regulation can be seen to include a specific legal certainty exception in the matter of the matrimonial property regime of spouses, or in the matter of effects of the registered partnership, which, since 2019, have become part of the laws of the European States participating in the enhanced cooperation organized in 2016. In effect, those are new exceptions to the normal conflict rules, which intervene following a request by one of the parties, based on their expectations which would be disregarded by the application of the law normally applicable. As seen in the case of Article 9 of the Dutch law, the derogation requires proof of the legitimacy of these expectations of the application of a different law, linked to the existence of a habitual residence during a significant period of time in a State other than that of the place of residence (of the spouses) or registration (of the partners). Incidentally, as far as registered partnerships are concerned, it is rather interesting to note that in fact the exception based on predictability calls into question the application of a law (that of the place of registration of the registered partnerships), which some authors (this author included) consider to be irrelevant from the point of view of proximity, in favour of the law of the habitual residence of the partners.83 In any case, by its nature, these rules give a discretionary power (the authority “may” but need not automatically grant the request), the criteria for which are not stated. This discretion is subject, most notably, to the proof of a significant period of common habitual residence in the State whose law is to be applied. However, in order to limit the unpredictability resulting from these rules, it should be noted that their reach is limited by the very scope of the regulations, 82 Althought they present similarities, the situations covered by these provisions differ from the facts of the Dutch-Rhodesian case envisaged above, which is partly due to the different connecting factors involved. However, Art 9 of the Dutch Civil Code could aptly cover both types of factual situations. 83 G. GOLDSTEIN (note 35).

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The Legal Certainty Exception their exceptional nature and the requirement that the law in question must, at a given moment in the life of the spouses or the partners, correspond to that of their common habitual residence for a significant period of time. Herein one finds a flexible, although implicit, condition of the involvement in the situation of the State whose law is to be applied. However, it does not constitute a mere application of the law of their habitual residence at a precise moment in time, since there is no particular moment required for the concretisation of this habitual residence. The connection remains linked to the subjectivity of the parties and is not directly interpreted as an application of the proximity principle. In effect, one could logically deduce from this provision that the existence of this connection over a certain time subjectively justifies the belief or expectation that this law governs the matrimonial property regime of the spouses or the patrimonial effects of the partners. This is still very far from an objective localisation determined by the judge or legislator, who do not venture to assert themselves concerning the pertinence of a specific relevant moment for the materialisation of this habitual residence. Furthermore, given that the spouses or the partners had to have based either the organisation, or simply the planning, of the relations on this law, it can be deduced that it is not necessary that the law of their State of habitual residence at a given moment be endowed with an effectivity, which also corresponds to the context of Article 9 in the Dutch law. In contrast to Article 9 of the Dutch law, the Regulations do not require the proof of an unacceptable violation of the expectations of the parties or of legal certainty. However, this consideration is implicitly found, albeit in an attenuated form, in the discretionary power awarded to the courts and even in the aim of both Articles 26, Paragraph 3 (for the spouses) or Paragraph 2 for the registered partners). In the context of an adaptation of the general rules of private internal law to the consequences of globalisation, it would be instructive to see how the courts react to these rules, which could herald the opening of a new perspective based on subjective localisation.

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50 YEARS OF THE 1971 HAGUE TRAFFIC ACCIDENT CONVENTION – TIME TO SAY GOODBYE Thomas KADNER GRAZIANO*

I. II.

III.

IV.

V.

Introduction Exceptions to the General Rule – Differences between the 1971 Traffic Accident Convention and the Rome II Regulation (and Other Modern PIL Acts) A. Claims between Persons in Different Cars B. Claims between Persons in the Same Car – Extensive Case Law on the 1971 Traffic Accident Convention with Questionable Results Gaps in the 1971 Traffic Accident Convention A. Issues Explicitly Excluded from the Convention B. Issues Not Addressed by the Convention 1. Party Autonomy and Agreement on the Applicable Law 2. Mandatory Provisions 3. Claims Made by Secondary Victims 4. Accessory Connection Mechanisms (rattachement accessoire) for Tort Claims High Level of Complexity of the Provisions of the 1971 Traffic Accident Convention A. More than Four Hundred Forty Words Instead of Fewer than Forty B. A Case Study – Fatal Single Vehicle Accident Involving a Polish Passenger Car in the Czech Republic 1. A Very Complex Analysis under the 1971 Hague Traffic Accident Convention 2. A Simple and Straightforward Analysis under the Rome II Regulation C. Intermediate Conclusions Conclusions and Proposal

* Professor of Law and Director of the Department of Private International Law at the University of Geneva, Faculty of Law.

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 59-80 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Thomas Kadner-Graziano

I.

Introduction

1

Road traffic accidents are the most frequent tort cases with cross-border implications. The applicable law is determined in twenty-one countries according to the Hague Convention on the Law Applicable to Road Traffic Accidents of 4 May 1971 (hereinafter: 1971 Traffic Accident Convention, or simply: the Convention). Among the Contracting States are thirteen Member States of the European Union, namely Spain, France, Belgium, Luxemburg, the Netherlands, Austria, Poland, the Czech Republic, Slovakia, Slovenia, Croatia, Latvia, and Lithuania. The Convention is also in force in Switzerland, BosniaHerzegovina, Montenegro, Northern Macedonia, Serbia, Ukraine, Belarus and Moroco.2 It is thus one of the most successful Hague Conventions on applicable law of the 20th century. The 1971 Traffic Accident Convention was the first instrument to establish common private international law rules on non-contractual liability at the international level. For a long time, the Convention made a considerable contribution to overcoming the differences between the various national private international law (PIL) systems and contributed significantly to legal certainty. However, with the EU Regulation of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation), a new modern instrument came into force in 2009, which also provides rules determining the law applicable to cases of non-contractual liability. In order to respect existing international commitments of the Member States of the European Union, Art. 28(1) of the Rome II Regulation gives priority to the 1971 Hague Conven1 A German language version of the present contribution with a specific focus on Switzerland and the Swiss Private International Law Act is published in E.M. BELSER/ P. PICHONNAZ/ H. STÖCKLI (eds), Le droit sans limites – Law without borders – Recht ohne Grenzen, Mélanges pour Franz Werro, Zürich: Stämpfli, 2022, pp. 399-420. The national PIL codifications referred to in this contribution are the following: Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl I 5, as amended, henceforth Swiss PILA), available in the original language version: https://www.fedlex.admin.ch/eli/cc/ 1988/1776_1776_1776/de; in English: https://www.fedlex.admin.ch/eli/cc/1988/1776_ 1776_1776/en; the Japanese Act on General Rules for Application of Laws (Hōno Tekiyō ni Kansuru Tsūsokuhō, Law No 10 of 1898, as newly titled and amended by Act No 78 of 21 June 2006, henceforth Japanese PILA), original version available in: http://www.pilaj.jp/text/tsusokuho.html, in English http://www.pilaj.jp/text/tsusokuho_ e.html#7; the Chinese Statute of Application of Law to Foreign Civil Relations (adopted at the 17th session of the Standing Committee of the 11th National People’s Congress on 28 October 2010, effective 1 April 2011, henceforth Chinese PILA), original version: https://bit.ly/33YxoCd, in English: https://www.wipo.int/edocs/lexdocs/ laws/en/cn/cn173en.pdf; Civil Code of the Russian Federation (as amended by Federal Law No 260-FZ on 30 September 2013, henceforth Russian CC), in English: https://new.fips.ru/en/documents/documents.php (book 3); the Civil Code of Québec (L.Q. 1991, ch 64), in French: http://www.legisquebec.gouv.qc.ca/fr/document/lc/ccq1991, in English: http://www.legisquebec.gouv.qc.ca/en/document/cs/ccq-1991. 2 For an up-to-date list of Contracting States, see https://www.hcch.net/en/ instruments/conventions/status-table/?cid=81.

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Hague Traffic Accident Convention – Time to Say Goodbye tion in those EU Member States that are Contracting States to the Convention. On the other hand, courts in thirteen countries that are not among the Contracting States determine the law applicable to cross-border road traffic accidents according to the Rome II Regulation; this is the case for Italy, Portugal, Germany, Ireland, Sweden, Finland, Hungary, Estonia, Romania, Bulgaria, Greece, Cyprus, and Malta. With reference to numerous recent court decisions, the present contribution argues that the Rome II Regulation uses criteria that are more in line with the interests of the parties involved than is the 1971 Traffic Accident Convention (II.). The Rome II Regulation covers the questions that arise in cross-border road traffic accidents much more comprehensively than the 1971 Traffic Accident Convention, which excludes some important questions from its scope of application and does not address others at all (III.). Finally, the rules in the 1971 Traffic Accident Convention are far more complicated and difficult to manage in practice than those of the Rome II Regulation (IV.). Based on the analysis and the case studies, the paper concludes with the proposal that those EU Member States that are still parties to the Convention would be well advised to withdraw from it. In this case, the Rome II Regulation would determine the law applicable to road traffic accidents in all EU Member States equally and exclusively (V.).

II.

Exceptions to the General Rule – Differences between the 1971 Traffic Accident Convention and the Rome II Regulation (and Other Modern PIL Acts)

All instruments determining the law applicable to cross-border tort cases (1971 Traffic Accident Convention, Rome II Regulation, Swiss Private International Law Act, other national PIL codifications) provide that the law of the country where the tort was committed shall apply, either in principle or as a default rule. In this respect, there has been a broad consensus in the private international law of extracontractual liability since the beginnings of the discipline.3 In contrast, important differences exist regarding under which circumstances it is appropriate to make an exception from the application of the law of the place of the accident. This is where the 1971 Traffic Accident Convention reveals its first major weakness in comparison with more modern instruments. The following case scenario illustrates the issue.

3 See Th. KADNER GRAZIANO, “Torts”, J. BASEDOW/ F. FERRARI/ P. DE MIGUEL ASENSIO/ G. RÜHL (eds), Encyclopedia of Private International Law, Vol. 2 (Cheltenham: Edgar Elgar Publishing, 2017), p. 1709 at 1710 ff.; in more detail IDEM, Gemeineuropäisches Internationales Privatrecht, (Tübingen: Mohr Siebeck, 2002), p. 131 ff. with references.

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Thomas Kadner-Graziano A.

Claims between Persons in Different Cars

On a Spanish motorway, a Seat Cordoba registered in Spain has an accident and is stationary at a left-hand bend. Two cars registered in the Netherlands (a Contracting State to the 1971 Hague Convention) are approaching. The son of a family living in the Netherlands is driving the first car, his father, also living there, is driving the second. The son manages to bring his car to a halt in time, but his father does not. The two vehicles of the family collide, causing serious injuries to the son who permanently loses his earning capacity. The son sues the Dutch liability insurer of his father’s car, requiring, inter alia, compensation for his long-term loss of earnings. He brings his claim before the Dutch courts and the question arises as to the applicable law.4 The Dutch courts determine the applicable law according to the 1971 Traffic Accident Convention, which takes precedence over the Rome II Regulation pursuant to Art. 28(1) of the Rome II Regulation. According to Art. 3 of the 1971 Traffic Accident Convention, “the internal law of the State where the accident occurred”, i.e. Spanish law in the example, should in principle apply. Art. 4(a) and (b) make an exception to this general rule: “Where two or more vehicles are involved in the accident” and all the vehicles involved “are registered in the same State” other than that of the accident, “the internal law of the State of registration is applicable to determine liability”. In the example, the family’s two cars, but not the Seat Cordoba, were registered in the Netherlands. The largely dominant case law would regard the Seat Cordoba as also being involved in the accident.5 No exception under Art. 4 is thus to be made and Spanish law, as the law at the place of the accident, would apply to the son’s claim against the Dutch liability insurer of his father’s car, pursuant to Art. 3 of the 1971 Traffic Accident Convention. Spanish tort and accident law provides for lump-sum compensation, including for the loss of earnings, which leads to considerably lower amounts than those the insurer would have to pay out under many foreign laws. Article 4(2) of the Rome II Regulation, on the other hand, makes an exception from the application of the law of the place of the accident where “the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs”. In this case, “the law of that country shall apply”. In the example, both Inspired by the Swiss case: Schweizerisches Bundesgericht (Swiss Federal Supreme Court), 05.11.2015, William Siegrist v. Helvetia Schweizerische Versicherungs AG, 4A_413/2015. Father, son, and the liability insurer all had their domicile in Switzerland, which is, like the Netherlands, a Contracting State to the 1971 Traffic Accident Convention. 5 Swiss Federal Supreme Court (note 4) at E 3.2, 3.4.2, in accordance with the internationally prevailing case law. The Swiss Federal Court refers to the judgments of the Austrian Oberster Gerichtshof, OGH (Austrian Supreme Court of Justice), 02.09.1999, 2Ob314/97h; OGH, 16.09.1993, 2Ob48/93; OGH, 14.11.1989, 2Ob48/93. See already Swiss Federal Supreme Court, 11.11.2008, Amtliche Sammlung der Entscheidungen des Bundesgerichts (BGE) 135 III 92, E 3.2.1, 94 f. 4

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Hague Traffic Accident Convention – Time to Say Goodbye the father (the person claimed to be liable) and the son (the person having sustained the damage) have their habitual residence in the Netherlands. Under the Rome II Regulation, Dutch law would consequently apply to assess the son’s claim against his father, and the Dutch liability insurer would owe full compensation for the injured son’s loss of earnings. The case highlights an important weakness of the 1971 Traffic Accidents Convention when compared to the connecting factors of the Rome II Regulation and other modern PIL acts. The Rome II Regulation makes the exception from the law of the place of the accident dependent on the habitual residence of the injured party and of the person claimed to be liable, if both have their domicile in the same country. There are good reasons for this approach: a rule designating the law at the parties’ common habitual residence presents the advantage of making applicable the tort law rules that both parties are used to, due to the fact that they both live there. Additionally, this is the jurisdiction in which the parties will have to live with the consequences of the accident. Under this rule of exception, the case is treated as though it had occurred in the state in which the parties are habitually resident. The more superficial the link between the parties and the place of accident, the more justified this exception to the lex loci delicti rule appears.6 Consequently, this exception not only applies under the Rome II Regulation but has also become part of the international standard for extra-contractual liability cases over the past decades and can also be found, for example, in the modern PIL codifications of Switzerland, Japan, China, Russia, and Québec.7 During the preparatory work on the 1971 Traffic Accident Convention, the drafters considered a similar exception. In the end, they preferred referring to the country of registration of the vehicles involved in Art. 4 lit. a) and b), not least of all because this coincides with the seat of the liability insurer concerned.8 The practice on the Rome II Regulation clearly shows, however, that applying the law of the country of the habitual residence of the victim and the person claimed to be liable is easily compatible with the interests of the insurers that are involved. One might object that situations such as the one described in the first case study, in which both parties to a claim following a road traffic accident have their habitual residence in the same country, may not be all that frequent in practice. However, European case law has always featured such cases, such as the Kieger v. Amigues case, a leading decision on the former French For more detail, see Th. KADNER GRAZIANO, Gemeineuropäisches IPR (note 3), p. 387 f. 7 Art. 133(1) Swiss PILA; Art. 20 Japanese PILA; Art. 44 Chinese PILA; Art. 1219(2) Russian CC; Art. 3126 CC of Québec. For more information, see EncyPIL, Vol. 2 (note 3), p. 1711 ff. 8 Rapport explicatif of Eric W. ESSÉN of 1969, Commentary on Art. 4 at n. 5.1, https://assets.hcch.net/docs/cef13270-0800-4ac5-b583-b8e4aa076a1c.pdf; see also: “Aperçu de la Convention de La Haye du 4 mai 1971 sur la loi applicable en matière d’accidents de la circulation routière”, https://assets.hcch.net/docs/91a84510-d8ec4c5d-a0ea-798da79058ae.pdf, p. 3. 6

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Thomas Kadner-Graziano domestic private international law of torts:9 On a country road near Freiburg/Breisgau in Germany, the driver of a car, habitually resident in France with his car registered and insured there, tried to overtake a truck registered in another country. The overtaking, which was contrary to the highway code, forced another car, occupied by two brothers, coming from the opposite direction, to brake urgently. The brothers’ car skidded and collided with a tree at the side of the road, killing one of the brothers and seriously injuring the other. The brothers were habitually resident in France where their car was registered and insured. The father of the two brothers, domiciled in France, claimed, from the driver of the car that had caused the accident, compensation for his immaterial, non physical, harm following the loss of one of his sons and severe injury of the other. His claim would succeed under French law but not under the German law of the time. Under the French PIL of the time, the German law of the place of the accident applied without exception. This would be no different today under the 1971 Traffic Accident Convention, in force in France, since both passenger cars were registered in France but not the truck, which was also involved in the accident. German law applied despite the fact that the victims and the defendant driver all resided in France and had to live with the consequences of the accident there – much like in the Swiss case of Siegrist v. Helvetia which inspired the first case scenario above. Under Art. 4(2) of the Rome II Regulation, on the other hand, French law would apply to assess the claim given that both the claimant and the defendant were habitually resident there. B.

Claims between Persons in the Same Car – Extensive Case Law on the 1971 Traffic Accident Convention with Questionable Results

Very frequently, vehicles registered in different States are involved in an accident and an occupant of one of these vehicles makes a claim against the driver or owner of the vehicle in which he or she was travelling. In such situations, the parties to the claim regularly have their habitual residence in the same State.10 Even in these situations, once another car is involved in the accident and that other car is registered in a different state, the law of the place of the accident is applicable and no exception is made, according to Art. 4 lit. b) and a) 1971 Traffic Accidents Convention. Under the Rome II Regulation, on the other hand, the law of the country of the parties’ common habitual residence would (here again) apply to assess the claim for compensation. 9 Cour de Cassation (French Court of Cassation), 30.05.1967, Kieger c. Amigues, Rev. crit. DIP 1967, 728, case note P. BOUREL. 10 Should the case be brought before the courts, this happens almost invariably before the courts of the State in which the victim has his or her habitual residence. Their competence follows from Art. 13(2) in conjunction with Art. 11(1)(b) of the Brussels I Regulation, see the case CJEU, 13.12.2007, FBTO Schadeverzekeringen NV v. Jack Odenbreit, C-463/06.

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Hague Traffic Accident Convention – Time to Say Goodbye According to the case law on the 1971 Traffic Accidents Convention, this also applies if the other vehicle played a completely inactive role in the accident. In the words of the Swiss Federal Supreme Court, which follows the well-established case law of the courts in other Contracting States to the 1971 Convention, for another car to be “involved” it is sufficient that it is “merely passively involved in the accident”, that it “formed part of the causal chain leading to the accident”. A “culpable involvement in the accident” is not required.11 Even if no claims are made against the driver, owner or keeper of that other vehicle, according to the case law of the courts in Austria, France, Belgium and Switzerland, the other vehicle is nevertheless deemed involved in the accident. If that other car is registered in another state, an exception from the application of the law of the place of the accident is thus ruled out according to the 1971 Convention, and the law of the place of the accident applies.12 In the case law on the 1971 Convention, there are instances where a vehicle hit a stationary vehicle, or even a vehicle parked at the side of the road, and a passenger of the car that hit the stationary car made claims against the driver or keeper of the vehicle in which he or she was travelling. According to wellestablished case law, the other vehicle is deemed involved in the accident and

11 Swiss Federal Supreme Court (note 4), at E 3.2, 3.4.2, in accordance with the internationally prevailing case law, see the references in note 12. 12 See the cases OGH (Austrian Supreme Court) 21.05.1985, Österreichische Entscheidungen zum internationalen Privat- und Verfahrensrecht (IPRE) 2/90: A car registered in Austria hits a stationary vehicle registered in (former) Yugoslavia; the passenger of the Austrian car demands compensation from the Austrian liability insurer of the car in which she was travelling; application of the law of Yugoslavia; OGH 20.06.1989, IPRE 3/72: Accident in Hungary between car registered in Austria and car registered in Hungary; claims of the passenger of the Austrian car against the keeper and the Austrian liability insurance of the car in which she was travelling; assessment according to Hungarian law; Cour de cassation (French Court of Cassation), 04.04.1991, (1991) Journal de droit international (Clunet) 981: in (former) Yugoslavia, a motorbike registered in France collides with a car registered in Germany; the driver and passenger of the motorbike claim compensation from their French insurer; application of Yugoslav law; see also Cour de cassation, 24.03.1987, (1987) Rev. crit. DIP 577; Cour de cassation, 06.06.1990, (1991) Rev. crit. DIP 354; Cour d’appel de Paris, 24.06.1981, (1982) Rev. crit. DIP 691: a car registered in France has an accident in Morocco when it swerves to avoid a car registered there. A passenger of the French car claims compensation from the keeper of the car in which she was travelling, the keeper is also domiciled in France; application of Moroccan law. See more recently e.g. OGH (Austrian Supreme Court) 26.01.2017, 2Ob50/16s: a car registered and insured in Austria hits a car registered in Turkey in Istanbul; the passengers of the Austrian car and parties to the proceedings have their habitual residence in Austria; no claims are made against the driver, owner or insurer of the Turkish car; the OGH applies Turkish law because of the Turkish place of the accident and the involvement of a car registered there; see also Hof van Kassatie (Belgian Court of Cassation), 15.03.1993, (1992-93) Rechtskundig Weekblad 1446; for case law of the Bundesgericht (Swiss Federal Supreme Court) see the references in notes 4 and 5.

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Thomas Kadner-Graziano the assessment is consequently based on the law of the country of the accident.13 This broad interpretation of the “involvement” under the 1971 Convention is the result of the fact that the applicable law shall not depend on whether the driver or keeper of the other vehicle was guilty of misconduct or of some other element giving rise to liability. Often this can only be determined at trial and after a sometimes complex fact finding. To avoid uncertainties regarding the involvement, and thus also uncertainties regarding the applicable law, the vehicles’ involvement in the accident is instead determined independently of who claims against whom, and who may ultimately have caused the accident and be liable. However, this is done at the expense of the interests of accident victims who are often better served by an assessment according to the law of the country where both the person claimed to be liable and the person having sustained damage have their habitual residence. European scholars have long criticised the fact that the criterion of involvement in the accident in Art. 4 of the 1971 Traffic Accident Convention often runs counter to the interests of the parties.14 The Rome II Regulation, on the other hand, uses a “bipolar” approach focusing on the person having sustained damage and the person claimed to be liable. It hereby “takes better account of the interests of victims and the persons held to be liable, of insurers, the legal profession, and of the judiciary”,15 and it regularly leads to a parallelism of jurisdiction and applicable law. Not to mention the difficulties in defining the term “involvement in the accident” in individual, critical cases.16 13 See e.g. the case OGH, 21.05.1985, IPRE 2/90 (note 12); in academic opinion B. DUTOIT/ A. BONOMI, Droit international privé suisse, 6th ed., (Basel: Helbing Lichtenhahn, 2022), Art. 134, n. 11. 14 A. STAUDINGER, “10 Jahre Rom II-VO und Haager Straßenverkehrsübereinkommen – Zeit für eine Bestandsanalyse im Lichte des Brexit und der angedachten EU-Erweiterung”, (2019) Deutsches Autorecht 669 at 672 ff.; for a critical comment on this result from the Austrian perspective, see F. HEINDLER, “Der Direktanspruch bei internationalen Straßenverkehrsunfällen”, (2018) Praxis des Internationalen Privat- und Verfahrensrechts 279 at 280; for an early critical assessment, see e.g. M. SCHWIMANN, Grundriss des internationalen Privatrechts, (Wien, 1985), p. 158; F. SCHWIND, Internationales Privatrecht (Wien, 1990), n. 489 ff.; P. BOUREL, Case Note, (1991) Rev. crit. DIP 356; W. LORENZ, “Das ausservertragliche Haftungsrecht der Haager Konferenzen”, (1993) 57 Rabels Zeitschrift für ausländisches und internationales Privatrecht 175 at 180, 192 ff. 15 A. STAUDINGER, (2019) Deutsches Autorecht 669 at 675; see also OGH (Austrian Supreme Court), 26.01.2017, 2Ob50/16s, 4.2.(d) (on the merits of Art. 18 Rome II Regulation when compared to Art. 9 of the 1971 Convention; both relate to the law under which the direct claim against the tortfeasor’s insurer is to be assessed). 16 In Austrian case law, e.g., a vehicle standing in a ditch that was sideswiped by a following, accidented car was not considered involved, OGH (Austrian Supreme Court), 16.09.1993, 2Ob48/93; very remarkable: OGH, 14.11.1989, 2Ob59/89: a car that had been overtaken before the accident and whose driver distracted with a hand movement the driver of the passing car that then left the road, was not considered involved; see also B. LURGER/ M. MELCHER, Handbuch Internationales Privatrecht, (Wien: Verlag Österreich, 2017), no. 5/123.

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Hague Traffic Accident Convention – Time to Say Goodbye

III. Gaps in the 1971 Traffic Accident Convention A further important weakness of the 1971 Traffic Accident Convention relates to the issues governed by the Convention, on the one hand, and the Rome II Regulation, on the other. A.

Issues Explicitly Excluded from the Convention

The 1971 Traffic Accident Convention explicitly excludes issues of great practical importance from its scope of application. According to Art. 2 of the Convention, it does not apply (1) to the liability of manufacturers, sellers or repairers of vehicles; (2) to the responsibility of the owner, or of any other person, for the maintenance of a way open to traffic or for the safety of its users; (3) to vicarious liability, with the exception of the liability of an owner of a vehicle, or of a principal, or of a master; (4) to recourse actions among persons liable; (5) to recourse actions and to subrogation in so far as insurance companies are concerned; (6) to actions and recourse actions by or against social insurance institutions, other similar institutions and public automobile guarantee funds, and to any exemption from liability laid down by the law which governs these institutions. For all these questions not covered by the 1971 Convention, courts must determine the applicable law using another private international law instrument. In the EU these gaps are filled by the Rome II Regulation which does not contain such limits and exclusions.17 Instead, the Rome II Regulation contains a comprehensive system of connecting factors with detailed rules regarding these issues. Moreover, these rules are coordinated with the other provisions of EU private international law for such practically important issues as subrogation or recourse between several parties obliged to perform (see e.g. Art. 19, 20 Rome II Regulation). The interaction of the Convention and the Rome II Regulation can prove to be very demanding in individual cases – much more demanding than applying one and the same instrument to determine all relevant issues.18 See e.g. OGH, 21.10.2015, 2Ob35/15h, 3.2.1.; OGH, 25.05.2016, 2Ob136/15m, B.1.(a) with further references; OGH, 26.01.2017, 2Ob50/16s, 1. (S. 6); A. STAUDINGER, “Das Konkurrenzverhältnis zwischen dem Haager Strassenverkehrsübereinkommen und der Rom II-VO”, Festschrift Kropholler, (Tübingen: Mohr Siebeck, 2008), p. 691 ff. For issues not covered by the 1971 Convention, the forum’s PIL rules apply, see also A. BONOMI, in: A. BUCHER (ed.), Commentaire Romand: Loi sur le droit international privé – Convention de Lugano, (Bâle: Helbing Lichtenhahn, 2011), Art. 134 n. 8, and e.g. the case Obergericht Zürich, (2004) Swiss Review of International and European Law (RSDIE) 275. 18 For a critical view of the fact that, unlike the Rome II Regulation, the 1971 Traffic Accident Convention is not aligned with the other EU private international law 17

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Issues Not Addressed by the Convention

The Hague Convention does not contain provisions on party autonomy, overriding mandatory provisions, the rights of secondary victims, and the so-called accessory connection mechanism (rattachement accessoire). All these issues have become the focus of attention in recent decades and are at the center of some recent decisions of the CJEU. 1.

Party Autonomy and Agreement on the Applicable Law

In 1971, party autonomy was hardly an issue in international tort law. It is thus not surprising that the 1971 Traffic Accident Convention does not address this issue. This has changed fundamentally since the end of the 1970s, however, when, first, the Austrian Private International Law Act of 1978 in Art. 35(1) and then the Swiss Private International Law Act of 1987 in Art. 132 (i.e. the first provision on applicable tort law in the Act), expressly recognized the freedom of the parties to choose the applicable law in tort. Today, party autonomy is standard in the private international law of torts and is found in all modern codifications, namely in Art. 14 of the Rome II Regulation as well as, for example, in the codifications of Japan, China and Russia.19 Under the 1971 Traffic Accident Convention, it is uncertain whether the parties can agree on the applicable tort and accident law, under which conditions, and if so, where the limits for the choice of law in tort lie, and whether at least the lex fori is available for choice. In case law and European scholarship, all conceivable solutions have been suggested, from the exclusion of the choice of law under the 1971 Traffic Accident Convention to its admission in principle, to (today probably the prevailing view) the assessment of this question according to the private international law rules of the forum.20 The uncerregulations, see A. STAUDINGER, (2019) Deutsches Autorecht 669 at 672 et seq.; see for example the case OGH, 21.10.2015, 2Ob35/15h: a car registered and insured in Austria swerves to avoid a motor home registered and insured in Switzerland at the Brenner Pass in Austria and collides with a car registered and insured in Germany. The Austrian liability insurer compensates the German party and claims pro rata compensation of 50% from the Austrian correspondent insurer of the Swiss liability insurer. The question arises as to which law applies to the transfer of the right of recourse of the (Austrian) liable party against the other (Swiss) liable party to the (Austrian) liability insurer. Pursuant to Art. 2 nos. 4 and 5, recourse claims based on legal assignment are excluded from the 1971 Traffic Accident Convention, OGH, ibid, at 3.2.1. Instead, the Rome II Regulation applies before Austrian courts, ibid, at 3.2.2. et seq. 19 See e.g. Art. 21 Japanese PILA; Art 44, 3rd sent. Chinese PILA; Art. 1223.1 Russian CC; for Internet access to the acts, see note 1; for more information, see EncyPIL, Vol. 2 (note 3), p. 1712-1714. 20 According to the French Cour de cassation (Court of Cassation), 19.04.1988, Roho c Caron, (1989) Rev. crit. DIP 68, case note H. BATIFFOL, and the OGH (Austrian Supreme Court), the choice of law is permitted in the scope of application of the 1971 Traffic Accident Convention “und wohl nach Art. 14 Rom II-VO zu beurteilen” (translation: “and arguably to be assessed under Art. 14 Rome II Regulation”), see

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Hague Traffic Accident Convention – Time to Say Goodbye tainty in this matter is unfortunate, especially since, in addition to the parties, third parties, namely insurers, will regularly be involved in the compensation procedure. Their interests are explicitly addressed (and protected) by the provisions on choice of law in tort in many modern PIL codifications, and namely in Art. 14(1) in fine of the Rome II Regulation.

OGH 25.05.2016, 2Ob136/15m, B.1.(f); OGH 26.01.1995, 2Ob11/94, SZ 68/17; OGH 30.01.2003, 2Ob10/03i; RIS-Justiz, RS0074374. See in European scholarship e.g. B. LURGER/ M. MELCHER (note 16), no. 5/126: “Nach h.M. ist auch im Bereich des HStVÜ eine – wohl nach Art. 14 Rom II-VO anzuknüpfende – Rechtswahl durch die Parteien zulässig, welche die Regeln des HStVÜ verdrängt” (translation: “According to the prevailing opinion, a choice of law by the parties is also permissible in the area of the 1971 Traffic Accident Convention – probably according to Art. 14 Rome II Regulation – which replaces the rules of the Hague Convention”); A. RUFENER, in P. GROLIMUND et al. (ed.), Basler Kommentar, Internationales Privatrecht, 4th ed., (Basel: Helbing Lichtenhahn, 2021), Art. 134 n. 42: einer nachträglichen Rechtswahl wie nach Art. 132 IPRG “dürfte im Anwendungsbereich des HStVÜ im Grundsatz nichts entgegenstehen” (translation: an ex post choice of law as under Art. 132 of the Swiss PILA “should in principle be possible within the scope of application of the 1971 Traffic Accident Convention”); P. VOLKEN/ T. GÖKSU, in M. MÜLLER-CHEN/ C. WIDMER LÜCHINGER (eds), Zürcher Kommentar zum IPRG, Band II, 3rd ed., (Zürich: Schulthess, 2018): “Einer Rechtswahl nach Massgabe von Art. 132 IPRG [zugunsten der lex fori] ist nach der hier vertretenen Meinung im Anwendungsbereich des SVÜ zulässig” (translation: “A choice of law just as under Art. 132 of the Swiss PILA [in favour of the lex fori] is arguably permissible in the scope of application of the 1971 Traffic Accident Convention”). – For the opposite view, see e.g. the Latvian Supreme Court which recently noted that the 1971 Hague Convention does not allow the parties to implicitly choose the applicable law, see I. KAČEVSKA & A. FILLERS, The Application of the Rome I and Rome II Regulation in Latvia, E. GUINCHARD (ed.), Rome I and Rome II in Practice, (Cambridge: Intersentia, 2020), p. 349 at 378 (with reference); in academic opinion: J. KREN KOSTKIEWICZ, Schweizerisches Internationales Privatrecht, 2nd ed., (Zürich: Schulthess, 2018), n. 2669: “Eine nachträglich […] getroffene Rechtswahl zugunsten des Rechts des Forumstaates (Art. 132 IPRG) ist […] nach dem StVÜ nicht möglich, da das Übereinkommen keine solche vorsieht” (translation: “A subsequent [...] choice of law in favour of the law of the forum state (Art. 132 IPRG) is excluded […] under the 1971 Traffic Accident Convention, as the Convention does not provide for such an option”); B. DUTOIT/ A. BONOMI, Droit international privé suisse, 6th ed., (Basel: Helbing Lichtenhahn, 2022), Art. 134, n. 25: “la Convention ne résout pas la question de l’élection de droit après la survenance d’un accident de la circulation. C’est à la lex fori de chaque Etat contractant d’en décider” (translation: “the Convention does not resolve the question of the parties’ choice of law after a traffic accident has occurred. This is a matter for the lex fori of each Contracting State to decide”). He concludes however: “le but de la Convention est d’assurer une prévisibilité suffisante de la loi applicable. A notre sens, admettre l’élection de droit dans le cadre de la Convention irait à l’encontre de cet objectif” (translation: “the purpose of the Convention is to ensure sufficient predictability of the applicable law. In our view, allowing choice of law under the Convention would run counter to this objective”).

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Mandatory Provisions

The 1971 Traffic Accident Convention contains in Art. 10 a provision on public policy but lacks a provision on mandatory rules of the forum, unlike the Rome II Regulation, which addresses the issue in its Art. 16. In the case da Silva Martins v. Dekra Claims21 on a traffic accident in Spain, the CJEU analyzed a particularly short one-year limitation period for claims in extracontractual liability in the Spanish Código civil in the light of the provision on mandatory rules of the forum in Art. 16 of the Rome II Regulation. In its interpretation of Art. 16, the CJEU was able to draw on the definition of mandatory rules in Art. 9(1) of the Regulation on the Law Applicable to Contractual Obligations (the Rome I Regulation). Recourse to the rule in the Rome I Regulation considerably facilitated the reasoning of the Court.22 The 1971 Traffic Accident Convention lacks such rules and, again, requires gap filling under the private international law rules of the forum. Recently, the courts have addressed the issue of mandatory provisions in particular in scenarios where it was impossible to identify the liable person and where compensation funds in the country of the accident needed to intervene.23 Article 2 no. 6 of the 1971 Traffic Accident Convention excludes CJEU, 31.01.19, C-149/18. On this case: Th. KADNER GRAZIANO, “Short Limitation Periods in CrossBorder Liability Cases – No solution yet (de lege lata) but five options for action (de lege ferenda), Reflections following the ECJ judgment in the case da Silva Martins v. Dekra Claims of 31 January 2019”, this Yearbook, 2020/2021, 403; O. REMIEN, “Europäische Straßenverkehrsunfälle zwischen klassischem IPR, Eingriffsnormen nach Art. 16 Rom II-Verordnung und Rechtsangleichung”, Festschrift für Christian Huber, (München: C.H. Beck, 2020), 455; P. MANKOWSKI, “EuGH: Verjährungsregel grundsätzlich keine Eingriffsnorm”, (2019) Kommentierte BGH-Rechtsprechung Lindenmaier-Möhring (LMK) 417905; Th. PFEIFFER, “Verjährungsregeln sind keine Eingriffsnormen”, (2019) Zeitschrift für internationales Wirtschaftsrecht (IWRZ) 226; P. PAPADOPOULOS, “Verjährungsvorschriften als Eingriffsnormen i.S.d. Art. 16 Rom IIVO bei grenzüberschreitenden Verkehrsunfällen”, (2019) 2 juris PraxisReport Internationales Wirtschaftsrecht n. 6; L. PAILLER, “Commentaire de CJUE, 6e ch., 31 janvier 2019, Agostinho da Silva Martins c/Dekra Claims Services Portugal SA, aff. C-149/18”, (2019) Journal de droit international (JDI) 878 at 882-894. 23 See e.g. the Austrian case OGH, 21.10.2015, 2Ob40/15v: on a German motorway, a vehicle changes from the right-hand lane to the middle lane and forces a car registered in Austria to give way there; the Austrian vehicle skids, hits a crash barrier and is then hit by a following passenger car. The driver of the first vehicle continues his journey and cannot be identified. The driver and a passenger seek compensation from the Austrian professional association of insurance companies, which acts as a subsidiary insurer in such a case. The Austrian Supreme Court qualifies the Austrian regulation on the compensation fund as mandatory rules of the Austrian forum, which apply irrespective of the otherwise applicable law, at 2.2, 2.4. See also the French case Cour de cassation, 03.06.2004, n° de pourvoi 02-12.989, Bulletin 2004 II n° 265, at 224: Road traffic accident in Italy. The victim of the accident living in France, had crossed a national road at night by foot. According to the 1971 Traffic Accident Convention, the law of the Italian place of accident applied. According to Italian law, the claim was to be rejected due to overwhelming fault on the part of the 21 22

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Hague Traffic Accident Convention – Time to Say Goodbye “recourse actions by or against […] public automobile guarantee funds” from its scope of application. For this important issue, recourse to the private international law of the forum (in EU Member States: to the Rome II Regulation) is therefore again required. However, the law that decides the preliminary question of whether a claim for compensation exists at all against the unknown tortfeasor remains, in principle, to be determined in accordance with the 1971 Traffic Accident Convention in its Contracting States.24 To what extent then the fund must cover the damage follows from the interplay of the law governing liability under the 1971 Traffic Accident Convention and the law governing the claim against the fund pursuant to the private international law rules of the forum.25 Assessing both questions under the same instrument would be infinitely less complicated. 3.

Claims Made by Secondary Victims

In many recent cases, the law applicable to claims by secondary victims has moved into the center of interest. In road traffic accidents, the problem arises when a person dies or is seriously injured in an accident and, as a result, relatives lose maintenance or other support, or they suffer severe immaterial, nonphysical harm. Article 8 no. 6 of the 1971 Traffic Accident Convention provides: “The applicable law shall determine, in particular – […] the persons who have suffered damage and who may claim damages in their own right”. However, this does not necessarily mean for secondary victims that their claims are to be assessed according to the same law as the claims of the primary victim of the accident (assuming the primary victim has a claim). Courts of some Contracting States to the 1971 Traffic Accident Convention have concluded from Art. 8 no. 6 that immaterial harm suffered by secondary victims must also be assessed in accordance with the 1971 Traffic Accident Convention, and that the same law shall apply to claims brought by primary and by secondary victims.26 The Austrian Supreme Court recently ruled that there is no reason why this should not also be the case with immatevictim, unless the victim refuted overwhelming fault, which the victim was unable to do. The victim sought compensation from a French fund for the compensation of victims of accidents abroad. The Cour d’appel ruled out the application of French law altogether. The Cour de cassation overturned the judgment and ruled that the French rules of the victim compensation scheme are mandatory rules which are applicable irrespective of the otherwise applicable (Italian) law; on this case Dominique Bureau, Case Note, (2004) Rev. crit. DIP 750 at 752; C. BRIÈRE, “Les lois de police à l’aune du règlement Rome II, note sous CJUE 31 janvier 2019, n° C-149/18”, (2019) 238 Les Petites Affiches 29 at II. 24 Austrian OGH, 21.10.2015, 2Ob40/15v, at 4.1.3, 6.3 et seq. 25 The judgment of the Austrian Supreme Court solving this challenging task, (note 23), comprises 35 pages. 26 Established case law of the Austrian Supreme Court, see e.g. OGH, 25.05.2016, 2Ob136/15m, B.1.(c) with further references.

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Thomas Kadner-Graziano rial harm damage suffered by secondary victims.27 However, there is no court which could determine this uniformly for all Contracting States of the 1971 Traffic Accident Convention.28 Moreover, even major commentaries and academic publications on such issues often do not refer to the interpretation of the 1971 Convention in other Contracting States. Under these conditions, it is difficult to achieve a uniform interpretation of the Convention. The Rome II Regulation does not contain any provision either that explicitly addresses the law applicable to claims of secondary victims. However, there is a rich doctrine regarding claims of secondary victims. In the Lazar case29 the CJEU has made important clarifications regarding the law applicable to claims by secondary victims under the Rome II Regulation. The Court hereby contributed considerably to legal certainty in the EU and to a uniform application of the relevant private international law rules for this issue of great practical importance in the European Union.30 4.

Accessory Connection Mechanisms (rattachement accessoire) for Tort Claims

Another difference between both instruments arises where the parties involved in the road traffic accident are in a pre-existing contractual relationship with each other. Art. 4(3) of the Rome II Regulation establishes the so-called rattachement accessoire, or accessory connecting mechanism. If the parties are in a contractual relationship with each other before the accident occurs, which is closely linked to the tort, for example a contract of transport or carriage, the law applicable to the contract (and in the EU determined pursuant to the rules of the Rome I Regulation) shall also govern potential extracontractual claims between them. Today, the accessory connection mechanism is also to be found e.g. in the Private International Law Acts of Switzerland, Art. 133(3), Japan, 27 OGH, 25.05.2016, 2Ob136/15m, B.1., (d)-(f); B. LURGER/ M. MELCHER, Handbuch Internationales Privatrecht (note 16), no. 5/128. 28 Very skeptical as to the uniform interpretation of the 1971 Convention: A. STAUDINGER, (2019) Deutsches Autorecht 669 at 670, 674. 29 CJEU, 10.12.2015, C-350/14. 30 See e.g. S. DOMINELLI, “Cross-Border Road Traffic Accidents and Damages Suffered by the Parents of the Victim: the Florin Lazar v Allianz SpA Case and the Interpretation of Art. 4(1) of the Rome II Regulation”, (2016) European Law Forum (ELF) 60; TH. KADNER GRAZIANO, “The Law Applicable to Tort Claims of Secondary Victims – The Cases of ‘Florin Lazar v. Allianz SpA’ and of ‘Germanwings’”, this Yearbook 2015-2016, 477; D. BUREAU, “La loi applicable à la réparation du préjudice par ricochet”, (2016) Rev. crit. DIP 678; A. SPICKHOFF, “Der Erfolgsort im Europäischen Kollisionsrecht”, (2017) Zeitschrift für Europäisches Privatrecht (ZEuP) 953; P. MANKOWSKI, “Europarecht. Internationales Zivilrecht – Anknüpfung „indirekter“ Schadensersatzansprüche von Angehörigen des primär Geschädigten nach der Rom IIVO”, (2016) Juristen-Zeitung (JZ) 310; A. STAUDINGER, “Indirekte Schadensfolgen aus einem Verkehrsunfall – Rom II-Verordnung”, (2016) Neue Juristische Wochenschrift (NJW) 468.

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Hague Traffic Accident Convention – Time to Say Goodbye Art. 20, and the Civil Codes of Russia, Art. 1219(3), and Québec, Art. 3127.31 It is on its way to becoming international standard. There is a strong rationale for applying the law governing contractual relations to a potential claim in torts, i.e. to practise rattachement accessoire. Given that the private international law rules for tortious and contractual matters differ (for example, the habitual residence of the party providing the characteristic performance in contractual matters, and the law of the place of the accident in tort), the application of different private international law rules in contract and tort may lead to such claims between the parties being governed by different laws, even though they are based on the same facts and events. This risks undermining the balance that exists in each national system between claims in contracts and torts. The accessory connection mechanism, on the other hand, leads to the application of one single law for all claims between the parties and avoids friction between the two liability systems. Last but not least, this exception is generally in line with the parties’ expectation that their relationships, contractual and extracontractual, will be governed by the same law. Contrary to the Rome II Regulation, the 1971 Traffic Accident Convention does not provide for a synchronous treatment of claims in contracts and torts. Rattachement accessoire was simply not yet on the agenda when the Convention was drafted. If the applicable law to a tort claim is determined pursuant to the 1971 Traffic Accident Convention and the law applicable to a contractual claim arising from a violation e.g. of a travel or transport contract between the parties is assessed under, for example, the Rome I Regulation, different laws may thus apply to closely linked claims.32 Unlike the 1971 Traffic Accident Convention, the Rome II Regulation, as well as all the other modern codifications mentioned above, avoid such frictions between the two liability regimes, frictions which may require a difficult adjustment of both liability regimes in individual cases.33

IV. High Level of Complexity of the Provisions of the 1971 Traffic Accident Convention A.

More than Four Hundred Forty Words Instead of Fewer than Forty

Another point of criticism is the great complexity of the 1971 Traffic Accident Convention. In its English language version, the rules on exception from the For an Internet access to these provisions, see note 1. For a critical comment, see A. STAUDINGER, (2019) Deutsches Autorecht 669 at 672 f., with reference to court decisions illustrating the practical importance of the matter. 33 See e.g. A. BONOMI (note 17). 31 32

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Thomas Kadner-Graziano application of the law of the place of the accident in Art. 4 and 5 of the Convention comprise 369 words. Applying in principle the law of the state of registration (with all the above-mentioned shortcomings) requires a further Art. 6 with another 74 words, which makes a total of more than 440 words. The corresponding rule in Art. 4(2) of the Rome II Regulation contains just 36 words, with another 71 words in Art. 4(3) on the accessory connection mechanism, lacking entirely in the 1971 Traffic Accident Convention. This makes a total of 440 words in the 1971 Hague Traffic Accident Convention for an issue addressed in 36 words in the Rome II Regulation. The following recent Austrian case illustrates the complexities to which the analysis under the 1971 Traffic Accident Convention can lead, with the state of registration as its central connecting factor and its efforts to distinguish between different situations and persons involved. B.

A Case Study – Fatal Single Vehicle Accident Involving a Polish Passenger Car in the Czech Republic

1.

A Very Complex Analysis under the 1971 Hague Traffic Accident Convention

In the Czech Republic, a car registered and insured in Poland has a severe accident. A young girl, who is a passenger in the vehicle driven by her mother, loses her life in the accident. No other car is involved. The father of the child, living in Austria and not present at the scene of the accident (a so-called secondary victim), is seeking from the mother and the car’s Polish liability insurer 15.000 euros in damages for bereavement following the death of his child, and 1.2 million euros in compensation for his own psychological impairments caused by the loss of his daughter. He brings an action before the Austrian courts.34 Austria is a Contracting State to the 1971 Traffic Accident Convention, so that the applicable law is to be determined according to the Convention. Pursuant to its Art. 3, the law of the place of the accident applies, i.e. Czech law, in principle. If only one car is involved in the accident, as in the present case, in three situations Art. 4 lit. a) of the Convention provides that the law of the state of registration of the car applies instead, which would lead to Polish law (rather than Czech law) in the case under examination. The law of the state of registration of the car applies -

towards the driver, owner or any other person having control of or an interest in the vehicle irrespective of their habitual residence,

-

towards a victim who is a passenger and whose habitual residence is in a State other than that where the accident occurred,

34 See the decision of the Austrian Supreme Court, OGH 25.05.2016, 2Ob136/15m.

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towards a victim who is outside the vehicle at the place of the accident and whose habitual residence is in the State of registration.

The father of the killed child is a secondary victim and does not fall under any category of participants in the accident mentioned in Art. 4 lit a) of the Convention. Despite all its details, the 1971 Traffic Accident Convention does not contain an explicit rule on the law applicable to claims of secondary victims not present at the scene of the accident. In its 2016 ruling, based on a careful teleological analysis, the Austrian Supreme Court reached the (interim) conclusion that claims of secondary victims also fall under the Convention, and that the exception from the law at the place of the accident in Art. 4 also applies to relatives who lost a loved one in the accident. The Court reasoned that, if the connection to the law of the place of the accident is significantly weaker for a person travelling in the car when compared to the connection to another law, there is all the more reason for this to apply to relatives who were not even present at the scene of the accident. Therefore, the Court reasoned, the exception in Art. 4 lit. a) of the 1971 Traffic Accident Convention must apply to a relative to the same extent as to the injured passenger from whose death the relative derives his or her claims. This reasoning has parallels to that of the CJEU in the Lazar case.35 It is absolutely convincing. In the case under examination, the girl who lost her life in the accident was a passenger in the car and had her habitual residence in a State other than that where the accident occurred (the Czech Republic). Had the child survived the accident, her claim would have been governed, in principle, by Polish law where the car was registered, pursuant to the exception in Art. 4 lit. a), second hypothesis. According to the reasoning of the Austrian Supreme Court, this law (governing a potential claim of the primary victim), in principle, also governed the father’s (a secondary victim’s) claim. This was not, however, the end of the analysis, because the Convention makes further fine distinctions. According to Art. 6: In the case of vehicles which have no registration or which are registered in several States the internal law of the State in which they are habitually stationed shall replace the law of the State of registration. The same shall be true if neither the owner nor the person in possession or control nor the driver of the vehicle has his habitual residence in the State of registration at the time of the accident. In a further step, in accordance with Art. 6, 2nd sent. of the Convention, it was therefore necessary to determine who was the owner and keeper of the Polish vehicle involved in the accident, and whether he or she had his or her habitual residence in the state of registration (Poland) at the time of the accident. If that was not the case, according to Art. 6, 2nd sent. of the Convention, it must be determined whether the car involved in the accident was “habitually stationed” elsewhere than in Poland, for example in Austria, where the mother and child 35

See notes 29, 30.

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Thomas Kadner-Graziano lived according to the mother’s submissions, as did the father. In that case, according to Art. 6, 2nd sent. of the Convention, an exception would be made from applying the law of the country where the vehicle was registered. The courts of the two previous Austrian instances had not reached this point in their analysis and therefore had not carried out the relevant factfinding. One would hardly want to blame them for this omission, given the complexity of the 1971 Traffic Accident Convention. The Supreme Court therefore lacked the necessary findings of fact for a conclusive assessment. Instead, the Court referred the case back to the lower courts for clarification of the questions “who was the keeper and owner of the vehicle, where the driver’s, keeper’s and owner’s habitual residence had been, and (if relevant) where the vehicle was habitually stationed”. The Supreme Court concludes its careful 17-page ruling on the applicable law by assuming that the car was very likely not habitually stationed in the Czech Republic and that it could not be ruled out that the mother was also the driver, keeper and owner of the vehicle, that she had her habitual residence in Austria and that the car was also habitually stationed there. Should the findings of fact confirm these assumptions, then the previous courts would need to assess the father’s claim for compensation under Austrian law (rather than Czech or Polish law) under the 1971 Traffic Accident Convention. 2.

A Simple and Straightforward Analysis under the Rome II Regulation

According to the Rome II Regulation, the solution of the case is infinitely easier. In the Lazar case36 the CJEU ruled very convincingly37 that claims of secondary victims (the father in the Austrian case) for their own pecuniary or non-pecuniary damage are to be judged according to the same law that applies (or would apply) to claims of the primary victim. In the Austrian case the question thus is which law would have applied to assess a claim by the daughter against her mother and/or her liability insurer, had she survived the accident. If both mother and daughter had their habitual residence in the same state when the accident occurred (Austria, according to the mother’s submission), Austrian law would apply pursuant to Art. 4(2) of the Regulation. The claim of the father based on the death of his daughter would thus be governed by Austrian law. Should mother and daughter have lived in different countries (which was very unlikely in the present case), the law of the (Czech) place of accident would have applied under Art. 4(1) of the Rome II Regulation. The criteria applied under the Rome II Regulation are so obvious, and the system of connecting factors is so straightforward, that the lower courts would hardly have missed the relevant factual findings.

36 37

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Note 29. For more information see note 30.

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Hague Traffic Accident Convention – Time to Say Goodbye C.

Intermediate Conclusions

In principle, under both the 1971 Hague Traffic Accident Convention and the Rome II Regulation damage claims following road traffic accidents are governed by the law of the place of the accident. The two instruments differ regarding exceptions from the general rule. Applying the law of the state of registration and distinguishing according to the registration of the vehicles “involved” in the accident is unnecessarily complicated and has proven to be inadequate for an appropriate protection of the interests of the parties in many cross-border traffic accidents. The 1971 Traffic Accident Convention uses tedious and highly complex distinctions that make the work with the Convention difficult and prone to error. In all their complexity, the rules of the 1971 Traffic Accident Convention are practically impossible to memorize. German legal scholarship rarely shies away from complexity. It is therefore all the more remarkable that German scholars have always regarded the system of the 1971 Traffic Accident Convention as far too complex to be convincing; for the same reason, the German legislature has refrained from ratifying the Convention.38 In a 1985 ruling, the German Federal Supreme Court stated that the 1971 Traffic Accident Convention had not been ratified by the Federal Republic of Germany “because of its not entirely fortunate choice of law solutions”.39 Ansgar Staudinger, professor in Bielefeld and president of the German Verkehrsgerichtstag, recently described the connecting factors of the Convention as “far too complex from a practitioner’s point of

38 See e.g. H. STOLL, “Anknüpfungsgrundsätze bei der Haftung für Straßenverkehrsunfälle und der Produktenhaftung nach der neueren Entwicklung des internationalen Deliktsrechts”, Festschrift Gerhard Kegel, (Frankfurt am Main: Metzner, 1977), 113 at 123 ff.; E. DEUTSCH, “Internationales Unfallrecht”, E. VON CAEMMERER (ed.), Vorschläge und Gutachten zur Reform des deutschen internationalen Privatrechts der ausservertraglichen Schuldverhältnisse, (Tübingen: Mohr Siebeck, 1983), p. 202 at 214; M. WANDT, “Die Anknüpfung des Direktanspruchs nach dem Haager Straßenverkehrsübereinkommen: Vorbild für das deutsche IPR?”, (1992) Praxis des Internationalen Privat- und Verfahrensrechts 259: “Deutschland hat das Übereinkommen ‘wegen seiner nicht durchweg glücklichen kollisionsrechtlichen Lösung’ bislang nicht ratifiziert und wird dies wohl auch in Zukunft nicht tun” (translation: “Germany has not ratified the Convention so far ‘because of its not entirely satisfactory conflict-of-law rules’ and is unlikely to do so in the future”); W. LORENZ, Rabels Zeitschrift für ausländisches und internationales Privatrecht 57 (1993), 175 at 192 ff.; J. KROPHOLLER, Internationales Privatrecht, 6th ed., (Tübingen: Mohr Siebeck, 2006), § 53 V.1. The opposite view remained isolated, see e.g. B. VON HOFFMANN, Internationales Privatrecht, 6th ed., (München: C.H. Beck, 2000), § 11 n. 46: “eine Ratifizierung erscheint überfällig” (translation: “ratification seems overdue”). 39 Bundesgerichtshof, BGH (German Federal Supreme Court), 08.01.85, Entscheidungen des Bundesgerichtshofs in Zivilsachen, amtliche Sammlung (BGHZ) 93, 214 at 219: “wegen seiner nicht durchweg glücklichen kollisionsrechtlichen Lösung von der Bundesrepublik Deutschland nicht ratifiziert worden”.

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Thomas Kadner-Graziano view”.40 He suggested that the EU Commission should encourage candidates for accession to the EU to denounce the 1971 Traffic Accident Convention and apply the Rome II Regulation to international road traffic accidents instead.41 In Austrian scholarship it has been stated that de lege ferenda, “the application of the same private international law rules for torts in all EU Member States is desirable and would contribute to legal certainty”.42 The Swiss Federal Legislator stated in the Message on the Swiss Private International Law Act that the 1971 Traffic Accident Convention is “acceptable”, although it “leaves a lot to be desired in certain regards”.43 A recent survey of the case law on the Rome II Regulation44 shows that it is not rare that courts in EU Member States which are also Contracting States to the 1971 Convention simply overlook the Convention and determine the applicable law according to the Rome II Regulation instead. Other courts were aware of the existence of the 1971 Hague Convention but gave priority to the Rome II Regulation, despite the fact that Art. 28(1) of the Rome II Regulation states the contrary.45 With regard to the relationship between the Rome II Regulation and the 1971 Traffic Accident Convention, one Polish scholar noted: “Not only are the Polish courts clearly confused, but even some scholars are.”46 For Spain it was noted that “[a]lthough there is a well-established 40 A. STAUDINGER, (2019) Deutsches Autorecht 669 at 674: “aus Praktikersicht viel zu komplex”, with references to case law. 41 A. STAUDINGER, (2019) Deutsches Autorecht 669 at 675: “Die Europäische Kommission sollte […] darauf drängen, dass sich die Beitrittskandidaten durch eine völkervertragsrechtlich zulässige Kündigung [des Haager Übereinkommens] der Rom II-VO unterordnen. Diese Rechtsquelle bietet eine Reihe von Vorzügen” (translation: “The European Commission should [...] insist that the candidate denounce [the Hague Convention] which is possible under international treaty law and apply the Rome II Regulation instead. The Rome II Regulation offers numerous advantages”). 42 See B. LURGER/ M. MELCHER (note 16), no. 5/122: “die einheitliche Anknüpfung von deliktischen Ansprüchen in allen EU-Mitgliedsstaaten [ist] wünschenswert und würde zur Rechtssicherheit beitragen”. 43 Botschaft zum Bundesgesetz über das internationale Privatrecht (IPR-Gesetz) vom 10. November 1982, Bundesblatt 1983 I 263, Ziff. 284.31: “annehmbar”, obwohl es “in Einzelfragen Wünsche offen lässt”. 44 E. GUINCHARD (ed.), Rome I and Rome II in Practice, (Cambridge: Intersentia, 2020). 45 M.-E. ANCEL, “The Application of the Rome I and Rome II Regulation in France”, E. GUINCHARD (ed.), note 44 p. 191 at 217 (with references): in one case, both the claimant and the defendant had their habitual residence in France. The court applied French law pursuant to Art.4(2) of the Rome II Regulation, rather that the Spanish law of the place of accident applicable under Art. 3 of the 1971 Hague Convention. The judgment was overturned by the Cour de cassation. In another case the court applied the Rome II Regulation rather than the 1971 Hague Convention because the accident had occurred in an EU Member State (Italy) which was not Contracting State to the Convention; M. CZEPELAK, “The Application of the Rome I and Rome II Regulation in Poland”, E. GUINCHARD (ed.), note 44, p. 445 at 461 et seq. 46 M. CZEPELAK (note 45), p. 445 at 461.

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Hague Traffic Accident Convention – Time to Say Goodbye tradition of applying the Hague Conventions to traffic accidents and products liability disputes, non-contractual litigation under Rome II is generally preferred for the uniform interpretation of its norms, the flexibility of its rules and the possibility of party autonomy under Article 14.”47

V.

Conclusions and Proposal

Two different consequences could be drawn from the above analysis. One option could be for the Hague Conference to revise and modernize the 1971 Traffic Accident Convention. The other could be for the Contracting States to denounce the Convention and assess cross-border road traffic accidents, like other liability cases, according to the Rome II Regulation instead.48 A revised Hague Convention on the Law Applicable to Traffic Accidents would very likely include a rule on party autonomy with due regard for the interests of third parties involved; it would certainly continue to use the place of the accident as an objective connecting factor; it would very likely provide for an exception in the event that the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country when the accident occurs; it would arguably provide an accessory connection mechanism for tort claims, as well as provisions on direct claims against insurers, on subrogation and on recourse actions; last but not least, it would contain provisions on its scope of application, overriding mandatory provisions and public policy. The Rome II Regulation already offers all this. In view of the Rome II Regulation, a special system of private international law for cross-border road traffic accidents therefore has become obsolete today. The above considerations could thus lead to the following conclusion and proposal: 1. The 1971 Hague Traffic Accident Convention has fulfilled its purpose. Its rules are no longer up to date, they are incomplete and today unnecessarily complex. The rules in the Rome II Regulation are more modern, more complete, far less complicated, and better in line with the interests of the parties involved in cross-border road traffic accidents. 2. Given the numerous advantages of the Rome II Regulation, the Contracting States to the 1971 Traffic Accident Convention should consider denouncing the Convention and determine the law applicable to crossborder road traffic accidents according to the Rome II Regulation instead.

47 D. SANCHO-VILLA, “The Application of the Rome I and Rome II Regulation in Spain”, E. GUINCHARD (ed.)(note 44), p. 551 at 562. 48 See, for this proposal made by several authors in Spain: D. SANCHO-VILLA, (note 47), p. 551 at 562 with references in fn. 73 et seq.

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Thomas Kadner-Graziano 3. In this case, the law applicable to cross-border road traffic accidents would be determined in all EU Member States49 according to the same PIL rules, thereby avoiding forum shopping and frictions between different instruments at the private international law level in the European Union.

49 Except for Denmark, which does not participate in the Rome II Regulation, see recital 40 of the Rome II Regulation.

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JUDICIAL COOPERATION IN CIVIL MATTERS AFTER BREXIT – THE CASE OF THE BRITISH APPLICATION TO REJOIN THE LUGANO CONVENTION OF 2007 Christian KOHLER*

I. II.

III.

IV.

Introduction – The European Judicial Landscape after Brexit The Commission’s Rejection of the British Application to Rejoin the Lugano Convention – Substantive Issues A. The Communication of May 4, 2021 B. Economic Relations and Judicial Cooperation in Civil Matters C. The Nature of the European Judicial Area D. The United Kingdom as a Contracting Party to the Lugano Convention 1. Enhancing the Legal Protection of Citizens and Businesses 2. Objections to the Accession of the United Kingdom 3. The Role of the CJEU under Protocol 2 of the Lugano Convention The Commission’s Rejection of the British Application – Political Context and Institutional Issues A. The Political Background of the Rejection of the British Application 1. The Commission’s Approach 2. The Position of the EFTA-Lugano States 3. The Lack of Consensus among the EU Member States and the Expectations of the British Government B. The Handling of the Application in the European Parliament and in the Council 1. The Handling in the European Parliament 2. The Commission’s Communication before the Council C. The Legal Nature of the Consent to the Accession of the UK to the Lugano Convention and the Procedure to be Followed D. Alternatives to the UK’s accession to the Lugano Convention Concluding Remarks – In Search of an External Policy of the EU in Matters of Civil Judicial Cooperation

* Former Director General at the Court of Justice of the European Union; Honorarprofessor at the Europa-Institut of Saarland University, Germany.

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 81-102 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Christian Kohler

I.

Introduction – The European Judicial Landscape after Brexit

The United Kingdom (UK) is no longer a Member State of the European Union. Since the end of the transition period after Brexit on December 31, 2020 the country no longer participates in the internal market and is no longer part of the area of freedom, security and justice. Although new arrangements are foreseen for cooperation in criminal matters, judicial cooperation in civil matters has ended – for the time being, without replacement. Similarly, the Brussels I and I bis Regulations on jurisdiction and the recognition and enforcement of judgments no longer apply in the relationship between the remaining EU Member States and the UK,1 nor does the Lugano Convention of 2007 (LC)2 on these matters, which was concluded by the European Union, the EFTA states Switzerland, Iceland and Norway, as well as Denmark,3 and which bound the UK as a Member State. These are drastic developments. Although the UK is now a party to the Hague Conventions on Choice of Court Agreements (2005) and on the Recovery of Maintenance Claims (2007), both of which are also in force for the Union, there is otherwise a basically treatyless situation between the EU Member States and the UK.4 Since the Lugano Convention is not a “closed” convention but allows for the accession of further 1 The same applies to further measures relating to the judicial cooperation in civil matters, like the Regulations on service of documents or taking of evidence abroad. Cf. the informations in the European Commission’s “Notice to stakeholders” on Withdrawal of the United Kingdom and EU rules in the field of civil justice and private international law, https://ec.europa.eu/info/sites/default/files/brexit_files/info_site/civil_justice_en.pdf on 30.05.2022. 2 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2007 L 339, p. 3. On the impact of Brexit on the Lugano Convention cf. the communication of the Swiss Federal Office of Justice https://www. bj.admin.ch/bj/de/home/wirtschaft/privatrecht/lugue-2007/brexit-auswirkungen.html [accessed on 30.05.2022], and the informations in A. DICKINSON, Realignment of the planets – Brexit and European private international law, IPRax 2021, p. 213-,220; cf. also the analysis by R. FENTIMAN, Commercial Litigation in the UK: A Future Outside the EU, in A. TRUNK/ N. HATZIMIHAIL (eds.), EU Civil Procedure Law and Third Countries, Baden-Baden 2021, p. 175, 168 et seq. 3 Denmark is a contracting party in its own right as it does not participate, inter alia, in the judicial cooperation in civil matters, cf. Protocol (No 22), annexed to the TEU and the TFEU, on the Position of Denmark, Art. 1 and 2. 4 It is doubtful whether bilateral agreements concluded by the UK prior to its accession to the European Communities may come to life again; however, with respect to the convention on reciprocal recognition and enforcement of judgments concluded with Norway in 1961 the continued application was formally agreed in October 2020 “pending the outcome of the UK’s application to rejoin the 2007 Lugano Convention”, cf. DICKINSON (Note 2), p. 218, Note 95 et seq. In a Note Verbale of January 29, 2021, the UK declared, inter alia, that the 1968 Brussels Convention is no longer in force for the UK, cf. H.-P. MANSEL/ K. THORN/ R. WAGNER, Europäisches Kollisionsrecht 2021: Digitalisierung als Aufgabe, IPRax 2022, 97, 100; speculations on whether the 1988 Lugano Convention might revive in relation to the UK do not promise meaningful results.

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The British Application to Rejoin the Lugano Convention states, it was suggested to use this possibility for the UK, whereby the ideal solution would have been to achieve a smooth transition into the period after withdrawal via a prior accession. As this proved illusory, post-Brexit accession was envisaged. Art. 70 LC opens up two paths for non-EU states. New members of the European Free Trade Association can accede to the Convention as contracting parties without further ado after providing certain information, while “any other state” can only accede after fulfilling further requirements listed in Art. 72 LC. These include that the depositary of the Convention (the Swiss Federal Council) invites the state in question “to accede only if it has obtained the unanimous agreement of the Contracting Parties”. The UK apparently did not consider the route via upstream accession to EFTA (of which it had been a member until its accession to the European Communities in 1972):5 on April 8, 2020 it requested to accede to the Lugano Convention as an independent contracting party. On April 14, 2020, the request and related information was transmitted by the Depositary, the Swiss Bundesrat, to the Contracting Parties, including the European Union, represented by the Commission. However, on June 22, 2021, the Commission informed the Depositary in a Note Verbale that the EU “is not in a position to express its agreement to the United Kingdom being invited to accede to the Convention”.6 The rejection of the British request invites a critical analysis,7 which relates, first, to the reasons advanced by the Commission for its negative assessment of the British application (II), and, second, to the political context and related institutional issues (III).

II.

The Commission’s Rejection of the British Application to Rejoin the Lugano Convention – Substantive Issues

A.

The Communication of May 4, 2021

The European Commission's informing the Depositary was preceded by a Communication of May 4, 2021 to the European Parliament and the Council in

Cf. F. POCAR, The Lugano Convention of 30 October 2007 at the test with Brexit, in B. HESS/ E. JAYME/ H.-P. MANSEL (eds), Europa als Rechts- und Lebensraum, Liber amicorum Christian Kohler, Bielefeld 2018, p. 419, 421. 6 https://www.bj.admin.ch/bj/en/home/wirtschaft/privatrecht/lugue-2007/brexitauswirkungen.html [30.05.2022]. 7 See J. BASEDOW, Perspektivlos in Brüssel? Die Kommission zum künftigen Rechtsverkehr mit Großbritannien, EuZW 2021, p. 777; C. KOHLER, Ein europäischer Justizraum ohne das Vereinigte Königreich?, ZEuP 2021, 781; H.-P. MANSEL/ K. THORN/ R. WAGNER, Europäisches Kollisionsrecht 2021: Digitalisierung als Aufgabe, IPRax 2022, p. 97, 101 et seq. 5

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Christian Kohler which the Commission assessed the British application.8 Its conclusion was brusque and categorical: the EU should not agree to the UK’s accession to the Lugano Convention. The Commission justified this position with the “nature” of the Lugano Convention as a “flanking measure” for the EU's economic relations with the EEA/EFTA states, which “at least partly” participated in the EU’s internal market. Thus the Convention was not an appropriate framework for judicial cooperation “with any given third country”. This includes the UK, which since January 1, 2021 is a third country with an “ordinary” free trade agreement that facilitates trade but does not include fundamental freedoms and policies related to the internal market. Moreover, the Lugano Convention was based on a high degree of mutual trust between the contracting parties and constituted an essential element of the common area of justice, commensurate with the high degree of economic interconnection based on the applicability of the fundamental freedoms. For the future of judicial cooperation with the UK, the Communication refers to the multilateral framework of the Hague Conventions, which governs relations with third countries. Because the UK is “a third country without a special link to the internal market”, there is no reason for the EU to deviate from its general approach towards this country. In this regard, it then mentions, in addition to the Hague Convention on Choice of Court Agreements, the 2019 Hague Judgments Convention, which the Commission intends to propose for adoption by the Union.9 The Communication concludes by stating that the European Parliament and the Council now have “an opportunity to express their views” before the Commission informs the Depositary of its rejection of the UK request. However, when the authority informed the Depositary on June 22, 2021 neither the Parliament nor the Council had reacted to the Commission’s invitation. B.

Economic Relations and Judicial Cooperation in Civil Matters

The main argument advanced by the Commission in its Communication is the alleged link of the Lugano Convention to the economic relations between the EU and the EEA/EFTA States, which is supposed to constitute the “nature” of the Convention and whose absence precludes accession to it. There is, however, no support for such a link – which would ultimately make the Lugano Convention a closed convention – either in the wording or in the objective or the history of the Convention. This appears first from the accession regime itself. As mentioned, according to Art. 70 LC, “any other state” may accede to the Convention if the conditions set out in Art. 72 – which do not include economic relations of any kind between the applicant state and the contracting parties – are fulfilled. On the other hand, the fact that the simplification of international legal transactions in civil and commercial matters promotes economic relations between the states involved is a commonplace and was behind the mandate to the Member States contained in 8 Assessment on the application of the United Kingdom of Great Britain and Northern Ireland to accede to the 2007 Lugano Convention, COM(2021) 222 final. 9 See the Proposal for a Council decision on the accession by the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, COM(2021) 388 final.

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The British Application to Rejoin the Lugano Convention Art. 220 of the EEC Treaty, and the 1968 Brussels Convention that came into being as a result. The extension of the principles contained therein to the EFTA states by the first Lugano Convention (1988) also took place, as the preamble put it, in the awareness of the links between the Contracting Parties, which have been sanctioned in the economic field by the free trade agreements concluded between the European Economic Community and the States that are members of the European Free Trade Association. The same applies to the Lugano Convention of 2007, which adapted the earlier Convention to the amendments contained in the Brussels I Regulation of 2001 and whose preamble contains a passage essentially identical in wording. In particular, the preamble of the 2007 Convention does not refer to the EEA (which did not exist in 1988 and of which Switzerland is not a member to date). The fact that the existence and development of economic ties between the EU and the EFTA states was one of the motives for concluding the Lugano Convention does not mean that such ties are a prerequisite, let alone a condition, for participation in the Convention. Moreover, the economic ties that have been built between the EU and the UK for decades did not disappear with Brexit. They have been given a new framework with the unprecedented Trade and Cooperation Agreement (TCA) between the parties, which has been applied since January 1, 2021.10 According to the Commission's own statements, although this agreement does not reach the level of previous economic interdependence, it “goes beyond traditional free trade agreements and provides a solid basis for preserving our long-standing friendship and cooperation”. This is matched by the substantive scope of the agreement, which, in the Commission's words sets out preferential arrangements in areas such as trade in goods and in services, digital trade, intellectual property, public procurement, aviation and road transport, energy, fisheries, social security coordination, law enforcement and judicial cooperation in criminal matters, thematic cooperation and participation in Union programs. It is underpinned by provisions ensuring a level playing field and respect for fundamental rights.11 To speak, against this background, of an “ordinary” free trade agreement, as the Commission does in its Communication, is simply not convincing. To equate the TCA with free trade agreements concluded e.g. with Georgia, Moldova and Ukraine, “deep and comprehensive” as they pretend to be,12 is a confusion of categories. The TCA allows for the continuation of economic relations between the UK OJ 2020 L 444. https://ec.europa.eu/info/relations-united-kingdom/eu-uk-trade-and-cooperationagreement_de [accessed on 30.05.2022]. 12 On these agreements from the point of view of judicial cooperation in civil matters see J. BASEDOW, EU Law of Civil Procedure and Third Countries: The Case of the European Neighbourhood Policy, in A. TRUNK/ N. HATZIMIHAIL (note 2), p. 15 et seq. 10 11

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Christian Kohler and the EU under new auspices and changed conditions and lays the foundation for enhanced legal and political relations, which are at least comparable to those existing between the EU and the EFTA states. The fact that the TCA, unlike the free trade agreements just referred to, does not mention judicial cooperation in civil matters – just as little, incidentally, as the EEA Agreement or the bilateral agreements with Switzerland – means no more than that no obligation of the UK to accede to the Lugano Convention can be derived from the agreement. C.

The Nature of the European Judicial Area

The one-sided vision of the Lugano Convention as a “flanking measure” for economic relations between states obscures the view on its true nature, which is determined by its object, purpose and function. With the Lugano Conventions of 1988 and 2007, the contracting parties sought to “strengthen in their territories the legal protection of persons residing there” and, to this end, extended to the EFTA States the rules and principles that applied to the EU Member States and were contained first in the Brussels Convention of 1968 and then in the 2001 Brussels Regulation. By means of these “parallel conventions”, a common judicial area was created for the territories of the contracting parties, intended to reinforce crossborder legal protection by creating uniform framework conditions. The need for this arose from the relationships that have developed between citizens and businesses in the participating states and form the background for a variety of legal disputes. This affects not only high-level economic actors but also ordinary citizens who live or work and move in the enlarged European judicial area as employees, consumers, students, tourists, maintenance creditors, etc. This common judicial area is one of the core elements of the larger Europe to which the UK belonged for decades. The fact that this no longer applies since Brexit is a collateral effect of the withdrawal, unintended but unavoidable, because the UK was only bound to the Lugano Convention of 2007 as a Member State of the Union. However, the need for a uniform framework for cross-border legal protection in relation to the UK did not disappear with the withdrawal. The economic, professional, personal and family ties that have developed over half a century between nationals and residents of the UK and their counterparts in the EU 27 continue to exist in countless cases and may make judicial protection necessary.13 The need to know in advance which courts have jurisdiction in a dispute linked to the UK, and to be sure that a judgment obtained in one state will be recognized and enforced in all other states remains the same as before withdrawal. Neither the 2005 Hague Convention on Choice of Court Agreements nor the 2019 Hague Judgments Convention (which is not yet in force for the UK or the EU)14 provide anywhere near the same framework for international legal protection 13 Cf. the telling examples given by BASEDOW, (note 6); see also H.-P. MANSEL/ K. THORN/ R. WAGNER, Europäisches Kollisionsrecht 2020: EU im Krisenmodus, IPRax 2021, p. 105, p. 112. 14 Supra, note 8; as of March 3, 2022 the convention had been signed by Costa Rica, Israel, Russia, Ukraine, Uruguay, and the United States.

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The British Application to Rejoin the Lugano Convention as the Lugano Convention. The scope of the latter convention is broader than that of both Hague instruments, which do not apply to large categories of matters, ranging from maintenance to intellectual property, defamation and privacy. Moreover, the 2005 Convention covers only exclusive choice of courts agreements, and the 2019 convention is but a convention simple, which has no rules on direct adjudicatory jurisdiction. Contrary to what the Commission alleges in its Communication, these conventions are unsuitable for the organization of international legal protection in civil matters in the relations between the UK and the EU 27.15 In fact, the Hague Conventions are appropriate to regulate, on a universal level,16 the civil justice cooperation with overseas countries like Uruguay, Kenya or Malaysia. On a regional level, they are insufficient, in particular if the contracting parties are linked to each other by free trade agreements or even closer economic relations. As emphasized by JÜRGEN BASEDOW, the Hague Conventions “are not designed to support the development of economic exchange in a Deep and Comprehensive Free Trade Area”,17 whereas it is the Lugano Convention that meets regional standards and provides an example for “a system of mutual recognition based on unified rules on jurisdiction” among neighboring states.18 D.

The United Kingdom as a Contracting Party to the Lugano Convention

1.

Enhancing the Legal Protection of Citizens and Businesses

The accession of the UK as an independent contracting party to the Lugano Convention would restore the integration of this state into the European judicial area after its (unintended) interruption by Brexit. The Commission's Communication suggests that this should be regarded as a privilege to which the UK would not be entitled after its withdrawal. This again is a partial view which fails to recognize that the Lugano Convention is based on reciprocity and entitles and obliges all contracting parties in the same way.19 It is not only about the recognition and enforcement of judgments of UK courts in the EU 27 and the EFTA-Lugano states. Since Brexit, judgment creditors who want judgments from these states to be 15 Cf. however, in support of the Commission’s view, A. MALATESTA, Circolazione delle sentenze tra Unione Europea e Regno Unito: a favore di una cooperazione in seno alla Conferenza dell’Aja, Riv.dir.int.priv.proc. 2021, p. 878 et seq. 16 Cf. European Group for Private International Law (GEDIP), “Observations on a possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments”, IPRax 2021, 315, where the differences between the Hague Convention and the European instruments become apparent. 17 See J. BASEDOW (note 12), p. 26, who refers to the free trade agreements of the EU with Georgia, Moldova, and Ukraine, which provide for the development of a judicial cooperation in civil matters on the level of “multilateral conventions”, citing in particular the instruments of the Hague Conference. 18 J. BASEDOW (note12), p. 27. 19 This is undervalued by A. MALATESTA (note 15) who reasons from the perspective of the UK and concludes that “non si vede perché sia necessario un rapporto privilegiato con il Regno Unito in materia di riconoscimento e di esecuzione delle sentenze” (p. 895).

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Christian Kohler recognized and enforced in the UK must comply with the local rules in the relevant part of the country.20 The same applies to the direct jurisdiction of courts in cases brought in these states. Defendants from the Lugano states can be sued in the UK according to the domestic rules, and for actions against British defendants in the Lugano states, the rules of the forum state apply. In both cases this is true also insofar as these rules are discriminatory; it is little consolation that there are cases where the recognition of the judgment thus obtained may be contested under national law. The fact that judgments rendered in a Lugano state against defendants domiciled in the UK can be recognized and enforced in all other EU and EFTALugano states under the Lugano Convention is not new, but it exacerbates the imbalance that has existed since Brexit. By rejecting the application for accession, the Commission affects citizens and businesses in the EU (and EFTA) states in the same way as citizens and businesses in the UK. In the case of plaintiffs from the Lugano states bringing actions in the UK, this results, inter alia, in a reduction of legal certainty, in particular because the courts of the UK enjoy a discretion in matters of jurisdiction unknown to courts on the continent, which, in a broad range of cases, enables them to exercise or not to exercise jurisdiction according to their evaluation of the case at hand. The power conferred by the doctrine of forum non conveniens is but one example of that discretion, another example being the power to order the defendant not to bring, or not to continue, proceedings in the courts of another country if the interests of justice so requires. As is well known, neither the doctrine of forum non conveniens nor the power to issue ant-suit injunctions are admissible under the Brussels instruments,21 and, as will be mentioned later, the same is true for the Lugano Convention. As the Convention no longer applies to the UK, plaintiffs from the continent will again be exposed to these discretionary powers. This raises the question of whether the rejection of the British application to rejoin the Convention and the consequential loss of predictability in matters of jurisdiction for plaintiffs from the Lugano states is compatible with the right to an effective remedy and to a fair trial guaranteed by Art. 47 of the Charter of Fundamental Rights of the EU.22 2.

Objections to the Accession of the United Kingdom

Even if the UK's rejoining the Lugano Convention is in the well-understood interest of the Lugano states, this does not necessarily mean that the British accession should be consented to by the EU without further ado. Since Brexit, even if the UK is not “any other” third country, it is still a third country, and its future obligations following accession to the Lugano Convention are no longer subject to the law of the European Union but, rather, to international law. It is therefore legitimate for Cf. the detailed information in A. DICKINSON (note 2), p. 217 et seq. See CJEU 1.3.2005, Owusu, ECLI:EU:C:2005:120; 27.4.2004, Turner v Grovit, ECLI:EU:C:2004:228; 10.2.2009, Allianz v West Tankers, ECLI:EU:C:2009:69. 22 The question of whether the weakening of legal protection of individuals is compatible with Art. 47 of the Charter is asked by J. BASEDOW (note 7), p. 778. 20 21

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The British Application to Rejoin the Lugano Convention the EU to ask whether there are political or substantive objections to the UK’s accession as an independent contracting party. The arguments against accession advanced in the Commission’s Communication have been discussed above and have proven to be invariably unconvincing. Substantive objections to UK accession, which the Commision does not mention, have been formulated and thoroughly considered by Burkhard Hess.23 He fears that the UK, as an independent contracting party, could go its own way in the application and interpretation of the Lugano Convention and points to differences in the legal culture between the continental tradition and the world of common law that would impact on the decisions of British courts. As an example, he cites English case law on the scheme of arrangement, a reorganisation instrument under the Companies Act at the interface between company and insolvency law, the application of which is problematic under the case law of the CJEU on the Brussels I Regulation. Moreover, he worries that under the Lugano Convention English courts might issue anti-suit injunctions although, according to the case law of the CJEU, often criticized in England, they are inadmissible within the realm of the Brussels instruments. Finally, the author doubts whether guiding principles of European civil procedural law, which are essentially characterized by mutual trust in the judicial structures of the EU Member States, could be applied in the same way to the relationship with third countries. These objections are not to be underestimated, but, to the extent that they are well founded, they fall short of the advantages of the UK's accession to the Lugano Convention. To start with the point last mentioned, the object and function of the Convention is precisely to extend certain rules and principles of judicial cooperation in the EU to third countries, even if this does not apply to principles which are specifically integration-related. Guiding principles such as free movement of judgements, mutual trust, access to justice, foreseeability of the courts having jurisdiction, protection of the weaker party are, however, also shared by the EFTA-Lugano states, all of which are parties to the ECHR, and there is nothing to suggest that this will be any different in the case of the UK. 3.

The Role of the CJEU under Protocol 2 of the Lugano Convention

Moreover, the concern that the UK might follow its own agenda in disregard of the case law of the CJEU under the Brussels instruments and the 2007 Lugano Convention, fails to take sufficient account of the role of the European Court under Protocol 2 of the Lugano Convention. According to this Protocol, the CJEU has an essential function for the interpretation of the Convention, which would extend to the UK after accession as the Protocol forms “an integral part” of the Convention (Art. 75 LC). Considering how much the supporters of Brexit have advertised the liberation from the CJEU’s influence on UK law, the willingness to accept this influence post-Brexit for the area of international legal relations in civil matters B. HESS, Das Lugano-Übereinkommen und der Brexit, in Liber amicorum Christian Kohler (note 4), p. 179 et seq.; Idem, The unsuitability of the Lugano Convention to serve as a bridge between the UK and the EU after Brexit, Max Planck Institute Luxembourg Research Paper Series, 2018. 23

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Christian Kohler should be highly valued from the EU's point of view, even if the Commission's Communication takes no notice of this. Art. 1 of Protocol 2 obliges all courts, when applying and interpreting the Convention, to pay due account to the principles laid down by any relevant decision concerning the provision(s) concerned or any similar provision(s) of the 1988 Lugano Convention and the Brussels instruments rendered by the courts of the States bound by this Convention and by the CJEU. It is true that the obligation to consider the CJEU’s case-law is less far-reaching for non-EU states than for EU states. However, already under the Lugano Convention of 1988, which contained a comparable obligation, the courts of the EFTA states took the CJEU case law on the Brussels instruments as a basis when interpreting the Convention;24 this is not different under the Lugano Convention of 2007, which (unlike the 1988 Convention) the European Court can interpret itself. It is true that non-EU contracting states cannot ask the CJEU for interpretation of the Lugano Convention, and therefore British courts could not have the above-mentioned questions clarified by the European Court. However, this does not preclude the possibility of such questions being referred to the CJEU by courts of the EU states bound by the Convention, as may happen in the context of recognition and enforcement of decisions of UK courts that may have misapprehended the scope of the Lugano Convention or violated its provisions in a manner relevant to the public policy of the requested state. Should the UK courts refuse to take into account the subsequent decisions of the CJEU, this would be a violation of the international obligations under the Lugano Convention. However, this should not be assumed in advance. Nothing in the pre-Brexit case law of the UK courts on judicial cooperation in civil matters justifies the conclusion that, once the country rejoins the Lugano Convention, these courts might not pay due account to the CJEU’s decisions as required by Protocol 2.25 24 Cf. C. KOHLER, Dialog der Gerichte im europäischen Justizraum. Zur Rolle des EuGH bei der Auslegung des neuen Übereinkommens von Lugano, in M. MONTI e.a. (eds), Economic Law and Justice in Times of Globalisation. Festschrift für Carl Baudenbacher, 2017, p. 141 et seq.; Idem, Homogeneity or Renationalisation in the European Judicial Area? Comments on a Recent Judgment of the Norwegian Supreme Court, EFTA COURT (ed.), The EEA and the EFTA Court, 2014, p. 237 et seq.; for a nuanced assessment of the Swiss case law see B. HESS, Europäisches Zivilprozessrecht, 2d ed., 2021, para. 5.44 et seq. 25 Preliminary questions by British courts relating to the Brussels-Lugano instruments have also been referred to the European Court after the Brexit referendum in 2016 and even during the transition period following the withdrawal, the last reference (on the interpretation of Regulation Brussels Ia) having been decided on December 30, 2020 (Case C-708/20, BT/Seguros Catalana Occidente, referred by the County Court at Birkenhead and decided by the CJEU on December 9, 2021, EU:C:2021:986); by order of 22 December 2020 the High Court of Justice Business and Property Courts of England and Wales requested a preliminary ruling on the Brussels I Regulation in London Steam-Ship Owners’ Mutual Insurance Association Limited/Kingdom of Spain (Case C-700/20, still pending). By a reference made in 2017, the Supreme Court asked for the interpretation of Art. 18 et seq. of the 2007 Lugano Convention; this case was decided by the CJEU on April 11, 2019, Bosworth v Arcadia Petroleum, ECLI:EU:C:2019:310.

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The British Application to Rejoin the Lugano Convention Anyway, the fact that occasionally courts in EFTA-Lugano states, e.g. in Switzerland and Norway, have not adequately condsidered the case law of the CJEU when interpreting the Lugano Convention26 cannot affect the overall picture of the homogeneous interpretation of the Lugano Convention and the Brussels instruments in the long term.

III. The Commission’s Rejection of the British Application – Political Context and Institutional Issues A.

The Political Background of the Rejection of the British Application

Although politics and law are close cousins, it is rare for political events to have an impact on private international law legislation that has no substantive connection with those events.27 When looking for examples in EU private international law, one must go back 25 years when the UK refused to sign the Convention on Insolvency Proceedings of November 1995 because the EU had imposed an embargo on British beef following the BSE epidemic; when this obstacle was removed, the controversy over the status of Gibraltar in the EU was again reason enough for the UK not to sign the Convention.28 Thus, the law of insolvency fell victim first to mad cow disease, then to the monkey rock. It now appears that in 2021, the UK’s application to join the Lugano Convention as an independent contracting party has fallen victim to the political aftermath of Brexit, which has precluded any concession to the UK by the Commission and some EU Member States and led to the Commission rejecting the British application. Even though the connection between that application and Brexit is arguably closer than the link between the Convention on Insolvency and BSE, the reason to reject the application in 2021 is essentially motivated by post-Brexit politics and not by the subject matter of the Lugano Convention. See the references in note 24. The impact of politics on private international law has been comprehensively analysed by P. KINSCH, Le rôle du politique en droit international privé, Recueil des cours, t. 402, 2019, p. 9 et seq; on foreign policy and private international law see in particular p. 311 et seq. 28 Cf. the Explanatory Report to the Resolution of the European Parliament of 23 April 1999 on the Insolvency Convention (PE 228.795/fin.): “It is difficult to determine the precise reasons for the British stance. While it was based initially on the dispute with its partners over the consequences of the BSE scandal, the unofficial reason given now is the Gibraltar question. The relevant provision is Article 229 (...), according to which the EC Treaty, and hence all law based thereon or derived therefrom, applies to the European territories for whose external relations a Member State is responsible. This provision actually leads to the conclusion that the Convention in question would also apply to Gibraltar, for whose interests the United Kingdom has been responsible since the Treaty of Utrecht in 1713.” 26 27

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The Commission’s Approach

The substantive arguments advanced by the Commission in its Communication of May 4, 2021, in particular the allegation of insufficient economic relations between the EU and the UK, mainly cover up the fact that the rejection of the British application to accede to the Lugano Convention is part of the political reaction to Brexit and accompanying circumstances. Negotiating the Withdrawal Agreement29 had been a sometimes-painful exercise for both sides,30 and the willingness of the European “partner” to accommodate the British in post-Brexit affairs where it was not strictly necessary, was limited, to say the least. The prevailing approach in the Commission was that, first, Brexit “should not pay off” for the UK and, second, potential exit candidates should be deterred and not encouraged by post-Brexit concessions.31 In addition, there were doubts as to the readiness of the British government to comply with treaty obligations assumed in the context of Brexit. Such doubts had arisen in October 2020 in relation to the Protocol on Ireland/Northern Ireland when the British government intended to pass legislation providing for a power of UK ministers to adopt regulations, which could result in no longer applying the provisions of the Protocol and shielding those regulations from judicial review.32 Although the Joint Committee on the Protocol announced in December 2020 that agreement had been reached that the UK government would withdraw the controversial clauses of the intended legislation,33 the Commission continued to believe there was a “trust problem” with the UK. This may explain why, in order to show that the British application should not be accepted, the Commission’s Communication refers to “a high level of mutual trust” which exists between the contracting parties to the Lugano Convention and constitutes “an essential feature of a common area of justice commensurate to the high degree of economic interconnection based on the applicability of the four freedoms”. Does this imply that the UK is no longer worthy of trust in the context of judicial cooperation in civil matters because it no longer participates in the internal market? Judicial cooperation rests, in the first place, on mutual trust in the judiciary of the participating countries, and, as mentioned above, nothing permits the assumption that the courts of the United Kingdom would not abide by the obligations flowing from the Lugano Convention or any other international Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland form the European Union and the European Atomic Energy Community, OJ 2020 L 029. 30 Cf. M. BARNIER, La grande illusion. Journal secret du Brexit 2016-2020, Paris 2021, passim. 31 See Question E-004121/2021(ASW) asked by members of the European Parliament on 22 November 2021, infra, note 48. 32 See cl. 47 of the United Kingdom Internal Market Bill (HL Bill 135) https://publications.parliament.uk/pa/bills/lbill/58-01/135/5801135.pdf. 33 See the Joint statement of the co-chairs of the EU-UK Joint Committee of December 8, 2020, https://www.gov.uk/government/publications/eu-uk-joint-committeestatement-on-implementation-of-the-withdrawal-agreement/eu-uk-joint-committeestatement-on-implementation-of-the-withdrawal-agreement [accessed on 30.05.2022]. 29

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The British Application to Rejoin the Lugano Convention convention on civil justice cooperation to which the country is a party. The fact that the TCA makes provisions for the participation of the UK in the judicial cooperation in criminal matters34 should be enough to show that there is still sufficient trust in the British judiciary and its respect for the rule of law. As concerns civil justice, the willingness of the UK courts to cooperate in this field after Brexit appears from the fact that two English courts referred questions on Regulations Brussels I and I bis for a preliminary ruling by the CJEU in the last days of the transition period after the British withdrawal.35 2.

The Position of the EFTA-Lugano States

The EEA EFTA Separation Agreement concluded by the UK, Norway, Iceland and Liechtenstein, which largely mirrors the Withdrawal Agreement with the EU does not cover civil judicial cooperation between the UK and the EFTA states. However, even before the UK lodged its application with the Depositary of the Lugano Convention, the EFTA-Lugano states (Norway, Iceland and Switzerland) had declared their support for the UK’s intent to rejoin the Convention. In a statement published on January 28, 202036 the British government emphasized that The UK will continue to participate in this convention for the duration of the transition period. Our continued participation beyond then is subject to negotiation with the EU, Denmark, Iceland, Norway and Switzerland. Denmark has an ‘opt-out’ of justice and home affairs under relevant EU treaties, but is a contracting party to the Convention. The UK remains committed to joining the Convention in its own right. The UK welcomed the statements it had received from the three EFTA-Lugano states “on its intention to accede in its own right to the Lugano Convention 2007 at the end of the transition period”. It should be mentioned that Iceland and Norway added in their statement that Should the UK not have become a party to the Lugano Convention 2007 by the end of the transition period, the UK, Iceland and Norway shall seek to agree alternative options for providing legal certainty and maintaining a framework for civil judicial cooperation. If necessary, such arrangements may consist of an orderly winding down of cooperation under the Lugano Convention 2007.

Part Three of the Agreement contains extensive provisions aimed at enabling the continuation of information exchange, including personal data, between competent authorities in the UK and the EU Member States, as well as cooperation related to the surrender of wanted persons. It also provides for close links with Europol and Eurojust, the EU's agencies for, respectively, law enforcement and criminal justice cooperation. 35 See supra, note 25. 36 https://www.gov.uk/government/news/support-for-the-uks-intent-to-accede-to-thelugano-convention-2007 [accessed on 30.05.2022]. 34

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Christian Kohler On its website the Depositary of the Convention informs the public that “Switzerland, Iceland and Norway have given their consent” to the accession of the United Kingdom to the Lugano Convention by notifications of 11 September 2020, 26 February 2021 and 30 March 2021 respectively.37 However, in its Communication of 4 May 2021 the Commission makes no reference whatsoever to the support of the EFTA-Lugano states for the UK’s intent to accede to the Lugano Convention. 3.

The Lack of Consensus among the EU Member States and the Expectations of the British Government

As the Lugano Convention has been concluded by the EU in its own right on the basis of its exclusive competence, the individual Member States (with the exception of Denmark38) are not contracting parties.39 It follows that for the purposes of Art. 72(3) LC the EU and Denmark are the “Contracting Parties” that must consent to the British application. However, the position of individual Member States with regard to the application is politically important in the perspective of a possible decision by the Council on the application. In that perspective, the UK government, after the disappointing assessment of its application by the Commission, sought to persuade the Member States of the merits of the UK’s rejoining the Convention. As revealed by the correspondence between the Lord Chancellor and the Chair of the Justice and Home Affairs Committee of the House of Lords,40 the government expected the Commission to bring forward a formal proposal on which all the member states can vote, in order to finally determine the EU position (and in accordance with the EU Treaties we expect that to be by QMV). This means that it is important for the UK government to continue to make the case for its accession to Lugano to relevant counterparts in the EU member states, not just the Commission. (...) Several EU countries have made it clear that, despite the Commission’s position, they would welcome UK accession, whereas a smaller number have confirmed that they currently oppose it.41 At a subsequent meeting of the Committee, the Lord Chancellor stated again “that it needs a Council resolution and that has not been tabled or decided upon” and went on to say:

See the address of the website supra, note 2. Supra, note 3. 39 According to Art. 216(2) TFEU the convention “is binding upon the institutions of the Union and on its Member States”; cf. also Art. 1(3) LC. 40 https://committees.parliament.uk/committee/519/justice-and-home-affairs-commit tee/publications/3/correspondence/?SearchTerm=Lugano&DateFrom=&DateTo=&SessionI d= [accessed on 30.05.2022]. 41 Letter from the Lord Chancellor of August 27, 2021. QMV stands for qualified majority voting. 37 38

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The British Application to Rejoin the Lugano Convention I have worked as hard as I can to talk to a number of member states. I wrote to all my counterparts and I have met specifically with justice colleagues in Germany, Italy, France, Belgium, Ireland, Poland and Greece over the past few months, and indeed the Swiss Justice Minister as well, to talk positively about what Lugano can offer us all.42 With the exception of the French position, the Lord Chancellor gave no information on the reaction of the Member States addressed. As for France, he said before the Committee: At the moment, the French have not been very supportive of our application. I have engaged with Mr Dupond-Moretti, the Justice Minister. I do not want to put words in his mouth, but I think he could see the pragmatic force of the arguments that I had, even if the French Government are not in a position at the moment to take a view that perhaps our accession would be the right thing to do.” In fact, the French opposition against the British application had been clearly stated already in February 2021 by the French Minister before the relevant committee of the Assemblée nationale. Referring to the French interest “de renforcer l’attractivité de la place juridique de Paris” after Brexit, he said: Les Britanniques ont fait part de leur intention d’adhérer à la convention de Lugano (…); nous y sommes défavorables. La reconnaissance des décisions de justice confère aux pays membres de l’Union européenne un attrait supplémentaire dont nous devons profiter (...) La place judiciaire de Paris est un lieu d’excellence juridique en raison du nombre et de la qualité de ses professionnels. Londres est également une grande place judiciaire, chacun le sait. Mais l’Union européenne a pour considérable avantage que les décisions rendues dans un de ses pays membres sont exécutoires sur tout le territoire européen. Ce n’est plus le cas pour les décisions rendues par les tribunaux britanniques, et si la France s’oppose à l’adhésion du Royaume-Uni à la convention de Lugano c’est parce que, lorsqu’on sort de l’Union, on doit en tirer les conséquences. Nous en sommes membre, et nous souhaitons en avoir les bénéfices.43 Although there is no public evidence from Member States governments who supported the British application, there is no reason to question the statement of the Lord Chancellor that “several” Member States would welcome the UK’s accession to the Convention and that only a “smaller number” were opposed to it. However, the expectation of the government that there would be a “formal proposal” by the 42 House of Lords Justice and Home Affairs Committee, September 15, 2021, Uncorrected oral evidence: General Ministry of Justice issues. 43 Assemblée nationale, Commission des lois constitutionnelles, de la législation et de l’administration générale de la République, 11 février 2021, Compte rendu n° 57, Audition de M. Éric Dupond-Moretti, garde des Sceaux, ministre de la Justice.

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Christian Kohler Commission in the Council on which the Member States would need to decide by qualified majority voting has not been met: as mentioned before the Commission notified to the Depositary that the EU was “not in a position to consent” to the UK’s application.44 This is true even though it had not sought a formal decision by the Council and neither the European Parliament nor the Council had reacted to its invitation to present their “views” on its assessment of the British application. This raises the question of whether under EU law the Commission was entitled to proceed in that manner or whether in fact a decision of the Council on the British application, possibly on a proposal by the Commission, was required. Before turning to that question, a look at the handling of the British application and the Commission’s Communication in the European Parliament and in the Council may be helpful. B.

The Handling of the British Application in the European Parliament and in the Council

1.

The Handling in the European Parliament

At an early stage, before the Commission published its Communication of May 4, 2021, the European Parliament had expressed support for the UK’s “remaining a party” to the Lugano Convention. In its Resolution of April 28, 2021 on the outcome of EU-UK negotiations45 the Parliament regrets that judicial cooperation in civil matters was not part of the negotiations for the future partnership between the EU and the UK and emphasises the need to reach a joint understanding in this area as soon as possible; recalls, in this regard, that the EU should consider very carefully its decision on the possibility for the UK to remain a party to the 2007 Lugano Convention, especially in view of its Protocol II on its uniform interpretation (...).46 This Resolution, which does not refer to the UK’s application of April 8, 2020, is the only statement of the Parliament on the Lugano issue to date. When the Commission’s Communication was transmitted to the Parliament with the invitation to express its views on the Commission’s assessment, it was forwarded to the Committee on Legal Affairs. In an Opinion requested by the Chair of this Committee the Legal Service of the Parliament answered comprehensively a number of questions relating to the consequences of the UK’s rejoining the Lugano ConvenSupra, note 6. OJ 2021 C 506, p. 26. 46 Para 59;the Parliament continues by saying that the EU should consider “the possibility to maintain an overall balance of its relationships with third countries and international organizations and that effective collaboration and dialogue between the Commission and Parliament, particularly with the Committee on Legal Affairs, in charge of the interpretation and application of international law, in so far as the EU is affected, would be of paramount importance”. 44 45

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The British Application to Rejoin the Lugano Convention tion, in particular as regards the obligations under Protocol 2, the differences of the scope of the Lugano Convention as compared to the Hague Conventions of 2005 and 2007, and the internal procedure for adopting the EU position on the UK’s application.47 On September 8, 2021 a question for written answer was addressed to the Commission asking, inter alia, why access to the Lugano Convention was being refused to the UK but “granted to other countries such as Iceland, Norway and Switzerland”, and whether this was “intended as a disincentive to other countries which might also be considering leaving the EU”. However, without entering into the specific questions asked, the answer given on behalf of the Commission by Mr. Reynders, the Commission member for Justice, was confined to a brief outline of the assessment given in the Communication.48 To date, no further action has been taken by the Parliament.49 It is surprising, though, that the institution has not yet formally reacted to the Commission’s invitation to express its views on the Communication. Indeed, the position stated in its Resolution of 28 April 2021 shows that the Parliament does not share the Commission’s assessment of the British application, and it would have been in line with that Resolution if the Parliament had called upon the Commission to present a proposal aiming at the Council agreeing to the UK’s accession to the Convention. 2.

The Commission’s Communication before the Council

On May 4, 2021 the Secretary General of the Council transmitted the Commission’s Communication to the Delegations of the Member States. His cover note50 is the only public document of the Council relating to the UK’s application to accede to the Lugano Convention. According to unofficial information, there has been an informal exchange of views in the Council which made it appear that the Member States were divided over the issue. Whereas quite a few Member States were in favor of the UK’s accession, the Commission’s position was supported by a number of states, e.g. France.51 As the matter was apparently perceived to be a postBrexit issue, the political assessment by the Commission was given priority over considerations of judicial cooperation with the UK in civil matters. In any event, the exchange of view did not lead to further action in the Council, and the Commission proceeded with the abovementioned notification to the Depositary.

47 Opinion by the Legal Service SJ 2021-006920 of September 2, 2021, completed by a memorandum of October 7, 2021. 48 Question E-004121/2021(ASW), answered on November 22, 2021. A question for oral answer, submitted on March 22, 2021 on behalf of the Committee on Legal Affairs, has apparently not been answered. 49 At the time of writing, according to the Legislative Observatory, the Commission’s Communication was still in the “Preparatory phase in Parliament”. 50 Doc. 8413/21 UK 132 JAI 476 JUSTCIV 83, of 4 May 2021. 51 This corresponds to the assessment in the Lord Chancellor’s letter of 27 August 2021, supra, note 40.

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Christian Kohler C.

The Legal Nature of the Consent to the Accession of the UK to the Lugano Convention and the Procedure to be Followed

Was the Commission entitled to proceed in that manner under EU law? The procedure for adopting an EU position on the British application is, of course, dependent on the legal nature of the consent to the accession of a third country to the Lugano Convention. According to the case law of the CJEU, such a consent amounts to an “agreement” within the meaning of Article 218 TFEU, which sets out the procedure for the negotiation and conclusion of agreements between the Union and third countries. As the conclusion of the Lugano Convention itself fell within the exclusive competence of the EU,52 this competence extends to the agreement which contains the consent to the accession of a third country to the Convention.53 The opening of negotiations for such an agreement is authorized by the Council on a recommendation by the Commission, and the conclusion of the agreement itself is decided by the Council on a proposal by the negotiator, i.e. again the Commission;54 where the consent of the European Parliament is required, the decision concluding the agreement is adopted only after obtaining the consent. In the present context, the consent of the Parliament is necessary as the agreement concerned relates to the judicial cooperation in civil matters, a field to which the ordinary legislative procedure applies.55 It follows that the role of the Commission is essential in the process of negotiating and concluding an agreement on the UK’s accession to the Convention. It is the Commission that initiates the action and represents the EU externally, whereas the Council is responsible for deciding that the EU is bound by international law.56 The institutional balance expressed in Art. 218 TFEU leads to the conclusion that as long as the Commission has not submitted a proposal to that effect, the Council (following the consent of the Parliament) cannot decide on the agreement on the consent of the EU to the UK’s accession.57 However, does it also follow from these premises that the Commission is entirely free not to exercise its power of initiative, without following any procedure? In the view of the present author, the answer to that question depends on the effect of the Commission’s inaction. In the actual context, it follows from the inaction that there is no “unanimous agreement of the Contracting Parties” on the British application as required See CJEU, 7 February 2006, Opinion 1/03, ECLI:EU:C:2006:81, Competence of the Community to conclude the new Lugano Convention. 53 Cf. CJEU, 14 October 2014, Opinion 1/13, ECLI:EU:C:2014:2303, according to which the consent of a Member State to the accession of a third country to the Hague Convention on the civil aspects of international child abduction is an agreement belonging to the exclusive external competence of the Union; see also CJEU, 26 November 2014, Joined Cases C-103/12 and C-165/12, Parliament and Commission v Council, ECLI:EU:C:2014:2400, para 83. 54 See Art. 218(2), (3), and (6) TFEU. 55 See Art. 218(6)(a)(v) and Art. 81(2) TFEU. 56 CJEU 26 November 2014, (note 53), para 83. 57 The same conclusion is reached in the opinion of the Parliament’s legal service (note 47). 52

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The British Application to Rejoin the Lugano Convention by Art. 72(3) LC. This means that the UK’s accession is blocked as well for the contracting parties that have consented to it, i.e. the EFTA-Lugano states. These are far reaching effects. In view of these consequences, the notification that the EU cannot “express its agreement to the United Kingdom being invited to accede to the Convention” must be qualified as a measure of judicial cooperation in civil matters, for which the Council and the Parliament are competent according to Art. 81(2) TFEU and which the Commission cannot adopt on its own without any institutional backing. The fact that these institutions have been invited to express their “views” on its assessment of the British application is an indication that the Commission was conscious of this requirement. To proceed to the notification of the Depositary without waiting for the position of the Parliament and the Council exceeds the competences of the Commission and is incompatible with its obligation to cooperate sincerely with these institutions. D.

Alternatives to the UK’s Accession to the Lugano Convention

The somewhat tortuous wording of the Commission’s notification seems to imply that, at a later point in time, the EU might be “in a position” to consent to the UK rejoining the Lugano Convention. Although the prospect of the Commission submitting a proposal to that effect does not seem realistic in the foreseeable future, one should not exclude the possibility that the European Parliament (where the matter is still pending58) takes up the point and, on the basis of its Resolution of April 28, 2021,59 calls upon the Commission to act in favor of the UK’s accession to the Convention. Obviously, that prospect is dependent on the political driving forces which may be mobilized in the Parliament to this end and for which there are presently few signs. When looking for alternatives to the UK rejoining the Lugano Convention, the multilateral option offered by the Hague Conventions is probably the most realistic perspective,60 although only the Choice of Court Convention of 2005 and the Maintenance Convention of 2007 are in force, whereas the entry into force of the Judgments Convention of 2019 for the UK and the EU is not yet foreseeable. One option, on a smaller multilateral scale, might be a Lugano-like convention between the UK and the EFTA-Lugano states but that seems less realistic. The “alternative options” mentioned in the declaration of Iceland and Norway in the event that the UK should not become a party to Lugano61 are apparently directed at bilateral solutions, for which the UK’s agreement with Norway on the revival of Supra, note 49. OJ 2021 C 506 (note 45). 60 Cf. P. BEAUMONT, Some reflections on the way ahead for UK private international law after Brexit, Journal of Private International Law 2021, vol. 17), p. 1 et seq., for whom the country’s departure from the EU “gives an opportunity for the UK to make a major contribution for the development of global private international law” (p. 15, emphasis added); the author does not mention the Lugano Convention, in contrast to R. FENTIMAN, Commercial Litigation in the UK: A Future Outside the EU (note 2), p. 168 et seq. 61 See supra, text accompanying note 36. 58 59

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Christian Kohler the 1961 bilateral convention on recognition and enforcement of judgments is an example.62 For Switzerland, a bilateral convention with the UK appears to be an obvious solution as it would be in line with the “Mind the Gap” strategy adopted by the Swiss government after Brexit.63 Compared with the Hague Conventions of 2007 and 2019, the bilateral way opens the opportunity for made-to-measure solutions which might even include rules of direct adjudicatory jurisdiction. The alternatives outside the Hague Conventions are, of course, options for the EFTA-Lugano states only.64 As a rule, the exclusive external competence of the Union precludes any bilateral action of individual Member States. There is a limited possibility for Member States to conclude agreements with third countries in matters relating to family law covered by the Brussels II bis and Rome III Regulations and by the Maintenance Regulation, but not for all matters covered by the Lugano Convention.65 However, even if this possibility could be used for bilateral agreements on maintenance matters (which are covered by the Lugano Convention) this would be of limited added value for both the UK and the Member States concerned, since the 2007 Hague Convention already regulates the recognition and enforcement of decisions in that field. This means that outside the Hague Conventions,66 the legal protection of individuals and businesses established in the Member States in cases linked to the UK is essentially subject to the rules of national law. This is a serious setback for both sides of the English Channel. It has been submitted from the perspective of commercial litigation in the UK that, although rejoining the Lugano Convention would be preferable, “the loss of the Brussels system amounts to a change not a problem” and that “in the event that the UK does not accede to the Lugano regime the consequences (objectively and realistically judged) would not be damaging“.67 Supra, note 4. https://www.eda.admin.ch/missions/mission-eu-brussels/de/home/dossiers/brexit. html [accessed on 30.05.2022]. 64 In theory, they may also be open for Denmark, which is a contracting party in its own right to the Lugano Convention and not bound by the exclusive external competence of the Union. However, a bilateral convention between the UK and Denmark, be it bilateral or together with the EFTA states, is hardly conceivable from a political standpoint. 65 Regulation (EC) No 664/2009 of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations, OJ 2009 L 200, 31.7.2009, p.47; a similar Regulation has been adopted for particular matters concerning the law applicable to contractual and non-contractual obligations, see Regulation (EC) No 662/2009, OJ 2009 L 200, p. 25; on these Regulations see J.A. BISCHOFF, Notwendige Flexibilisierung oder Ausverkauf von Kompetenzen? – Zur Rückübertragung von Außenkompetenzen der EU für privatrechtliche Abkommen durch die Verordnungen (EG) Nr. 662/2009 und Nr. 664/2009, ZEuP 2010, p. 321 et seq. 66 According to BEAUMONT (note 60), p. 16, the UK “should continue to build its alliance in the Hague with the EU (this is an area where a friendly divorce can be demonstrated)”. 67 R. FENTIMAN (note 2), p. 177. 62 63

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The British Application to Rejoin the Lugano Convention However, it should be borne in mind that the Lugano Convention covers much more than commercial litigation, and the loss of legal certainty offered by the Brussels-Lugano system will invariably be perceived as a damage by ordinary citizens who live or work in the EU 27 as employees, consumers, or maintenance creditors and who seek legal protection in cases linked to the UK.

IV. Concluding Remarks – In Search of an External Policy of the EU in Matters of Civil Judicial Cooperation The rejection of the British application to rejoin the Lugano Convention is a consequence of the lack of a common foreign policy of the EU in matters of civil judicial cooperation. This deficiency is illustrated by the “unsatisfactory situation”68 that the Union has exclusive competence to conclude international agreements in this field while at the same time having no common rules on jurisdiction of Member States courts in cases connected with third countries and on recognition and enforcement of judgments from those countries.69 Since the EU has acquired an internal competence for civil judicial cooperation in the Treaty of Amsterdam this field has been viewed mainly as an annex to the economic policies of the Union and the free movement of persons,70 not as a policy in its own right. This is visible also, and in particular, in the external relations of the Union where the main emphasis is again on the economy, whereas no adequate framework has ever been conceived for the legal protection of individuals and businesses in that context. The statement in the Commission’s Communication that the EU’s “longstanding approach” is that the appropriate framework for cooperation with third countries is provided by the Hague Conventions of 2005 and 2019 is blatantly insufficient.71 The standard for an “appropriate framework” for the external policy of the EU with third countries is set by Art. 47 of the Charter and Art. 6 of the European Convention of Human Rights. The right to an effective remedy and to a fair trial in civil matters must be the yardstick not only for the Union’s own rules governing jurisdiction in cases connected with third countries and recognition and enforcement of third country judgments but also for international agreements in

J. BASEDOW, EU Private Law, Cambridge/Antwerp/Chicago 2021, p. 734. Occasional rules of the Brussels Ia Regulation relate to situations connected with third countries, see e.g. Art. 33 et seq.; Art. 79 of the Regulation obliges the Commission to present by 11 January 2022 [sic] a report on the application of this Regulation which includes an evaluation of “the possible need for a further extension of the rules on jurisdiction to defendants not domiciled in a Member State, taking into account the operation of this Regulation and possible developments at [the/an] international level.” 70 See the reference to the “functioning of the internal market” in Art. 81(2) TFEU. 71 See supra, II C, text accompanying notes 14 et seq. 68 69

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Christian Kohler this field.72 As regards these agreements, there is no uniform model for all countries as the requirements must be commensurate with the kind and depth of the relations with the third country or countries concerned. For neighboring countries, with which there is an intense exchange of goods and services and in which personal and family relations have been developed between citizens of the EU and the countries concerned, the rules to be conceived will need to be different from rules for overseas countries with lesser economic and social intercourse. The BrusselsLugano system on the one hand and the Hague Conventions on the other are telling examples of such differences. To date, the exclusive external competence of the EU in matters of civil judicial cooperation amounts to a chèque sans provision. With its categorical rejection of the British application, the Commission has missed another opportunity73 to define elements of an external policy in these matters. The political intention not to grant a “privilege” to the UK because of Brexit was based on a misconception of the role and function of the Lugano Convention, and ignored the legitimate interests, and indeed the rights, of EU citizens to an effective judicial protection in cases linked to the UK. To “sanction” third countries by refusing civil judicial cooperation at the expense of the citizens of the Union is not a valid foreign policy.74 The same is true when the refusal is backed by Member States hoping to improve the prospects of their own legal industries.75 Instead of ignoring the Parliament’s Resolution in favor of the British application76 and following the political interests of the day, the Commission would have done well to seize the opportunity to define and balance the elements of an external policy of the EU in matters of civil judicial cooperation respectful of the fundamental rights of the citizens of the Union.

Cf. the Resolution on Human Rights and Private International Law adopted by the Institut de Droit International in 2021, which sets out the requirements for rules on jurisdiction (Art. 3), Forum necessitatis (Art. 4), Dispute settlement clauses (Art. 5), and Recognition and enforcement of foreign judgments (Art. 20). 73 For the equally unsatisfactory approach in the free trade agreements with Georgia, Moldova, and Ukraine see supra, text accompanying note 17. 74 On sanctions and related measures affecting civil judicial cooperation as an instrument of foreign policy, see the examples in KINSCH (note 27), p. 338 et seq., and p. 361. 75 Cf. supra, note 43. 76 Cf. supra, note 45. 72

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THE “LISBON GUIDELINES ON PRIVACY” – A PATH FORWARD FOR THE PROTECTION OF PRIVACY IN PRIVATE INTERNATIONAL AND PROCEDURAL LAW Jan VON HEIN*/ Cristina M. MARIOTTINI**

I. II.

III.

Introduction Jurisdiction and Applicable Law A. The General Approach B. General Rules 1. Jurisdiction Based on the Defendant’s Conduct and Applicable Law 2. Jurisdiction Based on the Defendant’s Habitual Residence and Applicable Law C. Agreements as to Jurisdiction 1. The Different Treatment for Agreements Entered, Respectively, after and before the Events Giving Rise to a Dispute 2. The Interplay between Choice of Court and Choice of Law D. Specific Aspects Concerning the Applicable Law 1. Escape Clause 2. Party Autonomy and Applicable Law 3. Right of Reply 4. Public Policy and Mandatory Rules E. Special Rules for Interim Relief and their Interface with the General Approach Recognition and Enforcement of Foreign Judgments A. Recognition and Enforcement 1. Synchronization between the Grounds of Direct and Indirect Jurisdiction 2. Effects of the Foreign Judgment 3. Penalty Orders B. Refusal of Recognition and Enforcement

* Professor at the University of Freiburg (Germany); board member of the German branch of the International Law Association. ** Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law; member of the American Branch of the International Law Association. Section II.E. on interim measures draws on the commentary to Article 6 of the Lisbon Guidelines (Provisional Measures) authored by the Chair of the ILA Committee on the Protection of Privacy in Private International and Procedural Law, Prof. Dr. Dres. h.c. Burkhard HESS (Director at the Max Planck Institute Luxembourg for Procedural Law) and Mr. Marco BUZZONI (Research Fellow at the Max Planck Institute Luxembourg for Procedural Law). We thank both authors for their kind permission.

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Jan von Hein/ Cristina M. Mariottini 1. 2.

“Banned” Grounds of Indirect Jurisdiction and Refusal of Recognition and Enforcement The Delicate Balancing of Privacy and Freedom of Expression – Public Policy as a Ground for Refusal of Recognition and Enforcement Punitive Damages

IV.

3. Outlook

I.

Introduction

Further to the innovations introduced by the digital age and the virtually infinite range of contexts in which they operate, the dynamics and the dimension of the potential intrusions into one’s personal life have been significantly transformed, bringing forth new challenges for legislatures, courts, legal counsels, and – last but not least – natural and legal persons. Such innovations and the resulting challenges have triggered a new understanding and shaping of the right to privacy, especially with regard to the cross-border environment. Nonetheless, in spite of the fact that the protection of privacy has become a compelling issue in cross-border settings, most international and regional instruments on private international law do not address this matter, notably because it raises sensitive issues of conflicting rights and interests. Against this background, the Committee on the Protection of Privacy in Private International and Procedural Law (“the Committee”),1 established in the framework of the International Law Association (“ILA”),2 was set up in order to analyse these issues in the cross-border setting and to highlight the emerging questions as well as the current and potential impediments to an effective protection of privacy rights with a view to formulating proposals and solutions. The Committee’s output was ultimately enshrined in the ILA Guidelines on the Protection of Privacy in Private International and Procedural Law (“Lisbon Guidelines on Privacy”) and Commentary Thereto,3 endorsed by ILA at its 80th Biennial Conference hosted in Lisbon from 19-24 June 2022. 1 The Committee – which comprised experts from Australia, Austria, Belgium, Brazil, Croatia, France, Germany, Italy, Japan, the Republic of Korea, Luxembourg, Portugal, Spain, the United Kingdom, and the United States of America – was established following the proposal of Professor Burkhard HESS. The Committee was chaired by Professor Hess, and the authors of this article served as the Committee’s Co-Rapporteurs. A special acknowledgement goes to the Committee Members who contributed to the Committee’s work by submitting detailed national reports and by sharing insights that shaped the Committee’s discussions and outputs. 2 Available at https://www.ila-hq.org/. 3 B. HESS/ J. VON HEIN/ C.M. MARIOTTINI, ILA Guidelines on the Protection of Privacy in Private International and Procedural Law (“Lisbon Guidelines on Privacy”) and Commentary Thereto (June 30, 2022), MPILux Research Paper 2022/4, available via ssrn at https://ssrn.com/abstract=4155091 or http://dx.doi.org/10.2139/ssrn.4155091.

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The Lisbon Guidelines on Privacy The scope of the Committee encompassed the protection of privacy rights in both the traditional framework as well as the digitalized and cyber world: notably, it comprised the Internet, including but not limited to social media. And while most national legal systems afford statutory protection to personal privacy,4 they do not correspondingly provide a statutory definition of privacy, leaving the definition and scope of privacy (or “private life”) to be determined by case law. Overall, the definition of privacy is quite fluid at the comparative level: for instance, some legal systems characterize defamation as falling within the scope of privacy, whereas others do not on the grounds that the object of the claims is different (a violation of privacy rights involves the unauthorised dissemination of truthful information whereas defamation entails the dissemination of information which is tainted by some degree of falsehood).5 Nonetheless, common denominators may be identified. Legal systems converge in so far as the right to privacy may be described as a person’s right to preserve a (protected) domain that includes all those aspects that can be identified as belonging to them, such as their image, home, body, property, thoughts, feelings, personal experiences, and identity (see, esp., Article 2 of the Guidelines). The problems that may arise from the absence, in principle, of a common definition of privacy rights are further intensified as a result of the difference in the constitutional and cultural underpinnings of privacy rights. Such different notions entail a different level of scrutiny and balancing in the various legal systems when privacy rights are competing with countervailing interests and, notably, the freedom of expression and of information. Consequently, they may significantly affect the litigation of privacy matters at the cross-border level. It follows that substantial layers of public law affect the private enforcement of privacy rights. Such limits on private claims, both with respect to the jurisdiction and to the law applicable to these claims, were taken into due consideration by the Committee. They also have a remarkable impact on the subsequent eligibility of privacy judgments for cross-border circulation. Overall, in an effort to standardize and rationalize an extensive and expanding area of the law, the Committee pursued the objectives of:

See, e.g., Sec. 12 and 22 BGB; Article 9 of the French Code Civil; Ley Organica 1/1982 of 5 May 1982, which was the first Spanish organic law explicitly dealing with data protection. This law was later amended with Organic law 15/1999. The law was last amended by Royal decree 1720/2007. 5 See J.Q. WHITMAN, The Two Western Cultures of Privacy: Dignity versus Liberty, 113 Yale Law Journ. 2004. See also the “Summary of the Human Rights Council panel discussion on the right to privacy in the digital age” in the Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, 19 December 2014, at 6. See, finally: D.J. SOLOVE, Conceptualizing Privacy, 90 California L. Rev. 2002; D.J. SOLOVE, “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, 44 San Diego L. Rev. 2007; C.M. MARIOTTINI, The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, this Yearbook, 2017/2018, p. 480-484. 4

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Jan von Hein/ Cristina M. Mariottini (i) providing a set of principles as a framework for regulating privacy in private international and procedural law, on the premise that recourse to general rules on torts and contracts may not necessarily provide an adequate and satisfactory solution;6 and (ii) developing concepts that can constitute a point of reference for legislatures, the judiciary and legal counsels, so as to be used to interpret, supplement or develop rules of private international law and as a model for national, regional or international instruments.7 To this aim, the Committee elected to draw up guidelines to promote predictability by setting out broad, and yet specifically tailored, principles of sufficient generality to command widespread assent and to meet the features that characterize, in particular, the protection of privacy. As illustrated in the following paragraphs, the Committee proceeded to design a system based, in essence and subject to substantiated exceptions, on the foreseeability of jurisdiction and a principled parallelism between jurisdiction and applicable law. The latter approach has the advantage of saving time and costs, but must be balanced against the danger of forum shopping. Notably, the Guidelines (Article 7) distinguish between jurisdiction based on the defendant’s conduct (Article 3) and jurisdiction localized at the defendant’s habitual residence (Article 4). While a defendant’s conduct that is significant for establishing jurisdiction will usually also indicate a sufficiently close connection for choice-of-law purposes, the general jurisdiction at the defendant’s habitual residence is rather neutral in this regard and thus complemented by a specific conflicts rule. A necessary degree of flexibility is then introduced by providing for party autonomy (Article 9) and an escape clause (Article 8). Moreover, in order to take into account that personality rights and privacy protection are entrenched in constitutional values, Article 11 contains a provision on public policy and overriding mandatory rules. Finally, departing from the approach commonly adopted in the framework of international treaties and academic studies – which either exclude from their scope the question of recognition and enforcement of foreign privacy judgments or incorporate by reference the “ordinary” rules on the circulation of judgments also vis-à-vis privacy judgments –Articles 12 and 13 of the Guidelines set out a framework which, in principle, complements the provisions on jurisdiction under the Guidelines and is specifically designed for the cross-border circulation of privacy judgments.

6 On this aspect see, in part., I. PRETELLI, Improving Social Cohesion through Connecting Factors in the Conflict of Laws of the Platform Economy, in I. PRETELLI (ed.), Conflict of Laws in the Maze of Digital Platforms. Le droit international privé dans le labyrinthe des plateformes digitales – Actes de la 30e Journée de droit international privé du 28 juin 2018 à Lausanne, Zurich 2018, p. 27-30. 7 See, in part., the Preamble to the Guidelines.

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The Lisbon Guidelines on Privacy

II.

Jurisdiction and Applicable Law

A.

The General Approach

From a comparative point of view, a close relationship between jurisdiction and choice of law concerning violations of personality rights becomes apparent. In many legal orders, both jurisdiction and choice of law are founded on some variant of lex loci delicti (place of acting and/or damage).8 Most legal systems theoretically allow for courts to apply a law that differs from the substantive law of the forum. However, the observation of the courts’ decisions in various States shows that it is almost always the lex fori that will be applied.9 8 A survey conducted by the Committee on the national rules for jurisdiction and choice-of-law rules for violations of personality rights revealed that the basic rule for torts, which is decisive due to the lack of a specific rule for personality violations, including defamation and data protection, is to apply the lex loci delicti (law of the State where the event causing the damage took place). An exception among the legal systems represented in the survey is Japan where the basic approach is the application of the law at the victim’s habitual residence. When the place of acting and the place of the damage are split – typically in cases of violation of personality rights –, the legal systems show different solutions: some favour the place of acting (Portugal (Article 45(1) of the Código Civil), mostly by the courts in Greece and Spain), others decide depending on the circumstances of the individual case, with a tendency to prefer the lex fori or the law more favourable to the victim (Brazil). In France, the court solves the split by applying the law of the place which is more closely connected to the individual case (Cass., 1re civ., 14 Jan 1997, No 94-16.1861, Gordon and Breach Science Publishers). According to Article 45(2) of the Portuguese Código Civil, the law where the damage occurred applies provided that it finds the defendant liable, unlike the law of the place of acting, as long as the acting person should predict the occurrence of damage in that State as a consequence of his act or omission. Spanish courts apply Spanish law where damage arose in Spain if the claim is limited to damages suffered in Spain, the victim is Spaniard and domiciled in Spain (see Sentencia del Tribunal Supremo (Sala Primera, de lo Civil) 210/2016, de 5 de abril, Sentencias Tribunal Supremo – Civil- num. 807/2011 of 7 November 2011 – RAJ2012, 1360 – and num. 70/2014, of 24 February 2014). In Germany (Article 40(1) EGBGB) and Italy (Article 62(1) of Law No 218/1995), the victim may choose between the law of the place of damage and of the place of the acting. In the United Kingdom (England and Wales), torts are governed by Articles 11 and 12 PIL (Miscellaneous Provisions) Act 1995 (UK). Defamation claims, however, are excluded and subject to the double-actionability rule according to which the claim must be actionable under both the law of the place of the tort and under the law of the forum. In this context, the court has to determine where “in substance” the tort occurred, what requires the consideration of a range of factual connections, including the place of the wrongful act and the place of the damage. Defamation is presumed to take place where the material is received and read (Church of Scientology of California v. Commissioner of Metropolitane Police (1976) 120 SJ 690). If a publication is read in more than one jurisdiction, it is considered that a separate tort has occurred in each such location, potentially governed by a different system of law. 9 For instance, it is quite rare for the English courts to apply foreign law to defamation claims, as most claims in the English courts relate to English publications only, and claimants often seek injunctive relief rather than compensatory damages (and thus do not try to establish the worldwide extent of the damage to their reputation). However, in theory, the

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Jan von Hein/ Cristina M. Mariottini Although private international law in the tradition of Savigny is founded on the principle of the closest connection,10 applying the lex fori to violations of personality rights has several advantages.11 It reduces the time and costs involved in litigation, it leads to a better quality of judgments, and it improves the foreseeability of legal results for the media. Moreover, it facilitates taking into account public policy concerns of the forum because personality rights and privacy protection are rooted in constitutional values. The main disadvantage of an approach centred on the lex fori is that it increases the incentives for “forum shopping” and endangers the international harmony of decisions.12 This problem is particularly acute where the rules on jurisdiction for violations of personality rights have been harmonized, but the pertinent choice-of-law rules are not yet uniform. This is the case, for instance, in the European Union, where forum shopping in tort litigation under Brussels I-bis Regulation13 is discouraged by the conflicts rules of the Rome II Regulation in general;14 however, the Rome II Regulation does not cover personality rights (Article 1(2)(g) Rome II). In order to solve this dilemma, the Lisbon Guidelines plead for a differentiation between jurisdiction based on the defendant’s conduct (Article 3) and jurisdiction based on the defendant’s habitual residence (Article 4). In this regard, the basic methodological approach has some features in common with Article 7 of the IDI Resolution of 2019, which also distinguishes between various heads of jurisdiction and modifies the parallelism between jurisdiction and the applicable law in many ways.15 However, there are some important divergences that will be highlighted in the following paragraphs.

double-actionability rule does not prevent courts from applying foreign rules which are more restrictive than English law. 10 See F.C. VON SAVIGNY, A Treatise on the Conflict of Laws, Edinburgh 1880, p. 69 et seq. 11 See already B. HEIDERHOFF, Privacy and Personality Rights in the Rome II Regime – Yes, Lex Fori, Please!, available at https://conflictoflaws.net/2010/heiderhoffprivacy-and-personality-rights-in-the-rome-ii-regime-yes-lex-fori-please. 12 On the notion of “forum shopping”, see C. CAVICCHIOLI, Forum Shopping in International Litigation, this Yearbook, 2018/19, p. 413-438. 13 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 351/1, 20.12.2012. 14 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ L 199/40. 31.07.2007. 15 IDI, 8ème Commission: Internet and the Infringement of Privacy: Issues of Jurisdiction, Applicable Law and Enforcement of Foreign Judgments (Rapporteurs: Erik JAYME and Symeon C. SYMEONIDES), available at https://www.idi-iil.org/en/.

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The Lisbon Guidelines on Privacy B.

General Rules

1.

Jurisdiction Based on the Defendant’s Conduct and Applicable Law

Under the Lisbon Guidelines, jurisdiction based on the defendant’s habitual residence (Article 4) does not presuppose a close connection between the substance of the dispute and the chosen court; thus, this forum may be considered “blank” from a choice of law perspective. In contrast, jurisdiction based on the defendant’s conduct (Article 3) indicates that, as a minimum, there already exists some kind of significant connection between the forum and the legal question to decide. In fact, in accordance with Article 3, a defendant may be sued in the courts of the State where the act or omission directly causing the harm occurred, irrespective of where the damage arose (para. 1). A defendant may also be sued at the plaintiff’s centre of main interest, unless the defendant could not have reasonably foreseen substantial consequences of their act occurring in that State (para. 2). In this framework, the person’s centre of main interest is presumed, in principle and subject to proof to the contrary, to be at their place of habitual residence.16 Finally, a defendant may also be sued in the State to which the publication in question is principally directed, taking into account, in particular: (a) the language of the publication; (b) the content of the publication; (c) the physical location of the intended audience (para. 3).17 It follows that, at the heads of jurisdiction based on the defendant’s This provision moves from the assumption that the State to which the holder of personality rights is more significantly connected by reason of personal and professional ties is also the place in which they suffer the most extensive and serious harm as a result of the personality right violation. Notably, this provision reflects a reasonable presumption that harm typically occurs or is felt at the place of a person’s “centre of main interest” and it points to the place where the courts are presumably best placed to assess and understand fully the conflict between the interests involved in the claim. See para. 81 of the Commentary to the Lisbon Guidelines. For an illustrative review of whether it is “clear from the evidence” that a claimant has its center of interests in a given State (in the specific case, in the United Kingdom, and in accordance with the Brussels I-bis Regulation), see the very recent judgment in Kumlin & Anor v Jonsson & Ors [2022] EWHC 1095 (QB), paras 53 et seq. 17 The Committee found questionable the need for jurisdictional rules to favour the plaintiffs in the context of privacy claims. As evidenced, inter alia, by high profile cases involving complaints brought by national leaders against citizens (e.g., the claims brought by President Recep Tayyip Erdoğan against the German comedian Jan Böhmermann), the plaintiff in a claim over personality rights does not necessarily qualify as a “weaker party”. In this context, it is of note that a study of the EU Parliament on Strategic Litigation Against Public Participation (SLAPP) (The Use of SLAPPs to Silence Journalists, NGOs and Civil Society, PE 694.872 – June 2021) suggested that jurisdiction be concentrated at the domicile of the targeted person, i.e. the alleged victim of defamation. Sed contra, B. HESS, Reforming the Brussels Ibis Regulation: Perspectives and Prospects, MPILux Research Paper Series 2021/4, available via ssrn at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3895006, p. 9-10, observing that the proposal appears unbalanced and underscoring that “[a]lthough there is a need to effectively combat abusive litigation, there are equally many cases where victims whose privacy and personality rights are infringed need to bring a lawsuit at the place of their centre of main interest in order to get effective judicial protection”. On 27 April 2022, the European Commission adopted a package of measures to protect persons 16

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Jan von Hein/ Cristina M. Mariottini conduct (place of acting, claimant’s centre of main interests, principal direction), courts should be allowed to simply apply their own substantive law (Article 7(1)). This roughly corresponds with the starting point of Article 7 No 1, No 3 and No 4 of the IDI Resolution of 2019. However, in so far as the pertinent heads of conduct-based jurisdiction are formulated in a different way – e.g., with regard to the requirement of foreseeability (Article 3(2) of the Lisbon Guidelines in comparison with the mere accessibility of material required in Article 5(1)(d) IDI Resolution), or concerning the test of principal direction (Article 3(3) of the Lisbon Guidelines as compared with the effects-based test formulated in Article 5(1)(c) IDI Resolution) –, such divergences will also lead to different laws being determined as applicable. The approach adopted by the Lisbon Guidelines is also justified by the fact that, in any event, plaintiffs almost never sue in a specific jurisdiction (e.g., the place of injury) and simultaneously plead for the application of a different law (e.g., the law of the place of acting). Incentives for forum shopping are already reduced by limiting the number of available fora to three in Article 3. In addition, the Lisbon Guidelines relinquish the “mosaic principle”, a watershed decision which further reduces incentives for forum shopping (see infra, under a). Finally, pursuant to Article 2(6), the application of the law of the forum State means the application of the rules of law in force in that State other than its rules of private international law. Thus, renvoi is excluded. a)

The Place of Conduct – A Special Focus on the Place where the Publication Is Principally Directed

In the framework of jurisdiction based on the place of conduct, Article 3(3) warrants special consideration. In order to establish jurisdiction, this provision mandates that the publication in question be “principally directed” to the forum State. An objective connection for the purposes of this provision cannot be based on the mere fact that the information is accessible from a certain State: to the contrary, it is necessary that a given State (and the persons therein: i.e., readers/listeners/social media users and/or followers) be the principal target of the communication. Accordingly, the courts of the State in which the information is received can assert who engage in public participation from manifestly unfounded or abusive court proceedings. The measures include a proposal for a Directive (COM(2022) 177 final) and a Commission Recommendation (C(2022) 2428 final) encouraging Member States to align their national rules on SLAPP with the proposed Directive. The proposed safeguards aim at ensuring the balance of access to justice and privacy rights with the protection of freedom of expression and information. They are expected to benefit, in general, all persons engaged in public participation on matters of public interest and, in particular, journalists and persons or organisations engaged in defending fundamental rights and a variety of other rights, such as environmental and climate rights, women’s rights, LGBTIQ rights, the rights of the people with a minority racial or ethnic background, labour rights or religious freedoms. See, esp., B. HESS, Strategic Litigation: A New Phenomenon in Dispute Resolution, MPILux Research Paper Series 2022 /3, available via ssrn at https://papers.ssrn.com/sol3/papers.cfm ?abstract_id=4107384.

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The Lisbon Guidelines on Privacy jurisdiction in accordance with this provision only if it may be inferred from the act of communicating that the act was meant to principally (but not necessarily exclusively) target recipients in that State.18 In a list that is meant to be illustrative and not exhaustive, the provision states that, to assess the State to which the publication is principally directed, aspects such as the language of the publication, the content of the publication or the physical location of the audience may be taken into account. The language of the publication, especially when it is not a language commonly used in many States or at the international level, may clearly serve as an indication of intent to target a given audience. For instance, in the decision known as “Seven days in Moscow”, the German Bundesgerichtshof ruled that accepting jurisdiction would be improper in a case of disparaging comments posted online in Russian and in Cyrillic alphabet (thus hardly accessible to the average German reader) over events that had occurred at a class reunion in Moscow.19 Along the same lines, the CJEU ruled in Football Dataco Ltd that the circumstance that data placed online by a company providing results and other statistics relating, inter alia, to English league matches live via the Internet is accessible to Internet users in the United Kingdom in English (a language which is not the one used in the Member State from which the provider pursues its activities), might be supporting evidence for the existence of an approach targeting in particular the public in the United Kingdom.20 As concerns the content of the publication, in “Seven days in Moscow” the Bundesgerichtshof also found that the fact that the disputed post concerned events that had taken place among Russian citizens in Moscow should be read in support of the publication being principally directed to Russia.21 As regards the physical location of the audience, in Football Dataco Ltd the CJEU further held that the circumstance that the data available on the server included data relating to English football league matches showed an intention on the part of the provider to attract See, for instance, BGH, 25 October 2016 – VI ZR 678/15 ruling that, pursuant to Article 5(3) of the 2007 Lugano Convention, German courts had jurisdiction to issue an injunction for the violation of personal rights sought by the wife of the retired racing driver Michael Schumacher, who is a German citizen residing in Switzerland, against the website of a Swiss broadcaster (namely, www.srf.ch). 19 BGH, 29 March 2011 – VIZR 111/10, Seven days in Moscow, NJW, 2011, 2059. See, in particular, J. vON HEIN/ A. BIZER, Social Media and the Protection of Privacy: Current Gaps and Future Directions in European Private International Law, 6 Int’l J. of Data Science Analytics 2018, p. 237. 20 CJEU, 15 October 2012, Football Dataco Ltd, EU:C:2012:642, para. 42. See also CJEU, 17 October 2017, Bolagsupplysningen, EU:C:2017:766, para. 11, relaying that the Harju Court of First Instance in Estonia had declined jurisdiction over an action for removal and rectification of online damaging content posted on the website of a trade association incorporated under Swedish law on the grounds that the information and comments at issue were published in Swedish and, without a translation, they were incomprehensible to persons residing in Estonia. As the CJEU ultimately also found (albeit without making direct reference to the language issue) the fact that the website at issue was accessible in Estonia could not automatically support the jurisdiction of an Estonian court over the dispute. 18

21

BGH, 29 March 2011 – VIZR 111/10, Seven days in Moscow, NJW, 2011,

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Jan von Hein/ Cristina M. Mariottini the interest of the public in the United Kingdom and may constitute evidence of targeting.22 The criteria in Article 3(3) may also be used concurrently as was the case in Arlewin v. Sweden, where the European Court of Human Rights (ECtHR) ruled that requiring a Swedish national to bring defamation proceedings in the United Kingdom following an allegedly defamatory TV program broadcasted by a London-based company, but targeting mostly, if not exclusively, a Swedish audience, was not reasonable and violated Article 6(1) of the European Convention on Human Rights (“ECHR”). Noting that the content, production and broadcasting of the television program as well as its implications had very strong connections to Sweden and very little to the United Kingdom (the television program had been produced in Sweden, in Swedish and was sponsored by Swedish advertisers; the program was sent from Sweden via satellite to a London-based company which broadcast and transmitted it to viewers in Sweden), the Court ruled that Sweden had an obligation under Article 6 ECHR to provide the applicant with an effective right of access to court.23 Unlike the ground of jurisdiction in Article 3(1), the ground of jurisdiction in paragraph 3 applies regardless of where the act directly causing the harm occurred. And unlike the ground put forth in Article 3(2), which focuses on the plaintiff’s centre of main interest, the ground in Article 3(3) examines solely whether the defendant principally directed its message to an audience in a given State. Notably, the ground of jurisdiction under Article 3(3) is an expression, at once, of flexibility and of a focussed approach. It is meant to introduce additional flexibility to the rigidity of the two grounds of jurisdiction established by Article 3(1)-(2). However, it “controls” such flexibility by mandating that the publication be “principally directed” to the forum State, as such ensuring foreseeability and fairness for the defendant. Such ground of jurisdiction is tailored to extend the jurisdiction and provide additional alternative fora to the plaintiff that has suffered damage in a forum other than the ones identified in accordance with Article 3(1)(2). However, it controls, in particular, the potential that the Internet has to subject its users to limitless jurisdiction, or jurisdiction in every forum where the offending material can be accessed. b)

The Place of Conduct – The Exclusion of the “Mosaic Principle” for the Purpose of the Lisbon Guidelines on Privacy

Against this background, it is of note that a solution such as the one put forth with the “mosaic principle” – which was applied by the CJEU in Shevill24 in an action seeking compensation for non-material damage allegedly caused by a defamatory article published in the printed press, and which states that the plaintiff may bring a claim in the State in which the plaintiff is known, but only in respect of damage CJEU, 15 October 2012, Football Dataco Ltd, EU:C:2012:642, para. 40. ECHR, 1 March 2016, Arlewin v. Sweden, App. No 22302/10, para. 72. 24 CJEU, 27 September 1968, Fiona Shevill, EU:C:1995:61, paras 29-31; recently confirmed by CJEU, 21 December 2021, Gtflix Tv v. DR, EU:C:2021:1036, paras 29 et seq. 22 23

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The Lisbon Guidelines on Privacy caused in that State – was deemed by the majority of the Committee as unsuited to the goal of foreseeability and not fit to the needs, in particular, of the Internet, where the dissemination of information is instantaneous and ubiquitous. Given the difficulty of limiting an injunction to a certain territory, especially vis-à-vis Internet violations, the majority of the Committee further observed that the “mosaic principle” is unsuited also with respect to injunctive relief (cf Article 6 and accompanying commentary).25 The exclusion of the “mosaic principle” is also in keeping with some jurisdictions, such as the U.S., which follow the “single publication rule”.26 Pursuant to the “single publication rule”, any form of mass communication, which may be repeatedly published (in various formats) after it was originally released, counts as a single publication. Therefore, the cause of action for defamation is deemed to arise on the edition’s original publication date, even if the edition is printed and distributed over multiple dates. While the “single publication rule” is substantive law and it is not a jurisdictional rule, its underlying principle is akin to the rationale that supports the exclusion of the “mosaic principle”: as such, it reinforces the Committee’s choice in favour of such exclusion. 2.

Jurisdiction Based on the Defendant’s Habitual Residence and Applicable Law

With regard to jurisdiction based on the defendant’s habitual residence (Article 4), an automatic and general parallelism between jurisdiction and the applicable law – even in cases where no relevant conduct occurred in this State – would frequently lead to a law that is unrelated to the substance of the dispute and thus would unduly favour defendants over plaintiffs. Therefore, Article 7(2) contains specific choiceof-law rules for suits brought in this jurisdiction. In this respect, the Lisbon Guidelines differ from Article 7 No 2 IDI Resolution, which refers to the lex fori for suits brought in the defendant’s home state as well.27 Under Article 7(2) of the Lisbon Guidelines, the approach is as follows: in principle, a court having jurisdiction under Article 4 shall apply the law of the State where the act directly causing the harm occurred, irrespective of where the damage arose (Article 7(2), first sentence). Since defendants will in most cases act at their habitual residence, leaving matters there would again unduly favour defendants over plaintiffs. Therefore, this In this regard, see CJEU, 17 October 2017, Bolagsupplysningen, EU:C:2017:766, para. 48, where the Court ruled that, in the light of the ubiquitous nature of the information and content placed online and the fact that the scope of their distribution is, in principle, universal, an application for the rectification of the information and the removal of the comments is a single and indivisible application and may, consequently, only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage; recently confirmed by CJEU, 21 December 2021, Gtflix Tv v. DR, EU:C:2021:1036, para. 32. 26 Restatement (Second) Torts, § 577A, comment a. 27 Article 7 No 2, second sentence IDI Resolution introduces a certain degree of flexibility by referring to the law of the closest connection if the defendant’s home has changed between the time of the injury and the time of the lawsuit. 25

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Jan von Hein/ Cristina M. Mariottini rule is combined with a restrictively framed right of the plaintiff to opt for the law at the latter’s centre of main interest, but only if the publication was principally directed to this state (Article 7(2), second sentence). This solution prevents a circumvention of otherwise applicable laws if the act in question was principally directed to the latter State. That State must be the main aim of the publication; all other States are not relevant to the identification of the applicable law, even if the publication is directed to them as well.28 In the – theoretically possible, but practically very rare – case where there are two States that are equally the main aim of the publication, the claimant may opt for the one of them in which the victim’s centre of main interest is situated. By limiting the law that might be chosen to just one State, this approach avoids the difficulties inherent in the Shevill doctrine. Article 7(2) gives an additional choice to the plaintiff to opt for its centre of main interest provided the conditions of the second sentence are fulfilled. One has to take into account that the plaintiff has already the choice to opt for its centre of main interest under Article 3(2) as regards jurisdiction, which will then lead to applying this State’s law under Article 7(1). Article 7(2), second sentence is meant to encourage the plaintiff to do so for the sake of procedural economy. This is a balanced choice due to the defendantfriendly provision under Article 7(2), first sentence. This approach prevents publishers and service providers from setting up their headquarters in “liability oases”. In addition, it nips in the bud complaints by foreign dictators who feel insulted at their “centre of interest” although the publication in question was principally directed to audiences in other, more liberal States.29 C.

Agreements as to Jurisdiction

In accordance with Article 5 of the Lisbon Guidelines, the parties may agree – subject to the restrictions set out in the same provision – which court(s) shall have jurisdiction over disputes arising between them.30 With this provision, the Guide-

28 In this respect, the present rule is more restrictive than that proposed by T. LUTZI, Private Int’l L. Online, Oxford 2020, mn. 5.154, Article 2(3): “However, where the party claiming to be affected by the pursuit or use of the information society service is so affected in their private life, outside his or her trade or profession, the applicable law shall be the law of the country in which he or she has his or her habitual residence, provided that the defendant: – acted in pursuit of commercial or professional activities; and – directed the activity in question to this member state. Violations of privacy and rights relating to personality, including defamation, shall always [be] considered to affect the claimant in their private life.” 29 See the Böhmermann case, in which a German TV host was sued for defamation by the Turkish president Erdogan, Landgericht Hamburg, 10 February 2017, case 324 O 402/16, GRUR-RS 2017, 101443. 30 See also Article 5(3) of the Guidelines, in accordance with the jurisdiction established pursuant to Article 5(1)-(2) shall be exclusive, unless the parties have agreed otherwise.

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The Lisbon Guidelines on Privacy lines aim to provide greater certainty to parties engaging in cross-border activities and, consequently, to create a legal environment more amenable to such activities.31 1.

The Different Treatment for Agreements Entered, Respectively, after and before the Events Giving Rise to a Dispute

Against this background, Article 5 of the Lisbon Guidelines (similarly to Article 6 of the IDI Resolution) draws a fundamental distinction and provides a different treatment for agreements entered into, respectively, after and before the events giving rise to a dispute occur. Notably, Article 5(1) regulates the case where party autonomy vis-à-vis jurisdiction is exercised “after the events giving rise to a dispute”: in such instance, the designated court(s) should exercise jurisdiction to settle any disputes which have arisen in connection with the parties’ particular legal relationship. It follows that, in accordance with Article 5(1), jurisdiction clauses are permitted, regardless of the nature of the underlying relationship, provided the clause was agreed upon after the events giving rise to a dispute. The flexibility afforded with this provision is premised on the assumption that parties will enter into a jurisdiction clause after the dispute has arisen only when it concretely benefits them and, likely, only subsequent to receiving proper legal advice.32 Conversely, Article 5(2) of the Guidelines establishes that, if party autonomy vis-à-vis jurisdiction is exercised “before the events giving rise to a dispute”, the designated court(s) shall have jurisdiction “provided that all the parties engaged in commercial activity and the agreement was part of that activity”. Accordingly, the relevance of choice of court agreements entered into before the dispute arises is limited in scope to disputes that arise in the context of a commercial activity.33 The rationale underlying this provision is that parties – and, in particular, businesses and, a fortiori, businesses that operate in the online environment – may rely on their contractual power to incorporate a jurisdiction clause into the contract or standard terms that regulate their relationship with another party.34 Hence, to contain the disadvantage that may ensue from the case where a consumer (identified, under Article 2(9) of the Guidelines as “a natural person acting primarily for personal, family or household purposes”) enters into a jurisdiction clause, Article 5(2) limits party autonomy exercised “before the events giving rise

31

See, in part., A. MILLS, Party Autonomy in Private International Law, Cambridge

2018. Article 5(1) in fine of the Guidelines establishes that the designated court(s) “shall exercise jurisdiction, unless the agreement is null and void under the law of the chosen State”. This provision embodies the sole generally applicable exception to the rule according to which the designated court must hear the case. The null and void character of the agreement is governed by the law of the State of the chosen court, to the exclusion of the conflict-of-law rules of that State. The “null and void” clause applies only to substantive (as opposed to formal) grounds of invalidity and it is intended to refer primarily to generally recognised grounds like fraud, mistake, misrepresentation, duress and lack of capacity. 33 Similarly, see Section 4 and esp. Article 19(1) Brussels I-bis Regulation. 34 See, in part., I. PRETELLI (note 6), p. 35-36. 32

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Jan von Hein/ Cristina M. Mariottini to a dispute” to those instances where “all the parties engaged in commercial activity and the agreement was part of that activity”. A system in which the exercise of party autonomy over forum clauses (including arbitration agreements) is limited to commercial claims is, in general terms, reflective of the standard clauses drawn up by the major online platforms and search engines. For instance, both Facebook and Instagram limit choice of forum clauses to commercial claims;35 Google and Youtube each defer to the dispute resolution mechanisms (including ODR) of the country of residence of the user, for users who live in the European Economic Area, or Switzerland.36 Interestingly, Twitter’s standard terms expressly provide as to jurisdiction in the relationship only with users that live outside the European Union, EFTA States, or the United Kingdom, including if the user lives in the United States. However, with regard to users that live in the European Union, EFTA States, or the United Kingdom, the Company’s terms only state that “These Terms are an agreement between you and Twitter International Company, an Irish company with its registered office… [in Dublin] Ireland”, hence establishing its registered office in Ireland and deferring to the local (be they regional or national) sets of rules on jurisdiction.37 2.

The Interplay between Choice of Court and Choice of Law

Where parties have agreed on jurisdiction (Article 5), but failed to choose the applicable law (Article 9), the conflicts rule of Article 7(2) applies as well. A different solution is proposed by Article 7 No 5 IDI Resolution: if the chosen court is located in a jurisdiction that would be competent by one of the objective heads of jurisdiction found in Article 5 IDI Resolution, the respective lex fori should apply again. If the chosen court is situated in another jurisdiction, the IDI Resolution refers to the principle of the closest connection. However, applying the lex fori of a chosen court only seems appropriate if the parties have at least made a tacit choice-of-law agreement within the meaning of Article 9(3) of the Lisbon Guidelines; in this respect, an exclusive choice-ofcourt agreement may be a strong indicator.38 In such a case, an objective conflicts rule is not needed. Where not even a tacit choice of law agreement may be ascertained, however, a parallelism between jurisdiction and the applicable law is not convincing and would often necessitate corrections by the principle of the closest connection. In this regard, legal certainty is probably better served by the approach underlying Article 7(2) of the Lisbon Guidelines. See, respectively, www.facebook.com/legal/commercial_terms and help.instagram.com/581066165581870 (both last accessed on 22 July 2022). 36 See, respectively, policies.google.com/terms?hl=en-US and www.youtube.com/ static?gl=IE&template=terms (both last accessed on 22 July 2022). 37 See https://twitter.com/en/tos (last accessed on 22 July 2022). 38 See Recital 12 Rome I Regulation: “An agreement between the parties to confer on one or more courts or tribunals of a Member State exclusive jurisdiction to determine disputes under the contract should be one of the factors to be taken into account in determining whether a choice of law has been clearly demonstrated.” 35

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The Lisbon Guidelines on Privacy D.

Specific Aspects Concerning the Applicable Law

1.

Escape Clause

In order to provide for a necessary degree of flexibility, Article 8(1) allows a court to displace the regular conflicts rules found in Article 7 if a manifestly closer connection with another State exists. Such a closer connection may be based, in particular, on a common habitual residence of the parties (Article 8(2)) or on a preexisting relationship between the parties, such as a contract (Article 8(3)). In this respect, the Lisbon Guidelines offer rather more flexibility than the IDI Resolution, which only provide for applying the principle of the closest connection if the court’s jurisdiction was based on either the defendant’s home (Article 7 No 2 IDI Resolution) or on a choice-of-court agreement selecting a court that would otherwise not have jurisdiction (Article 7 No 5 IDI Resolution). The escape clause in Article 8(1) of the Lisbon Guidelines seeks to resolve the tension between the requirement of legal certainty, on the one hand, and the need to do justice in individual cases, on the other. Article 7 determines the applicable law by identifying the typically closest connection. However, in exceptional cases, the closest connection might be the law of another country. Thus, the judge may have recourse to an escape clause in order to achieve justice in a conflict-oflaw sense for the individual case. Article 8(1) should not, therefore, be understood as a point of entry for a kind of “better law approach” that would allow a court to select a law based on its substantive preferences.39 This approach thus creates a flexible framework of conflict-of-law rules. Contrary to Article 4(3) Rome II Regulation,40 the closer connection need not be determined holistically for the obligation in question, but may also cover just a single issue such as loss-regulation or prescription. This is made clear by the words “the whole or part of the dispute” in Article 8(1). In that respect, the provision allows for a different connection of conduct-regulating rules and loss-allocating rules if the peculiar circumstances of a case require such a distinction. 2.

Party Autonomy and Applicable Law

The objective conflicts rules of Articles 7 and 8 only come into play when the parties have not chosen the applicable law pursuant to Article 9 (see Article 9(2)). Article 9 is based on a modern and liberal approach to party autonomy, allowing a choice of the applicable law both ex post and, provided certain conditions are met, ex ante. The distinction between an ex post and an ex ante choice of law is inspired by Article 14 Rome II Regulation; the IDI Resolution makes a similar proposal in its Article 8. Although Article 9 of the Lisbon Guidelines does not explicitly provide for the possibility of choosing different laws governing parts of the obligation, 39 See J. VON HEIN, Something Old and Something Borrowed, but Nothing New? Rome II and the European Choice-of-Law Evolution, Tulane L. Rev., 2008/82, p. 16691671. 40 See J. VON HEIN, Article 4 Rome II, in G.-P. CALLIESS/ M. RENNER (eds), Rome Regulations, Alphen aan den Rijn 2020, mn. 51.

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Jan von Hein/ Cristina M. Mariottini it is submitted that such a dépeçage is permissible.41 In that regard, it must be kept in mind that Article 9 is not limited to non-contractual obligations, but covers contractual obligations as well (see Article 1(2)). For the latter obligations, a partial choice of law agreement has been accepted for a long time (see Article 3(1), third sentence Rome I). The parties are free to choose any State’s law without further requirements like a special connection to the tort. This liberal attitude is justified because demanding a close connection between the chosen law and the obligation would reintroduce precisely the legal uncertainty that the parties want to avoid by entering into a choice-of-law agreement. According to Article 9(1)(a), an ex post agreement on the applicable law is possible for all parties; weaker parties, such as consumers, are not excluded because the threat of abuse of an inferior negotiating position is minimized in case of a choice made post factum.42 Parties who pursue a commercial activity may enter into a choice-of-law agreement ex ante, Article 9(1)(b)(i). Article 9(1)(b)(ii) reacts to the development, generally occurring in an online context and especially in social media, whereby users might violate each other’s personality as equals.43 For the purpose of this provision, the term “social media” includes every interactive online platform which allows users to generate and share their own content and to network with other users. In order to avoid giving preference to either the perpetrator or the victim, these Guidelines provide for a law which is neutral to both parties, i.e. the law governing the contract that both parties have concluded as users with the same social media provider.44 Provided that the social media provider chooses the same applicable law in all contracts with its users and this choice of law is valid, it may be appropriate to apply this law to any kind of litigation arising between users as well, provided that the user has made an informed choice. This approach is justified as the contract with the social media provider is the crucial precondition to access the social media platform and thus to enable users to communicate with each another. This solution might apply, for instance, in an online forum for debate; the users who wish to engage in a specific debate on the forum may agree with each other to submit all legal matters to the law which also governs all their platform contracts with one and the same social media provider.

41 Under Article 14 Rome II, the question is controversial; see with further references J. VON HEIN, Article 14 Rome II, in G.-P. CALLIESS/ M. RENNER (eds), Rome Regulations, Alphen aan den Rijn 2020, mn. 35. 42 See with further references ibidem, mn. 18. 43 For a thorough discussion of the relationship between users of social networks and the implications for the identification of the applicable law on defamation cases see A. MILLS, The law applicable to cross-border defamation on social media: whose law governs free speech in “Facebookistan”?, J. of Media L., 2015/7, p. 1-35; A. BIZER, Persönlichkeitsrechtsverletzung in Sozialen Medien, Tübingen 2022. 44 Such a solution might be attractive, for instance, in groups serving the exchange of ideas and opinions in social networks. Users of such a group could set up rules of behaviour for the debate including a choice of law for any questions of liability between the users.

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The Lisbon Guidelines on Privacy This solution also enables social media providers to make sound predictions: the provider can regulate the exchange of information knowing which legal standard to apply. In fact, social media providers have an obligation to “police” the activity on their platforms; therefore, it is important for them to know which legal provisions to apply. A single law governing these aspects reduces the problems in moderating the platform; this is also to the benefit of consumers because it increases efficiency and predictability, thus reducing the costs of litigation. Even if both parties share a habitual residence in the same country, their relationship may have cross-border elements (e.g., German scientist X defames their fellow German scientist Y because of alleged plagiarism on an internationally read blog). However, Article 9(1)(b)(ii) only applies if the users of the social media platform do not have a common habitual residence in the same State. This is made clear by the introductory words of Article 9(1)(b)(ii). In such a case, judging the relationship between two users by a law that is alien to both of them would be inappropriate and increase the cost of litigation. In this scenario, it is not necessary to offer to the parties a law which is neutral to both claimant and defendant because both parties already have a significant relationship with the same law (that of their common habitual residence). Moreover, if both parties share their habitual residence in the same country, they will usually litigate in this State. In this scenario, a parallelism between jurisdiction and the applicable law will enhance procedural economy. Finally, agreements on the applicable law made by consumers should only be accepted in a restrictive manner, as a consumer may not foresee the consequences of such an agreement as a commercially active person may do. Currently, social media providers do not offer the corresponding technical provisions to realize the approach in Article 9(1)(b)(ii) which is in conformity with the existing rules on choice of law. However, the Committee decided to provide for an innovative option to extend the possibilities that arise with communication on social media and to suggest new solutions. 3.

Right of Reply

In accordance with earlier proposals by the European Commission and the European Parliament, a special conflicts rule is introduced for the right of reply (Article 10). This right is closely linked to a State’s media law and should thus not be imposed by a foreign law, but rather be governed by the law of the State in which the publisher, broadcaster or Internet service provider has its habitual residence (Article 10). The European Commission had already recognized this approach in its 2003 Proposal for a Rome II Regulation, which contained a nearly identical provision in its Article 6(2).45 This solution was, in principle, also endorsed by the European Parliament (Article 5(2) of the Parliament’s Rome II draft of 2005).46 45 Commission of the European Communities, Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations, COM(2003) 427 final. 46 European Parliament legislative resolution on the proposal for a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II”) (COM(2003)0427 – C5-0338/2003 – 2003/0168(COD)), P6_TA(2005)0284.

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Jan von Hein/ Cristina M. Mariottini In spite of the near consensus on this point, violations of personality rights were soon after excluded entirely from the Rome II Regulation (Article 1(2)(g) Rome II) because of disagreements concerning the general approach to such torts; thus, the right of reply was also not dealt with in the final Regulation. However, this approach to the right of reply was again confirmed by the European Parliament in 2012 (Article 5a(4) of the Parliament’s resolution).47 The conflicts rule that was in principle endorsed by the European Commission and Parliament also reflects the prevailing approach in many Member States, e.g. Germany.48 The applicable law to a right of reply is exclusively determined by Article 10. Thus, neither party autonomy nor a common habitual residence are relevant to the right of reply. 4.

Public Policy and Mandatory Rules

Finally, yet importantly, one has to take into account that personality rights and privacy protection are based on constitutional values. Thus, Article 11 allows a court to displace a foreign law if it violates the forum’s public policy (Article 11(1)), to apply overriding mandatory rules of the forum (Article 11(2)) and, under certain circumstances specified in Article 11(3), to give effect to foreign mandatory rules. In contrast with Article 8(2)(c) IDI Resolution, the Lisbon Guidelines do not restrict the possibility of invoking public policy to cases where the parties have chosen the applicable law, but extend it to objective conflicts rules as well. E.

Special Rules for Interim Relief and their Interface with the General Approach

Article 6 of the Guidelines concludes the Section on jurisdiction by clarifying that the rules laid out in Articles 3 to 5 extend to applications for provisional measures and by adapting the special rule set out in Article 3(3) to cases where the claimant only seeks provisional relief. Cognizant of the considerable diversity that characterizes this area of procedural law and the constantly evolving legal environment in the field of the protection of privacy, the Committee has not provided a definition of the term “provisional measures”.49 It follows that the term will be interpreted by 47 European Parliament resolution of 10 May 2012 with recommendations to the Commission on the amendment of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) (2009/2170(INI)), [2013] OJ C 261 E/17. 48 See A. JUNKER, Article 40 EGBGB, in F.J. SÄCKER/ R. RIXECKER/ H. OETKER et al. (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch, Munich 2021, mn. 91, with further references. 49 See the CJEU’s interpretation of the terms “provisional, including protective measures” under Article 24 of the Brussels Convention 1968 (now Regulation Brussels Ibis): “The expression ‘provisional, including protective, measures’ within the meaning of Article 24 must therefore be understood as referring to measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having

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The Lisbon Guidelines on Privacy national courts in accordance with their domestic law, having regard to the international character of the Guidelines. Article 6(1) restates the uncontroversial principle according to which the existence of a connecting factor that would allow a party to bring an action on the merits carries with it the right to apply for provisional relief.50 Hence, any court with jurisdiction to rule on the main proceedings in accordance with Articles 3 to 5 of the Guidelines also has jurisdiction to issue provisional measures. By contrast, Article 6 paras (2) to (4) provide more specific rules any time that a violation of privacy results from a publication. Such provisions are made necessary to avoid the difficulties of interpretation that could arise regarding the jurisdictional rules set out in Article 3(3), in accordance to which the defendant may be sued before the courts of a State to which such publication is “principally directed”. Given the nature of provisional measures, whose purpose is generally to provide rapid and effective relief to parties who may otherwise suffer great and irremediable harm, it might be disproportionate to require evidence that a publication is “principally directed” towards a specific jurisdiction in order for the courts of that State to grant interim relief. Hence, Article 6(2) provides that a showing that the publication in question was “directed” towards a specific country is sufficient to confer jurisdiction upon the courts of that State. Nevertheless, Article 6(2) should not be understood as a way for parties to undercut the ordinary rules on jurisdiction laid out in Articles 3 to 5 of the Guidelines. This is why the provision should not be interpreted as granting jurisdiction based on the mere accessibility of the publication. Instead, courts should have regard to the factors laid out under Article 3(3) and assess whether an objective connection exists between the alleged violation of privacy and the State of the court seised. The Committee has recognized that this solution departs both from the most recent case law of the CJEU51 and from some national decisions issued in the field of Internet jurisdiction.52 This result, however, inevitably stems from the jurisdiction as to the substance of the matter” (CJEU, 26 March 1992, Reichert and Kockler, EU:C:1992:149, para. 34; 17 November 1998, Van Uden, EU:C:1998:543, para. 37; 28 April 2005, St Paul Dairy Industries NV, EU:C:2005:255, para. 13). 50 See e.g. CJEU’s case law under the Brussels I-bis Regulation; ILA Committee on International Civil and Commercial Litigation, “Principles on Provisional and Protective Measures in International Litigation”, published in ILA Report of the Sixty-Seventh Conference held at Helsinki, Finland, 12 to 17 August 1996, 199 (acknowledging “the wide jurisdiction accorded to a court properly exercising jurisdiction over substance to grant provisional and protective measures addressed to a defendant personally irrespective of the location of the defendant’s assets”); IDI Resolution, Principles on Provisional and Protective Measures in International Litigation, Hyderabad Session, 2017, para. 7 (“An international or national court or tribunal may make such orders if it has prima facie jurisdiction over the merits”). 51 CJEU, 21 December 2021, Gtflix Tv v. DR, EU:C:2021:1036. In its judgment, the Court held in fact that a plaintiff who was allegedly harmed by disparaging comments published on an online platform could file interim proceedings against the author before the courts of any State where the publication is accessible to seek compensation for the damages accrued within that jurisdiction. 52 In favour of accessibility, see e.g. French Cour de cassation, Civ. 2, 6 November 2008, 07-17.445, Bull. Civ. II [2008], No 232.

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Jan von Hein/ Cristina M. Mariottini rules set out under Article 3, which provides that the mere accessibility of the publication is insufficient to confer jurisdiction on the courts of a given State and rejects the “mosaic approach” as an adequate theory to allocate cases in the area of the protection of privacy. The Committee also stresses, however, that Article 6(2) imposes a lower burden of proof on the applicant compared to Article 3(3), as a party seeking provisional relief rather than initiating proceedings on the merits should not be required to prove that the publication in question principally targeted recipients in the jurisdiction of the court seised. The rejection of the “mosaic principle” also reverberates on the nature and scope of the powers that should be available to national courts under Article 6(2). Indeed, such rejection would be significantly undermined if a party were able to circumvent it by seeking provisional payments in every country where the publication in question is directed to compensate for damages allegedly accrued within that jurisdiction. For this reason, Article 6(2) expressly provides that provisional measures under Article 6(2) should be limited to “provisional injunctive relief”. Furthermore, the Committee also made clear that, since a court acting under Article 6(2) may lack jurisdiction on the merits, such relief should be exercised “in order to support the main proceedings” and should, in any event, remain “strictly territorial”. As to the first point, the Committee has taken the view that provisional measures issued under Article 6(2) should be ancillary to proceedings on the merits that may take place in another State. In doing so, the Guidelines follow the approach endorsed by the ILA Committee on International Civil and Commercial Litigation in 1996,53 as well as by several national legal systems.54 However, rather than providing specific rules as to how provisional measures should support the main proceedings, the Guidelines leave it to national law to define the best way to fulfil this general objective. By way of illustration, the law applicable to proceedings brought in accordance with Article 6(2) may therefore require applicants: (i) to file an action on the merits with a court having jurisdiction under Articles 3 to 5 before applying for provisional relief; (ii) to carry out within a given time frame the steps necessary to secure a judgment on the merits; (iii) to show the provisional relief is sought in contemplation of proceedings on the merits which may reasonably be expected to lead to a judgment on the merits; or (iv) to otherwise provide an undertaking or security that they would seek a decision from a court competent on the main proceedings. As to the second point, Article 6(2) provides that provisional injunctive relief issued under Article 6(2) shall be “strictly territorial”. By imposing this requirement, the Committee acknowledges the widespread concern that in order not to infringe upon the jurisdiction of another State, the power to issue a provisional measure in cases where the court might otherwise lack jurisdiction on the 53 See ILA Committee on International Civil and Commercial Litigation (note 50), principles 10-15. 54 In this respect, see e.g. Broad Idea International Ltd (Respondent) v. Convoy Collateral Ltd, [2021] UKPC 24, holding that English courts may grant pre-judgment injunctions where the grant of provisional relief is ancillary to a future judgment which might become enforceable in England.

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The Lisbon Guidelines on Privacy merits should be subject to the existence of a strong territorial connection and should not produce any extraterritorial effect.55 Therefore, courts exercising their jurisdiction under Article 6(2) should use all the tools available to them to ensure that provisional measures issued in response to a violation of privacy resulting from a publication directed to a given State do not hamper any potential rights that a party may hold in another jurisdiction according to foreign law. Hence, while a court seised in accordance with this provision may issue orders requiring the respondent to carry out conduct within the jurisdiction, or preventing or reducing the harm that would otherwise occur within the forum State, it may not restrict access to the publication in another State nor take any measure intended to mitigate the harm that occurred in another jurisdiction. Finally, Article 6(3) and (4) set out the principles governing the relations between provisional measures issued under Article 6(2) and decisions issued in another State in the course of main proceedings. In this case, the Guidelines set out a clear hierarchy in favour of the latter, except where the recognition and enforcement of these decisions may be refused under Articles 12 and 13 of the Guidelines. On the one hand, in fact, Article 6(3) provides that once the main proceedings have been initiated before a court having jurisdiction on the merits, this court may modify or set aside the provisional measures granted under Article 6(2),56 provided that any interested party takes the appropriate steps to have this decision recognized in the State where the provisional relief was first granted. In such a case, the authorities of the requested State should give effect to the foreign decision and modify or set aside the provisional measure in accordance with their own law. The same solution holds after the main suit has been rejected or dismissed with prejudice by a decision capable of recognition under Articles 12 and 13, as the dismissal would then jeopardize the basis for the provisional measure. 55 On this point, see in particular CJEU, 17 November 1998, Van Uden, EU:C:1998:543, para. 40 (“the granting of provisional or protective measures on the basis of Article 24 [of the Brussels Convention] is conditional on, inter alia, the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought”); ILA Committee on International Civil and Commercial Litigation, cit., principle 17 (“Where the court is not exercising jurisdiction over the substance of the matter, and is exercising jurisdiction purely in relation to grant of provisional and protective measures, its jurisdiction shall be restricted to assets located within the jurisdiction”); IDI Resolution (note 50), para. 8 (“A national court may make orders for provisional measures in relation to assets or acts within its territory even if a court in another country has jurisdiction over the merits. Such provisional measures may be ordered provided that they do not infringe upon the exclusive jurisdiction of foreign courts”). Adde, more generally, § 404 of the Restatement (Fourth) of Foreign Relations Law (2018) (“Courts in the United States interpret federal statutory provisions to apply only within the territorial jurisdiction of the United States unless there is a clear indication of congressional intent to the contrary”). 56 In favour of this solution, see also ILA Committee on International Civil and Commercial Litigation (note 50), principle 14 (“There may be scope for the court exercising substantive jurisdiction to play a supervisory role, on the application of the defendant, over provisional and protective measures granted in other countries, considering in particular whether in aggregate those measures are justifiable in the light of the action as a whole, and the amount claimed in it”).

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Jan von Hein/ Cristina M. Mariottini Conversely, Article 6(4) provides that, where the recognition and enforcement of a foreign decision seeking to modify or set aside a provisional measure issued under Article 6(2) is refused, the latter may be made permanent but should remain strictly territorial. This is because it would be unjust for a party who has obtained provisional relief before the courts of a State where a publication is directed to be automatically deprived of the protection of the local courts in cases where the foreign decision does not fulfil the minimum standards set out in Articles 12 and 13. Under these circumstances, therefore, the provisional relief granted in accordance with Article 6(2) may still produce its effects, albeit only within the jurisdiction of the court that first granted it.

III. Recognition and Enforcement of Foreign Judgments Apart from the Member States of the Brussels I-bis Regulation and the Lugano Convention, the recognition and enforcement of a foreign judgment on privacy rights, including the right to reputation, is still a matter primarily governed by national law.57 Departing from this approach, Section D of the Guidelines sets out a system specifically designed for the recognition and enforcement of foreign privacy judgments. Such a system pursues consistency and continuity (see esp. Article 12) with the previous sections of the Guidelines, and especially the provisions on jurisdiction, while also taking into account the characteristic objections to and

57 On the grounds that the different balancing of such competing values renders the matters of defamation and privacy sensitive according to national legislatures and affects not only on the applicable substantive law, but also the eligibility of a judgment on these matters for recognition and enforcement abroad, “defamation” and “privacy/unauthorised public disclosure of information relating to private life” are excluded from the scope of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of 2 July 2019 (“Judgments Convention”) adopted in the framework of the Hague Conference on Private International Law (HCCH). See Article 2(1)(k)-(l) of the Convention, available on the website of HCCH at www.hcch.net, under the “Judgments” section. See further: F.J. GARCIMARTÍN ALFÉREZ/ G. SAUMIER, Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report, The Hague 2020, paras 60 et seq. See also A. BONOMI/ C.M. MARIOTTINI, A Game Changer in International Litigation? Roadmap to the 2019 Hague Judgments Convention, this Yearbook, 2018/2019, p. 543-544; C.M. MARIOTTINI, The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, this Yearbook 2017/2018, p. 475-486. However, in favour of extending to the recognition and enforcement of privacy and defamation judgments the scope of application of the (then) Hague Draft Convention on Recognition and Enforcement of Foreign Judgments of 28 May 2018 (now 2019 HCCH Judgments Convention), see IDI Resolution (note 50), Article 9.

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The Lisbon Guidelines on Privacy obstacles that in many instances preclude the circulation of judgments that fall in the scope of the Guidelines (Article 13).58 A.

Recognition and Enforcement

1.

Synchronization between the Grounds of Direct and Indirect Jurisdiction

Relying on the areas of commonality established by the Guidelines with respect to jurisdiction, Article 12 lays down the bases for recognition and enforcement of foreign judgments that fall in the scope of the Guidelines. Pursuant to Article 12(1), the judgments that satisfy the requirements on jurisdiction laid down in Section B of the Guidelines are eligible for recognition and enforcement in another State. The synchronization between the grounds of direct and indirect jurisdiction established with this provision facilitates the prognosis as to whether the resulting judgment will be eligible for recognition and enforcement and may exert a dual normative effect. On the one hand, it may exert an influence on where the plaintiff chooses to bring an action because they can expect that the resulting judgment is capable of recognition and enforcement in other States that implement the Guidelines. On the other hand, for analogous reasons it may assist the defendant in making an informed decision about whether they need to file an appearance on the basis of the likelihood (vel non) that the resulting judgment be eligible for recognition and enforcement. It should be noted that this provision does not mandate that, for the purposes of circulation of the judgment, the court of origin actually established its jurisdiction on the basis of one of the grounds provided under Section B. On the contrary, for the foreign judgment to be eligible to circulate it is sufficient that the judgment meets the requirements on jurisdiction put forth pursuant to the Guidelines. This condition enhances the circulation of judgments while also satisfying the quest for foreseeability. However, eligibility for recognition and enforcement pursuant to Article 12(1) finds a limit in Article 13: Article 12(1) is in fact without prejudice to the possibility that recognition or enforcement be refused on the grounds of Article 13. 2.

Effects of the Foreign Judgment

Pursuant to Article 12(2), in the event that the law of the requested State does not provide the relief granted by the court of origin, it shall provide a relief that has substantively equivalent effects (as opposed to relief that is merely formally equiv-

As regards recognition and enforcement of foreign judgments, the Committee specifically focused on issues that are peculiar to the circulation of privacy, including defamation, judgments. It follows that aspects that pertain more in general to the recognition and enforcement of foreign judgments (e.g., questions of procedural public policy, due process, inconsistency with earlier judgments, and prohibition of review on the merits) are not included in the text of the provisions. 58

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Jan von Hein/ Cristina M. Mariottini alent to the one granted by the court of origin), and give effect to the judgment to the fullest extent permissible under its national law.59 Notably, Article 12(2) tackles two separate situations: on the one hand, it addresses the instance where the relief granted in the court of origin is unknown in the requested State. On the other hand, it tackles the instance where the requested State does know a relief which, however, is only formally, but not substantively, equivalent to the one granted with the judgment. In either of these instances, in accordance with Article 12(2) the court addressed: (i) is not required to provide relief that is not available under its national law; (ii) has the obligation to adapt the relief to a measure known in accordance with its lex fori; and (iii) has the obligation to not go beyond the effects of the relief under the law of the State of origin. The objective of this provision is to enhance the practical effectiveness of judgments and to ensure that the judgment creditor receives meaningful relief. 3.

Penalty Orders

In some jurisdictions, penalty orders may be included in the original judgment as a “subsidiary” or “conditional” obligation, with the purpose of securing compliance with the main court obligations. It follows that a judgment which imposes – monetary or injunctive – obligations may also contain provisional / conditional “subsidiary” monetary penalties or fines in anticipation of (or for subsequent) non-compliance.60 The underlying rationale of a penalty is not about compensation: to the 59 The content of Article 13(2) is drawn from Article 66 of the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), COM(2010) 748 final. The provision in its original wording was not adopted; however, a similar provision is found in Article 54 of the Brussels I-bis Regulation. 60 Since some penalty orders are payable to courts or States, the question arises as to whether such orders fall in the scope of civil and commercial matters. The question whether these orders can circulate under the Brussels I Regulation was clarified by the CJEU, 18 October 2011, Realchemie Nederland BV v. Bayer, EU:C:2011:668: the case concerned the enforcement in The Netherlands of six German court orders in relation to an alleged patent infringement. Having found that Realchemie failed to comply with the above orders, the German court ordered Realchemie to pay a fine of 20,000 euros (Ordnungsgeld) pursuant to Article 890 of the German Code of Civil Procedure (ZPO), which was to be paid to the court, and a periodic payment of 15,000 euros (Zwangsgeld) pursuant to Article 888 of the ZPO. Bayer brought an enforcement proceeding in The Netherlands to enforce and collect these fines from Realchemie. The question arose as to the nature of such penalties. The CJEU found that, regardless of the punitive nature of the fines, the action qualifies as “civil and commercial” within the meaning of the Brussels I-bis Regulation since it was intended to protect private rights and did not involve the exercise of public powers by one of the parties to the dispute. See esp. paras 31 and 34. Similarly, see U.S. Court of Appeals for the Ninth Circuit in De Fontbrune v. Wofsy, 838 F.3d 992 (9th Cir. 2016): having looked into the nature of the French astreinte and the process of rendering the such order, the Ninth Circuit found that the French astreinte was similar to civil contempt: its purpose was not to punish a harm against the public but to vindicate de Fontbrune’s personal interest in having his copyright respected, and to deter further infringement by Wofsy. In addition, the astreinte awarded was payable to de Fontbrune, the proceedings were before a civil court,

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The Lisbon Guidelines on Privacy contrary, it is about sanctioning a party’s lack of compliance with an injunction. Hence, ensuring the enforcement of penalties is of particular importance – especially in the cross-border setting – with a view to the ultimate compliance with the original judgment and with the ultimate satisfaction of the judgment creditor. It follows that, in principle, penalty orders circulate under the Guidelines. Against this backdrop, Article 12(3) limits the eligibility for recognition and enforcement of a judgment which orders a payment by way of a penalty to the instance where the amount of the payment has been determined by the court of origin: to facilitate cross-border enforcement courts should, in fact, be encouraged to fix the amount of the penalty even in those instances where this is not the case in accordance with national law. B.

Refusal of Recognition and Enforcement

1.

“Banned” Grounds of Indirect Jurisdiction and Refusal of Recognition and Enforcement

While Article 12 regulates recognition and enforcement of foreign judgments, Article 13 sets out grounds for refusal of recognition and enforcement of those judgments. Article 13 is discretionary in nature. This is evidenced in the part of the provision where it is stated that “recognition or enforcement may be refused” (emphasis added). It ensues that this provision does not require that the recognition or enforcement of judgments be refused even in case one of the grounds under Article 13(1) is satisfied. To the contrary, this provision sets out the grounds on which recognition and enforcement of such judgments may be refused in other States. In this case, the Guidelines’ requirements on recognition and enforcement set a minimum standard that does not displace the ability of the national law of the requested State to ultimately recognize the judgment. With this provision, the Guidelines aim to expand the possibility for a judgment to be recognised and enforced when the judgment falls beyond the limits laid down in the Article 13(1), subject to the national law of the requested State. By opting in favour of this wording the Guidelines establish a system of grounds for indirect (and direct, to some extent) jurisdiction: in particular, the jurisdictional filters referred to in Article 12 (i.e., those under Section B of the Guidelines) qualify as belonging to a “safe list”. Those listed under Article 13(1) qualify as belonging to a “banned list” as a result of the fact that they may signify and the award was not a mandatory fine in the sense that the amount to be paid was freely determined by the French judge. Based on these findings, the court held that the French remedy of astreinte for copyright infringement awarded to de Fontbrune was not a “fine or other penal” award but a judgment that “[g]rants… a sum of money” within the meaning of the California Uniform Recognition Act: as such, it was eligible for recognition and enforcement in California. Furthermore, in SEC v. Credit Bancorp Ltd, the French Cour de cassation ruled that a financial penalty imposed by a U.S. court for non-compliance with an injunction was civil in nature, and could thus be declared enforceable: Cour de cassation, Arrêt n°65 du 28 janvier 2009 (07-11.729).

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Jan von Hein/ Cristina M. Mariottini the expression (or the exercise) of excessive national jurisdiction. Those that fall in neither list tacitly qualify as belonging to a “neutral” area and are acceptable subject to the national law of the requested State. In particular, Article 13(1)(a) identifies a ground for refusal of recognition and enforcement in the fact that the court of origin established jurisdiction over the dispute on the basis of the so-called “tag jurisdiction”. The cursory nature of the defendant’s presence in the territory of the State of origin fails to satisfy the requirement of a proper connection between the defendant and the State of origin, and between the dispute and the State of origin. Especially in disputes over privacy rights, where a strong connection between the facts of the case and the court is paramount vis-à-vis jurisdiction (and applicable law), a purely occasional and fleeting relationship of the defendant with the forum State fails to satisfy the need for foreseeability and linkage. Accordingly, this ground for indirect jurisdiction may fail to establish a proper and sufficient connection for the purposes of the circulation of the ensuing judgment. Article 13(1)(b) identifies a ground for refusal of recognition and enforcement in the fact that the court of origin based its jurisdiction on the fact that the plaintiff is a national of the forum State. The unilateral and unpredictable nature of this ground of jurisdiction conflicts with a widely acknowledged sentiment of natural justice whereby jurisdiction should satisfy preconditions of predictability and/or on a strong connection between the case and the forum. Consequently, it may be construed as unsuited to establish a proper and sufficient connection for the purposes of the circulation of the ensuing judgment. Article 13(1)(c) states that a foreign judgment may be refused recognition and enforcement if the jurisdiction of the court of origin is established solely on the basis of the location in the State of origin of assets belonging to the defendant. The fortuitous fact that assets of the defendants are located in the forum State does not qualify as a foreseeable or strong connection to the forum State. Consequently, it is construed as unsuited to establish a proper jurisdiction over a defendant for the purposes of the Guidelines. 2.

The Delicate Balancing of Privacy and Freedom of Expression – Public Policy as a Ground for Refusal of Recognition and Enforcement

The recognition or enforcement of privacy, including defamation, judgments usually entails a delicate balancing exercise between fundamental – and often constitutional – values and is often refused if granting it would violate the fundamental principles of the requested State’s law. Article 13(2), in particular, reflects this status quo by providing that recognition or enforcement may be refused if it would be manifestly incompatible with the public policy of the requested State to do so. The precondition that the incompatibility of the foreign judgment be manifest is the result of what is commonly understood as a mitigated effect (effet atténué) of public policy at the enforcement stage. However, as also illustrated by the exam-

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The Lisbon Guidelines on Privacy ples in the paragraphs below, it is doubtful whether such mitigation may be construed as appropriate in privacy cases.61 Diverging views on the balance between the right to privacy and the freedom of expression may (and do) lead to relying on the public policy ground for refusal of recognition and enforcement in cases involving violations of privacy rights. This area of the law is so sensitive that conflicts may arise also in the relations between States that share, to a significant extent, a common understanding of procedural law and of fundamental values, as is the case of continental EU Member States. This possibility is illustrated, for instance, by a decision of July 2018 where the German Supreme Court (Bundesgerichtshof – BGH) refused to recognize and enforce a Polish judgment under the Brussels I Regulation (before the recast) arguing that enforcement would violate German public policy, and notably freedom of speech and freedom of the press as embodied in the German Constitution.62 In particular, in its decision the BGH held that, pursuant to Article 45 of the Brussels I Regulation, to require that the defendant publish a text drafted by someone else (in the instant case, an apology drafted by the court of origin) as its own opinion would violate the defendant’s fundamental rights under Article 5(1) of the German Constitution. This case exemplifies how a conflict between fundamental rights may arise and may affect the circulation of judgments even between legal systems (such as those of Germany and the Poland) that share a holistic approach to privacy as expression of personhood and are bound by a qualified degree of mutual trust. The reaction to the phenomenon known as “libel tourism” and arising from plaintiffs’ attempts to bring defamation claims in the courts of the State that provides for the application of a more favourable law, and often on tenuous jurisdictional grounds, further substantiates the impact of the requested State’s public policy on the circulation of foreign privacy judgments. This phenomenon became so recurrent (especially, but not only, in the relations between the United States and the United Kingdom) that in 2010 the United States Congress unanimously passed the Securing the Protection of our Enduring and Established Constitutional Heritage Act (hereinafter, the “2010 Speech Act”), a federal law that is codified at 28 U.S.C. §§ 4101-4105.63 Under the 2010 Speech Act, both federal and State U.S. In this sense, referring to human rights violations more in general, see also T. DOMEJ, Recognition and enforcement of judgments (civil law), in J. BASEDOW/ G. RÜHL/ F. FERRARI et al. (eds), Encyclopedia of Private International Law, Cheltenham/ Northampton 2017, p. 1476. 62 BGH, 19 July 2018 - IX ZB 10/18; BAG, 05.12.2019 – 2 AZR 240/19. Cf also AG Bobek, Opinion of 23 February 2021, Case C-800/19, Mittelbayerischer Verlag, EU:C:2021:124, esp. paras 82-85, emphasizing the individual nature and content of the notion of privacy and its interface with public policy. 63 The history of the bill is available at: 111th Congress, 2d Session, Senate, Report 111-224, Hon. P. Leahy, 19.7.2012, paras 5-6. It is noteworthy that the 2010 Speech Act is the first, and to date only, U.S. federal legislative act on recognition and enforcement of foreign judgments. See L.J. SILBERMAN, Some Judgments on Judgments: A View from America, 19 King’s L. J., 2008, p. 235; L.J. SILBERMAN, The Need for a Federal Statutory Approach to the Recognition and Enforcement of Foreign Country Judgments, in P.B. STEPHAN (ed.), Foreign Court Judgments and the United States Legal System, 61

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Jan von Hein/ Cristina M. Mariottini courts are precluded from recognizing or enforcing a foreign defamation judgment unless such judgment is proven to be consistent with the First Amendment to the United States Constitution – which embodies and protects the freedom of expression and of the press in the United States – and with § 230 of the Communications Act of 1934.64 In addition, the 2010 Speech Act makes available to the judgment debtor a novel pre-emptive cause of action for declaratory judgment relief against the recognition of a foreign defamation judgment which conflicts with the First Amendment to the United States Constitution.65 Acknowledging the problem of libel tourism, in 2013 the Parliament of the United Kingdom passed the Defamation Act 2013. Among other things, the Defamation Act 2013 curtailed the possibility for English and Welsh courts to assert jurisdiction in cross-border libel cases.66 Namely, s. 9(2) of the Defamation Act 2013 states that a court does not have jurisdiction over defendants not domiciled in the UK to hear and determine a defamation action “unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement”. However, while the Defamation Act 2013 certainly offers a constructive and pro-active response to the problem of libel tourism, the response is nevertheless partial and only applies in England and Wales,67 thus leaving the issues surrounding libel tourism partly unsolved. Finally, Article 13(2) should be construed as encompassing also the case of the judgment’s incompatibility with fundamental principles of procedural fairness

26th Sokol Colloquium, Leiden 2014, p. 101; S.B. BURBANK, Federalism and Private International Law: Implementing the Hague Choice of Court Convention in the United States, 2 J. of Private Int’l L. 2006, p. 287; S.B. BURBANK, A Tea Party at The Hague?, 18 Southwestern J. of Int’l L. 2012, p. 101. In particular, on “cooperative federalism” see D.P. STEWART, Implementing the Hague Choice of Court Convention: The Argument in Favor of ‘Cooperative Federalism’, in P.B. STEPHAN (note 63), p. 147. 64 Communications Act of 1934 (Pub. L. 73-416, 48 Stat. 1064), classified to 47 U.S.C.A. § 230. 65 C.M. MARIOTTINI, Freedom of Speech and Foreign Defamation Judgments: From New York Times v. Sullivan via Ehrenfeld to the 2010 SPEECH Act, in B. HESS/ C.M. MARIOTTINI (eds), Protecting Privacy in Private International and Procedural Law and by Data Protection. European and American Developments, Baden-Baden 2015, p. 115-168. 66 The Defamation Act 2013 applies to causes of action occurring after its commencement on 1.1.2014. On the Defamation Act 2013 and its legislative history see: W. BENNETT, New Developments in the United Kingdom: The Defamation Act 2013, this Yearbook, 2012-2013, p. 173; T. HARTLEY, Libel Tourism – A solution in sight?, 63 Northern Ireland Legal Q. 2012, p. 94-95; T. SANCHEZ, London, Libel Capital No Longer?: The Draft Defamation Act 2011 and the Future of Libel Tourism, 9 University of New Hampshire L. Rev. 2011, p. 469. See also Defamation Act 2013, ch. 26, Explanatory Notes, available at www.legislation.gov.uk/ukpga/2013/26/pdfs/ukpgaen_20130026_en.pdf. 67 The Defamation Act 2013 applies to England and Wales only, however ss. 6 and 7(9) and 15 and 17 and, in so far as it relates to ss. 6 and 7(9), s. 16(5), also apply to Scotland. See the Defamation Act 2013, ss. 17(2) and (3).

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The Lisbon Guidelines on Privacy of the requested State.68 This ground lays down a very general standard that may be subject to different understandings. However, this reading of the provision accommodates those States that have a relatively narrow concept of public policy (and treat procedural fairness and natural justice as distinct from public policy) and want to make sure that there is some language about procedural fairness. An additional reason in support of the emphasis placed on procedural fairness is to acknowledge that in some States fundamental principles of procedural fairness (also known as due process of law, natural justice or the right to a fair trial) are constitutionally mandated. 3.

Punitive Damages

Article 13(3) concludes Section D of the Guidelines by allowing the court addressed to refuse recognition or enforcement of a judgment if and to the extent that the award of damages does not compensate the plaintiff for actual loss or harm suffered.69 Some States may be reluctant to recognise judgments awarding damages that go beyond the actual loss of the plaintiff. However, this concern cannot always be addressed by means of the public policy exception since some jurisdictions adopt a limited concept of public policy. To accommodate these concerns, Article 13(3) provides that recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered.

IV. Outlook In the course of its activity, the Committee strived to identify concrete issues in need to be addressed, and aimed at formulating recommendations and guidelines specifically tailored to the treatment of these matters in a cross-border context, with the overarching aim of reinforcing predictability and harmonisation in privacy disputes. And while the Committee drafted the Lisbon Guidelines on Privacy subsequent to a valuable comparative analysis of the solutions currently in force, both as regards substantive and private international and procedural law, the Guidelines primarily pursue the objective of providing a long-term outlook and formulate proposals on the emerging questions that to date often lack proper regulation. 68 See P. KINSCH, The Impact of Human Rights on the Application of Foreign Law and on the Recognition of Foreign Judgments – A Survey of the Cases Decided by the European Human Rights Institutions, in T. EINHORN/ K. SIEHR (eds), Essays in Memory of Peter E. Nygh, Portland 2004, p. 218-228. 69 This provision was inspired by Article 11 of the 2005 Hague Choice of Court Convention. See esp. the T. HARTLEY/ M. DOGAUCHI, Convention of 30 June 2005 on Choice of Court Agreements: Explanatory Report, The Hague 2007, paras 203-204.

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Jan von Hein/ Cristina M. Mariottini In an effort to rationalize and systematize an area of the law, such as that of the cross-border privacy claims – which, as exemplified in the previous paragraphs, is characterized by inherent and distinctive complexities – and to bridge the gap left by national and international sources, the Lisbon Guidelines on Privacy identify in the foreseeability of jurisdiction and in a principled parallelism between the jurisdiction and applicable law the path towards harmonized cross-border solutions for privacy claims. In this framework, the following conclusions were drawn: - Foreseeability of the forum is, of course, paramount. The existence of a close connection between the dispute and the court having jurisdiction fosters legal certainty and avoids the possibility of the defendant being sued in a court of a State which they could not reasonably have foreseen. - Reliance, in principle, on the lex fori finds compelling support in privacy’s strong underpinnings in national constitutions and fundamental rights, and comes with several advantages. Namely, it reduces the time and cost of litigation; it produces a judgment of higher quality; and it promotes foreseeability of result for defendants (e.g., media outlets). Moreover, it reduces the need to resort to public policy. At the same time, reliance on the lex fori suffers the disadvantage of promoting forum shopping. However, such disadvantage may be controlled by means of harmonised rules on jurisdiction. - While a defendant’s conduct that is significant for establishing jurisdiction will usually also indicate a sufficiently close connection for choice-of-law purposes, the general jurisdiction at the defendant’s habitual residence is rather neutral in this regard and thus complemented by a specific conflicts rule. - Recourse to jurisdictional rules to favour the plaintiffs in the context of privacy claims is questionable: as evidenced by legal practice, the plaintiff in a claim over personality rights does not necessarily qualify as a “weaker party”. - In principle, one should be wary of applying different rules for different media. In the modern world, the same content is commonly distributed by different channels, and it should not make a difference the channel by which one consumed that content. - It is preferable to narrow down potential fora and allow the plaintiff to sue for the whole damage in a single forum. Consequently, the “mosaic principle” should be set aside. - Party autonomy, both as to jurisdiction and applicable law, is in principle welcome, subject to restrictions designed to protect a natural person acting primarily for personal, family or household purposes. - Special rules for interim relief mitigate the burden stemming from, in particular, Article 3(3): notably, they state that it suffices that a publication be “directed” (as opposed to “principally directed”) to a State, in order to establish jurisdiction of the courts of that State over provisional injunctive relief. However, since these courts may lack jurisdiction on the merits, such relief should be exercised solely to support the main proceedings and it should, in any event, remain strictly territorial. - Finally, departing from the approach commonly adopted in the context of international treaties and academic studies, the Lisbon Guidelines on 132

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The Lisbon Guidelines on Privacy Privacy set out an innovative framework on the recognition and enforcement of foreign judgments. This framework is specifically designed for the cross-border circulation of privacy judgments and, in principle, it complements the provisions on jurisdiction under the Guidelines. In doing so, it advances a coherent system of cross-border dispute resolution – which, to date, is markedly necessary – and it fosters legal certainty and harmonization in the context of cross-border privacy disputes.

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THE INTERNATIONAL COMMISSION ON CIVIL STATUS PRESENT AND FUTURE OF INTERNATIONAL COOPERATION IN CIVIL STATUS MATTERS Nicolas NORD*

I.

II.

The ICCS’s Achievements A. Harmonisation of the Law 1. Harmonisation of Conflict of Law Rules 2. Harmonisation of Substantive Law B. Cooperation among Authorities 1. Obligation to Inform Foreign Authorities 2. The Intervention Competence C. Circulation of Documents 1. Facilitating Recognition 2. Facilitating Understanding The ICCS’s Future Perspectives A. Entry into Force of Convention No 34 1. The Adoption Process 2. Impact on International Civil Status B. Modernisation of the Commission

1. The International Commission on Civil Status is a respected institution that has worked for almost 75 years in support of international civil status. The need for international cooperation in matters of civil status has long been felt. In 1926, an international association of civil status officers was created, bringing together the national associations of Belgium, France, Germany, Luxembourg, the Netherlands and Switzerland. Italy joined the association in 1929. But this association of individuals, without official recognition, was not destined to survive the war of 1939-1945. However, some of its leaders, aware of the need for collaboration between States, took the initiative, after entering into relations with several governments, of organising a meeting, on 30 September 1948 in Amsterdam, of a provisional committee of the association, which decided to create the International Commission on Civil Status.1 The intention was to set up an internationally recognised body responsible for promoting inter-state cooperation and collaboration in * 1

Secretary General of the International Commission on Civil Status. Commission Internationale de l’Etat Civil (CIEC) in French.

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Printed in Germany

Nicolas Nord matters of civil status and involving not only registrars, but also representatives of States (Foreign Affairs, Interior and Justice Ministries), judges and law academics. After a first General Assembly in Brussels on 26 and 29 September 1949, during which future activities were discussed, the ICCS met on 25 and 26 September 1950 in Bern where, on the initiative of the French Government, the plenipotentiaries of five States (Belgium, France, Luxembourg, the Netherlands and Switzerland) proceeded on 25 September 1950 to the signing of a “Protocol relating to the International Commission on Civil Status”. After this, the five governments concerned recognised the ICCS by an exchange of letters. An additional Protocol to the one concluded in Bern in 1950 was signed by the plenipotentiaries of the five founding States in Luxembourg on 25 September 1952, allowing the accession of new States. 2. The objectives of the organisation are stated in Article 1 of the ICCS rules2: to facilitate international co-operation in civil status matters and to further the exchange of information between civil registrars. The means of achieving these general goals are also indicated in the same provision. To this end, the ICCS “carries out any studies and work, in particular by drawing up Recommendations or draft Conventions, aimed at harmonising the provisions in force in the member States on matters relating to the status and capacity of persons, to the family and to nationality and at improving the operation of civil status departments in those States”. It also “compiles and keeps up to date a documentation on legislation and case-law setting out the law of the member States on the aforesaid matters and provides, on the basis of that documentation, information to the authorities referred to in Article II of the Bern Protocol of 25 September 1950”. Paragraph 2 of Article 1 provides that the ICCS “co-ordinates its activities with those of other international bodies and furthers relations with bodies dealing with matters having an interest for civil-status purposes”. This is why agreements have been concluded with the Hague Conference, the European Commission, the United Nations High Commissioner for Refugees and the Council of Europe. 3. The functioning of the organisation is based on the existence of national sections. Each member State sets up in its territory such a section, which is responsible for representing that member State within the ICCS, promoting the aims of the organisation in its territory, proposing new activities and liaising with the other sections. The member States are free to determine their sections’ composition. Besides these sections, several bodies contribute to the life of the organisation. These are structured along the usual lines. The Bureau, composed of the representatives of the member States, is the organ that makes most of the decisions: appointing the President from among its members, and the Secretary General, carrying out studies prior to the launching of a new activity and determining the conduct and priority-ranking of that activity, adopting the budget, etc. The President represents the organisation in its relations with authorities, chairs the meetings of the ICCS organs and sets their agendas. The General Secretariat, based in Strasbourg, France, is the executive body, in charge of numerous tasks, such as implementing the decisions taken by the ICCS, convening meetings of the organs, 2 Rules of the International Commission on Civil Status, adopted in Strasbourg on 24 September 2020: www.ciec1.org.

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The International Commission on Civil Status liaising between the members, dealing with the keeping and custody of the records, registers and archives of the ICCS, and deciding on the desirability of authorising consultation thereof, preparing and updating the table of signatures and ratifications of the Conventions, etc. The General Assembly, composed of the representatives of the members, meets at least once a year. This body is tasked with deciding on admission of new members, adopting the text of any Convention or Recommendation and the explanatory report pertaining thereto, furthering exchanges on legislative and case-law developments and organising discussions on specific topics. Its meetings are one of the highlights of the ICCS’s year. They are characterised by their flexibility and the desire to discuss civil status issues. This has made for real continuity in this respect since the birth of the institution. The spirit of the organisation always remains the same. 4. In contrast with its relatively traditional organisational structure, the originality of the ICCS lies in its long-term work on subjects that are unexplored elsewhere on an international scale. Despite being relatively little-known, even within the community of jurists, the ICCS is regarded as a pioneer in most of its areas of activity.3 Its achievements are numerous and help to make life easier for individuals. The work of registrars is also simplified. Its instruments are widely used in practice, and have constituted genuine points of reference for many years (I). However, despite these notable achievements, a certain disaffection has set in. The organisation has only a few members left. But the ICCS continues its work and has much still to do in the future in an area that is more essential than ever (II).

I.

The ICCS’s Achievements

5. Normative instruments constitute the backbone of the Commission’s activity.4 Everything revolves around the instruments adopted since the creation of the organisation: 34 Conventions and 11 Recommendations. Daily information provided to member states, mainly about these instruments, is an essential part of the work of the Secretariat General. Research activities are also carried out, and significant reports on comparative law have been written. Some of them focus on H. VAN LOON, Requiem or transformation? Perspectives for the CIEC/ICCS and its work, this Yearbook, Vol. 20, 2018-2019, p. 73-93; W. PINTENS, The Impact of the International Commission on Civil Status (ICCS) on European Family Law, in J. SCHERPE (ed.), European Family Law, Vol. 1, Cambridge 2016, p. 124-142; J. MASSIP/ F. HONDIUS/ C. NAST/ F. GRANET, Commission Internationale de l’État Civil (CIEC) – International Commission on Civil Status (ICCS), Kluwer Law International, La Haye – Londres – Boston, 2018; J. MASSIP, JCl Droit international, Fasc. 544-10: ÉTAT CIVIL – Commission internationale de l'état civil (CIEC). 4 F. GRANET, Les réalisations de la Commission Internationale de l’Etat Civil, in S. VRELLIS (ed), La personne et la famille dans le droit et dans la société, CIEC, section grecque, Athènes, 2017, p. 13-20; S. MARCHISIO, Les conventions de la Commission internationale de l’état civil, in Nuovi strumenti del diritto internazionale privato, Liber Fausto Pocar, G. VENTURINI/ S. BARATTI (eds), Milano, 2009, pp. 659-672. 3

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Nicolas Nord controversial topics in the Commission’s fields of competence,5 the aim in most cases being to check whether common or compatible rules exist in the different member States and whether the conclusion of a Convention or the adoption of a Recommendation is feasible or desirable. This means that norms are the ultimate purpose of the research carried out.6 The ICCS also organises international conferences, which often have a future-oriented purpose, while always relating to the functioning of the normative instruments.7 It is therefore essential to be familiar with the various instruments, or at least the most important ones, since they constitute the main centre of interest of the organisation. The most convenient way to present them here is to adopt a structure that mirrors the methods used to meet the objectives set out in the ICCS rules: harmonisation of the law (A), cooperation between authorities (B) and facilitation of international circulation of documents (C). A.

Harmonisation of the Law

6. Two levels of harmonisation exist. In some instruments the issue is conflict of law rules (1), in others it is material law (2). 1.

Harmonisation of Conflict of Law Rules

7. One of the main concerns of the ICCS is to facilitate the continuity of personal and family status. This is why harmonisation of conflict of law rules is a preferred method, and maybe the most obvious one. If all the States concerned apply the same law, it becomes easier to circulate the facts in any given situation. This method has therefore been used on a number of occasions. Of course, the main problem is that it obliges the States involved to renounce their usual connecting factors. This may explain why this is not the method most commonly used by the ICCS. Nevertheless, noteworthy instruments covering different aspects of the activity of the Commission have been adopted. Most of them incorporate particularly daring solutions, often ahead of their time, justifying the reputation of the ICCS as a pioneer. Without claiming to be exhaustive, several significant examples can be used to illustrate the point. For example, Bogus marriages – A study on marriage of convenience within ICCS member States (2010); Surrogacy and the civil status of the child in ICCS member States (2014). All the reports can be found on the ICCS website, in various languages www.ciec1.org. 6 J.-M. BISCHOFF, Harmonisation du droit privé: l’exemple du travail de la Commission Internationale de l’Etat Civil, in Conflits et harmonisation: mélanges en l’honneur d’A. von Overbeck, Fribourg, 1990, p. 119-130. 7 Questions d'actualité en droit des personnes dans les Etats membres de la CIEC, 26 mars 1999; L'état civil au XXIème siècle: déclin ou renaissance?, 13-14 March 2009; La connaissance du droit étranger: à la recherche d'instruments de coopération adaptés, 28 November 2019. For other examples, v. J. MASSIP, JCl Droit International (note 3), No 9. 5

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The International Commission on Civil Status 8. The first is the Convention (No 7) aimed at facilitating the celebration of marriages abroad, signed in Paris on 10 September 1964. The text contains a very important conflict of law rule, set out in Article 4, which provides that for marriages celebrated in accordance with local formalities in the territory of one of the Contracting States, requirements as to prior notice of marriage are to be governed exclusively by the domestic law of that State. The simplification resulting from this provision and the consequent advantage that it presents, for both registrars and marriage applicants, are obvious. This rule was easy to adopt since it was already accepted by some States, the prior publications being considered as formal rules falling under the law of the celebrating authority.8 9. The second example concerns filiation. Under Article 1 of the Convention (No 12) on legitimation by marriage, signed in Rome on 10 September 1970, “[w]here, under the domestic-law provisions of the national law of the father or mother, their marriage has the effect of legitimating a natural child, such legitimation shall be valid in the Contracting States”. A rule such as this can be seen as liberal and audacious for its time. But the following two articles are just as important because they try to find a balance between the pursuit of the result sought by the Convention and the States’ interests. Article 2 lists situations in which Contracting States may reserve the right to refuse to treat the legitimation as valid. The States must make a special declaration to this end, at the time of signature, of notification of the completion of the procedures required by their Constitutions to render this Convention applicable in their territory, or at the moment of accession by means of the same procedures9. Article 3 indicates that the list is exhaustive. No refusal is possible in circumstances other than those set out in Article 2, even on grounds of public policy. The desire to prioritise a result and strictly supervise exceptional mechanisms is remarkable and shows that a high degree of integration is required between States Parties. The fact that just seven States (Austria, France, Greece, Italy, Luxembourg, the Netherlands, Turkey) are bound by this text may appear to be a failure, but in view of the requirements of the text it can also be seen as a remarkable success. 10. The last example is the Convention (No 19) on the law applicable to surnames and forenames signed in Munich on 5 September 1980.10 Article 1§1 introduces the key rule of the text: “[t]he surnames and forenames of a person shall be determined by the law of the State of which he or she is a national. For this purpose exclusively, the situations on which surnames and forenames depend shall be assessed in accordance with the law of that State”. The solution was far from obvious and has been discussed in detail.11 Some member States considered that it was preferable to retain the law of the registrar called upon to establish an act, which would obviously have been simpler. It finally became apparent that the J. MASSIP/ F. HONDIUS/ C. NAST/ F. GRANET (note 3), §45, p. 27. The declarations may be found on the ICCS website: www.ciec1.org. 10 More generally, with regard to the activity of the CIEC in this field, P. LAGARDE, L’oeuvre de la Commission Internationale de l’Etat Civil en matière de nom des personnes, Festschrift für Erik Jayme, vol. 2, H.-P. MANSEL et al. (eds), München, Sellier, 2004, p. 1291-1306. 11 J. MASSIP/ F. HONDIUS/ C. NAST/ F. GRANET (note 3), §44, p. 26. 8 9

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Nicolas Nord convenience of the administration had to give way to the legitimate interests of individuals. It was necessary to take into account that an individual’s name has close links with their personality and performs a complex psychological function. In a remarkable way the law of the State of nationality encompasses not only the substantive law of that State, but also its private international law rules.12 This means that the law of the State of nationality determines the connecting factor, which may be nationality or another factor such as domicile or residence, or alternatively the lex fori can be applied. Another innovation must also be mentioned. Account has been taken of the difficulties posed for many registrars by the obligation to apply ex officio a foreign law, including its private international law rules, with which they are often unfamiliar. It was provided that they can, if not familiar with the applicable law, draw up the act in accordance with their domestic law, on condition that they inform the authority to which they are answerable.13 A rule of this kind is very important. In situations where the urgency of establishing an act does not allow a registrar to obtain information about foreign law, an interim solution is made possible.14 The document thus drawn up can, if necessary, be rectified using a cost-free procedure. In addition, Article 6 allows any Contracting State to reserve the right to apply its internal law if the person concerned has his habitual residence on that State’s territory. But the determination of surnames and first names under this law will only be valid in the State that has taken advantage of this possibility by making such reservation. This Convention is a perfect illustration of the methods used by the ICCS: treatment of particular questions, search for compromise, innovative solutions, high degree of integration. 11. More generally, these Conventions of course enjoy only relative success at a quantitative level, but the issues discussed above must be taken into account. The instruments nonetheless constitute considerable progress in their respective areas. 2.

Harmonisation of Substantive Law

12. Another level of harmonisation is possible, and has been used by the ICCS. This time conflict of law rules are no longer an issue. Material law is directly concerned. The same logic is, however, applied. This type of harmonisation allows genuine continuity between legal orders in the fields of competence of the Commission. Two levels of harmonisation exist in the various ICCS Conventions. The first level, used in some Conventions, establishes an overall harmonisation that relates to internal civil status acts. The forms used previously are eliminated in 12 For more details, report on Convention No 19, p. 6, available on the ICCS website, www.ciec1.org. 13 Article 5 of the Convention. 14 More generally, on the difficulties encountered by civil registrars faced with establishing the content of foreign law, N. NORD, Le droit étranger devant l’officier de l’état civil. État des lieux, in G. CERQUEIRA/ N. NORD (eds), La connaissance du droit étranger. A la recherche d’instruments de coopération adaptés. Etudes de droit international privé comparé, collection Colloques, vol. 46, Société de législation comparée, Paris 2020, p. 69-79.

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The International Commission on Civil Status favour of those created by the treaty. The second level has a narrower scope but is just as important for international relations. Harmonisation only concerns documents intended to be produced abroad. Coexistence is thus introduced between international law instruments and domestic law instruments. 13. In the first category, the creation of a uniform act may be the main object of the instrument. This is the case with the Convention (No 15) introducing an international family record book, signed in Paris on 12 September 1974. A model family record book, annexed to the text of the Convention, has been drawn up. It is made up of a multilingual form for official copies of marriage certificates and multilingual forms for official copies of birth certificates. It allows anyone in possession of an international family record book to register civil status events concerning their family in the Contracting States. The individuals in question are thus provided with an instrument which will always be kept up to date, regardless of the country in which they are located. The model introduced is compulsory and exclusive. This means that family records issued by States Parties are quite simply made redundant. A desire for overall harmonisation is clearly apparent, and international movement of persons is what is primarily concerned. More often, the formal rules of domestic law are harmonised in Conventions, the main subject of which relates, however, to private international law. Model acts intended to apply in both internal situations and international relations are then appended to the text. This also applies in the case of the various Conventions already mentioned.15 14. In the second category, several Conventions establish models for civil status documents that are to be produced abroad. The forms existing in domestic law are not called into question. A dichotomy is thus established. This is true of the following Conventions: the Convention (No 1) on the issue of certain extracts from civil-status records for use abroad, signed in Paris on 27 September 1956, the Convention (No 16) on the issue of multilingual extracts from civil status records, signed in Vienna on 8 September 1976, the Convention (No 20) on the issue of certificate of legal capacity to marry, signed in Paris on 5 September 1980, the Convention (No 21) on the issue of a certificate of differing surnames, signed at The Hague on 8 September 1982, the Convention (No 27) on the issue of a life certificate, adopted at an Extraordinary General Assembly in Strasbourg on 26 March 1998, signed in Paris on 10 September 1998, the Convention (No 28) on the issue of a certificate of nationality, adopted at an Extraordinary General Assembly in Strasbourg on 25 March 1999, signed in Lisbon on 14 September 1999, and the Convention (No 34) on the issue of multilingual and coded extracts from civilstatus records and multilingual and coded civil-status certificates, signed in Strasbourg on 14 March 2014. 15. When the two categories are combined, the list is long and impressive. Of course, it is impossible to analyse them all. However, several remarkable characteristics deserve to be highlighted. Once again, the approach is concrete and targeted, as the titles of the various instruments themselves indicate. Particular questions, often revealed through practice, are dealt with separately. There are two reasons for this. The first is the composition of the ICCS. Many practitioners, especially registrars, are involved in the national sections, which allows them to 15

See I A 1).

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Nicolas Nord share the difficulties that arise in their daily work. The second is that harmonisation of the acts is already an ambitious goal in itself. A concern for realism therefore requires that the material scope of the Conventions whose purpose is to achieve this be limited. A more wide-ranging approach would not necessarily lead to agreement between the member states of the ICCS nor would it convince third States to join. 16. This also explains why 11 Recommendations have been adopted.16 Since they create non-binding provisions, they make compromise possible on guidelines in sensitive areas.17 Some Recommendations pursue the same harmonisation objective as the Conventions. Two levels can also be distinguished. The first concerns internal acts. This is true of the following Recommendations: No 3 on the identification of refugees from South-East Asia, adopted in Munich on 3 September 1980, No 4 relating to the accessibility to the public of civil status registers and records, adopted in Rome on 5 September 1984, No 5 relating to the harmonisation of civil status records, adopted in Lisbon on 10 September 1987, No 7 on the harmonisation of extracts from civil status records, adopted in Madrid on 7 September 1990, and No 11 relating to the recognition of certain adoption decisions taken or recognised in a member State of the International Commission on Civil Status, adopted in Strasbourg on 17 September 2015. The second level relates only to acts intended to be invoked abroad. Recommendation No 6 adopted in Patras on 8 September 1989 can be cited in this category. The text relates to international co-operation in the matter of administrative assistance to asylum seekers. The main elements relating to the methodology used are the same as for the Conventions. Targeted and concrete questions are considered on each occasion. 17. The main difference obviously lies in the effectiveness of the Recommendations. They are only suggestions to States. Thus, according to the formula adopted by Recommendations Nos 5 and 7, the International Commission on Civil Status recommends to its member states that they “be guided” by the principles formulated. There is no guarantee that the desired harmonisation will be effected. States are therefore not bound by these instruments as they are by Conventions that they have signed and ratified, accepted or approved. The Recommendation approach is chosen for this reason. This form, less restrictive for States, makes it possible to deal with sensitive subjects for which a draft Convention would have been difficult, or even impossible, to obtain, for lack of agreement among the States. A balance is struck: what is gained on the one hand in terms of the scope of the subjects covered is lost on the other in terms of effectiveness. However, the effects of the Recommendations are not negligible. It is certainly more difficult to evaluate these effects than those of the Conventions. Some authors have already noted the consequences of Recommendations in positive law in various Member States.18

On the Recommendations, N. NORD, Une harmonisation des actes, La circulation des personnes et de leur statut dans un monde globalisé, in H. FULCHIRON (ed.), LexisNexis, coll. Perspectives, Paris 2019, 323, p. 326. 17 The Recommendations are published on the ICCS website: www.ciec1.org. 18 J. MASSIP, JCl Droit International (note 3), §13. 16

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The International Commission on Civil Status 18. Harmonisation, even if it may be regarded intellectually as the most satisfying solution, is not the only one. Cooperation among authorities is also essential and has produced positive effects. B.

Cooperation among Authorities

19. A willingness to establish a positive and dynamic approach has existed since the creation of the ICCS. It is also an essential part of its work. In the ordinary situation, the authorities of each State act within their field of competence. They draw up an act or make a decision on their own, in ignorance of what other authorities have done or know. The acts established or the decisions taken by one or the other will sometimes be mutually recognised, but only on condition that they are known. The consequence is a frequent risk of inconsistencies or contradictions. In addition, once an act has been established or a decision taken, it may be necessary to supplement, rectify or modify it. If each national authority remains confined within its exclusive competence in these fields, there will be a shuttling back and forth between the State of origin of the act or decision, and the State of residence of the person concerned. This is why more suitable, innovative instruments have been created. The first step consists in the creation of an obligation of information between States Parties (1). The second, even bolder, introduces intervention competence (2). 1.

Obligation to Inform Foreign Authorities

20. A dynamic approach can be found in several texts. There is a direct exchange of information between State authorities. Different modalities are used for this purpose. The first, and most obvious, is the exchange of information directly between registrars. The most important text is the Convention (No 3) on the international exchange of information relating to civil status, signed in Istanbul on 4 September 1958. According to Article 1§1, “[a]ll civil registrars performing their duties in the territory of one of the Contracting States must, when making or transcribing a record of marriage or of death, give notice thereof to the civil registrar for the place of birth of each spouse or of the deceased, if that place is situated in the territory of one of the other Contracting States”. The mechanism is easy to understand. It makes for permanent updating of civil status acts and avoids complex, and hence difficult, procedures for individuals. The second modality is the sending of information to a qualified authority designated by the Contracting State at the time when it adopts the Convention. It can be a registrar or another authority, such as, for example, in the Convention (No 32) on the recognition of registered partnerships, signed in Munich on 5 September 2007.19 The reason is simple. 19 See Article 10: “An authority of a Contracting State registering a partnership in which at least one of the partners is a national of or habitually resident in another Contracting State shall inform the authorities of that State, designated in accordance with Article 16, paragraph 2(b), of the registration by sending to them the certificate provided for in Article 9, paragraph 1. It shall do the same where it recognises the dissolution or annulment of that

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Nicolas Nord Registrars are not always competent or solely competent in this matter under the various national regimes. Under the third modality, information is sometimes exchanged between central authorities only. This solution is required, again, when registrars have no competence in the matter, which is generally the case in the field of nationality.20 However, another reason is the confidential nature of the information exchanged, for example in the case of refugees.21 21. This method of exchanging information represents remarkable progress, both for the authorities of the Contracting States and for individuals. It corresponds perfectly to the objectives pursued by the ICCS ever since its creation. It therefore deserves to be approved and supported. However, there is still room to go further. There are still time-consuming procedures involved. This is why the intervention competence was created. 2.

The Intervention Competence

22. This is the most advanced form of international cooperation. It goes further than just exchanging information. This time an authority that is better placed geographically has competence by delegation to draw up an act that for reasons of sovereignty would normally fall within the exclusive competence of the authorities of another Contracting State. Under this method, a foreign authority can intervene in something that each State is entitled to regard as falling under its sole imperium. These intervention competences once again obviously presuppose total confidence of participating States in each other and complete reciprocity. This is why this approach can be contemplated only when implemented by conventional means and partnership, by sending to those authorities the certificate provided for in Article 9, paragraph 3. 2. The authority of a Contracting State in which a registered partnership is dissolved or annulled shall inform the authorities designated in accordance with Article 16, paragraph 2(b), of the dissolution or annulment by sending to them the certificate provided for in Article 9, paragraph 2. The Contracting States whose authorities must be so informed are: - the State in which the partnership was registered; - the State or States of which the former partners are nationals; - the State or States where the former partners are habitually resident”. On the convention, H. MUIR WATT/ G. GOLDSTEIN, La méthode de la reconnaissance à la lueur de la Convention de Munich du 5 septembre 2007 sur la reconnaissance des partenariats enregistrés, Journal du droit international, 2010, p. 1085; P. LAGARDE, “La convention de la CIEC sur la reconnaissance des partenariats enregistrés”, in Lebendiges Familienrecht – Festschrift für Rainer Frank, Francfort-sur-le-Main / Berlin, Verlag für Standesamtswesen, 2008, p. 125-138. See also Convention No 2, signed in Luxembourg on 26 September 1957, on the issue free of charge and the exemption from legalisation of copies of civil status records, in force between ten States (Germany, Austria, Belgium, France, Italy, Luxembourg, Netherlands, Portugal, Switzerland and Turkey). 20 Art. 4 of the Convention (No 8) on the exchange of information relating to acquisition of nationality, signed in Paris on 10 September 1964. 21 Art. 3 of the Convention (No 22) on international co-operation in the matter of administrative assistance to refugees, signed in Basel on 3 September 1985.

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The International Commission on Civil Status often within a very closed circle of States. It would be utopian to envisage general application of such an innovative system. These conditions are fulfilled between the States of the ICCS and it is therefore possible for some Conventions to include recognition of the intervention competence. 23. Two examples can be given. The first one is a delegation of powers concerning the celebration of marriages. It can be found in the Convention (No 7) to facilitate the celebration of marriage abroad, signed in Paris on 10 September 1964. The text contains conflict of law rules, already mentioned above. The key rule is introduced by Article 1: “Where the marriage of a national of one of the Contracting States is to be celebrated in the territory of another Contracting State, in which he or she habitually resides, the competent authorities of the country of the celebration may, in the cases and subject to the conditions provided for by the personal law of the future spouse, grant him or her dispensation from impediments to marriage prescribed by that law”. In order to simplify the procedures and management of the marriage file, the authority of the place where the marriage is to be celebrated is empowered to grant derogations in respect of certain impediments, in place of the national authority of the State on which the future spouse normally depends. This possibility for the local authority to grant such a dispensation obviously goes very far and can, once again, be seen as very innovative. This might explain why only five States (Germany, Spain, Greece, the Netherlands and Turkey) have ratified it. The second example is Article 2 § 1 of the Convention (No 9) on decisions concerning the rectification of civil status records, signed in Paris on 10 September 1964. A delegation of powers in matters of rectification of civil status documents is created. More precisely, “the authority of a Contracting State which is competent to take a decision concerning rectification of a civil status record containing an error, drawn up in the territory of that State, shall also be competent to rectify, by that decision, any reproduction of the same error in a record concerning the same person or his or her descendants, drawn up subsequently in the territory of another Contracting State”. The decision of rectification is enforceable without any formality in the territory of the other State.22 This approach therefore constitutes an essential development in private international law. Integration is pushed to the extreme between States parties to the Convention. The desire to avoid inconsistencies between States and sometimes complex procedures for individuals underlies this approach. Even though the text is very demanding, Convention No 9 is in force among seven States (Germany, Spain, France, Luxembourg, the Netherlands, Switzerland and Turkey). 24. Such solutions are far from being of minor importance, even if their success is limited. These are important rules that demonstrate a high degree of integration, which is rarely achieved in any other framework. All these instruments can function only when complemented by a third component: simplified circulation of documents, another essential aspect of the normative activity of the ICCS.

22

Art. 2 §2.

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Circulation of Documents

25. The underlying idea is always the same. The international circulation of documents must cause as little trouble or worry as possible to the persons concerned.23 Harmonisation is a possible way, a legitimate but very ambitious goal, and thus difficult to achieve. There is an alternative solution. The essential thing for the people concerned is that the acts and decisions which concern them and their family can produce an international effect, that is to say that the acts and decisions which they have obtained in one State are recognised by another. In other words, if people need to move, the acts and decisions that concern them must be able to move with them. 26. This is why many of the ICCS Conventions have been, either entirely or at least partially, devoted to facilitating the circulation of acts and decisions. There are two essential elements. The first is facilitation of the recognition in itself (1). The second, which is an added extra, is facilitation of understanding the documents (2). 1.

Facilitating Recognition

27. One preliminary problem had to be solved. Legalisation is a requirement in many legal orders in order for a foreign public document to be admitted and to have probative force. This formality is intended to “certify the authenticity of the signature on a record or document, the capacity in which the person signing it has acted and, where appropriate, the identity of the seal or stamp which it bears”.24 This requirement entails procedures that are likely to be time-consuming, complex and costly. Trying to question this requirement therefore clearly falls within the scope of the ICCS. This is the main object of the Convention (No 2) on the issue free of charge and the exemption from legalisation of copies of civil status records, signed in Luxembourg on 26 September 1957, and the Convention (No 17) on the exemption from legalisation of certain records and documents, signed in Paris on 15 September 1977. The sidelining of legalisation is also provided for in Conventions whose main purpose is different.25 Not to impose such a requirement is therefore an essential preliminary step on the path towards simplifying recognition of documents abroad. 28. Some Conventions focus on the issue of recognition itself. Elaborate mechanisms have been created for this purpose. This is particularly true of the Convention (No 29) on the recognition of decisions recording a sex reassignment, J. MASSIP/ F. HONDIUS/ C. NAST/ F. GRANET, (note 3), §66, p. 37. Definition given by Art. 1, Convention (No 17) on the exemption from legalisation of certain records and documents, signed in Paris on 15 September 1977. For the concept more generally, G.A.L. DROZ, L’activité notariale internationale, Recueil des Cours 2000, Vol. 280, N°103. 25 For example, Article 8 of the Convention (No 16) on the issue of multilingual extracts from civil status records, signed in Vienna on 8 September 1976, Article 5 of the Convention (No 34) on the issue of multilingual and coded extracts from civil-status records and multilingual and coded civil-status certificates, signed in Strasbourg in 14 March 2014. 23 24

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The International Commission on Civil Status signed in Vienna on 12 September 2000. The essential principle can be found in Article 1, according to which “[f]inal court or administrative decisions recording a person’s sex reassignment that have been taken by the competent authorities in a Contracting State shall be recognised in the other Contracting States if, at the time when the application was made, the person concerned was a national of or habitually resident in the State in which the decision was taken”. Once the decision has been taken by the authorities of the State of nationality or habitual residence of the person concerned, it must be recognised in the other Contracting States. The Convention goes further. First, the reasons for refusal are framed. According to Article 2, only the following reasons are admitted: “(a) the physical adaptation of the person concerned has not been carried out and has not been recorded in the decision in question; (b) such recognition is contrary to public policy in the Contracting State in which the decision is relied on; (c) the decision has been obtained by fraudulent means”. Second, positive consequences must flow from the recognition. The State “which recognises a decision pursuant to this Convention shall update, on the basis of that decision and according to the arrangements provided for under its domestic law, the birth certificate of the person concerned that has been drawn up in that State or transcribed into its civil status registers”.26 A similar process is used in other instruments that each relate to specific questions.27 Controversial subjects are addressed in these texts. Again, this may explain why the success of the various instruments is limited. 29. This is already an impressive arsenal. It is boosted further by an additional component – the one for which the ICCS is best known: facilitating understanding of civil status records. 2.

Facilitating Understanding

30. Facilitating the understanding of public documents abroad quickly emerged as a key concern for the ICCS. This is an unmistakable mark of the pragmatism that characterises the institution. A concern for realism is apparent: the act must be understood in order to be recognised and to produce its effects in another country. This will not be the case if the act is drawn up in a foreign language that the local authority does not know, and a fortiori if it is drawn up in an unknown script. The holder of this document will then have to obtain an official translation. The process may be long and expensive. It was therefore to facilitate the circulation of documents on a purely practical, not a legal, level that the ICCS adopted, in 1956, a system of multilingual forms which has become very successful. Thus, many

Art. 3. Convention (No 11) on the recognition of decisions relating to the matrimonial bond, signed in Luxembourg on 8 September 1967; Convention (No 31) on the recognition of surnames, signed in Antalya on 16 September 2005, Convention (No 32) on the recognition of registered partnerships, signed in Munich on 5 September 2007. 26 27

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Nicolas Nord Conventions have established uniform international models, which are multilingual documents in older Conventions and coded documents in more recent ones. 31. The multilingual system consists in developing uniform models which can be read directly by the foreign authorities to which they are presented or sent. Uniform models should include statements that are accepted by all States, so that they contain the same information regardless of the issuing State. Understanding of a document issued by a foreign authority is ensured by a multilingual system using pre-printed translations and numbered boxes on the front and back of documents. This method was inaugurated by Convention No 1 in 1956, demonstrating clearly that it has been an essential concern since the very inception of the organisation. 32. The coding system is more modern, and arose from the idea of creating a lexicon listing the forms of words that appear in international documents and assigning each of them an encrypted code, which can then be used to find the translation in other languages. This new method was given concrete form by the Convention (No 25) on the coding of entries appearing in civil status documents, signed in Brussels on 6 September 1995, in force between Greece and Turkey at the present time. 33. In all cases, the uniform models are accepted with probative force in the other Contracting States and are exempt from translation and legalisation or any equivalent formality, making them a major asset in cross-border circulation of information in matters of civil status. Whatever the main purpose of a Convention, whether it provides for the issuing of a document to an individual or the transmission of an act to a foreign authority, all ICCS instruments include one or more multilingual or coded forms in their annexes. The ICCS’s greatest success is the Convention (No 16) on the issue of multilingual extracts from civil status records, signed in Vienna on 8 September 1976. It uses the method of multilingual extracts. Twenty-four States are party to it. This text proves that the system works, on a large scale, effectively and efficiently.28 It also shows that texts intervening in matters of civil status can garner broad support. Despite this success, it became apparent as the years passed that there was a need to adapt. This is one of the many challenges on the path of the ICCS, whose future perspectives can only be depicted in chiaroscuro.

II. The ICCS’s Future Perspectives 34. Two essential matters demand our attention. The first, in the short term, is the entry into force of Convention No 34, a text intended to modernise Convention No 16, the most important of the ICCS’s conventions. This event will mark an essential step above and beyond the legal and technical aspects dealt with by the text itself (A). The second is modernisation of the institution, which is facing what amounts to the greatest challenge of its existence (B). 28 For statistics, see the report by G. Scalzini of ANUSCA, https://www.identities onthemove.eu/events/contents-and-application-of-the-regulation-eu-2016-1191/. See also H. VAN LOON (note 3), §15, p. 79-80.

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The International Commission on Civil Status A.

Entry into Force of Convention No 34

35. The Convention (No 34) on the issue of multilingual and coded extracts from civil-status records and multilingual and coded civil-status certificates, signed in Strasbourg on 14 March 2014, is regarded as the new version of Convention No 16. It is essential to be familiar with its adoption process (1) in order to understand the scope of the change that will take place (2). 1.

The Adoption Process

36. A modernisation of Convention No 16 was necessary. Adopted in 1976, the text was starting to show its age at the beginning of the 21st century. Two solutions have been considered: revision of the Convention or adoption of a new text. Initially, the idea of revising Convention No 16 by drafting an additional protocol was envisaged, but the extent of the changes to be made ultimately led the States to reject this solution and to favour instead the creation of a new text, which also has the advantage of a more structured update. This led to the adoption of Convention No 34 by the ICCS General Assembly, in Bern on 26 September 2013. Three main reasons explain this ambitious choice. 37. The first is linked to the success of Convention No 16. The number of States parties to the 1976 Convention had made it necessary to add pre-printed translations into other languages to the multilingual models, but given the requirements of the Convention it was impossible to make such additions. A new system had to be created, making it possible not only to circumvent the practical difficulties arising from the number of languages to be included in the international extracts, but also to preserve one of the major advantages of these documents: the fact that they can be directly understood abroad. This is why the idea of coding was adopted. A system has also been developed to take account of the increasing use of computer tools and new technologies in civil registration services. It facilitates the use of data and easily and automatically produces translations of extracts into the language of the State in which they are presented. The States wanted the models in Annex 1 of the Convention to combine the multilingual system used by the ICCS in Convention No 16, as well as a large number of other Conventions, with the coding system.29 Hence a code number has been assigned to each text item that appears on the front or first page of the models, with the translations appearing on the back or the second page. 38. The second reason for the change was the desire to extend the scope of Convention No 16. Firstly, while this text covered only births, marriages and deaths, it seemed necessary to facilitate proof of other personal and family events, such as acknowledgement of a child or registered partnerships. These questions have therefore been included in the standard forms appended to Convention No 34. Secondly, it seemed appropriate to supplement and improve the models, with a view to harmonising the application of the Convention and avoiding discrepancies in the issuing of extracts. So it was necessary that the content of the models be 29

J. MASSIP/ F. HONDIUS/ C. NAST/ F. GRANET (note 3), §80, p. 47.

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Nicolas Nord specified, so that States could find the statements that were useful and essential to them, and also that these statements be written in a wording acceptable to all. One particularly important issue was the increasing prevalence of same-sex marriage and partnerships. For example, a birth certificate can now name two fathers or two mothers, and a marriage certificate can indicate two spouses of the same sex. 39. The final reason was the wish to fight against documentary fraud and the circulation of inaccurate documents. In view of the growing phenomenon of falsified or erroneous civil status documents with which the authorities in every country are confronted, a control mechanism has been set up by Convention No 34.30 A verification procedure such as this was not included in Convention No 16. In addition to verifying the authenticity of the document, the new procedure also allows verification of its content to be requested. The authors of the Convention thus go beyond legalisation, which relates only to the form of a document and not to the accuracy of its content. The use of the verification procedure is, however, limited to cases where there is serious doubt. Verification requests are sent directly to the issuing authority, without going through an intermediate authority or through hierarchical channels. The same rule applies to responses. 40. Convention No 34 was signed in Strasbourg on 14 March 2014 by Germany, Belgium and Spain. The signatures of Switzerland and France followed on 22 April 2014 and 12 February 2015 respectively. It was ratified by Belgium on 26 June 2017 and by Switzerland on 25 March 2022. Since ratification by two member States was required, Convention No 34 entered into force on 1 July 2022. Germany, a non-member State, has also met the requirements laid down in the Convention in order to accede to it when it has entered into force. This event should have a considerable impact on international civil status. 2.

Impact on International Civil Status

41. The long-awaited consequences of Convention No 34 entering into force are of crucial importance. Several aspects are concerned. 42. Firstly, it will have an impact on Convention No 16. Given the success of that text, the relationship between the two instruments must be clarified. The solution can be found in Article 17 of Convention No 34. According to the first paragraph of that provision, “On its entry into force, this Convention shall replace the Convention on the issue of multilingual extracts from civil-status records, signed in Vienna on 8 September 1976. However, the Convention of 8 September 1976 shall remain in force between the States party thereto as long as one of them continues to be bound by that instrument alone”. As a consequence, a reallocation of instruments to States must be made. Belgium, Germany and Switzerland will apply Convention No 34 in their relations. With the 21 other States parties to Convention No 16, these three States will continue to apply the latter instrument. In their relations, the 21 States bound only by Convention No 16 will continue to 30 Art. 5 § 3. This solution was inspired by Articles 3 to 5 of the Convention (No17) on the exemption from legalisation of certain records and documents, signed in Athens on 15 September 1977.

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The International Commission on Civil Status apply this instrument as at present. According to paragraph 2 of Convention No 34, “[o]n the entry into force of this Convention, any new ratification, acceptance or approval of or accession to the Convention of 8 September 1976 shall be excluded”. This means that, as a logical consequence, Convention No 34 should gradually replace Convention No 16. The process which led to the replacement of Convention No 1 by Convention No 16 should therefore be repeated.31 43. Secondly, relations with Regulation (EU) No 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 are also at stake.32 The objective of the regulation is to “set out a system for further simplification of administrative formalities for the circulation of certain public documents and their certified copies where those public documents and the certified copies thereof are issued by a Member State authority for presentation in another Member State”.33 The key rule is Article 4, according to which, “[p]ublic documents covered by this Regulation and their certified copies shall be exempt from all forms of legalisation and similar formality”. To facilitate the circulation of documents, a system of multilingual standard forms is established by the Regulation, in order to simplify the problems of translation. The solution is logical. The concern is the same as that which prevailed in the case of the ICCS Conventions, and this is why the methods are comparable. There is, nevertheless, one main difference between the two systems. The multilingual forms issued on the basis of the regulation have no autonomous legal value,34 whereas in the ICCS Conventions they have the same value as extracts issued in accordance with the rules of domestic law in force in the State from which they emanate.35 The preamble to the Regulation clarifies the relationship with the ICCS Conventions. The underlying idea is to smooth the path for coexistence of the instruments. The solution is asserted three times. Firstly, the Regulation does not apply to civil status documents issued on the basis of the relevant ICCS Conventions.36 Secondly, because the multilingual standard forms issued on the basis of the Regulation cannot circulate as autonomous documents between the EU Member States, they “should not have the same purpose or pursue the same objectives as extracts from, or verbatim copies of, civil status records, multilingual extracts from civil status records, multilingual and coded extracts from civil status records or multilingual and coded civil status certificates” established by ICCS Conventions.37 Thirdly, as a result, since J. MASSIP/ F. HONDIUS/ C. NAST/ F. GRANET (note 3), §77 – 79, pp. 44-46. On the Regulation, see for example E. BONIFAY, La circulation des citoyens européens entre États membres au lendemain de l’adoption du règlement « documents publics », Journal du droit international 2017, pp. 515-527. 33 Point 3 of the preamble. 34 Article 8§1: “The multilingual standard forms referred to in Article 7(1) shall be attached to the public documents referred to in that paragraph, shall be used as a translation aid and shall have no autonomous legal value”. 35 Article 8 § 1 Convention No 16; article 5 § 1. 36 Point 11 of the preamble. 37 Point 22 of the preamble. 31 32

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Nicolas Nord there is no overlap between the Regulation’s multilingual forms and those of the ICCS, the regulation should not affect the application of the Conventions between Member States or between a Member State and a third country.38 The purpose is therefore the same, the methods are similar, even though the ICCS instruments are more far-reaching than the regulation. Their coexistence is certainly difficult to understand for those directly concerned. It can also be confusing for registrars, who in some States are not legal professionals, and more generally for all practitioners.39 44. One can take the view that the current situation is only a starting point. A potential more satisfactory dovetailing of the ICCS instruments and EU law is not only desirable but also feasible. The agreement concluded by exchange of letters of 14 and 26 July 1983 between what was still the Commission of the European Communities (CEC) and the ICCS could be used to this end. According to its point 3, “[t]he CEC may recommend to the Member States of the European Communities to sign and ratify the Conventions prepared by the ICCS on matters submitted to it or to accede to these Conventions. The ICCS may invite the CEC to recommend to the Member States of the European Communities to sign and ratify any other Conventions adopted by it or to accede to them”. Based on the lessons learned from the effective operation of Convention No 16 over several decades, Convention No 34, once in force, could be used to enable genuine cooperation between EU member states, with the same tool potentially being used also in relations with third countries. This solution would offer the advantages of simplification, of avoiding the complex coexistence, and of a modern and efficient instrument. This would be a major development for European and international civil status. It would correspond to the modernisation started within the organisation itself. A.

Modernisation of the Commission

45. In recent years, the ICCS has suffered many withdrawals of member States; this is a consequence of the adoption and subsequent entry into force of the “Public Documents” Regulation. Following the withdrawal of Greece in 2021, only five Member States remain. But this statement must be qualified: the observer states remain loyal and committed.40 46. However, a reaction was called for. So a resolution was adopted by the Bureau of the ICCS on 25 September 2019 calling for consideration of various measures to modernise the organisation. The rules of the ICCS were amended in consequence on 24 September 2020. 47. As a first measure, bilingualism has been introduced.41 English, which before was only a working language, is now an official language of the organisaPoint 49 of the preamble. N. NORD, La circulation des documents publics familiaux, in E. BERNARD/ M. CRESP/ M. HO-DAC (eds), La famille dans l’ordre juridique de l’Union européenne, Bruylant, Colloques, vol. 52, Bruxelles 2020, pp. 399-417, p. 416. 40 Cyprus, Lithuania, Moldova, Romania, Holy See, Russia, Slovenia and Sweden. 41 Art. 5 of the ICCS Rules. 38 39

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The International Commission on Civil Status tion, on an equal footing with French, which was the official language from the outset. The bilingualism thus introduced should make it possible to attract new non-French-speaking States to the ICCS. 48. The second measure is financial. Contributions from member States have been suspended. This means that joining the ICCS no longer entails any financial cost, which could have constituted an obstacle for some States. This measure is also justified by the fact that the current Member States bear the operating costs of the organisation alone, while all the States parties to the various Conventions benefit from their daily implementation. 49. The third measure consists in making the membership conditions more flexible. The procedure is simplified, with the General Assembly being the sole decision-maker on membership. Furthermore, from now on, in addition to States, it is possible for international organisations, regional economic integration organisations and any other international entities to become members.42 In line with the observations made above with regard to Convention No 34, the European Union or Mercosur, for example, could thus become a member of the ICCS. 50. The fourth measure concerns the Conventions. The General Assembly becomes competent to oversee their operation and monitoring.43 This change is of crucial importance. Conventions are living instruments subject to declarations, notifications or reservations that may change or be withdrawn. It is important to monitor their application and ensure that they are adapted in line with social and technical developments.44 Exchanges take place during meetings of the General Assembly between member States, observers and parties to the Conventions. Experts are also called upon to find out more about the implementation of the texts. The registrar associations EVS45 and ANUSCA46 have recently been associated with the work of the ICCS. Practical consequences flow from this. Resolutions are likely to be adopted in order to clarify the interpretation of certain rules.47 In-depth work is launched on any problems thus revealed. This is especially true when it comes to adapting the various instruments to cover relations between persons of the same sex. The entry into force of Convention No 34 does not mark an end in itself. A more general approach is required. This is why a working group was set up in 2021 with a view to undertaking a general updating of the various ICCS instruments. The same goes for the question of the neutralisation of sex on civil status documents or the appearance of a third sex. Texts again need to be brought into line. 51. These developments are only a start, and others will need to follow rapidly: introduction of the possibility for a regional economic integration organisation to become a party to the conventions, and adding English and Spanish as Art. 2 of the ICCS Rules. Art. 11, pt. 7 of the ICCS Rules. 44 See also H. VAN LOON (note 3), §9, p. 77. 45 Europäischer Verband der Standesbeamtinnen und Standesbeamten. 46 Associazione Nazionale Ufficiali di Stato Civile e d'Anagrafe. 47 For example, the resolution adopted by the General Assembly on 26 September 2019, according to which a QR code can be deemed equivalent to a signature for the application of the ICCS conventions (www.ciec1.org). 42 43

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Nicolas Nord authentic languages for the conventions, are some of the points on which the ICCS is currently working and which will come into operation quickly.48 52. The main challenge facing the ICCS is existential. It is nothing more nor less than its survival. A deadline has been set. Current member States have agreed to fund the organisation until 31 December 2025. Beyond this deadline, in the absence of renewed interest in the ICCS, the Bureau will no longer play its role of ensuring the sustainability of the organisation and, consequently, the operation and monitoring of the Conventions. There is a risk that the entire conventional acquis will be lost. The effect would be disastrous for both individuals and civil status practitioners. 53. Moreover, new challenges are constantly arising in matters of civil status. The many issues raised in recent years by surrogacy in international law in general and with regard to civil status in particular are the best example. No satisfactory answer has yet been found. The Hague Conference is working on the subject but the issue of civil status is excluded from its work.49 It is therefore crucial that an organisation specialising in this matter should exist and continue to deal with essential problems such as this, which will never cease to arise.

See also for several suggestions, H. VAN LOON (note 3), §37 et seq., p. 87 et seq. For details, https://www.hcch.net/en/projects/legislative-projects/parentagesurrogacy. 48 49

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EUROPEAN FAMILY COURTS AND INTER-COUNTRY (ARBITRATION?) COURTS TO DEAL WITH CROSS-BORDER CUSTODY DISPUTES Gian Paolo ROMANO* I.

II.

Isolating The Problem A. Two Stories B. Further Case-Law within the EU C. A Short Analysis Looking for a Remedy to the Problem A. European Family Courts B. Inter-Country Tribunals (Including Arbitration Tribunals) C. Advantages Traditionally Ascribed to International Arbitration

I want to thank our friends from the Aarhus University. They have shown a lot of leadership in putting together this founding conference of the European Association of Private International Law. I wish I were there will all of you to celebrate this event. But I thought it was in the best interests of my child for me to stay with him today and to participate remotely. I mention this because what I would like to address has precisely to do with the protection of children. The case I want to make is in support of creating what I would call European Family Courts within the European Union, as well as – outside the EU – what I would call inter-country tribunals, including arbitration tribunals, possibly under the aegis of the United Nations, to deal with cross-border custody issues. This may sound like science fiction: legal science fiction. But I think it is consistent with the spirit of our Association to test new ideas when we feel the existing legal framework is not entirely satisfactory for the human beings it is designed to serve.

Professor of law, University of Geneva. This paper reproduces with some additions the speech I delivered on June 4, 2022 at the conference of the European Association of Private International Law. Accordingly, bibliography is kept to a minimum. This paper is part of a wider research that I have been conducting for several years and whose findings should – hopefully soon – be published in greater detail and in a larger format. *

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 155-170 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Gian Paolo Romano

I.

Isolating The Problem

A.

Two Stories

Let me start with two stories. The first is about Oliver Weilharter, whose terrible fate attracted some publicity in the media.1 Oliver Weilharter is born in Denmark, the son of an Austrian mother, Marion Weilharter, and of a Danish father, Thomas Sørensen. The family lives primarily in Denmark although they regularly visit Austria. When Oliver is still a toddler, his parents split. They initially arrange for Oliver to live with the mother in Denmark so the father can continue to see him regularly. But the mother quickly feels unhappy with this state of affairs. She misses home, which is Austria for her. And so she takes Oliver to Graz. And she refuses to move back to Denmark. She argues she is entitled to determine Oliver’s residence alone. The father, who’s angry about this unilateral move by the mother – he feels he’s been stabbed in the back – files before the Austrian authorities for return of Oliver to Denmark. He relies on the 1980 Hague Abduction Convention. But after multiple proceedings, the Austrian authorities refuse to return Oliver to Denmark. And they award custody to the Austrian mother. Father’s frustration increases. He contends the Austrian authorities are biased. When a citizen feels public justice betrays him, when he feels he’s not treated fairly, what does he resort to? Private justice. And so he orchestrates what may look like a counter-abduction. When Oliver is at the Kindergarten in Graz, his father shows up – and assisted by a Danish acquaintance – takes him back to Denmark. It is now for the mother to be furious about this escalating turn of events. She files for return before the Danish authorities. The Danish authorities deny return and they award sole custody to the father. Which causes a journalist to wonder: (quote) “How can it be possible that the Danish authorities can award sole custody to the Danish father and the Austrian authorities can award custody to the Austrian mother?”2 And another one to note: “It’s a battle between Denmark and Austria with little Oliver caught in the middle”.3 Now, does the mother at least enjoy visitation rights for Denmark? Problem number 1: she faces criminal proceedings for abduction in Denmark. Just as the father has been convicted for abduction in Austria. Problem number 2: if Oliver is permitted to leave Denmark even for a week to see his Austrian grand-parents or to take some fresh air in the Alps (Denmark is a beautiful but flat country), there is a high risk that the Austrian authorities won’t cooperate to make sure he returns to Denmark. And so, Oliver, who’s Austrian citizen, as well as Danish citizen, is not allowed to travel to Austria, his “motherland” (“mère-patrie” in French). In fact, Oliver is unable for long years to travel outside Denmark altogether. What about In Austria, Denmark and other countries, particularly Germany. “Wenn Eltern ihre Kinder entführen. Hallo Deuschland” aired by the ZDF on 13 October 2013, available on Youtube. 3 “Es ist ein Kampf zwischen Dänemark und Österreich und dazwischen der kleiner Oliver”: “Guten Abend Österreich”, 2013-04-04 Puls4_Oliver_inkl_Talk (at 1:53 / 7:37). 1 2

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European Family Courts and Inter-Country (Arbitration) Courts his right to freedom of movement across the European territory? It looks as if he’s held hostage by his “fatherland” (“Vaterland” in German), that is Denmark. Out of despair, Marion Weilharter calls the European institutions for action. She thought this clash between two Member States has to be solved through a European body. And so, a delegation of members of European Parliament travels to Denmark and tries to sort out the situation diplomatically. To no avail. According to the last episode of this drama I am aware of, the mother turns to the United Nations. Austria and Denmark are “United Nations” although they are disuniting this Austrian-Danish family. The United Nations has, to Marion Weilharter’ mind, an inherent legitimacy to deal with such a supranational deadlock. She particularly petitions to the United Nations Committee for Women’s Rights.4 I will come back to this later. What I would like to emphasize is the extent of hardship and pain all members of the family have been experiencing. This is, to me, one of the clearest examples of a lose-lose-lose situation: three losers. Oliver has been suffering under various disorders. A lot of health issues, some of them threatening to be permanent.5 The mother has also been suffering under various disorders, which caused her to be on sickness leave for a long time. The father has been suffering tremendously as well. His career probably compromised. Both parents told about their plight to the media.6 And you can clearly see this by their body language when you hear them recounting their ordeal. And it is not difficult to imagine the distress of the members of the two extended families – starting from the grandparents – in Austria and Denmark. Think about how much Austrian taxpayers’ and Danish taxpayers’ money has been squandered. The end result is clearly lose-lose also from the perspective of the two communities, the two countries. My second story is even more tragic.7 It is about a Swiss mother and a Tunisian father. They have two children, who are both Swiss and Tunisian. The Committee for the Elimination of Discriminations against Women or “CEDAW”, CEDAW/C/59/D/46/2012, Communication No. 46/2012, https://juris.ohchr.org/Search/Details/2098. 5 Studies show that a child who had to endure a several year-long high-intensity conflict between separating parents is several times more likely to underperform at school, and fall behind (Oliver began first grade at 8 whereas children in Denmark began first grade at 6: see Communication No. 46/2012, Views adopted by the CEDAW, at its sixty-third session,15 February-4 March 2016, p. 2), to experience child depression as well as several psychological and physical disorders (panic attacks, anxiety attacks, asthma attacks…), to display suicidal tendencies and, when they grow up, to develop inclinations to violence, to end up alcoholic or drug addict, to drop out of school prematurely, to struggle to find a good-paying job, to end up being dependent on public assistance, or in jail. Although reliable studies on this point seem to be lacking, those risks are arguably higher if a child had to endure conflicts not only between mother and father but also between “motherland” and “fatherland”. 6 See particularly the documentary “Wenn Eltern ihre Kinder entführen. Hallo Deuschland” aired by the ZDF on 13 October 2013, available on Youtube. 7 For a summary of the case, see Obergericht Zurich, 31 August 2016, LC150021, available on the website of the Zurich courts: http://www.gerichtezh.ch. 4

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Gian Paolo Romano family lives primarily in Switzerland but with frequent visits to Tunisia. At some point, the marriage starts deteriorating. The father travels to Tunisia with the children to visit their Tunisian grandparents. And he does not return them to Switzerland. It must have been for him a hard decision to make, but he made it. This unleashes an incredible number of procedures, and triggers the involvement of an incredible number of authorities and professionals: judges, diplomats, administrative services, central authorities, social services, lawyers, police and law enforcement, prison services, health professionals, most of them funded by Tunisian and Swiss public money. To make a (very) long story (very) short, the Courts in Zurich award custody to the mother. The Courts in Tunisia to the father. But when the father happens to be in Morocco, he gets arrested by the Moroccan authorities and extradited to Switzerland. The father is then convicted in Switzerland for child abduction. He serves several years in prison. What about the children? They cannot move out of Tunisia, where they are looked after by their paternal grandparents. As the Court in Zurich puts it with dismay: (quote) “the parents are in Switzerland without the children, the children are in Tunisia without the parents”.8 The Swiss Ministry of Foreign Affairs had advised the mother against traveling to Tunisia where she has become a sort of persona non grata. Driven to despair for not being able to see her children, she commits suicide. Tragic outcome. Not isolated though. There is a long list of attempted or successful suicides in cases like this. Sometimes it is the child who, caught in the middle of this interparental and this inter-country war, takes his or her life. Maybe not immediately, but five years later, ten years later. B.

Further Case-Law within the EU

I would like to go back to the European Union and wonder whether our first Casestudy would have been different had Denmark been part of the so-called “Brussels IIa Regulation”.9 A look at the ECJ’s case-law does not really support this assumption. Let me mention some of those cases. I will start with Barbara Mercredi, who’s French, and Richard Chaffe, British. They have a child, Chloé, who’s born in London. When Chloé is barely one month, her parents have a fall out. The mother leaves the UK with Chloé and settles back to the French overseas territory she originates from. Not to Paris, which is two hours’ train from London, but to the Réunion island, which is 9.000 kilometres away from where Chloé’s father live. Chloe’s father immediately turns to English 8 Obergericht Zurich, 31 August 2016, LC150021, p. 48: “Die Kinder sind… ohne Eltern in Tunesien und die Eltern ohne Kinder in der Schweiz”. 9 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. As of August 1, 2022, Brussels IIa Regulation has been superseded by 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).

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European Family Courts and Inter-Country (Arbitration) Courts courts. The dispute quickly escalates. Several English and French proceedings are initiated by the Chloe’s parents, which result in a (I quote from the European Court of Justice) “conflict between two courts of different Member States”.10 French courts award custody to the French mother. English courts award custody… to themselves, making Chloé a “ward of the court”, as well as – at least initially – to the British father. Detiček v. Sgueglia: Italian father, mother from Slovenia, little girl, Antonella. After their divorce, Italian courts award custody to the Italian father. Mother escapes Italy and brings Antonella to Slovenia. No less than 6 proceedings. Slovenian courts refuse to return child to Italy and award custody to mother. At the time of the ECJ ruling,11 after two and a half year, the child was still in Slovenia. I have no information about what happened afterwards. I tried to reach Mr Sgueglia and Mrs Deticek through LinkedIn. I got no reply. Purrucker12: Spanish man, German woman, two twins. Merlín, a boy, Samira, a girl, born in Spain. They are dual citizens, Spanish and German. Their parents’ union breaks down. Before the case reaches the ECJ, no less than 16 proceedings, 11 in Germany, 5 in Spain. Spanish courts awarded custody of both twins to Spanish father. German courts hesitated, filed two requests for preliminary ruling – so they bought some time – and they ultimately concluded that the German mother had “exclusive custody of both twins”. The clash between Germany and Spain caused the twins not to see each other for at least four years: Samira was in Spain with the father and was prohibited from traveling to Germany, Merlín was in Germany with the mother, and was prohibited from traveling to Spain. The Aguirre Zarraga case was similar. Mr Aguirre Zarraga, Spanish, and Mrs Pelz, German, were married in 1998 in Spain. A daughter, Andrea, was born there in 2000. In 2007, Andrea’s parents separated. The Spanish court awarded custody to the Spanish father and right of access to the German mother. Shortly after, the mother moved back to Germany. Andrea was allowed to spend the summer holidays with her in Germany. At the end of the summer, she refuses to return Andrea to Spain. There followed 10 court proceedings, 7 in Spain and 3 in Germany. Stark conflict of decisions between the two Andrea’s homelands: Spanish courts maintained custody to the Spanish father, German courts awarded it to the German mother.13 The ruling by CJEU suggested Germany should comply with Spanish custody order and return Andrea to Spain. The dispute was still not over three years later for, according to reports in April 2014, the German authorities had not enforced the return order on the ground that Andrea, after having being held in Germany for six years – she was not allowed to spend a single day with her Spanish family in Spain for six years – now opposed the enforcement. The European Commission started an investigation against Germany. The most high-profile case is probably Rinau. Lithuanian woman, a prominent politician, German man, a winemaker. Their union produces Luisa, who’s CJEU, 22 Dec. 2010, Mercredi, C-497/10, para. 68. CJEU, 23 December 2009, Detiček, C-403/09 PPU. 12 CJEU, 15 July 2010, Purrucker I, C-256/09, and 9 Nov. 2010, Purrucker II, C-296/10. 13 CJEU, 22 December 2010, Zarraga, C-491/10. 10 11

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Gian Paolo Romano born in Germany. Matrimonial crisis. The mother is graciously allowed by the father to travel with Luisa to Lithuania for two weeks. And she does not come back. There follows, in an initial stage of the battle, 16 judgments, 4 in Germany, and 12 in Lithuania. German courts award custody to German father. The Lithuanian courts and Lithuanian enforcement authorities and Lithuanian public opinion side with the mother. Luisa is not returned to Germany. Preliminary ruling by the ECJ.14 Then the battle continues and produces 12 additional decisions. The case is then brought by Mr. Rinau – who went to Lithuania and took himself Luisa back to Germany, which triggered a criminal proceeding for (counter-)abduction against him – before the European Court of Human Rights.15 In the words of the Strasbourg Court (quote) “Lithuanian and German courts had adopted more than thirty decisions which had often been contradictory and invalidated one another”.16 Another case brought both before the ECJ17 and – twice – before the ECHR18 involves Mauro Alpago, Italian, and Doris Povse, Austrian. They meet in Venice, where Doris Povse has moved to learn Italian. Romantic city, stimulating mutual attraction. A little girl, Sofia, is born. The romance vanishes soon though. Mother goes back to Vienna, taking Sofia with her. Father cries foul. A first stage of the dispute generates 14 decisions, 3 in Italy, 11 in Austria. Appeals, counterappeals, applications for interim measures, for change of circumstances… If you read the summary provided by the ECJ, you easily get lost. But here’s the gist: Italian courts award custody to Italian father and ordered Sofia to return to Italy. Austrian courts concluded custody should be awarded to Austrian mother and Sofia should remain in Austria. ECJ’s ruling. Then the battle continues with 16 more proceedings, 30 in total. It reaches twice the European Court of Human Rights, who was unable to put an end to it. For the battle carries on, with at least 3 more rulings.19 So, for at least 7 years, Sofia, caught in middle of the arm-wrestling contest between mother and father, and between motherland, Austria, and fatherland, Italy, was not permitted to visit Italy. Mrs Šneersone, Latvian, and Mr Campanella, Italian, meet in Rome. Their union produces a child, Marko, a dual national of Latvia and Italy. Marko’s parents live together in the Eternal City. Yet their relationship is more fleeting than eternal. Marko is barely a year when his parents separate. Feeling she has little prospects in Italy, Mrs Šneersone returns to Latvia with Marko. The father files a petition for return with the District Court of Riga. The Riga Court refuses to order Marko’s repatriation to Rome which they concluded would result in an “intolerable situation”.20 This unleashes six years of legal wrangling on Italian and Latvian side CJEU, 11 July 2009, Rinau, C-195/2008. ECHR, 14 January 2020, Rinau v. Lithuania (Application No 10926/09). 16 ECHR, 14 January 2022, Rinau v. Lithuania, para. 111. 17 CJEU, 1 July 2010, Povse, C-211/2010. 18 ECHR, 18 June 2013, Povse v. Austria (Application No 3890/11), ECHR, 15 April 2015, M.A. v. Austria, Application No 4097/13. 19 ECHR, 6 mars 2018, Royer v. Hungary (Application No 9114/16). 20 On the basis of Article 13(b) of the Convention on the Civil Aspects of International Child Abduction of 25 October 1980. 14 15

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European Family Courts and Inter-Country (Arbitration) Courts – approximately twenty proceedings. Latvian courts affirmed jurisdiction based on the new residence of Marko, and they concluded “it is in Marko’s overriding interests that the custody be awarded to the mother”. In the meantime, the father had applied to the Courts in Rome, which ruled in his favour and ordered Mrs Šneersone to bring Marko back to Italy. To overcome this jurisdictional tug-ofwar, the Republic of Latvia commences proceedings against the Republic of Italy before the CJEU. Motherland sues fatherland. The case was then brought by Mrs Šneersone before the ECHR.21 The Latvian government sided with Mrs Šneersone and blamed the Italian judiciary for partisanship. The Italian government sided with the Italian judiciary in support of the Italian adjudication. A Frenchman, Patrick Royer, and a Hungarian woman. They live in France for four years. A little boy is born in 2013. Soon after his birth, the parents have a fall out. The Hungarian mother leaves France for Hungary with the boy. There follows two years thick with legal proceedings, 7 in France and 15 in Hungary. The case landed multiple times before the highest court in France (Cour de cassation) and before the highest court in Hungary (Kúria). French courts prescribe child’s residence in France and custody to the French father. The Hungarian courts dismiss the petition for return to France, refuse to recognize French rulings based on public policy and award custody to the mother. Stefano Liberato, from Italy, and Luminita Grigorescu, from Romania, get married in Rome in 2005. They move into a home together. A child is born in February 2006. The parents split in 2007. Ms Grigorescu takes the child to Bucharest. This begins 12 years of struggle (twelve!) until the ECJ rules in 2019.22 During twelve years, the child, a national of Italy and Romania, was not able to set foot in Italy and visit there with the Italian part of his family, some of whose members have probably died in the meantime. An Italian man, Emilio Vincioni, and a Greek woman, met on a Greek island. They get married in 2013 in Sassoferrato, Italy, where they established their marital home. In 2015, the wife becomes pregnant. Mr Vincioni agreed to her travelling to Greece in December 2015 to give birth. A girl is born in Athens early 2016. Soon after the delivery, the mother resolved to stay in Greece with the girl. There follows a fight involving dozens of proceedings before civil courts and criminal courts in Italy and Greece. The mother is convicted for abduction by the Italian criminal courts. The father – who “spends a significant part of his salary in legal fees”23 – is imprisoned in Greece for failing to pay maintenance. On the civil front, the Italian courts pronounce the divorce and attribute the responsibility to the wife. The Greek courts24 award custody of the girl to the mother and allow her to prevent the common daughter from travelling to Italy to meet there with her father and her Italian family – Alberto Vincioni, the Italian “nonno”, being also ECHR, 12 July 2012, Šneersone and Kampanella v. Italy (Application No 14737/09). 22 CJEU, 16 January 2019, Liberato, C-386/17. 23 Andrea OSSINO, “Bambina portata in Grecia dalla madre, il dramma del padre”, La Repubblica, 14 September 2021. 24 The Greek courts regarded themselves as having international jurisdiction based on habitual residence of the child based on CJEU, 8 June 2017, OL v PQ, C-117/17. 21

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Gian Paolo Romano particularly devastated – while ordering the father to pay in the hands of the mother a significant amount in child support. A child who’s Italian and Greek, who’s six and a half year at the time of this writing, has never been allowed by motherland, Greece, to spend a single week-end in Italy, his fatherland, for fear that fatherland might fail to cooperate to return her to Greece should the father fail to return her spontaneously. The dispute is still ongoing. The last episode features an emotionally, physically, financially drained yet remarkably combative father, and members of various associations, embarking on a rotating hunger strike to raise awareness on those issues.25 I will stop there, not because my stock of cases is running out – I could mention many more. C.

A Short Analysis

So, what do all these cases suggest? First, if we are serious about child best interests, we have to recognize that the interests of Oliver, Chloé, Antonella, Luisa, Merlín, Samira, Marko, Andrea, Sofia, have largely gone by the window. Their childhood has been largely ruined. A whole bunch of their rights under the United Nations Convention on the Rights of the Child have been infringed upon by both countries involved. Second, what is striking is that the parents involved are most of the time rather good people. There is not often in those cases a history of domestic violence for example. Take Marion Weilharter and Thomas Sørensen. Two clever and welleducated persons.26 And Denmark and Austria rank very high in terms of prosperity and living standards and facilities for their children. So why did the parents do what they did? And why did the Danish and Austrian authorities do what they did? Remember: the first move was by the mother. Mrs Weilharter took Oliver to Austria without applying to Danish court to be authorized to relocate to Austria. Why? She thought Danish court would deny relocation, they won’t allow a child issued by a Danish father and an Austrian mother and who had primarily lived in Denmark to move to Austria against the will of the Danish father. But she also most certainly thought: “It is unfair for me to have to rely on a Danish court that might be biased in favor of the Danish side of the family”. The crux of the matter is there are two sides: Danish and Austrian. The Danish mother perceived a judge who embodies the Danish side, and is part of the Danish community, and is closer to the Danish parent, not to be sufficiently neutral to serve even-handed justice. She perpetrated what was probably an abduction. But the reason she did so was because she wanted to move away from a justice system that, in her eyes, to her perception, was biased. I believe this feeling was shared by 25 See the documentary: “Vera Mattina – Uno sciopero della fame contro la sottrazione dei minori”, 21 Feb. 2022, available on Youtube. 26 As shown by the multiple interviews they delivered to the media: see in particular “Wenn Eltern ihre Kinder entführen. Hallo Deuschland” aired by the ZDF on 13 October 2013, available on Youtube.

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European Family Courts and Inter-Country (Arbitration) Courts the Austrian authorities. They failed to order Oliver’s return to Denmark because, first, they did not want to cooperate with a system they too perceived as unbalanced. Second, because they deliver justice on behalf of the Austrian community (“im Namen der [österreischen] Republik”),27 to which the Austrian mother belongs, the Austrian authorities had a special sympathy for her. Pay attention though: that’s precisely what Thomas Sørensen felt. So, let us move to the Danish father’s perspective. In his eyes, Austrian courts were not fair to him: “They protected the mother based on her nationality” and residence.28 Same problem. And so, he dismissed the Austrian custody decision as unworthy of his respect. And he took justice into his own hand. And he took the child back to Denmark. To sum up, the Austrian mother – and to some extent the Austrian authorities – question the neutrality of the Danish authorities. The Danish father – and to some extent the Danish authorities – question the neutrality of the Austrian authorities. This dual perception underpin pretty much all cases I mentioned. Interestingly, the United Nations Committee for Women’s Rights largely concluded that Marion Weilharter was, as a foreign woman, unfairly discriminated against by the Danish authorities and issued a series of recommendations to Denmark. But if there existed a United Nations Committee for Men’s Rights, chances are that it would conclude Thomas Sørensen was too unfairly discriminated against by the Austrian authorities as a foreign man. The European Court of Human Rights held in a number of cases that there had been a bias on the part of the mononational authorities of a country in favour of the parent – father or mother, man or woman – who was their national and their resident and to the detriment of the parent who was a foreign national and foreign resident. Think about Rinau. The President of the Lithuanian Supreme Court – the highest-ranking member of the Lithuanian judiciary – is blamed by the Strasbourg court for siding with the Lithuanian mother, for discriminating against Michael Rinau as a foreign man, for not displaying sufficient neutrality.29 But the Strasbourg court should also recognize – and it does so, more or less explicitly, in other cases: for example in Šneersone – that the Lithuanian mother retained Luisa in Lithuania because she felt the German authorities, including the seemingly all-powerful Jugendämter, had exactly the same bias. They would not permit a German (and Lithuanian) child to lawfully relocate to Lithuania with his Lithuanian mother against the German father’s will.

This is the epigraph of the rulings delivered by Austrian courts. “Die österreichische Justiz schütze Marion Weilharter aufgrund ihrer Nationalität”: “Wenn Eltern ihre Kinder entführen. Hallo Deutschland” aired by the ZDF on 13 October 2013, available on Youtube (at 6:56 / 19:05). 29 ECHR, 14 January 2020, Rinau v. Lithuania (Application No 10926/09), para. 215-219. See also para. 211: “The foregoing findings demonstrate that, with the exception of the President of the Republic… the Lithuanian authorities ‒ and this includes politicians, child care officials, and prosecutors ‒ failed to ensure fair decision-making in the applicants’ case… It goes without saying that their efforts, aimed at creating a negative atmosphere around the legal actions of the first applicant and constituting direct attempts to interfere in those proceedings, were unacceptable in a system based on the rule of law”. 27 28

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Gian Paolo Romano Self-justice is triggered by a perception of an injustice. And things then escalate.

II.

Looking for a Remedy to the Problem

A.

European Family Courts

Let me quote The Vienna Review of 5 November 2012. The reporter mentions that (quote) “Weilharter finds the current situation agony: ‘I would prefer such matters were decided by a neutral court in another country’, she said”.30 The article further reports Mag. Britta Schönhart, Austrian attorney, to say: (quote) “We need a European body or higher court deciding cases like these”. And Danish attorney, Marianne Linaa Steiness, (quote) “wholeheartedly agrees, suggesting that… international conflicts like this would be treated by a European Family Court”.31 Both Danish and Austrian sides seem to call for – and be willing to submit to – a European Family Court, where an Austrian judge sits next to a Danish judge, and presided over by, say, a Dutch or a French judge or an Italian judge. I am not going to address here how we might organise those panels. I want to focus on some of the benefits that are likely to flow. Number 1, both parents will have at long last the impression they are treated fairly. We have to be fair to both. The anger, the frustration, associated with the perception of being the victim of a judicial bias is likely to diminish. Less frustration, less anger for the parents means less sadness for their children. When parents are frustrated, children feel it – they are like a sponge – and suffer as well. Do we care about children’s welfare, about being fair to children? Let’s start by being fair to both parents. Number 2, those bi-national, European courts are likely to be perceived by bi-national, European children – by a significant number of those who have reached sufficient maturity to express their views – as better reflecting their own dual identity and language and culture. I conducted some informal interviews with multinational children like Oliver (I have some in my own extended family, my own child, Leonardo Édouard, is dual national, Swiss and Italian). The principle of multi-national courts invariably resonate with the multi-national children I sounded out. Do we care about children’s views? Let’s ask them for their views. Let’s ask Danish-Austrian kids like Oliver: “Would you rather have a wholly Danish panel or a wholly Austrian panel directing whether you should live with your Mom in Austria or with your Dad in Denmark, or a panel who’s both, and at the same time, Danish and Austrian?” And let’s take their opinion into serious account. 30 Anett Kristensen, A Mother Fights For Custody – Without EU-wide rules, battles across borders put parents increasingly at odds, The Vienna Review, Nov. 5, 2012 https://www.theviennareview.at/archives/2012/a-mother-fights-for-custody. 31 Anett Kristensen, A Mother Fights For Custody – Without EU-wide rules, battles across borders put parents increasingly at odds, The Vienna Review, Nov. 5, 2012 https://www.theviennareview.at/archives/2012/a-mother-fights-for-custody.

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European Family Courts and Inter-Country (Arbitration) Courts Number 3, the mere possibility of relying on a supranational court would actually help the parents to reach an amicable settlement. So the number and the duration of interparental conflicts are likely to go down. I am persuaded that, had we made European Family Courts available to the parents, some of the cases I mentioned would not have actually landed before the European Family Court, they would have stayed away from courts altogether. The psychological comfort of being able to rely on a neutral body would, in at least some of those cases, have encouraged good faith negotiations and parenting agreements. This would be a win-win-win situation: three winners, the child, the mother, the father. Actually five winners: the two State communities would have been better off. Number 4, we will remove a powerful incentive to intra-European child abduction. Most of the cases involved child abduction, by mothers most of time. It is the first unilateral move that caused the relationship to gradually move to an inferno. Mothers like Marion Weilharter or Doris Povse or Inge Rinau will be less tempted to remove unilaterally their child if they feel they can rely on a neutral body to hear their application to relocate to Austria or Lithuania. Intra-European abductions will be reduced. Even if it is by 10%, this is thousands of European kids and European parents and extended families we will have spared the trauma of abductions. Number 5, whatever the parent who’s awarded custody, and whether they allow for relocation or not in each particular case, those European panels will be able to organise cross-border visitation rights and make sure those rights are implemented. A child who is Austrian and Danish, and whose mother lives in Austria and whose father lives in Denmark, a child who is German and Spanish, and whose mother lives in Germany and whose father lives in Spain, a child who’s Italian and Greek, and whose mother lives in Greece and whose father lives in Italy, will be allowed to spend time with each of his or her parents and with each part of his or her extended family – grandparents, cousins, uncles, aunts, etc. – and on the territory of each of his or her homelands. Is the Danish father awarded custody over Oliver? At least Oliver will be allowed to spend a significant part of his holiday in Austria, his motherland, with his Austrian mother, with his Austrian grandparents and with the Austrian part of his family. Is the Austrian mother awarded custody over Oliver? At least Oliver will be allowed to spend a significant portion of his holiday in Denmark, his fatherland, with his Danish father and the Danish part of his family. We will have avoided the situation – which is at odds with a lot of principles which lie at the core of the European Union – where a child, who’s national of two Member States, and who’s caught in the middle of a clash between those two Member States, between motherland and fatherland, is held hostage by one of those Member States and prevented for long years to set foot on the territory of the other and visit there his or her parent and the part of his or her family living there. This inevitably causes him or her to become estranged from a component of his or her family and to lose contact with a fundamental part of his or her European cultural and linguistical and biological identity and heritage. Number 6, some of the European taxpayers money that today is financing 10, 15 and up to 35 proceedings in two countries – with judgments that cancel each other out – will be saved. And it can be invested to finance scholarships for those kids and, for example, when they reach sufficient maturity, to encourage them to Yearbook of Private International Law, Volume 23 (2021/2022)

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Gian Paolo Romano spend an exchange school year in one of their homelands, the one where the noncustodian parent lives. And also think about how much private money will be saved. We interviewed Doris Povse. She disbursed over 100.000 Euros in courts and attorney’s fees. The same is likely to be true for the father, Mauro Alpago. This is money they were not be able to invest in Sofia’s education. Emilio Vincioni has been since 2016 spending “a significant part of his salary in legal fees”.32 As a consequence, he was permitted to reduce the amount of money he can afford paying to financially support his daughter. Science fiction? Well, the fact is European Courts with a multi-national composition will soon be in operation. This is in the area of patents: Unified Patent Court. Let me quote a passage from its official website: “Litigation in multiple countries is expensive and there is a risk of diverging decisions... Forum shopping is often inevitable, as parties seek to take advantage of differences between national courts and their procedures. The UPC Agreement addresses these shortcomings by creating a specialized… court”.33 Now “these shortcomings” seem to be exactly the ones which affect crossborder child custody litigation. And so, why should we think European Family Courts specialising in custody issues are something unrealistic? Why? B.

Inter-Country Tribunals (Including Arbitration Tribunals)

Remember Case-study 2: Switzerland and Tunisia have blatantly disregarded the children’s most basic rights under the 1989 United Nations Convention on Children’s Rights to which they are both parties. Also, remember what Mrs Weilharter did in Case-study 1: she instinctively turned to the United Nations. The United Nations also adopted a Convention that has to-date been by far the most widely ratified in the area of cross-border relationships between private persons (including corporate persons): the 1958 U.N. Convention on international arbitration.34 160 plus countries are parties to it. Almost all Islamic countries and a vast majority of Asian countries are signatory. Why shouldn’t the United Nations be willing to endorse a similar instrument for cross-border child custody? This can be done through an additional protocol to the 1989 U.N. Convention on Children’s Rights.35 When the mother is Swiss and wants to live with the children in Switzerland, the father is Tunisian and wants to live with the children in Tunisia, they would be able to rely on a SwissTunisian, mixed, intercountry, binational, bi-religious tribunal or committee or commission, whatever the name, that represents both sides, both identities, both See supra, note 23. https://www.epo.org/applying/european/unitary/upc.html. 34 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958). 35 The UNCRC is already supplemented with three Optional Protocols: an Optional Protocol on the sale of children, child prostitution and child pornography, an Optional Protocol on the involvement of children in armed conflict, an Optional Protocol on a communications procedure. 32 33

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European Family Courts and Inter-Country (Arbitration) Courts languages, both religions. The parents are likely to trust it more than the Swiss mother trusts a Tunisian court, than the Tunisian father trusts a Swiss court. Thanks to the 1958 United Nations instrument on arbitral awards, a Swiss corporation and a Tunisian corporation, when they enter into some business with each other, are entitled to rely on Swiss-Tunisian (arbitral) tribunal to settle any potential dispute arising between them. Why such a right should be denied to a Swiss-Tunisian family? Why should we show less concern for the well-being of Swiss and Tunisian families than for the well-being of Swiss and Tunisian commercial companies? C.

Advantages Traditionally Ascribed to International Arbitration

We ought to recognize that some of the celebrated advantages flowing from international arbitration over litigation before mono-national State courts are particularly welcome in the area of cross-border parental responsibility. Here is a list of them. “The principal advantage of international arbitration [as perceived by the human beings which resolve to resort to it] is its neutrality”,36 as is often contended. Why on earth should this guarantee of neutrality be denied to children and parents involved in situations where the perceived risk of lack of sufficient neutrality on the part of the single-State authorities could be even more pronounced than, typically, in commercial disputes? International arbitration – it is generally submitted – is less confrontational. And the reason is because the two parties have to cooperate to choose the adjudicators, rather than each of them being encouraged to unilaterally “forum shop” to secure the most favorable forum for itself. All other things being equal, isn’t a system that reduces the risk of escalation of a conflict between parents more consistent with the child interests than a system that encourages such an escalation? International arbitration – it is also submitted – avoids the costs and hassle and undesirable consequences of parallel proceedings and the risk of conflict of jurisdictions and conflict of judgments. As the examples offered make clear, such a risk is particularly high when two parents living in different countries fight over custody. And the consequence of an international conflict of custody orders are often tragic for children and parents alike. International arbitration is associated with less public exposure and a greater protection of confidentiality and privacy of the parties. Isn’t this what is sorely needed when one of the parties is a minor? A greater informality when it comes to organizing the procedure may also be a good thing for children and parents. In a 36 Gabrielle KAUFMANN-KOHLER/ Antonio RIGOZZI, International Arbitration – Law and Practice in Switzerland, Oxford University Press, 2016, p. 13; also see Emmanuel GAILLARD, “L’apport de la pensée française à l’arbitrage international”, Journal de droit international, 2016 p. 530: “The advantage of arbitration is not, as was once written..., that it is quick, inexpensive and maintains solid relations between the parties... The advantage of arbitration is elsewhere. It is in the neutrality, both geographical and national, of arbitrators (neither wanting to litigate in the other forum), the participation of the parties in the appointment of the arbitrators...” (translation is mine).

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Gian Paolo Romano similar vein, to the extent that international arbitration is viewed as being less concerned with state sovereignty and more focused on solving actual, mostly “private” issues, wouldn’t it be adjusted to the true children and parents’ needs? International arbitration is often reported to be generally quicker than state litigation. Here again, isn’t time of the essence when it comes to children? Children ought to know where they have to live – in Switzerland with Mom? in Tunisia with Dad? – and to go to school. If they are cut off from one of their parents for just two or three years, they are at risk of becoming estranged from that parent and that part of their family. Children grow fast and, after some years, they are no longer (minor) children. In many of the cases I reported, the question of which parent was custodian has been legally unsettled for as many as 7, 10, 13 years due to the fight between the tribunals, which prolonged the fight between the parents rather than putting an end to it. International arbitration – according to statistics – fosters goodwill and stimulates voluntary compliance. Most of the arbitral awards are spontaneously honored. The greater the legitimacy of the adjudicative body in the eyes of the human beings who are supposed to comply with its decision, the greater the chance of a voluntary compliance. Voluntary compliance is particularly important and the risk of non-compliance is particularly high when it comes to cross-border custody issues. We have seen it: a parent who is national of and resident in Country A all too often tends not to comply with a Country B’s court order that he or she perceives as unfair to him or her. We have seen it: the judicial authorities of Country A all too often fail to cooperate with Country B’s court order because they too feel the court order is biased to the detriment of their community and of the parent who is part of their community. Even when judges of Country A feel they are under an international obligation to implement Country B’s court order, the enforcement authorities of Country A all too often find all sorts of “escape devices” not to implement it.37 This paves the way for an arm-wrestling contest between the two countries with devastating consequences for children and parents. International arbitration – it is believed – does a better job at preserving the relationships between the parties once the dispute is settled. Once again, isn’t this absolutely critical when it comes to parents who, even if they split, continue to carry joint parental responsibility over their common child and should continue to cooperate to implement each other’s visitation rights and custody rights? A system that promises to more frequently encourage a collaborative post-separation rela37 In the context of Brussels IIa Regulation, a whole bunch of cases were brought before the European Court of Human Rights or before the European Commission because of non-compliance by the judicial or, more often, by the enforcement authorities of Country B of their euro-international obligation under Art. 11(8) to recognize and enforce custody orders of Country A. In cases like Rinau, Povse, Aguirre Zarraga and others, the competent judicial authorities of Country B ended up, often after years of legal battle and rather grudgingly, ordering the return of the child to Country A. But the enforcement authorities of Country B stepped in to make sure the return order was not implemented (“We cannot, under our laws – and it is our laws and our practices which should govern actual enforcement – use coercion against children”. “This is against our enforcement laws as we actually practice them”. “At present, the child opposes enforcement: change in circumstances, which supersedes the return order”).

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European Family Courts and Inter-Country (Arbitration) Courts tionship between parents is, all things being equal, emphatically more consistent with the child best interests and the parents’ best interests than a system that encourages ongoing fights between the parents. International (arbitral) decisions tend to inspire greater trust and, therefore, tend to be viewed as endowed with an intrinsically greater propensity to international circulation than mono-national court decisions. The fact that more than 160 countries of all Continents have accepted to mutually recognize and enforce international arbitral decisions and that no instrument requiring mutual recognition of their mono-national court decisions has ever achieved a comparable success seems to be a testament to this. A lot of Arab countries – like Egypt or Algeria or Saudi Arabia – and Asian countries – take China, India or Japan… – have difficulties recognizing mono-national custody orders coming from, typically, Western countries, like France, Switzerland, Germany or the United States. As suggested by their adherence to the United Nations Convention on Arbitral Awards, Egypt, Saudi Arabia, China, India and Japan are likely to have less trouble recognizing an international decision emanating from a bi-national adjudicative panel that incorporates an Egyptian, Saudi Arabian, Chinese, Indian or Japanese component, where their community and the private party belonging to their community – the Egyptian, Saudi Arabian, Chinese, Indian or Japanese parent – are represented on a par with the other private party – the “Western” French, Swiss, the German or U.S. parent – and the other community involved – France, Switzerland, Germany or the United States. Only a few countries outside the European continent have ratified the 1996 Hague Children Protection Convention. Why should India be willing to be bound to honor a U.S. decision that prohibits an Indian mother to relocate with her Indian-American daughter to India – and threatens to, or does in fact, award custody to the father, a U.S. national and resident? A decision that the Indian mother and the Indian community may perceive as tainted with judicial bias, as stemming from the desire of the U.S. authorities to protect the U.S. parent and from an inherent conviction on the part of the U.S. authorities of the superiority of the U.S. legal system and the U.S. way of life, if not from a quasi-neocolonialist or imperialist mindset? A lot of countries, including India, still haven’t ratified the 1980 Hague Abduction Convention. And too many of those who have – typically, among the Arab and Asian countries mentioned: Japan – do not fully comply with its fundamental scheme. If the Indian mother manages to move back to India with her daughter, India wants to be free from any international obligation that may under mine their liberty to allow the Indian mother and her daughter to escape a U.S. system they may perceive as too one-sided and to remain in India.38 It is also, for a country, a question of national pride, of not being seen, as a sovereign country, to be subjugating to the dictates of another country. A mono-national court order is often associated with sovereignty because a mono-national court of a country is an organ of that country and delivers justice on behalf of that country and of the “people” of that country, as often indicated in the epigraph of those orders. 38 Shalini NAIR, “India Will Not Ink Hague Treaty on Civil Aspects of Child Abduction”, Indian Express, Nov. 27, 2016); Anil MALHOTRA and Ranjit MALHOTRA, “To Return or Not to Return: Hague Convention v Non-Convention Countries” (2017) 2017 Int’l Surv Fam L 129.

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Gian Paolo Romano Wouldn’t a U.N. instrument on international arbitration courts – adjusted to the specifics of cross-border child custody issues – have greater chances of looking attractive to some of the countries in the eyes of which the 1996 Hague Children Protection Convention and the 1980 Hague Abduction Convention have so far not been sufficiently attractive? And wouldn’t such an instrument assist the signatories of the 1980 Hague Abduction Convention in more effectively pursuing the Convention’s primary purpose, i.e. the purpose they aspired to achieve in ratifying it, which is to combat international abductions by preventing them, for it would stand to remove the most powerful incentive for a parent to abduct his or her child from Country A to Country B, which is the combination of both the fear of having to face hostile mono-national authorities of Country A and the hope of securing the benevolence of allied mono-national authorities of Country A? This a crucial point: If we can ensure that the transfer of the child unilaterally effected by one parent from the territory of Country A to the territory of Country B remains without influence on the composition of the court competent to hear custody issues – for, whether the transfer takes place or not, an international (arbitration) court in which both parents and both communities are likely to feel equally represented will rule on custody and access –, then both the fear of dealing with hostile authorities and the hope of dealing with allied authorities should greatly diminish and, with them, the incentive that the combination of both this fear and this hope provide to a parent to engage in cross-border abduction. And wouldn’t the fact that international arbitration is perceived as having less to do with State sovereignty and national pride – international arbitrators are not organs of any of the State communities involved – and more with delivering a fair and quick solution to the actual and mostly “private” family problems children and parents are confronted with encourage widespread adherence to such an instrument?

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BUSINESS AND HUMAN RIGHTS ________________

ROME II AND CROSS-BORDER VIOLATIONS OF HUMAN RIGHTS, INFRINGEMENTS OF PERSONALITY RIGHTS, AND OTHER CROSS-BORDER TORTS Symeon C. SYMEONIDES*

I. II. III. IV.

V. VI.

VII.

VIII.

Introduction The Lex Loci Damni Rule and its Problems The Two Patterns of Cross-Border Torts Pattern 1 – Conduct in a State with a Pro-Plaintiff Law and Injury in a State with a Pro-defendant Law A. The Jabir Case B. Reaching the Top Actor in the Tortfeasor’s Value Chain C. Cross-Border Violations of Human Rights 1. American Abdication 2. European and International Sensitivity 3. European Union Pattern 2 – Conduct in a State with a Pro-Defendant Law and Injury in a State with a Pro-plaintiff Law Proposed Solution A. A New Rule B. Clarifications and Remaining Policy Questions C. Operation D. Comparisons Cross-Border Infringement of Personality Rights A. The Status Quo B. Jurisdictional Questions C. The Choice-of-Law Question Concluding Words

* Alex L. Parks Distinguished Chair and Dean Emeritus, Willamette University College of Law, LL.B., LL.B., LL.M., S.J.D., Ph.D.h.c., LL.D.h.c. mult., MAE. This article was previously published under the title Symeonides, Rome II et la responsabilité délictuelle transfrontière: une nécessaire refonte in RCDIP 2022. Republished with permission.

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 171-210 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Symeon C. Symeonides

I.

Introduction “[T]here is a good deal of wisdom in the rules that allow the victim or the court to choose between the laws of the state of conduct and the laws of the state of injury in cases of cross-border torts. It is regrettable that the drafters of Rome II have chosen not to adopt a similar rule [for all cross-border torts] as they did with regard to environmental torts.”1

This was one of several criticisms I voiced in an article written in 2004, a few weeks after the European Commission released its Proposal for what later became the Rome II Regulation.2 I reiterated the same view in an article written in 2007, a few weeks after the EU Council and Parliament adopted the Commission’s modified proposal.3 I stated that “Rome II would have been a better system if the drafters had adopted the same logic when drafting the general rule of Article 4(1)” as they did in drafting Article 7 for environmental torts,4 namely giving tort victims a choice between the law of the state of conduct and the state of injury. Developments since that time have demonstrated the need to extend the logic of Article 7 beyond environmental torts to other categories of cross-border torts. Recognizing this need, the Legal Affairs Committee of the European Parliament (JURI) proposed a similar pro-victim rule for one category of cross-border torts – those involving human rights violations – which would give victims even more choices than Article 7.5 Likewise, two prestigious academic groups, the Group européenne de droit international privé (GEDIP) and the European Law Institute (ELI), have also proposed a similar pro-plaintiff rule for these conflicts.6 This essay supports these proposals, but also goes beyond them by proposing a rule that would encompass all cross-border torts, in addition to environmental torts and those involving human rights violations. Sections II through V discuss the problems encountered in the application of the general lex loci damni rule of Rome II to non-environmental cross-border torts. Section VI proposes a new rule for all cross-border torts that fall within the present scope of Rome II. Finally, Section VII considers the possibility of expanding the scope of Rome II to encompass infringements of personality rights (such as

S. SYMEONIDES, Tort Conflicts and Rome II: A View from Across, in H-P. MANSEL, et al. (eds), Festschrift für Erik Jayme, Sellier 2004, p. 935 ss, at 954. 1

2 See Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ L 199, 31.7.2007, p. 40-49.

S. SYMEONIDES, Rome II and Tort Conflicts: A Missed Opportunity, 56 Am. J. Comp. L. 2008, p. 173, at 192. 3

172

4

Id., at 210.

5

See infra, IV.3.c.

6

See infra, IV.3.c.

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Rome II and Cross-Border Torts defamation and invasion of privacy) and examines whether the proposed rule would be appropriate for cross-border infringements of those rights.7

II. The Lex Loci Damni Rule and its Problems The general choice-of-law rule of Rome II is the lex loci damni rule of Article 4(1), which mandates the application of the law of “the country in which the damage occurs.”8 This rule applies to all torts for which Rome II does not provide special rules in Articles 5 through 14, including Article 7 on environmental torts. As detailed elsewhere, the lex loci damni rule produces functionally defensible results in some categories of cases and problematic results in other categories.9 One of the latter categories consists of cross-border torts other than those that qualify as environmental torts, namely other cases in which conduct occurring in one state causes injury in another state. This essay focuses on these cases. It is of course true that Rome II subjects the lex loci damni rule to several exceptions. They include the common habitual residence exception of paragraph 2 of Article 4, the “closer connection” exception of paragraph 3 of Article 4, the admonition to take account of “the rules of safety and conduct” of Article 17, the “overriding mandatory provisions” exception of Article 16, the ordre public exception of Article 26, and even the possibility that the parties may have entered into a pre-dispute or post-dispute choice-of-law agreement under Article 14. The drafters’ assumption was that these exceptions would enable courts to avoid the lex loci damni rule whenever it produces problematic results. Unfortunately, but predictably,10 this assumption proved unrealistic because in most cases, these exceptions either do not fit the facts or they are too uncertain or cumbersome and difficult to apply. The cross-border torts discussed here are among these cases.

7 In 2019, the EU Commission issued a Request for service (number JUST/2019/JCOO/FW/CIVI/0167) for a study to support the preparation of a report on the application of the Rome II Regulation. The Request included questions on some of the topics discussed in this essay, e.g., corporate violations of human rights, environmental torts, and cross-border infringement of personality rights. In response to this request, the Institute of International and Comparative Law submitted a comprehensive Study on the Rome II Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (2021). 8 Rome II, Art. 4(1). Except when quoting Rome II or other texts using its terminology, the following discussion uses the term “injury” rather than “damage,” the term “conduct” rather than “the event giving rise to the damage,” the term “defendant” or “tortfeasor” rather than “person claimed to be liable,” and the term “plaintiff” or “victim” rather than “person sustaining damage.” Also, the terms “country” and ‘state” are used interchangeably. 9

See S. SYMEONIDES, Rome II: A Centrist Critique, in this Yearbook 2008, p. 149, at

151-54. 10

See S. SYMEONIDES (note 3), at 192-204, 211-15.

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III. The Two Patterns of Cross-Border Torts For purposes of analysis, cross-border tort conflicts can be divided into two patterns depending on the content of the relevant laws of the state of conduct and the state of injury: (1) Pattern 1 consists of cases in which the state of conduct imposes a higher standard of conduct for the tortfeasor, or of financial protection for the victim, than the state of injury. (2) Pattern 2, the converse of Pattern 1, consists of cases in which the state of conduct is more lenient on the tortfeasor by allowing a lower standard of conduct, or providing a lower standard of financial protection for the victim, than the state of injury. Strictly speaking, one should separate standards of conduct for the tortfeasor from standards of financial protection for the victim because one state may have a lower standard of conduct but a higher standard of financial protection. Such differentiation between the two sets of standards would produce at least four different patterns of cross-border torts.11 However, for the sake of simplicity and in light of the fact that Rome II eschews issue-by-issue analysis and dépeçage (at least officially),12 the following discussion assumes that a state that prescribes a higher standard of conduct for the tortfeasor also provides a higher standard of financial protection for the victim. For additional simplicity, the following discussion uses the terms “pro-defendant” and “pro-plaintiff” to describe the laws of the state of conduct and the state of injury.13 The lex loci damni rule of Article 4(1) is content-blind.14 It mandates the application of the law of the state of injury in both of the above patterns for better or worse – i.e., regardless of whether that law favors the tortfeasor (defendant) or the victim (plaintiff). As the following discussion illustrates, this indifference to the content of the applicable law is problematic in both Patterns 1 and 2, albeit for different reasons.

11 See S. SYMEONIDES, Oxford Commentaries on American Law: Choice of Law, Oxford UP 2016, at 218-22, 238-47; S. SYMEONIDES. & W.C. PERDUE, Conflict of Laws: American, Comparative, International, 4th ed., West 2019, at 354-59. 12

See S. SYMEONIDES (note 3), at 184-86.

For the sake of further simplicity, the following discussion assumes that the defendant is the tortfeasor (or those who can be held liable for the defendant’s conduct) and the plaintiff is the tort victim. To be sure, these terms can be inaccurate in some cases. For example, an alleged tortfeasor (or the tortfeasor’s insurer) can assume the role of a plaintiff, e.g., in an action for a declaratory judgment. 13

14

174

See S. SYMEONIDES (note 3), at 181-83.

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Rome II and Cross-Border Torts

IV. Pattern 1 – Conduct in a State with a Pro-Plaintiff Law and Injury in a State with a Pro-Defendant Law A.

The Jabir Case

The recent German case Jabir and others v. KiK Textilien und Non-Food GmbH15 is a good example of a Pattern 1 case in which none of the exceptions to the lex loci damni rule were available. The locus damni was in Pakistan, where a textile factory that lacked fire escapes and other basic safety features caught fire, killing 260 Pakistani workers and injuring many others. Four of the victims brought suit in Germany against the factory’s main customer: a German retailer company, KiK Textilien, which was paying for more than 75% of the factory’s production capacity at the time of the fire. The plaintiffs argued that KiK was responsible for the fire, inter alia, because: (1) KiK had sufficient legal and factual control over the Pakistani owner of the factory, Ali Enterprises, to require and ensure that Ali provided safe conditions for its workers; (2) KiK’s Code of Conduct, which was part of its contracts with Ali, imposed this requirement, and (3) KiK’s literature had advertised this fact. If the court accepted plaintiffs’ arguments,16 this would have qualified as a cross-border tort because the conduct for which the plaintiffs sued KiK occurred in Germany, which was KiK’s corporate base and the place where its officers made – or failed to make – the relevant corporate decisions. However, before reaching the merits, the plaintiffs had to overcome a preliminary but decisive obstacle regarding the timelines of their lawsuit. Under the law of Germany, the state of the alleged wrongful conduct, their lawsuit was timely. However, under the law of Pakistan, the state of the resulting injury, their lawsuit was barred thus bringing this case within Pattern 1. Of course, Rome II does not differentiate between such patterns. Article 4(1) calls for the application of the lex loci damni (which would be Pakistan in this case) for better or worse. As one author wrote, the traditional lex loci rule in all its iterations (not only in Rome II) is “superficially ‘neutral,’ striking with even‑handed ferocity now at plaintiffs, now at defendants.”17 In this case, the rule struck at the plaintiffs. To make matters worse, Article 15 of Rome II states categorically that the applicable law includes “the rules of prescription and limitation.”18 Thus, a straightforward application of 15

Case No. 7 O 95/15, Landgericht Dortmund, Date: 10.01.2019.

Under Pakistani law, which on this issue is based on the English common law, KiK could be held liable. See Vedanta Resources PLC and another v. Lungowe and others, [2019] UKSC 20, of 10 April 2019; Okpabi and others v Royal Dutch Shell PLC and another, [2021] UKSC 3, of 2 Feb 2021 (discussed infra, at III.2). However, German law did not impose delictual liability on KiK, although arguably KiK could be held contractually liable to the plaintiffs as beneficiaries of a contract for the benefit of a third party. However, the Dortmund court rejected both bases for liability, albeit in obiter dictum. 16

L. WEINBERG, Theory Wars in the Conflict of Laws, 103 Mich. L. Rev. 2005, 1631, at 1645. 17

18

Rome II, Art. 15(h).

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Symeon C. Symeonides Rome II would lead to the application of the Pakistani statute of limitation and, consequently, the dismissal of the plaintiffs’ action. This is exactly what the German court, the Landgericht of Dortmund, held. The plaintiffs tried in vain to break out of the lex loci damni straitjacket of Article 4(1). However, none of the aforementioned provisions that allow a court to avoid the lex damni rule were available. Specifically: (1) There was no common habitual residence between the plaintiffs and KiK and thus the exception of paragraph 2 of Article 4 was unavailable. (2) Paragraph 3 of Article 4 was equally unavailable. The first sentence applies only if “the tort/delict” as a whole (as opposed to some aspects of or “issues” within it)19 is “manifestly more closely connected” with a country other than that of the locus damni. The court found that because Pakistan was both “the place of the tort … and … the habitual residence of the plaintiffs,” the case had “a much closer connection to Pakistani law than to German law.”20 The second sentence of paragraph 3 was also inapplicable because there was no “preexisting relationship” between the plaintiffs and KiK, much less one that was connected with a country other than Pakistan. (3) Article 14 was also inapplicable because, despite the plaintiffs’ contrary allegations, there was no express or implied post-dispute agreement between the plaintiffs and KiK that the dispute would be governed by German law.21 (4) Even the omnibus ordre public exception of Article 26 was unavailable because Pakistan’s two-year limitation period was only slightly shorter than Germany’s three-year prescriptive period and thus did not “violate[] the plaintiffs' (fundamental) right to effective legal protection.”22 As the court noted, Germany had similarly short prescriptive periods for other claims.23 (5) Finally, the court did not discuss Article 16 on overriding mandatory rules or Article 17 regarding “rules of safety and conduct,” but it is clear that neither of these articles would be applicable in this case. B.

Reaching the Top Actor in the Tortfeasor’s Value Chain

The Jabir case illustrates another problem encountered by tort victims from developing countries in suing the top actor in the tortfeasor’s supply or value chain, i.e., the party colloquially referred to as the “deep pocket.”24 The top actor is usually a 19

For a critique on this point, see S. SYMEONIDES (note 3), at 196-203.

20

Jabir and others v. KiK Textilien und Non-Food GmbH, at § 43.

21

See ibid., § 42.

22

Ibid., at § 44.

23

See. ibid.

See A. BECKERS/ H.-W. MICKLITZ, Une perspective holistique sur la réglementation des chaînes d’approvisionnement mondiales, 34(3) Rev. int’le dr. écon. 2020, p. 343; C. BRIGHT, The Civil Liability of the Parent Company for the Acts or Omissions of the Subsidiary: The Example of the Shell Cases in the UK and the Netherlands, in A. BONFANTI, (ed.), Business and Human Rights in Europe. International Law Challenges, Routledge 2019, p. 212; R. CHAMBERS, Parent Company Direct Liability for Overseas 24

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Rome II and Cross-Border Torts business entity based in a developed country, which acts in developing countries through ostensibly independent local subsidiaries, subcontractors, suppliers, or other intermediaries. Such an arrangement can be motivated by several factors, but one of them is the top actor’s desire to insulate itself from tort liability vis-à-vis third parties, such as the employees of a supplier or other intermediary (as in Jabir), or residents of the local community in which the subsidiary operates (as in many environmental tort and human rights cases). However, some recent decisions of European courts involving environmental torts indicate that these attempts at insulation do not always succeed. For example, in Vedanta Resources PLC and another v. Lungowe and others,25 the Supreme Court of the United Kingdom held that a parent company “may incur the relevant responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if it does not in fact do so.”26 In that case, the third parties were Zambian farmers living in the vicinity of a Zambian copper mine that was owned and operated by the Zambian subsidiary of a UK parent company. They claimed that their health and livelihoods were damaged by repeated discharges of toxic substances into the local watercourses. In Okpabi and others v. Royal Dutch Shell PLC and another,27 the same court reiterated this position in a similar case involving Nigerian plaintiffs whose health and property were damaged by the oilfield operations of a Nigerian subsidiary of a UK corporation. Both Vedanta and Okpabi involved only the question of jurisdiction and did not reach the question of the law governing the merits.28 To be sure, jurisdiction is often the most important preliminary obstacle encountered by foreign victims of human rights violations in their search for a judicial forum in developed countries. Without hospitable jurisdiction rules in the latter countries, victims do not stand a chance.29 This is why, in recent years, concepts like forum necessitatis30 and universal jurisdiction for human rights cases31 are gaining traction. Human Rights Violations: Lessons from the U.K. Supreme Court, 42 U. Pa. J. Int’l L. 2021, p. 519; V.G. CURRAN, Harmonizing Multinational Parent Company Liability for Foreign Subsidiary Human Rights Violations, 17 Chi. J. Int'l L. 2017, p. 403; V.P. TZEVELEKOS, Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility, 36 Mich. J. Int’l L. 2014, p. 129; R.H. WEBER/ R. BAISCH, Liability of Parent Companies for Human Rights Violations of Subsidiaries, 27 Eur. Bus. L. Rev. 2016, p. 669. 25

[2019] UKSC 20, of 10 April 2019.

26

Ibid., at § 53.

27

[2021] UKSC 3, of 2 Feb 2021.

However, the court assumed that Zambian and Nigerian law were the same as English law. 28

29 See E. ARISTOVA, Jurisdiction of the English Courts over Overseas Human Rights Violations, 75 Cambridge L.J. 2016, p. 468; S. BESSON, The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts To, 25 Leiden J. Int’l L. 2012, p. 857; M. REQUEJO ISIDRO, Business and Human Rights Abuses: Claiming Compensation under the Brussels I Recast, 10 Hum. Rts. & Int'l Legal Discourse 2016, p. 72; J.A. KIRSHNER, A Call for the EU to

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Symeon C. Symeonides While hospitable jurisdiction rules are necessary, they are not sufficient. Without favorable choice-of-law rules or practices, foreign victims cannot prevail. The recent Dutch decision in Four Nigerian Farmers and Milieudefensie v. Shell32 is an example of such a favorable combination. Nigerian plaintiffs sued Royal Dutch Shell (RDS), a holding company headquartered in the Netherlands, for the damage caused by oil spills near a plant operated by a Nigerian subsidiary of RDS. The relevant events occurred before Rome II went into effect and thus the case was decided under the then applicable Dutch choice-of-law rule, which required the application of Nigerian law.33 Fortunately for the plaintiffs, the court interpreted Nigerian law in light of English law because of Nigeria’s history as a former British colony. The court held that RDS owed a duty of care toward third parties to ensure that its subsidiary took certain measures to avoid oil spills.34 In Milieudefensie et al. v. Royal Dutch Shell PLC,35 another Dutch decision involving the same Dutch defendant, RDS, the relevant events occurred after the effective date of Rome II. The plaintiffs were a group of Dutch NGOs and more than 17,000 Dutch citizens. They claimed that CO2 emissions from the worldwide operations of RDS and its companies, subsidiaries, and end users of its products contributed to climate change in violation of the goals established by international norms such as the Paris Agreement and that, under Dutch law, RDS had an “unwritten” duty of care vis-à-vis the plaintiffs to reduce those emissions. The Dutch court accepted the parties’ starting premise that “climate change… due to CO2 emissions constitutes environmental damage in the sense of Article 7

Assume Jurisdiction over Extraterritorial Corporate Human Rights Abuses, 13 Nw. U. J. Int’l Hum. Rts. 2015, p. 1. See, e.g., the GEDIP proposal discussed infra, at III.3.c, which recommends the addition of a forum necessitatis provision to the Brussels I recast and expansion of some of its other provisions to accommodate human rights cases; E. PATAUT, Déni de justice et compétence internationale, RCDIP 2018, p. 267; L. ROORDA/ R. CEDRIC, Business and Human Rights Litigation in Europe and Canada: The Promises of Forum of Necessity Jurisdiction, 80 RabelsZ 2016, p. 783. 30

31 See, e.g., a Resolution of the Institut de droit international entitled “Universal Civil Jurisdiction with regard to Reparation for International Crimes” (A. BUCHER, rapporteur, 2015); A. BUCHER, La compétence universelle civile, 372 Collected Courses 2014, p. 9; F.D. DONOVAN/ A. ROBERTS, The Emerging Recognition of Universal Civil Jurisdiction, 100 Am. J. Int’l L. 2006, p. 142; J. KIRSHNER, A Call for the EU to Assume Jurisdiction over Extraterritorial Corporate Human Rights Abuses, 13 N.W. J. Int’l Human Rts 2015, p. 1; C. RYNGAERT, Universal Tort Jurisdiction over Gross Human Rights Violations, 38 Netherlands Ybk Int’l L 2007, p. 3. 32

The Hague Court of Appeal, 18 December 2015, ECLI:NL:GHDHA:2015:3588.

33

Ibid., at § 1.3.

Four Nigerian Farmers and Stichting Milieudefensie v Royal Dutch Shell PLC, The Hague Court of Appeals, 29 January 2021, ECLI:NL:GHDHA:2021:132 (Oruma), ECLI:NL:GHDHA:2021:133 (Goi) and ECLI:NL:GHDHA:2021:134 (Ikot Ada Udo). 34

35 Hague District Court, 26 May 2021, ECLI:NL:RBDHA:2021:5337, English translation, ECLI:NL:RBDHA:2021:5339.

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Rome II and Cross-Border Torts Rome II.”36 This was a good omen for the plaintiffs because, as noted earlier, Article 7 allows the plaintiffs to avoid the lex loci damni by requesting the application of the law of the place of conduct, which Article 7 calls the place of “the event giving rise to the damage.” But what was that “event” and where did it take place in this case? Predictably, RDS argued that that event occurred in each of the several countries in which RDS-related operations were located and from which CO2 emissions originated. The court rejected that argument because, at least with regard to some of the emissions, it would “lead[] to the applicability of a myriad of legal systems.”37 The plaintiffs argued that the critical damage-causing event occurred in the Netherlands, where RDS maintained its headquarters and formulated its worldwide environmental policy. RDS responded that “the mere adoption of a policy does not cause damage” but is rather a “preparatory act that falls outside the scope of [Article 7].”38 The court found that RDS’s response was “too narrow” and inconsistent with the pro-environment spirit of Article 7.39 The court held that, under Article 7, “RDS’s adoption of the corporate policy of the Shell group… constitutes an independent cause of the damage, which may contribute to environmental damage.”40 Consequently, the country in which that policy was adopted, i.e., the Netherlands, qualified as “the country in which the event giving rise to the damage occurred”41 under Article 7, thus allowing the plaintiffs to base their claims on that law, as they ultimately did.42 The court ordered RDS to reduce the emissions of its worldwide operations by 45 percent of its 2019 emissions by the end of 2030.43 C.

Cross-Border Violations of Human Rights

Although an appeal may change the outcome, the Milieudefensie decision is still notable for several reasons. One of them is that it contributes to the emergence of 36

Ibid., § 4.3.2.

37

Ibid.

38

Ibid., at § 4.3.6.

39

Ibid.

40

Ibid.

41

Rome II, Art. 7.

The court also held, “[s]uperfluously,” that the choice of Dutch law was not only “in line with the concept of protection underlying Article 7” but also in line with the “the general rule of Article 4 paragraph 1” to the extent that the plaintiffs seek redress for damages occurring in the Netherlands (Milieudefensie, at § 4.3.7). 42

43 An appeal is pending. On December 9, 2021, less than seven months after the trial court decision, RDS shareholders approved a plan to move its headquarters from the Netherlands to the United Kingdom. The official explanation was the need to simplify the company’s dual tax structure, strengthen its competitiveness, and make distributing profits to shareholders more straightforward. Critics of the move argued that the relocation was partly motivated by the Milieudefensie decision. See https://www.cnbc.com/2021/12/10/ shareholders-of-oil-giant-shell-set-to-vote-in-favor-of-london-move.html; https://www.ft. com/content/d932a462-2b31-479a-bd08-6e8abc02c375.

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Symeon C. Symeonides the principle that top actors bear responsibility for the acts of lower actors in their value chain (be they subsidiaries, affiliates, or other related entities) whose conduct the top actor can influence. The best indication of this development is the vast literature on this subject in institutional studies,44 books,45 and articles.46 This is part See European Commission, Study on due diligence requirements through the supply chain; European Union Agency for Fundamental Rights, Business-related human rights abuse reported in the EU and available remedies (2019); European Parliament, Access to legal remedies for victims of corporate human rights abuses in third countries (2019). 44

See L. BLECHER/ N.K. STAFFORD/ G.C. BELLAMY, (eds), Corporate Responsibility for Human Rights Impacts: New Expectations and Paradigms, ABA Book 2014; A. BONFANTI, (note 24); M.J. BOSSUYT, International Human Rights Protection: Balanced, Critical, Realistic, Intersentia 2016; D. IRELAND-PIPER, Accountability in Extraterritoriality: A Comparative and International Law Perspective, Elgar 2017; D. PALOMBO, Business and Human Rights: The Obligations of the European Home States, Bloomsbury 2020; G.W. ZIERO, Business, Compliance and Human Rights Law: The Effectiveness of Transnational Private Regulations for Vulnerable Stakeholders, Routledge 2021. 45

See D.G. ARNOLD, Corporations and Human Rights Obligations, 1 Bus. Hum. Rts. J. 2016, p. 255; N. BUENO, Diligence en matière de droits de l’homme et responsabilité de l’entreprise: Le point en droit suisse, 29 Swiss. Rev. Int'l & Eur. L. 2019, p. 345; E. ENGLE, Extraterritorial Corporate Criminal Liability: A Remedy for Human Rights Violations?, 20 St. John’s J. Legal Comment 2006, p. 287; R. CHAMBERS/ G. BERGER-WALLISER, The Future of International Corporate Human Rights Litigation: A Transatlantic Comparison, 58 Am. Bus. L.J. 2021, p. 579; J.L. FLANAGAN, Holding U.S. Corporations Accountable: Toward a Convergence of U.S. International Tax Policy and International Human Rights, 45 Pepp. L. Rev. 2018, p. 685; A. GREAR/ B.H. WESTON, The Betrayal of Human Rights and the Urgency of Universal Corporate Accountability: Reflections on a Post-Kiobel Lawscape, 15 Hum. Rts. L. Rev. 2015, p. 21; M. GOLDHABER, Corporate Human Rights Litigation in Non-U.S. Courts: A Comparative Scorecard, 3 UC Irvine L. Rev. 2013, p. 127; J. GRIMHEDEN, Civil Litigation in Response to Corporate Human Rights Abuses: The European Union and its Member States, 50 Case W. Res. J. Int'l L. 2018, p. 235; J.L.J. HAZENBERG, Transnational Corporations and Human Rights Duties: Perfect and Imperfect, 17 Hum. Rts. Rev. 2016, p. 479; T. ISIKSEL, The Rights of Man and the Rights of the Man-Made: Corporations and Human Rights, 38 Hum. Rts. Q. 2016, p. 294; D. KAMCHIBEKOVA, State Responsibility for Extraterritorial Human Rights Violations, 13 Buff. Hum. Rts. L. Rev. 2007, p. 87; M.J. KELLY, Atrocities by Corporate Actors: A Historical Perspective, 50 Case W. Res. J. Int'l L. 2018, p. 49; C. KESSEDJIAN, Comment l’Union européenne contribue-t-elle au respect de la responsabilité sociétale des entreprises (RSE) ?, in G. BARRETT/ J.P. RAGEADE/ D. WALLIS/ H. WEIL (eds), The Future of Legal Europe: Will We Trust in It?, Springer 2021, p. 413; H.F. KUEHL, Global Legal Ethics and Corporate Social Responsibility: Where’s the Beef?, 46 N.C. J. Int’l L. 2021, p. 111; S.R. LAYNE, Corporate Responsibility for Human Rights Violations: Redressability Avenues in the United States and Abroad, 18 Gonz. J. Int’l L. 2015, p. 1; D. NERSESSIAN, A Human Rights Perspective on Professional Responsibility in Global Corporate Practice, 50 Case W. Res. J. Int'l L. 2018, p. 187; D. NERSESSIAN, Business Lawyers as Worldwide Moral Gatekeepers? Legal Ethics and Human Rights in Global Corporate Practice, 28 Geo. J. Legal Ethics 2015, p. 1135; P. SAUNDERS, Rethinking Corporate Human Rights Accountability, 89 Tul. L. Rev. 2015, p. 603; P.D. SZIGETI, Territorial Bias in International Law: Attribution in State and Corporate Responsibility, 19 J. Transnat’l L. & Pol’y 2010, 46

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Rome II and Cross-Border Torts of a broader recognition of the role that private law47 and private international law48 can and must play in the strengthening and support of human rights. Another p. 311; N.M. WABWILE, Transnational Corruption, Violations of Human Rights and States’ Extraterritorial Responsibility: A Case for International Action Strategies, 8 Afr. J. Legal Stud. 2015, p. 87; C. WILLIAMS/ J. CONLEY, Trends in the Social [Ir]responsibility of American Multinational Corporations: Increased Power, Diminished Accountability?, 25 Fordham Envtl. L. Rev. 2013, p. 46. See L. ENNEKING, Foreign Direct Liability and Beyond: Exploring the Role of Tort Law in Promoting International Corporate Social Responsibility and Accountability, Eleven 2012; J. WRIGHT, Tort Law and Human Rights, 2d ed., Bloomsbury 2017; M. ANDERSON, Transnational Corporations and Environmental Damage: Is Tort Law the Answer? 41 Washburn L J 2002. p. 399; C. KESSEDJIAN, Les actions civiles pour violation des droits de l’homme: Aspects de droit international privé, 16 Trav. Com. français dr. int’l priv. 2005, p. 151; R. MEERAN, Tort Litigation against Multinational Corporations for Violation of Human Rights: An Overview of the Position Outside the United States, 3 City U. Hong Kong L. Rev. 2011, p. 1; C. VAN DAM, Tort Law and Human Rights: Brothers in Arms – On the Role of Tort Law in the Area of Business and Human Rights, J. Eur. Tort L. 2011, p. 221. 47

See INSTITUT DE DROIT INTERNATIONAL, Human Rights and Private International Law (F. POCAR, rapporteur, 2021); J.J. FAWCETT/ M.N. SHÚILLEABHÁIN/ S. SHAH, Human Rights and Private International Law, Oxford UP 2016; T. GAMMELTOFT-HANSEN/ J. VEDSTED-HANSEN (eds), Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement and Migration Control, Routledge 2017; W. KÄLIN/ J. KÜNZLI, The Law of International Human Rights Protection, 2d ed., Oxford Academic 2019; L.R. KIESTRA, The Impact of the European Convention on Human Rights on Private International Law, Springer 2014; R. MICHAELS/ V. RUIZ ABOU-NIGM/ H. VAN LOON, (eds), The Private Side of Transforming our World: UN Sustainable Development Goals 2030 and the Role of Private International Law, Intersentia 2021; M. MILANOVIC, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy, Oxford UP 2013; H. MUIR WATT/ D. FERNÁNDEZ ARROYO (eds), Private International Law and Global Governance, Oxford UP 2014; L. RAIBLE, Human Rights Unbound: A Theory of Extraterritoriality, Oxford UP 2020; V.V.D. EECKHOUT, Promoting Human Rights Within the Union: The Role of European Private International Law, 14 Eur. L. J. 2008, p. 105; L.F.H. ENNEKING, Judicial remedies: The issue of applicable law, in J.J. ÁLVAREZ RUBIO/ K. YIANNIBAS, (eds), Human Rights in Business: Removal of Barriers to Access to Justice in the European Union, Routledge 2017; M. HIRSCHBOECK, Conceptualizing the Relationship between International Human Rights Law and Private International Law, 60 Harv. Int’l L. J. 2019, p. 181; P. KINSCH, Droits de l’homme, droits fondamentaux et droit international privé, 318 Collected Courses 2005, p. 9; A. MICHOUD, L’Europe: Un havre de protection contre les abus des entreprises multinationales à l’étranger ? – Considérations de droit international privé, 30 SRIEL 2020, p. 3; H. MUIR WATT, Concurrence ou confluence? Droit international privé et droits fondamentaux dans la gouvernance globale, 27(1) Rev. int’le dr. écon. 2013, p. 59; ID., Droits fondamentaux et reconnaissance en droit international privé, J. eur. dr. de l'homme 2013, p. 411; ID., Les droits fondamentaux devant les juges nationaux à l'épreuve des immunités juridictionnelles, RCDIP 2012, p. 539; Y. SHANY, The Extraterritorial Application of International Human Rights Law, 409 Collected Courses 202, p. 9; M.-P. WELLER/ L. HÜBNER/ L. KALLER, Private International Law for Corporate Social Responsibility, German National Reports on the 20th International Congress of Comparative Law, 2018, p. 239, at https://ssrn.com/abstract=3275464. 48

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Symeon C. Symeonides reason is a recognition of the connection between environmental degradation and human rights.49 Indeed, in giving substance to the “unwritten” duty of care under Dutch law, the court relied not only on the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) but also on the United Nations Guiding Principles on Business and Human Rights (UNGP), which the court characterized as “universally endorsed,” although they do not impose legally binding obligations.50 Private international law is the proper instrument for ensuring that the benefits of these “universal” principles are not confined to the residents of wealthy countries.51 1.

American Abdication

The Dutch court’s position on cross-border human rights violations in developing countries stands in stark contrast with the recent position of the United States Supreme Court. For example, in Nestlé USA, Inc. v. Doe et al,52 the latest decision on this subject, the Court held that “allegations of general corporate activity – like decision making – cannot alone establish domestic application of the ATS.”53 “ATS” is an acronym for the Alien Tort Statute of 1789, which authorizes federal courts to entertain actions brought by foreign plaintiffs for torts “committed in

49 See D. IGLESIAS MÁRQUEZ, Les entreprises, les droits de l’homme et le régime international du changement climatique: l’émergence d’obligations climatiques pour les entreprises, 10 An. Mexic. Der. Int’l 2020, p. 85; C. MACCHI/ J. VAN ZEBEN, Business and Human Rights Implications of Climate Change Litigation: Milieudefensie et al. v Royal Dutch Shell, 30 Rev. Eur. Comp. & Int’l L. 2021, p. 409; H. VAN LOON, Strategic Climate Litigation in the Dutch Courts: A source of inspiration for NGO’s elsewhere?, in 4 Acta Universitatis Carolinae luridica 2020, p. 69-84; ID., Principles and Building Blocks for a Global Legal Framework for Civil Litigation in Environmental Matters, 32 Unif. L. Rev. 2018, p. 298. See also S.F. PUVIMANASINGHE, Foreign Investment, Human Rights and the Environment: A Perspective from South Asia on the Role of Public International Law for Development, Brill 2007. 50

Milieudefensie, at § 4.4.11.

In addition to the literature cited in notes 48 and 49, supra, see E. ÁLVAREZARMAS, Contentieux du droit international privé pour responsabilité environnementale devant le juge européen: la détermination du droit applicable comme outil de gouvernance globale environnementale, Ann. Dr. Louvain 2018, p. 63; ID., Daños al medioambiente y Derecho Internacional Privado Europeo: ¿Quid de la determinación de la ley aplicable como herramienta de gobernanza global medioambiental?, An. Esp. Der. Int’l Priv. 2019, p. 193; ID., La aplicabilidad espacial del Derecho Medioambiental Europeo, su interacción con la norma de conflicto europea en materia de daños al medioambiente: apuntes preliminaries, An. Esp. Der. Int’l Priv. 2014, p. 381; C. RYNGAERT, Tort Litigation in Respect of Overseas Violations of Environmental Law Committed by Corporations: Lessons from the Akpan v. Shell Litigation in the Netherlands, 8 McGill Int’l J. Sustainable Dev. L. & Pol’y, 2013, p. 245. 51

182

52

141 S.Ct. 1931 (2021).

53

Ibid., at 1937.

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Rome II and Cross-Border Torts violation of the law of nations.”54 In a previous case, Kiobel v. Royal Dutch Petroleum Co.,55 the Court decided to subject the ATS to the ill-conceived presumption against the extraterritorial application of federal statutes. Following that presumption, the Court held that the ATS was inapplicable in the Kiobel action in which Nigerian nationals residing in the United States alleged that the defendants (Dutch, British, and Nigerian corporations) aided and abetted the Nigerian government in committing human rights violations in Nigeria. The Court saw “no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms,” reasoning that the ATS’s reference to “the law of nations” did not mean that the United States “pretended to be the custos morum of the whole world.”56 Indeed, such a pretension would hardly seem credible today. But one should not lightly assume that, in the idealistic days of the eighteenth century, the drafters of the ATS were as indifferent to the plight of foreign victims of human rights violations as the Court’s present majority seems to be. In any event, the Court provided a more candid explanation for the inhospitable position it chose to adopt – a concern that “other nations, also applying the law of nations, could hale [U.S.] citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world.”57 In Jesner v. Arab Bank, PLC,58 the Court held that the ATS does not apply against foreign corporations because such an application would create significant diplomatic tensions with foreign countries – tensions which, according to the Court’s understanding, Congress sought to avoid by enacting the ATS in 1789. Even accepting this understanding along with the overstated potential for diplomatic friction (which of course cuts both ways), the Court did not explain why this potential exists only with regard to foreign corporations rather than foreign defendants in general, or why it chose to disregard the official position of the U.S. government, which in its amicus brief formally asked the Court to rule against immunizing corporations from ATS lawsuits.59 But the Court did explain that the immunization of foreign corporations under the ATS will also benefit American corporations because it will dissuade other countries from haling American corporations into their courts and subjecting them to “an immediate, constant risk of claims seeking to impose massive liability for the alleged conduct of their employees and subsidiaries around the world, all as determined in foreign courts.”60 Then, in a statement with echoes of good ole colonial benevolence, the Court posited that its decision will also benefit the residents of developing countries because

54

28 U.S.C. § 1350.

55

569 U.S. 108 (2013).

56

Ibid., at 123.

57

Ibid., at 124.

58

138 S.Ct. 1386 (2018).

See Brief for United States as Amicus Curiae at 5, Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1431 (2018) (No. 16-499). 59

60

Jesner, 138 S. Ct., at 1405.

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Symeon C. Symeonides allowing plaintiffs to sue foreign corporations under the ATS could establish a precedent that discourages American corporations from investing abroad, including in developing economies where the host government might have a history of alleged human-rights violations, or where judicial systems might lack the safeguards of United States courts. And, in consequence, that often might deter the active corporate investment that contributes to the economic development that so often is an essential foundation for human rights.61 If only plaintiffs knew what’s best for them! In the Nestlé USA case, the defendants were American corporations that were sued under the ATS for aiding and abetting child slavery in Africa. The plaintiffs were Malian nationals who asserted that they were trafficked into the Ivory Coast as child slaves to harvest cocoa from farms owned by local producers who sold most of their production to the defendants and received from them technical and financial support such as training, fertilizer, tools, and cash. The plaintiffs argued that this support amounted to abetting child slavery, and that the defendants “knew or should have known” about it and failed to use their robust economic leverage over the producers to end that practice. The intermediate court held that the action could proceed under the ATS because the defendants made all their operational decisions supporting the cocoa producers in the United States. The Supreme Court reversed, holding that “allegations of general corporate activity – like decisionmaking – cannot alone establish domestic application of the ATS” because, after all, “making ‘operational decisions’ is an activity common to most corporations.”62 The contrast between this decision and the Dutch decision in Milieudefensie or the English decisions in Vedanta and Okpabi could not be starker. 2.

European and International Sensitivity

A charitable characterization of the above U.S. Supreme Court decisions is that the Court has acted like Pontius Pilate.63 A more probing examination would lead to less laudable conclusions, but this is not the place for such an examination. The Court (or, more precisely, its conservative majority) is entitled to its belief that, somehow, its hands-off attitude regarding human rights violations in developing countries is good for the residents of those countries in the long run.64 But, even if that were true, the victims of those violations cannot endure a long run. To para-

Ibid., at 1406. Justice Sotomayor, J., filed a strong dissenting opinion, which was joined by Justices Ginsburg, Breyer, and Kagan. 61

62

Nestlé USA, 141 S.Ct., at 1937.

The American academic literature on these decisions is voluminous, and most of it is negative. However, because this essay focuses on European developments and it is already overloaded with citations, I decided to not add citations to American sources. 63

64

184

See supra, text at note 61.

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Rome II and Cross-Border Torts phrase John Maynard Keynes, not only will all of them die in the long run, but many will suffer or die in the short run.65 Thankfully, most other western countries do not subscribe to the same belief as the Court’s conservative majority. Instead, they recognize that corporations based or operating in their territory owe a duty of care to ensure that all entities in their supply or value chain act in a way that does not violate human rights in other countries. This recognition appeared first in a host of soft law instruments adopted by international organizations on corporate social responsibility, which articulate the due diligence obligations of multinational corporations. Among these organizations are, foremost, the United Nations with its Guiding Principles on Business and Human Rights (“Ruggie Principles”)66 and its various agencies like the International Labor Organization (ILO),67 the Food and Agriculture Organization (FAO),68 and UNICEF,69 as well as the Organization for Economic Co-operation and Development (OECD).70 Several western countries have followed suit, transforming the non-binding obligations articulated in these instruments into legal obligations. For example, Australia,71 Canada,72 France,73 Germany,74 the Netherlands,75 Norway,76 Switzerland,77 the United Kingdom,78 and even J.M. KEYNES, A Tract on Monetary Reform, London 1923, at 68 (“But this long run is a misleading guide to current affairs. In the long run we are all dead.”). 65

See United Nations Guiding Principles on Business and Human Rights (2011)

66

(UNGPs). 67 See ILO Declaration on Fundamental Principles and Rights at Work (1998); Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (2001). 68

See OECD-FAO Guidance for Responsible Agricultural Supply Chains.

See UNICEF, Children’s Rights and Business Principles: Good Practices Per Principle (UN Global Compact, 2012-2015). 69

70 See, e.g., OECD Guidelines for Multinational Enterprises; OECD Due Diligence Guidance for Responsible Business Conduct; OECD Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector; OECD Due Diligence Guidance for Responsible Supply Chains of Minerals for Conflict-Affected and High-Risk Areas.

See Modern Slavery Act 2018; Australian Human Rights Commission, Corporate Social Responsibility & Human Rights. 71

72

See Canada’s Enhanced Corporate Social Responsibility Strategy to Strengthen Canada’s Extractive Sector Abroad; An Act to enact the Modern Slavery Act and to amend the Customs Tariff (Bill introduced in 2021). 73 Loi n° 2016-1691 du 9 décembre 2016 relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique: Loi n° 924 du 21 février 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre. See the contribution by F. JAULT-SESEKE, in this Yearbook. 74

See Gesetz über die unternehmerischen Sorgfaltspflichten zur Vermeidung von Menschenrechtsverletzungen in Lieferketten (Sorgfaltspflichtengesetz) (3/3/2021). 75

See Child Labor Due Diligence Law of 2019 (not yet in force).

See Act relating to enterprises' transparency and work on fundamental human rights and decent working conditions (Åpenhetsloven) of 2021. 76

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Symeon C. Symeonides the United States in some respects,79 as well as individual states like California,80 have recently enacted laws to this effect, at least for certain business sectors.81 The rich academic literature on this subject has also been supportive.82 The French Loi sur le devoir de vigilance of 2016 is among the first and strongest of these laws.83 It binds any company which, together with its direct or indirect subsidiaries, employs at least 5,000 employees if it is registered in France, or at least 10,000 employees if it is registered in France or elsewhere. A company that meets these qualifications must take reasonable due diligence measures “to prevent serious violations of human rights and fundamental freedoms, of the health and safety of persons and the environment, resulting from the activities of the company and the companies it controls…, directly or indirectly, as well as the activities of [its] subcontractors or suppliers.”84 Failure to comply with these See Contre-projet indirect à l’initiative populaire “Entreprises responsables – pour protéger l’être humain et l’environnement”, Modification du 19 juin 2020, Code des obligations. 77

78

See Modern Slavery Act of 2015.

See Foreign Corrupt Practice Act of 1991, 15 U.S.C. §§ 78dd-l to -3; Torture Victim Protection Act of 1991, 28 U.S.C. § 1350 et seq.; Trafficking Victims Protection Act of 2000, as amended, 22 U.S.C.A. §§7101 et seq.; Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. No. 111-203, §§ 1502-04, 124 Stat. 1376, 221323; Uyghur Human Rights Policy Act of 2020, Pub. L. No. 116-145 (2020); P. VERDIER/ P.B. STEPHAN, International Human Rights and Multinational Corporations: An FCPA Approach, 101 B.U. L. Rev. 2021, p. 1359. 79

80

See California Transparency in Supply Chains Act of 2010.

Several other countries, including Austria, Belgium, Denmark, Finland, Italy, Luxemburg, Spain, and Sweden are currently considering similar legislation. 81

In addition to the sources cited supra at notes 45-49, see F.J. ZAMORA CABOT/ L. HECKENDORN URSCHELER/ S. DE DYCKER, (eds), Implementing the U.N. Guiding Principles on Business and Human Rights: Private International Law Perspectives, Zurich 2017; P. DUMBERRY/ G. DUMAS-AUBIN, How to Impose Human Rights Obligations on Corporations Under Investment Treaties? Pragmatic Guidelines for the Amendment of BITs, 1 Ybk. Int’l Investment L. & Pol’y 2012, p. 569; P.P. MIRETSKI/ S.-D. BACHMANN, The UN Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights: A Requiem, 17 Deakin L. Rev. 2012, p. 5. 82

For discussion, see L. D’AMBROSIO, Le devoir de vigilance: une innovation juridique entre continuités et ruptures, 106(3) Droit et Société 2020, p. 633; H. MUIR WATT, Devoir de vigilance et droit international privé: Le symbole et le procédé de la loi du 27 mars 2017, Rev. int’le de la compliance et de l’éthique des affaires 2017, p. 48; D. PALOMBO, The Duty of Care of the Parent Company: A Comparison between French Law, UK Precedents and the Swiss Proposals, 4 Business Human Rights J. 2019, p. 1; E. PATAUT, Le devoir de vigilance – Aspects de droit international privé, Droit social 2017, p. 833); E. SAVOUREY/ S. BRABANT, The French Law on the Duty of Vigilance: Theoretical and Practical Challenges Since its Adoption 6(1) Bus. & Human Rts. J. 2021, p. 141 See also T. BEAU DE LOMÉNIE/ S. COSSART/ P. MORROW, From Human Rights Due Diligence to Duty of Vigilance: Taking the French Example to the EU Level, in A. BONFANTI (note 24), p. 133. 83

84

186

Loi de vigilance, Art. 1.

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Rome II and Cross-Border Torts obligations creates tort liability under the relevant Civil Code articles, which can be enforced not only through governmental action but also through a private civil action for damages brought by “any person proving [such] an interest.”85 3.

European Union

Until recently, the European Union mandated corporate due diligence measures only for certain sectors, such as mining86 and timber harvesting.87 However, in 2020, both the European Commission88 and the European Parliament89 spurred in particular by the work of the UN and the OECD, began considering measures for all sectors of business activity. On January 27, 2021, the Parliament’s Committee on Legal Affairs (JURI) adopted a proposal for an EU Directive on Corporate Due Diligence and Corporate Accountability.90 The proposal noted that the application of the lex loci damni rule of Article 4(1) of Rome II “can lead to significant problems for claimants who are victims of human rights abuses, particularly in cases where the companies are large multinationals operating in countries with low human rights standards, where it is almost impossible for them to obtain fair compensation.”91 To remedy this problem, the Committee recommended amending Rome II by inserting a new article so as to allow victims of business-related human rights violations to choose between the law of the country in which the damage occurred (lex loci damni), the law of the country in which the event giving rise to the damage occurred (lex loci delicti commissi) and the law of the place where the defendant undertaking is domiciled or, lacking a domicile in the Member State, where it operates.92 The Parliament acknowledged the problem created by the lex loci damni rule of Rome II but chose to address it through a different mechanism. The final version of 85

Ibid., Art. 2.

See Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas (OJ L 130, 19.5.2017, p. 1). 86

See Regulation (EU) No 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market (OJ L 295, 12.11.2010, p. 23). 87

88 See European Commission, Study on due diligence requirements through the supply chain: final report (2020). 89 See European Parliament, Corporate due diligence and corporate accountability (2020); European Parliament, Environmental liability of companies (2020). 90

See https://www.europarl.europa.eu/doceo/document/A-9-2021-0018_EN.html.

Recommendations for drawing up a European Parliament and Council regulation amending regulation (EC) no 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). 91

92

Ibid.

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Symeon C. Symeonides the Parliament’s Resolution, which recommends that the Commission draft a Directive on corporate due diligence and corporate accountability, provides in Article 20 that the “relevant provisions” of the Directive will be “considered overriding mandatory provisions in line with Article 16 of [Rome II].”93 Obviously, this means that these provisions, including those on civil liability of the preceding Article 19, will “necessarily” apply to violations and injuries occurring in third countries, thus displacing the lex loci damni rule of Rome II. The proposed Directive will apply to “large undertakings,” publicly listed small and mediumsized undertakings, and high-risk small and medium-sized undertakings governed by the law of a Member State or established in the territory of the Union, or operating in the internal market selling goods or providing services.94 These entities will be responsible for their entire “value chain,” which includes “entities with which the undertaking has a direct or indirect business relationship, upstream and downstream, and which either: (a) supply products, parts of products or services that contribute to the undertaking’s own products or services, or (b) receive products or services from the undertaking.”95 On February 23, 2022, the European Commission submitted a “Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937”96 (hereinafter “Draft Directive”). According to the proposal, the Directive will apply to (1) companies formed under the law of a Member State and having more than 500 employees on average and a yearly net worldwide turnover of more than EUR 150 million, or having more than 250 employees on average and a net worldwide turnover of more than EUR 40 million generated in specified sectors, such as textiles, agriculture, or mineral extraction; and (2) companies formed under the law of a third country if they generate a yearly net turnover of more than EUR 150 million in the EU or between EUR 40 and 150 million in the aforementioned specified business sectors.97 The Draft Directive (1) articulates the human rights and environmental due diligence obligations of companies “regarding actual and potential human rights adverse impacts and environmental adverse impacts, with respect to their own operations, the operations of their subsidiaries, and the value chain operations carried out by entities with whom the company has an established business relationship”;98 and (2) requires Member States to implement the Directive and to ensure that companies in their jurisdiction abide by these obligations.99 The Draft 93 European Parliament resolution of 10 March 2021 with recommendations to the Commission on corporate due diligence and corporate accountability (2020/2129(INL)), Art. 20. 94

Ibid., Art. 2.

95

Ibid., Art. 3.

https://ec.europa.eu/info/publications/proposal-directive-corporate-sustainable-due -diligence-and-annex_en. 96

188

97

Draft Directive, Art. 2.

98

Ibid., Art. 1.

99

See ibid., Arts. 3-20.

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Rome II and Cross-Border Torts Directive provides that, in addition to administrative enforcement, Member States shall impose civil liability for damage caused by a company’s non-compliance with certain obligations specified in the Directive and that a rule imposing such liability “is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.”100 The Draft Directive is an important step in the right direction, but it does not go far enough. For example, it suggests that the Commission does not contemplate any change in Rome II, at least on this subject. The sentence last-quoted simply confirms this by noting that the applicable law may not be “the law of a Member State,” which in turn means that the lex loci damni rule will remain intact. This is why two proposals submitted in the meantime by two prestigious European academic organizations are more promising and complete, if only because they address the private international law aspects of corporate due diligence and accountability. The first organization is the European Law Institute (ELI), which adopted a Report on Business and Human Rights: Access to Justice and Effective Remedies101 in February 2022. The Report details the problems created by the application of the lex loci damni rule of Article 4(1) in human rights cases102 and proposes “extending the rule adopted by Article 7 for environmental damage to human rights violations not necessarily connected with polluting activities resulting in environmental damage.”103 Indeed, the Report wonders “why environmental damage is the only kind of damage for which the Rome II Regulation recognises the inherent value of the principle of favor laesi in the pursuit of justice.”104 The Report also states that, if an amendment to Rome II proves technically or politically difficult to enact, the Commission should address the problem through an “interpretative communication.”105 Specifically, The Commission should take steps to ensure that the Rome II Regulation is understood by the courts as allowing the application of the lex fori’s human rights and environmental due diligence legislation in cases concerning damage occurring outside of the forum State by referring to the law of the place:

100

Ibid., Art. 22.5.

See Report of the European Law Institute Business and Human Rights: Access to Justice and Effective Remedies (with input from the EU Agency for Fundamental Rights, FRA) (2022). 101

See ibid., at 55 (concluding that this rule “creates certain obstacles for victims seeking to pursue human rights claims against business enterprises, particularly where the law of the host State either does not recognise or limits vicarious and/or secondary liability (including parent company liability), provides for a higher burden of proof to establish a claim in tort or provides stricter immunities than does the forum State’s law.”). 102

103

Ibid., at 56.

104

Ibid.

105

Ibid., at 55-56.

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Symeon C. Symeonides  where the decision causing the environmental damage and the human rights violations was taken (on the basis of Article 7 of the Rome II Regulation);  where the decision causing the human rights violations independent of related environmental damage was taken (on the basis of Article 4(3) of the Rome II Regulation); and by excluding an exemption of liability of the EU-based company on the basis of Article 17 of the Rome II Regulation.106 The second organization that has taken a position on this matter is the Groupe européen de droit international privé (GEDIP). In October 2021, GEDIP adopted a proposal on the “Private international law aspects of the future Instrument of the European Union on [Corporate Due Diligence and Corporate Accountability].”107 The proposal provides that:  the future EU Instrument should apply to companies established in the European Union or established in third states but operating in the internal market selling goods or providing services;108  its provisions on due diligence should apply “irrespective of the law otherwise applicable to companies, to contractual obligations and to non-contractual obligations”;109  the plaintiff should have the right to choose between the law of the country of damage and the law of the country in which the event giving rise to the damage occurred;110 and  Article 17 of Rome II on rules of safety and conduct “cannot be invoked by the defendant to exonerate or limit his liability.”111 Readers of my previous writings on Rome II will not be surprised to see that I enthusiastically endorse GEDIP’s proposal.112 As noted at the beginning, I am not a 106

Ibid., at 61.

See Groupe européen de droit international privé, Recommandation du Groupe européen de droit international privé (GEDIP/EGPIL) à la Commission européenne concernant les aspects de droit international privé du futur instrument de l’Union européenne sur [le devoir de diligence et la responsabilité des entreprises] (2021), at https://gedip-egpil.eu/en/documents/ (08/10/2021). The Proposal relied on an excellent report prepared by Hans VAN LOON, who served as rapporteur for the responsible sub-group, and also provided inspiration, as well as generous and insightful feedback for this essay. 107

108

GEDIP proposal, Art. I.

109

Ibid., Art. III.

Ibid., Art. IV. 1 (“The law applicable to a non-contractual obligation arising out of damage as a result of non-compliance in respect of matters falling within the scope of this Instrument is the law determined by virtue of Article 4, paragraph 1 of the Rome II Regulation, unless the plaintiff chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred.”). 110

111

Ibid., Art. IV.2.

For the record, I am an honorary member of GEDIP, but I have not participated in any of the deliberations that produced this proposal. 112

190

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Rome II and Cross-Border Torts new convert to the ideas contained in this proposal. Eighteen years ago, in commenting on the Commission’s draft of what later became Article 7 of Rome II, I argued that the choice that article gives to victims of environmental torts should also be given to the victims of all cross-border torts.113 I also criticized the prodefendant tilt of Article 17 and the possibility that it may be used to exonerate defendants or limit their liability.114 Moreover, when I had the opportunity to draft the Oregon codification 13 years ago115 and the Louisiana codification 31 years ago,116 I implemented these ideas. There is a lot to unpack in these ideas. The first important element is the seemingly anomalous notion of giving plaintiffs a choice of the applicable law. This idea is discussed later, along with its modalities and necessary limitations. The second element is the aptness of the result that such a choice will produce in the Pattern 1 cases discussed here, in which the conduct occurs in a developed country with high due diligence and corporate accountability standards (e.g., an EU Member State) and the resulting injury occurs in a developing country with much lower standards, if any. Predictably, in these cases the plaintiff will opt for the law of the Member State. Why is this result apt, indeed the most appropriate, from the EU perspective? The answer is given by the Parliament’s characterization of the provisions prescribing high due diligence standards for companies based or operating in the EU as overriding mandatory provisions. In effect, this characterization requires application of those standards to all cross-border cases adjudicated in the EU. After all, overriding mandatory provisions are “provisions the respect for which is regarded as crucial by a country for safeguarding its public interests… to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable.”117 In other words, the EU has a “public interest” in ensuring that its high due diligence standards (which are derived from universal standards) will bind companies based or operating in the EU, even for injuries that they (or subordinate actors in their value chain) cause in other countries. This interest is “part of the commitment [of the EU] to promote, protect and fulfil human rights worldwide… [and] to promote the rights of victims of 113

See S. SYMEONIDES (note 1).

114

See S. SYMEONIDES (note 3), at 211-15.

See Or. Rev. Stats. § 15.440(3)(c) (giving plaintiffs a choice in all cross-border torts (other than products liability) in which the parties are not domiciled in the same state or in states that have the same law). For discussion, see S. SYMEONIDES, Oregon’s New Choice-of-Law Codification for Tort Conflicts: An Exegesis, 88 Ore. L. Rev. 2009, p. 963, at 1022-32. 115

116 The Louisiana codification does not directly give a choice to plaintiffs but produces essentially the same result through a court choice. See La. Civ. Code Arts. 354344, discussed in S. SYMEONIDES, Louisiana’s New Law of Choice of Law for Tort Conflicts: An Exegesis, 66 Tul. L. Rev. 1992, p. 677, at 708-14, 729-31.

Rome I, Art. 9 (emphasis added). Rome II does not contain this definition but Article 16 refers to the mandatory provisions of the lex fori as being applicable “irrespective of the law otherwise applicable.” See CJEU, Case C 149/18, Da Silva Martins v Dekra Claims Services Portugal SA. 117

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Symeon C. Symeonides business-related human rights violations and abuses that amount to criminal offences in third countries.”118 On the other hand, those third countries have no countervailing interest in insisting on the application of their low, or non-existent, due diligence and accountability standards. Although the Resolution does not speak in terms of lack of interest, its position against the application of the laws of those countries is unmistakable and categorical. It is expressed not only by its characterization of the EU due diligence standards as mandatory provisions, but also by its repeated references to the substandard laws of many developing countries, which have “weak legal systems and law enforcement.”119 For example, the Resolution notes that “victims of business-related adverse impacts are often not sufficiently protected by the law of the country where the harm has been caused”120 and that “time limitations, difficulties to access evidence, as well as gender inequality, vulnerabilities and marginalisation can be major practical and procedural barriers faced by victims of human rights violations in third countries, obstructing their access to effective legal remedies.”121 Now, if it is true that the EU and its Member States have a “public interest” in applying their high due diligence standards to companies based or operating in the EU and the third countries in which the injuries occur have no countervailing interest in applying their low standards, the result is what is known in the American conflicts lexicon as a “false conflict.” To be sure, the term false conflict (and the very notion of public or state interests on which it is based), is anathema to many European conflicts scholars;122 but it accurately describes what is, and what is not, at stake. In Pattern 1 cases, only one state has something at stake; the other side does not. On one side, we have the European Union’s commendable interest in ensuring that companies based or operating in the Union abide by high due diligence and accountability standards – not only when their actions are confined within the Union, but also when those actions or their consequences exceed its borders. That’s what is at stake. On the other side, we have developing countries whose laws often do not protect their own people. In such situations, 118

EU Parliament Resolution, Preamble at I.

119

EU Parliament Resolution , Preamble at 2.

120

EU Parliament Resolution, Preamble at 29.

Ibid., at 26. See also id. at O (noting that “inadequate state labour inspection, limited right to redress, excessive working hours, poverty-level wages, the gender pay gap and other forms of discrimination remain of serious concern in an increasing number of countries.”). For a more nuanced view, see R. OPPONG, SDG 6: Clean Water and Sanitation, in R. MICHAELS/ V. RUIZ ABOU-NIGM/ H. VAN LOON (note 48), at 212 et seq. 121

122 See, e.g., Kegel’s classic statements that “the state has no interest in the field of private law in applying its own law to the maximum exclusion of foreign law” (G. KEGEL, The Crisis of Conflict of Laws”, 112 Recueil des cours 1964, p. 91, at 184, that “the state does not suffer, it is not hurt, if in some cases… foreign law is applied” (Id. at 182-83), and that, in dealing with conflicts cases, the state “is playing the role of the judge, not of litigant… It does not decide its own affairs but the affairs of others.” Ibid. at 182. I have respectfully expressed my disagreements with these statements. See, inter alia, Symeonides, The “Private” in Private International Law, 9 Maastricht Law Series 2019.

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Rome II and Cross-Border Torts those countries have no reason to insist on applying their law. They have very little at stake. If anything, they have every reason to welcome the application of the EU law with its high standards, which work for the plaintiffs’ benefit. Consequently, and regardless of whether one accepts the false conflict characterization, the application of the EU standards is the preferable and appropriate solution. It promotes the interests of the EU and its Member States, which in this case are also universal interests, without sacrificing the non-implicated interests of other countries. By giving the choice to the victims, who will surely opt for the law of the EU or its implicated Member State, we ensure this result. Thus, victim choice is simply the vehicle for producing the right result, not only (or not necessarily) out of sympathy for the victim but because it “enhance[s] the reputation of Union undertakings and of the Union as a standard setter.”123 In conclusion, for those who subscribe to the notion that private international law cases implicate the interests of the involved states, in addition to the interests of the litigants,124 Pattern 1 cases present an easy choice-of-law question because only one of the involved states (the state of the injurious conduct) has an interest in applying its law – hence the American term false conflict. By contrast, Pattern 2 cases of the converse pattern, to which we now turn, are more difficult because each of the involved states has an interest in applying its law – hence the term true conflict.

V.

Pattern 2 – Conduct in a State with a ProDefendant Law and Injury in a State with a ProPlaintiff Law

In Pattern 2 cases, the injurious conduct occurs in a state with a pro-defendant law (low or lenient standard) and the resulting injury occurs in a state with a proplaintiff law (high or strict standard). It is easy to see why in these cases the state of injury has an interest in applying its pro-plaintiff law. In most of these cases, the victim is domiciled in that state but, even if the victim is domiciled elsewhere, that state still has an interest to ensure reparation for injuries occurring there and caused by conduct it considers tortious, even if the conduct occurred in another state that does not consider it tortious. At the same time, the state of conduct also has an interest in applying its pro-defendant law to protect conduct occurring in its territory and considered lawful there. In most of these cases, the defendant is domiciled there but, even if the defendant is domiciled elsewhere, that state still has an interest in protecting the conduct itself. Suppose for example that, following an investigation in Brussels, a French journalist posts on a Brussels website a text 123

Parliament Resolution, Preamble, at AA.1.

For an explanation and discussion of this view, see SYMEONIDES, S., Private International Law: Idealism, Pragmatism, Eclecticism, The Hague Academy of International Law, Brill 2021, p. 76-101; S. SYMEONIDES, The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning, 2015 U. Ill. L. Rev. 2015, p. 1847, at 1850-67. 124

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Symeon C. Symeonides which the plaintiff, an English politician living in London, considers defamatory. If Belgian defamation law is more protective of the journalist than English law, Belgium would clearly have an interest in applying its law to protect a journalist who acted in Belgium, even if the journalist is domiciled in France. Because each state has an interest in applying its law, Pattern 2 cases present a difficult choice-of-law dilemma. This is why the American conflicts literature characterizes them as “true conflicts.” Still, a principled, consistent, and uniform solution must be found for these conflicts. A solution based solely on tradition, i.e., on the supposed longevity of the lex loci damni rule, is not functionally defensible. A solution motivated solely by the desire to favor victims (favor laesi) is morally attractive, but not sufficiently principled. An all-around principled solution is one that also considers the tortfeasor’s reasonable expectations and evaluates them by objective standards. This is why the application of the lex loci damni in cross-border torts should not be left to an unchecked plaintiff choice but should instead depend on objective foreseeability. I have argued for some time that, on balance, the application of the law of the state of injury in these cases is appropriate, but only if the occurrence of the injury in that state was objectively foreseeable.125 Without hesitation, Rome II resolves the dilemma through the lex loci damni rule for all cross-border torts, including environmental torts, without regard to foreseeability. The fact that this rule is potentially unfair to defendants deserves attention because defendants have a right to expect legal fairness if not moral sympathy. One possible rationale for the lack of a foreseeability exception in Rome II is that the lex loci damni rule, which has been the traditional rule in most countries, did not allow such a defense. First, as noted earlier, adherence to tradition is a poor reason for perpetuating a potentially unfair rule. Second, even in the old days, the lex loci damni rule was not followed everywhere. For example, many countries that followed the lex loci delicti rule did not localize the locus delicti and thus allowed courts to choose between the locus commissi and the locus damni.126 Thirdly, as noted below, many countries have recently adopted rules that allow either the plaintiff or the court to choose between the locus commissi and the locus damni.127 Finally, the fact that the lex loci damni rule of Article 4(1) is subject to other exceptions does not cure the rule’s problems because, as discussed elsewhere128 and illustrated by the Jabir case, these exceptions are often unavailable or not easily employable in cross-border torts. By contrast, an objective foreseeability exception or proviso that is applicable in all cases will ensure that the application of the lex loci damni will not 125 For an early documentation and defense of this thesis, see S. SYMEONIDES, The American Choice-of-Law Revolution: Past, Present, and Future, The Hague Academy of International Law, M . Nijhoff 2006, p. 192-200, 228-236. See also Swiss PIL Act, Art 133(2). 126

See S. SYMEONIDES (note 124), at 205.

127

See infra, at VI.4.

See S. SYMEONIDES (note 9), at 155-66. Moreover, for environmental torts, the lex loci damni rule of paragraph 1 of Article 4 is not subject to the exceptions of paragraphs 2 and 3 of the same article because Article 7 refers these cases only to paragraph 1. 128

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Rome II and Cross-Border Torts produce unfair results. The lack of such a proviso in Article 7 may be defensible either on the assumption that in environmental torts foreseeability is always present, or on the ground that such a proviso would weaken the EU’s strong pro-environment policy (often referred to as the “polluter pays principle”). The fact that neither justification is present in other cross-border torts creates a problem of fairness to defendants. Consequently, a system that aspires to be evenhanded should make it possible to avoid the application of the lex loci damni when the occurrence of the injury at the locus damni was not objectively foreseeability.

VI. Proposed Solution A.

A New Rule

After identifying the problems created by the application of the lex loci damni rule to cross-border torts, let us now turn to possible solutions. Among them are the following, ranked from the most modest to the most far-reaching: (1) Without amending Rome II, classify the due diligence and corporate accountability provisions of the future EU instrument as overriding mandatory provisions; (2) Extend the scope of Article 7 of Rome II to include human rights cases in addition to environmental torts; (3) Extend the scope of Article 7 of Rome II to include all cross-border torts; or (4) Replace Article 7 with a new article that will be applicable to all cross-border torts and will include a foreseeability proviso for Pattern 2 cases. Solution 1 is the one proposed in the Commission’s Draft Directive. It is the easiest to implement because it will not require a revision of Rome II, which may be politically or technically difficult, but it addresses only part of the problem. Solution 2 (which can go together with Solution 1) is slightly better, but it too is only a partial fix. Solution 3 is broader, but still not good enough because it does not address the lack of a foreseeability defense in the current text of Article 7, which makes the Article potentially unfair to defendants in Pattern 2 cases. The resulting pro-plaintiff tilt of Article 7 may be acceptable in environmental tort cases, and will certainly be defensible in human rights cases, but it is problematic in other categories of cross-border torts. For these reasons, Solution 4 is preferable; namely, to replace Article 7 with a new article that will be applicable to all cross-border torts and even-handed to both plaintiffs and defendants.129 Using the less-than perfect terminology of Article 7, the new article could provide as follows: [New] Article 7. Cross-border torts

If this proposal is accepted, the first paragraph of Article 4 should be reworded, for example by deleting the phrase “irrespective of the country in which the event giving rise to the damage occurred” so as to make clear that the new article 7 will prevail over that paragraph. For paragraphs 2 and 3 of Article 4, see infra. 129

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Symeon C. Symeonides 1. The law applicable to a non-contractual obligation arising out of conduct or omission in one country that causes damage to persons or property in another country is the law of the country in which the conduct or omission occurred. 2. However, the law of the country in which the damage occurred applies if: (a) the occurrence of the damage in that state was objectively foreseeable, and (b) the claimant expressly and timely requests the application of that law. B.

Clarifications and Remaining Policy Questions A recital or recitals could explain that: (1) the new article will apply to all cross-border torts other than those for which Rome II provides special rules, such as those of Articles 5 through 13;130 (2) the timeliness and formality of the claimant’s request under paragraph 2(b) will be determined by the law of the forum; (3) the request must encompass all claims and issues against each defendant, so that the claimant cannot engage in a self-serving dépeçage; and (4) Article 17 may not be used to exonerate the defendant.131 Ideally, this should be included in the text of the article because it is a substantive rule but, if not, this would not be the first time that such a rule is sheltered in a recital.

If such an article is acceptable in principle, some refinement will be necessary, and it should include answering two important policy questions. The first question is which party should bear the burden of proving foreseeability under paragraph 2(a). Should the plaintiff prove the presence of foreseeability, or should the defendant prove the absence of foreseeability? Although this is arguably a procedural question that should be answered by the lex fori, the better view is that it is a substantive question with serious practical ramifications. The phrasing of paragraph 2(a) seems to place the burden on the plaintiff, but it can be rephrased to place the burden on the defendant. In any event, foreseeability: (1) should be determined by The same solution should be followed if, in the future, Rome II includes a special rule for cross-border infringement of personality rights. See infra, section VII. 130

131 See the ELI and GEDIP proposals, supra. With all its problems (see SYMEONIDES (note 3), at 211–15, Article 17 will remain applicable to other torts that are governed by the law of a state other than the one in which the conduct occurred, such as those in which all parties have their habitual residence in one state, but both the conduct and injury occur in another state.

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Rome II and Cross-Border Torts objective rather than subjective standards, and (2) should be understood in “spatial” rather than substantive terms. The pertinent question here is not whether the tortfeasor foresaw the occurrence of the injury, but whether the tortfeasor’s acts or omissions in one state were such as to make it foreseeable that they would cause an injury in the particular state in which the injury did occur. For example, when a chemical factory operates in proximity to the border with another state, it is objectively foreseeable that any harmful emissions from the factory may cause injury in the other state because the wind may blow in that direction. The second policy question is whether the new article should be subject to the common habitual residence exception of Article 4(2), the closer connection exception of Article 4(3), or both of those exceptions. The text of present Article 7 answers this question in the negative for both exceptions because its cross-reference to Article 4 is limited to paragraph 1 of that Article. The apparent rationale of this limitation was that these exceptions would undermine the pro-environment goals of Article 7, which the plaintiff’s choice serves. Perhaps this is still a good answer for other cross-border torts if one assumes that the principle of favor laesi should be the supreme value of the new article.132 However, one could argue that the common habitual residence exception should be available in all cross-border torts. Indeed, the corresponding rule of the Oregon codification (on which the above proposed article is based) applies only when the parties are not domiciled in the same state or in states that have the same law.133 The proposed Third Conflicts Restatement has adopted the same rule, subject to the same exceptions.134 If the proposed new article were to follow the same idea, a case such as Milieudefensie et al. v. Royal Dutch Shell PLC,135 in which the plaintiffs and the defendant had their habitual residence in the Netherlands could be easily resolved by applying Dutch law, and the court would not have to answer the difficult question of where the damage-causing event occurred. Whether the new article should also be subject to the closer connection exception of Article 4(3) is a more complicated question. Given the uncertainty surrounding this exception, there may be good reasons to exclude its application. One such reason is the possibility that defendants may use this exception to prolong litigation in contravention of the favor laesi policy of the new article. C.

Operation

As compared to present Article 7, the new article reverses the starting point of the choice-of-law process. Now, the starting point will be the lex loci commissi, which My view on this matter may not be popular in Europe, but my advocacy for the new article is not based as much on the favor laesi principle as it is on the presence or absence of state interests in the two patterns of cross-border torts and the appropriate way in which (I believe) the proposed article will accommodate those interests. 132

133

See Or. Rev. Stat. § 15.440(3), reproduced infra, VI.4.

See American Law Institute, Restatement of the Law Third, Conflict of Laws, Council Draft No 4 (September 4, 2020), § 6.08(1), reproduced infra, VI.4. 134

135

See supra, IV.2.

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Symeon C. Symeonides becomes the default rule, and the lex loci damni will be the exception, which can be invoked only by the plaintiff. In Pattern 1 cases, such as the human rights cases discussed earlier in which the state of conduct has a pro-plaintiff law, the starting point will also be the ending point because plaintiffs will not invoke the lex damni exception. The law of the state of conduct will govern these cases under paragraph 1 of the proposed article. In human rights cases, this result serves the policy of ensuring that multinational business based in developed countries will be held appropriately accountable for injuries occurring in developing countries. In other cases where there is no such universally-accepted policy, this result can be defended on the basis of the favor laesi principle. My view is that this result is also defensible on two other bases: (1) the interests of the involved states, and (2) fairness to the parties. This result is defensible in terms of state interests because, as noted earlier, these cases present the false conflict paradigm. On the one hand, the state of conduct has an undeniable interest in applying its pro-plaintiff law in order to police and deter conduct occurring within its territory and in violation of its law – even if the resulting injury occurs outside its borders. Indeed, the effectiveness of this law is undermined if it is not applied to out-of-state injuries. On the other hand, the state of injury has no clear countervailing interest in applying its pro-defendant law because that law is designed to protect conduct within that state, not outside of it. In terms of fairness, there is nothing unfair in subjecting tortfeasors to the law of the state in which they acted (or from which they oversaw a subordinate actor in their value chain) because it is a state with which they voluntarily associated themselves and which is often their home state. Having violated the standards of that state, tortfeasors should bear the consequences of that violation and should not be allowed to invoke the lower standards of another state. In Pattern 2 cases (namely, cases in which the state of conduct has a prodefendant law and the state of injury has a pro-plaintiff law), the plaintiff will invoke the lex loci damni exception of paragraph 2 of the new Article 7 and, upon proof of objective foreseeability, that law will govern. Under the present text of Rome II (under both Art. 7 and Art. 4(1)), the lex loci damni governs regardless of foreseeability. Although it coincidentally satisfies the favor laesi principle, this result needs also to be defensible in terms of state interests and fairness to the parties. Regarding state interests, Pattern 2 cases present the true conflict paradigm because each state has an interest in applying its law. In other words, we have a draw. Consequently, we must rely on other factors to justify the application of the pro-plaintiff law of the state of injury. Objective foreseeability fulfils that role perfectly. It is a factor of sufficient weight to tip the scales in favor of applying the law of the state that experiences the impact of the injurious out-of-state conduct and provides a good retort to any argument of unfair surprise asserted by the defendant. More than half a century ago, one of my teachers, Professor David F. Cavers, defended this result as follows: Th[e] system of physical and financial protection [of the state of injury] would be impaired… if actions outside the state but having foreseeable effects within it were not also subject to its law… [T]he fact that [the defendant] would be held to a lower standard… back in the state… where he acted or, indeed, the fact that he enjoyed an 198

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Rome II and Cross-Border Torts immunity there, all would ordinarily seem matters of little consequence to the state of the injury… If he has not entered the state but has caused harm within it by his act outside it, then, save perhaps where the physical or legal consequences of his action were not foreseeable, it is equally fair to hold him to the standards of the state into which he sent whatever harmful agent, animal, object, or message caused the injury.136 In conclusion, the application of a pro-plaintiff law is appropriate in both Pattern 1 and Pattern 2 cases, not only – or not so much – because of the favor laesi principle, but also in terms of state interests and fairness to the parties. With this as a given, the next question is whether the choice of law should be made by the plaintiff rather than the court. A rule that directly allows plaintiffs to choose has distinct practical advantages. When the choice is assigned to the court, the court must determine whether, and explain why, one state’s law is more favorable than the other state’s law. Perhaps surprisingly, this is not always easy, and an erroneous determination would be a ground for appeal. On the other hand, giving the choice to the plaintiff obviates the need for a judicial answer to the question of whether a given law indeed favors the plaintiff. This is particularly helpful not only when the answer to that question is unclear, but also when a law favors one party on some issues and the other party on other issues. The proposed rule (as clarified in a recital) will avoid the possibility of an inappropriate dépeçage. A plaintiff will have to carefully weigh all the pros and cons of exercising or not exercising the right to choose. If the plaintiff exercises that right, the choice must be for all claims and issues against the defendant. If the choice proves ill-advised, it will not be appealable, and the plaintiff’s attorney should bear all the blame. D.

Comparisons

As noted earlier, the substance and structure of the proposed article is based on section 15.440 of the Oregon codification of 2009,137 which codified the practice of

136

D.F. CAVERS, The Choice-of-Law Process, University of Michigan 1965, at 140-

141. Section 15.440 provides in pertinent part as follows: (3) If the injured person and the person whose conduct caused the injury were domiciled in different states and the laws of those states on the disputed issues would produce a different outcome, the law of the state designated in this subsection governs. … (c) If the injurious conduct occurred in one state and the resulting injury in another state, the law of the state of conduct governs. However, the law of the state of injury governs if: (A) The activities of the person whose conduct caused the injury were such as to make foreseeable the occurrence of injury in that state; and

137

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Symeon C. Symeonides American courts. The codification relied on a comprehensive study of all crossborder tort cases decided in the thirty previous years by U.S. state and federal courts in states that have abandoned the traditional lex loci damni rule. The study showed that, although the cases were evenly split between applying the law of the state of conduct and the law of the state of injury, the overwhelming majority (86 percent) of all cases nationwide applied whichever of the two laws favored the plaintiff.138 Recently, the proposed Third Conflicts Restatement, which is currently in the drafting stage, has adopted the same rule.139 Because it may be tactless (or worse) to invoke American solutions in discussing European problems, I hasten to note, as I have in my previous writings, that the idea of giving tort victims a choice on the applicable law in cross-border torts originated in Europe and predates by far the American developments. It first appeared in an 1888 decision of the German Reichsgericht,140 and later found its way in Article 40(1) of the German codification of 1999.141 The only difference is that this and similar articles in other codifications are based on the favor laesi principle (Günstigkeitsprinzip), whereas the American solutions are based on state (B)

The injured person formally requests the application of that state's law by a pleading or amended pleading. The request shall be deemed to encompass all claims and issues against that defendant. For discussion by its drafter, see S. SYMEONIDES (note 115), at 1022-1032. See S. SYMEONIDES, Choice-of-Law in Cross-Border Torts, 61 Hastings L. J. 337 (2009). The cases that did not apply the pro-plaintiff law of the state of injury are those in which the occurrence of the injury in that state was not objectively foreseeable or were atypical for other reasons. 138

139 See American Law Institute, Restatement of the Law Third, Conflict of Laws, Council Draft No. 4, § 6.08 (September 4, 2020), which provides as follows: (1) Except as otherwise provided in §§ 6.04, 6.06, and 6.07, when conduct in one state causes injury in another, the law of the state of conduct governs issues of conduct regulation and loss allocation. (2) However, the law of the state of injury, rather than the state of conduct governs all issues subject to this Section if: (a) the occurrence of the injury in that state was objectively foreseeable; and (b) the injured person formally and timely requests the application of that state’s law. (3) Whether the defendant was under a duty to act is always determined with reference to the law of the state of conduct, regardless of whether the injured person selects a different law. The effect of such a duty is determined by the law selected under this Section. For discussion, see S. SYMEONIDES, The Third Conflicts Restatement’s First Draft on Tort Conflicts, 92 Tul. L. Rev. 2017, p. 1, at 30-37, 41-45. 140

See 23 Entscheidungen des Reichsgerichts in Zivilsachen [RGZ] 305 (1888).

See Gesetz zum IPR für außervertragliche Schuldverhältnisse und das Sachenrecht vom 21.5.1999, Art. 40(1) (“Claims arising from tort are governed by the law of the state in which the person liable to provide compensation acted. The injured person may demand, however, that the law of the state where the result took effect be applied instead.”). 141

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Rome II and Cross-Border Torts interests. Several other codifications in Europe and elsewhere have also adopted the favor laesi principle by providing that cross-border torts are governed by the law of either the state of the injurious conduct or the state of the resulting injury, whichever law favors the victim. In some codifications, the choice is made by the legislature; in others, it is given to the victim. Specifically: (1) Seven codifications give this choice directly to the victim in all cross-border torts. In addition to the German codification, this group includes the codifications of Estonia, Italy, North Macedonia, Tunisia, Uruguay, and Venezuela.142 (2) Ten other codifications instruct the court to choose the law that is more favorable to the victim. This group includes the codifications of all the former Portuguese colonies (Angola, Cape Verde, East Timor, Guinea-Bissau, Macau, and Mozambique), which are reenactments of the Portuguese codification of 1967, as well as the codifications of Georgia, Peru, and Slovenia.143 (3) Five codifications (those of Austria, Quebec, Russia, Slovakia, and South Korea) contain rules that allow a court to reach the same pro-victim result as the above codifications.144 (4) Eighteen codifications, and a Hague convention in force in eleven countries, provide that in products liability conflicts, the victim may choose the applicable law (within certain parameters).145 (5) Nineteen codifications allow the victim to choose the applicable law in certain cross-border torts (other than products liability), such as environmental torts, infringement of personality rights, or unfair competition.146 As the above list indicates, the choice of a pro-plaintiff law in cross-border torts (regardless of who makes the choice and regardless of whether it is based on the favor laesi principle) is no longer a novel or leftist idea that must be defended. The only remaining issues that require debate are the exact modalities and limitations of this principle. It is hoped that this essay contributes to this debate.

VII. Cross-Border Infringement of Personality Rights A.

The Status Quo

Article 1(2)(g) of Rome II exempted from its scope non-contractual obligations arising out of “violations of privacy and other rights to personality, including 142 For citations, see S. SYMEONIDES (note 124), at 203-204. Only the North Macedonian rule contains a foreseeability proviso. 143 See id. at 204. With the exception of the Georgian codification, all other codifications contain a foreseeability proviso for cases in which the court applies the law of the state of injury. 144 For citations and the specifics, see S. SYMEONIDES, Codifying Choice of Law Around the World: An International Comparative Analysis, Oxford UP 2014, at 62. 145

For citations and the specifics, see S. SYMEONIDES (note 124), at 205-206.

146

For citations and the specifics, see ibidd., at 207-208.

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Symeon C. Symeonides defamation.”147 This exemption was thought necessary when it became clear that the opposing views on this subject were too strongly held to allow a mutually acceptable compromise. Media organizations strongly opposed the choice-of-law rule proposed in the Commission’s preliminary draft, which used the victim’s habitual residence as the primary connecting factor. In response, the Commission changed the connecting factor to “the place in which the damage took place,” subject to a “fundamental rights” exception. Yet this change did not reduce the publishers’ opposition. The European Parliament proposed a different rule, which would apply the law of the country in which “the most significant element… of the loss or damage occur[ed],”148 but that proposal also failed to gain consensus. The end result was the exclusion of the whole subject from the scope of Rome II and the inclusion in Article 30 of a review clause requiring the Commission to submit a comprehensive study of the subject by the end of 2008.149 The Commission complied by timely submitting a study (known as the “Mainstrat Study”).150 In 2012, the Parliament adopted a resolution requesting the Commission to submit a proposal that would add to Rome II a choice-of-law rule similar to the one previously proposed by Parliament. According to this proposed rule, the applicable law should be the law of the country in which “the most significant element or elements of the loss or damage occur or are likely to occur.”151 That country “shall be deemed to be” the country “to which the publication or broadcasting service is principally directed” as determined by “the language of the publication or broadcast or by sales or audience size in a given country.”152 The proposal provided two exceptions for defendants. First, if the defendant could not reasonably have foreseen the “substantial consequences of his or her act occurring in the [aforementioned] country,” then the law of the defendant’s home state should govern.153 Second, if the country to which the publication is “principally directed” is “not apparent,” then the law of the country 147

Rome II, Art. 1(2)(g)

See Article 7a of European Parliament, Recommendation for Second Reading on the Council common position for adopting a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II”) (9751/7/2006 – C6-0317/2006 – 2003/0168(COD)), Committee on Legal Affairs, Final A6-0481/2006 22.12.2006. 148

See Rome II, Art. 30.2 (“[T]he Commission shall submit to the European Parliament… a study on the situation in the field of the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality, taking into account rules relating to freedom of the press and freedom of expression in the media, and conflict-of-law issues…”). 149

See Comparative study on the situation in the 27 Member States as regards the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to the personality, JLS/2007/C4/028, Final Report. 150

151 European Parliament Resolution of 10 May 2012 with recommendations to the Commission on the amendment of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) (2009/2170(INI)), Appendix, proposed Article 5a.1.

202

152

Ibid., Art. 5a.3.

153

Ibid. That law should also apply to the “right of reply.”

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Rome II and Cross-Border Torts in which the “editorial control is exercised” should govern.154 As far as can be ascertained, the Commission has not taken any action on this proposal. In the meantime, the proliferation of the internet has increased not only the frequency but also the difficulty of these conflicts, if only because infringements committed via the internet can cause simultaneous injuries in many states.155 The ubiquity and borderlessness of the internet, combined with preexisting differences in substantive law, jurisdiction, and choice of law among various countries, can produce a “perfect storm” of conflicts of laws. The only reason this might not be an apt metaphor is that, unlike a perfect storm, which is formed by a rare convergence of several forces, these cross-border internet conflicts are neither rare nor infrequent. But this means that the search for uniform, Union-wide solutions must also intensify. One formula for finding such a solution is to adopt a free standing and detailed EU instrument exclusively dealing with these difficult conflicts. This instrument would provide ample room to address all possibilities, peculiarities, and nuances of these conflicts. Another option is to provide for these conflicts succinctly in an amended Rome II. If this option is followed, one of the questions will be whether cases that present the cross-border scenario (as most of these cases do) should be resolved in the same way as other cross-border torts. This section addresses that question – specifically, whether the new Article 7 proposed above would provide a good solution for cross-border infringement of personality rights. B.

Jurisdictional Questions

The Court of Justice of the European Union (CJEU) and its predecessor court have decided four cases involving cross-border infringement of personality rights, and all of them involved only the question of jurisdiction. In the first case, Shevill v. Presse Alliance S.A.,156 which involved defamation through a print medium, the Court relied on an earlier case involving an environmental tort157 to hold that “the place where the harmful event occurred” in Article 5(3) of the Brussels Convention (the predecessor of Article 7(2)(a) of the Brussels I Regulation) covered both the place of conduct and the place of the resulting injury, and that the plaintiff had the option of suing in either place. The next three cases – eDate Advertising GmbH v. X and Martinez v. MGN Limited,158 Bolagsupplysningen OÜ, Ingrid Ilsjan v. Svensk 154

Ibid.

As the CJEU noted, content placed on the internet “may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the person who placed it.” CJEU, Cases C-509/09 and C-161/10, eDate Advertising GmbH v. X and Martinez v. MGN Limited, , ECLI:EU:C:2011:685, [2011] ECR I-10269, at § 45. 155

See CJEU, Case C-68/93, Fiona Shevill and Others v. Presse Alliance S.A., ECR 1995-I, p. 415. 156

See CJEU, Case 21-76, Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA., ECLI:EU:C:1976:166, ECR 1976, p. 1735. 157

158

CJEU, Cases C-509/09 and C-161/10, ECLI:EU:C:2011:685, ECR 2011-I,

p. 10269.

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Symeon C. Symeonides Handel AB,159 and Gtflix Tv v. DR 160 – adapted and expanded the Shevill holding to cases involving the internet. The combined effect of these cases is that the following states have jurisdiction to entertain an action for infringement of personality rights: (1) the state of the defendant’s domicile, which has general jurisdiction, under Article 5(1) of the Brussels I Recast; (2) the state in which the defendant (“the publisher”) is “established,” which often coincides with the place of conduct, “since that is the place where the harmful event originated and from which the libel was issued and put into circulation”;161 (3) the state in which the victim has “his centre of interests,”162 which “corresponds in general to his habitual residence,” but, depending on the circumstances, may be the place where the victim “pursu[es] . . . a professional activity” or has “a particularly close link”;163 and (4) the state “in the territory of which content placed online is or has been accessible”164 and in which “the victim claims to have suffered injury to his reputation.”165 If the plaintiff sues in any of the first three states, the court has jurisdiction to award damages for the injuries the plaintiff suffered in all states and to order a rectification and removal of the offending material.166 If the plaintiff sues in the fourth state, the court only has jurisdiction to award damages for the injuries the plaintiff sustained in that state. This is known as “the mosaic principle.”167 Gtflix Tv v. DR,168 which is the CJEU’s latest decision on this matter (decided in December 2021), involved a fact pattern falling within the fourth category. The plaintiff was a company established in the Czech Republic with its center of interests there as well. The defendant was domiciled in Hungary and posted allegedly disparaging comments about the plaintiff online. Rather than suing in Hungary or the Czech Republic, the plaintiff sued in France, where the comments were accessible and had allegedly harmed the plaintiff’s reputation. The plaintiff asked the Court to order removal of the offending comments and award damages in the symbolic amount of 1 Euro, which he later attempted to raise to 10,000 Euros on appeal. The CJEU held that the French court had jurisdiction to CJEU, Case C-194/16, Bolagsupplysningen OÜ, Ingrid Ilsjan v. Svensk Handel AB, ECLI:EU:C:2017:766. 159

160

CJEU, Case C-251/20, Gtflix Tv v. DR, ECLI:EU:C:2021:1036.

CJEU (note 156), at § 24. This place can also coincide with the publisher’s domicile: ibid. at § 26. 161

204

162

EDate, at § 42.

163

Ibid., at § 49.

164

Ibid, at § 52.

165

Ibid., at § 42.

166

See Shevill, at § 25, eDate, at § 52; Bolagsupplysningen, at § 44

167

See Shevill, at § 30; eDate, at §§ 51-52; Bolagsupplysningen, at § 48.

168

Note 160.

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Rome II and Cross-Border Torts adjudicate the question of damages but not the question of rectification. As the Court put it, A person who… seeks not only the rectification of the information and the removal of the content placed online… but also compensation for the damage resulting from that placement may claim, before the courts of each Member State in which those comments are or were accessible, compensation for the damage suffered in the Member State of the court seised, even though those courts do not have jurisdiction to rule on the application for rectification and removal.169 C.

The Choice-of-Law Question

The Gtflix Tv case, as well as the previous three cases, involved only the question of jurisdiction, not choice of law. Because Rome II exempts these cases from its scope, the choice of law question must be answered under the choice-of-law rules of the forum state. France does not have a statutory rule specifically applicable to these conflicts but, as detailed below, seven other Member States have enacted such rules (as have several non-member states). Most of these rules give plaintiffs at least two choices regarding the applicable law.170 Specifically: (1) Three Member States (Bulgaria, Lithuania, and Romania) enacted rules that give plaintiffs the right to choose the law of their habitual residence (hereinafter “home state”), or the defendant’s habitual residence, seat, or principal of business (hereinafter “home state”), or the state of injury.171 The Bulgarian and Romanian rules (unlike the Lithuanian rule) subject the application of the laws of the plaintiff’s home state or the state of injury to a foreseeability proviso.

169

Gtflix Tv, at § 43.

By contrast, the codifications of China, Japan, and Taiwan and an Australian defamation Act that applies only to inter-state (intra-Australian) conflicts, do not give plaintiffs a choice. See Art. 46 of the Chinese Statute on Application of Law to Foreign Civil Relations, adopted at the 17th session of the Standing Committee of the 11th National People’s Congress on 28 October 2010, effective 1 April 2011; Art. 19 of Japanese Horei Law No. 10 of 1898 as Newly Titled and Amended on 21 June 2006, effective 1 January 2007, on the General Rules of Application of Laws; Art. 28 of Taiwanese Act Governing the Application of Laws in Civil Matters Involving Foreign Elements of 26 May 2010, effective 26 May 2011; Victoria Defamation Act 2005 (No. 75 of 2005) § 8. The Defamation Acts of England and Wales (2013) and Ireland (2009) do not contain choice of law rules. See S. SYMEONIDES, Cross-Border Infringement of Personality Rights via the Internet, BrillNijhoff 2021, 106-107. 170

See Art. 108 of the Bulgarian PIL Code (Law No. 42 of 2005 as amended by Law No. 59 of 2007); Art. 1.45 of the Civil Code of the Republic of Lithuania of 2000; Art. 112 of Romanian Law No 105 of 22 September 1992 on the settlement of the PIL relations, effective 26 October 1993; Art. 2.642 of New Romanian Civil Code (Law 287/2009). 171

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Symeon C. Symeonides (2) Six non-member states have enacted similar rules giving plaintiffs the same three choices, subject to the same foreseeability proviso: Albania, Moldova, Montenegro, Serbia (draft), Switzerland, and Turkey.172 (3) The rules of the Czech Republic and Monaco give plaintiffs an additional choice – the law of the state of conduct.173 (4) The Hungarian rule gives plaintiffs four other choices and no foreseeability proviso for the defendant. The plaintiff may choose from the laws of the defendant’s home state, the plaintiff’s home state, the plaintiff’s center of interest, and the forum state.174 (5) Finally, the Belgian and Polish rules limit the plaintiff to two choices – the law of the state of the injurious conduct or the law of the state of the resulting injury.175 The Belgian codification, but not the Polish one, subjects the application of the law of the state of injury to a foreseeability proviso.176 Table 1, below, depicts the plaintiff’s choices.177

See Art. 67 of Albanian Law No. 10428 of 2 July 2011 on PIL; Art. 1617 of the Moldova Civil Code (Law 1107 of 6 June 2002); Art. 55 of the Montenegrin PIL Act of 27 December 2013, effective 9 July 2014; Art. 170 of Serbian Ministry of Justice Draft of 20 July 2012 on PIL Code, available at http://www.prafak.ni.ac.rs/files/pil_serbia_trans.pdf; Art. 139 of Swiss Federal Law on PIL of 18 December 1987; Art. 35 of Law No 5718 of 27 November 2007 adopting the Turkish Code of PIL and International Civil Procedure. 172

173 See Art. 101 of the Czech Law No. 91 of 25 January 2012 on PIL, effective 1 January 2014; Art. 83 of Law n° 1.448 of 28 June 2017 on private international law (Monaco). The Monégasque rule subjects the application of the laws of the plaintiff’s homer state or the state of injury to a foreseeability proviso. The Czech rule has a proviso only for the state of injury. 174

See Art. 23 of Hungarian Act XXVIII of 2017 on PIL, effective 2 January 2018.

See Art. 99.2 of the Belgian Code of PIL (Law of 16 July 2004); Art. 16 of the Polish Act of PIL of 4 February 2011. 175

176

See ibid.

The abbreviations at the top of each column are as follows: Lex fori, the plaintiff’s “center of interest,” the plaintiff’s domicile (or habitual residence), the state of injury (“I”), the state of conduct (“C”), and the defendant’s home state (domicile, habitual residence, or principal place of business). The asterisk indicates that the application of the law of the state listed in that column is subject to foreseeability proviso. The rules of all listed countries are reproduced in S. SYMEONIDES (note 170), at 313-21. 177

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Rome II and Cross-Border Torts Table 1. Choice-of-law rules and plaintiff’s choices for personality rights Plaintiff’s choices Lex fori P’s ctr. P’s dom. I 1 Albania * * 2 Bulgaria * *   3 Lithuania   4 Moldova 5 Montenegro * * 6 Romania * * 7 Serbia (draft) * * 8 Switzerland * * 9 Turkey * * 10 Czech  * Republic    11 Hungary 12 Belgium *  13 Poland

infringement of

C

D’s dom.         



 

 

In 2019, the Institut de Droit International (IDI) adopted a Resolution entitled “Injuries to Rights of Personality Through the Use of the Internet: Jurisdiction, Applicable Law and Recognition of Foreign Judgments,” which I had the honor of drafting along with my co-rapporteur, Professor Erik Jayme.178 Because of my extensive involvement in this project, the following presentation of the Resolution is as brief and neutral as possible. Suffice it to say that the Resolution, which consists of nine detailed articles, also espouses the idea of giving plaintiffs a choice on the applicable law, albeit in a more complex way that depends on where the action is filed. Moreover, in one category of cases, the Resolution also gives a choice to the defendant. The Resolution adopts four jurisdictional bases, two of which are affiliated with the defendant and two of which are affiliated with the plaintiff. The defendant-affiliated bases are: (1) the state in which the “critical conduct” of the person claimed to be liable occurred; and (2) the “home state” of the person claimed to be liable for the injury.179 If the plaintiff sues in either of these two states, the defendant may not avoid jurisdiction, and the applicable law is the internal law of the forum state.180 The Resolution is posted at the Institut’s website at https://www.idi-iil.org/en/ sessions/la-haye-2019/?post_type=publication. It is also reproduced and extensively discussed in S. SYMEONIDES (note 170), at 148, et seq. The Institut adopted the Resolution with a vote of 72 in favor, zero against, and five abstentions. 178

179 IDI Resolution, Art. 5.1(a) and (b). The quoted terms are defined in Article 1 of the Resolution. 180 IDI Resolution Art. 7.1-2. However, if the plaintiff sues in the defendant’s current “home state” which was not the defendant’s home state at the time of the injury, the applicable law is the internal law of the state that, considering all the circumstances, has the closest and most significant connection. Ibid., Art. 7.2.

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Symeon C. Symeonides The plaintiff-affiliated bases are (1) the state in which “the most extensive injurious effects” occurred or may occur; and (2) the home state of the person who suffered or may suffer an injury, if the posted material was accessible in that state or that person suffered injury there.181 If the plaintiff sues in either of these two states, the defendant may avoid jurisdiction by demonstrating (1) that the defendant did not derive any pecuniary or other significant benefit from the accessibility of the material in the forum state; and (2) that a reasonable person could not have foreseen that the material would be accessible in the forum state or that person’s conduct would cause any injury in that state.182 If the defendant does not successfully invoke the jurisdictional escape, the applicable law is the law of the forum state, unless the plaintiff or the defendant requests the application of another law as specified below: (1) If the forum is in the state of “the most injurious effects,” the plaintiff may formally request the application of the internal law of the state in which the defendant’s “critical conduct” occurred.183 (2) If the forum is in the plaintiff’s home state, the defendant may request the application of the internal law of the state in which the “most extensive injurious effects” occurred.184 The Resolution rejects the “mosaic principle” and adopts instead a “holistic principle” of “one action one law” for injuries in all states.185 Once the plaintiff files an action in a state that has jurisdiction under the Resolution, “all other states shall refrain from entertaining another action arising from the same conduct and filed by that person, the person against whom the action was filed, or their successors in interest.”186 If nothing else, the above summary of enacted or proposed rules indicates that the European Union has plenty of options if or when it decides to draft an instrument on conflicts involving infringement of personality rights.187 The options include: (1) a complex rule like the rule proposed by Parliament,188 the IDI,189 or the 181

IDI Resolution, Art. 5.1(c) and (d).

182

Ibid., Art. 5.2.

Ibid., Art. 7.3. The plaintiff must prove that the “critical conduct” occurred in that state and must establish the content of that state’s law, upon request by the court. Moreover, that law will govern all substantive issues against that defendant (i.e., no dépeçage). Id. 183

Ibid., Art. 7.4. The defendant must prove that the “most extensive injurious effects” occurred in that state and must establish the content of that state’s law, upon request by the court. Moreover, that law will govern all substantive issues vis-à-vis the plaintiff (i.e., no dépeçage). 184

185

See ibid., Art. 3.1.

Ibid., Art. 3.2. This rule is subject to exceptions if: (a) the proceedings in the first state are discontinued or dismissed without prejudice, or they are excessively delayed and are unlikely to be concluded within a reasonable time; or (b) the court of that state decided not to entertain the action under the jurisdictional escapes authorized by the Resolution. 186

The 2021 BIICL Rome II Study (see supra note 7) reports at p. 731 that 67 percent of the respondents answered in the affirmative the question whether Rome II should include rules on conflicts involving infringement of personality rights. 187

188

208

See supra, section VII.1.

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Rome II and Cross-Border Torts International Law Association (ILA);190 (2) a simpler rule like one of the statutory rules described above; or (3) an even simpler rule like the new Article 7 proposed in this essay. The choice among these three options – and especially the specifics of each option – requires a detailed discussion that would exceed the limits of this brief essay. To remain within those limits, I will briefly address the question of whether the new Article 7 proposed above can provide adequate solutions for cross-border infringement of personality rights. My answer is a qualified yes, subject to two adjustments described below. The first adjustment is that the plaintiff’s option to request the application of the law of the state of injury may be exercised only in favor of the state in which most, not some, of the plaintiff’s injuries occurred. In most cases, this will coincide with the state of the plaintiff’s center of interest. Gtflix Tv v. DR,191 in which the Czech plaintiff sued the Hungarian defendant in France, illustrates the ramifications of this adjustment. Under the new Article 7, the default rule would be to apply the law of the state of conduct, which would be Hungary in this case. An exception that allows the plaintiff to request the application of French law will increase the incentive to forum shop, whereas an exception that allows the plaintiff to request the application of the law of the Czech Republic (where most of the injuries occurred and where, as in most cases, the plaintiff would have its “center of interest”) would reduce or eliminate that incentive. Admittedly, this modification is a back-door way of eliminating, or reducing the attractiveness of, the mosaic principle. However, this would not be a grave loss because the mosaic principle is not only inimical to judicial efficiency but also carries the real possibility of producing conflicting judgments. Alternatively, if Article 7 retains the plaintiff’s right to opt for French law, then the defendant should be given the option of requesting the application of Czech law as the law of the state where most of the injuries occurred (and which was also the plaintiff’s “center of interest”).192 The second adjustment is that, as applied to cases involving infringement of personality rights, the new Article 7 should be subject not only to the common habitual residence exception of Article 4(2) of Rome II, but also to the closer connection exception of Article 4(3). This adjustment is necessary in light of the complex nature of most of these cases. However, the IDI Resolution rejects the mosaic principle, which is dear to the CJEU, and its jurisdictional bases are not identical with those adopted by the CJEU, although they overlap by at least 80 percent. 189

190 On the ILA proposal see the contribution by J. VON HEIN and C. MARIOTTINI in this Yearbook. A multi-member committee of experts, with Professors Burkhard HESS as chair, and Jan VON HEIN and Cristina M. Mariottini as co-rapporteurs, began working on this project in 2013. In 2018, the Committee presented an extensive and impressive interim report, titled Protection of Privacy in Private International and Procedural Law, which is available at Committees (ila-hq.org). For discussion of the first phase of this project, see B. HESS/ C.M. MARIOTTINI (eds), Protecting Privacy in Private International and Procedural Law and by Data Protection: European and American Developments, Nomos 2015. 191

See supra, note 160.

192

This would be similar to the solution adopted by the IDI Resolution.

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VIII.

Concluding Words

Drafting legislation is difficult enough – passing it even more so. I speak with some experience, and have the scars to prove it, given that I have done this a few times in Louisiana, Oregon, and Puerto Rico.193 But those difficulties pale in comparison to the difficulties encountered in drafting and passing legislation for a multiethnic and plurilegal union like the EU. I first became aware of these difficulties when I had the honor of chairing a few working groups of the EU Council for six hectic months in 2012.194 That is when I came to internalize the wisdom of Voltaire’s phrase “Le mieux est l'ennemi du bien.” I was repeatedly reminded of that phrase during my multi-year participation in the groups that drafted and then negotiated what became the Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters of 2019 and to a lesser extent, the Hague Principles of Choice of Law for International Commercial Contracts of 2015. These experiences, combined perhaps with old age, have softened my previous critiques of Rome II and other collectively produced instruments. Indeed, “the perfect is the enemy of the good.” But the remedy for that conundrum is not to stop trying or, even worse, not to begin at all. The problems presented by the conflicts cases discussed in this essay call for innovative and bold solutions. As heir to the richest codification tradition and possessor of the finest pool of drafting talent in the world, the European Union should aim for the perfect. In this process, the role of academics like myself, if any, is a minor one. Our role is to put in writing our ideas and suggestions. If they are good, they can help in the pursuit of the perfect. If they are bad, they will be deservedly rejected. It is with this understanding that I accepted the kind invitation to write this essay. The readers will determine whether the ideas expressed here belong to the former or the latter category, in whole or in part.

193 My legislative experience includes serving as: rapporteur and chair for the Louisiana choice-of-law codification, which was enacted into law in 1991, and the revision of the Louisiana law of leases, which was enacted into law in 2005; reporter and chair for the Oregon codification for torts conflicts, which was enacted into law in 2009; and rapporteur for the codification of private international law for the Puerto Rican Academy of Legislation and Jurisprudence, which adopted my draft in 1991. Almost three decades later, the Puerto Rico Legislature added a new PIL book to the Civil Code, for which I am not responsible, but which partly drew from that draft. 194 During that time, Cyprus held the rotating presidency of the EU Council. Because I retain my Cypriot citizenship, I was eligible to serve in that position. During the Cyprus presidency, we finalized the recast of the Brussels I Regulation, which was signed on December 15, 2012, and made significant progress on what later became the Regulations on a European Account Preservation Order (EAPO), matrimonial property regimes, and the property consequences of registered partnerships.

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ACCESS TO JUSTICE IN THE EU FOR VICTIMS OF SOCIO-ENVIRONMENTAL DAMAGES OCCURRING IN NON-EU COUNTRIES THE PROPER LAW OF TORTS IN THE VALUE CHAIN Robert BRAY*/ Ilaria PRETELLI**/ Diana WALLIS***

I.

The Emergence of the Problem and of the Current Approach A. A Case Study on International Legal Actions by Victims of the Pollution of the Niger Delta Resulting from the Toxic Wastes of Oil Extraction 1. The US Precedents on the Extraterritorial Reach of National Laws – The Uncertain Boundaries of the Alien Tort Statute 2. The Joint Use of EU and Domestic Rules on the Joinder of Actions in the Netherlands 3. The Revirement of UK Courts 4. Retaining Jurisdiction by Means of Existing Rules on Joinder of Actions B. Recent Initiatives of the EU in Light of Input by the Academic Community 1. Directive 2014/95/EU as Regards Disclosure of NonFinancial and Diversity Information by Certain Large Undertakings and Groups 2. The European Parliament Resolution of 10 March 2021 on Corporate Due Diligence and Corporate Accountability

* Former Head of the Secretariat of the Legal Affairs Committee of the European Parliament. ** Legal Counsel at the Swiss Institute of Comparative Law. *** Solicitor, Mediator, MICArb, Senior Fellow. This article constitutes a reflection inspired by the work done by the authors in the context of a joint project of the European Law Institute and the Fundamental Rights Agency of the European Union (hereinafter “the ELI Report” (Rapporteurs Jonas Grimheden and Diana Wallis). See https://www.europeanlawinstitute.eu/projects-publications/current-projects-upcoming-pro jects-and-other-activities/current-projects/business-and-human-rights/) a brief summary of which is presented here in para I.B.4. The ideas expressed represent the personal opinions of the authors. Although the present contribution was written jointly, Robert Bray was mainly responsibility for Paras I.B, I.C., II and III.B., Ilaria Pretelli was mainly responsible for paras. I. A., III and IV, and Diana Wallis was mainly responsible for para V.

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 211-244 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Robert Bray/ Ilaria Pretelli/ Diana Wallis 3.

II.

III.

IV.

V.

I.

The Recommendation of the European Group for Private International Law (GEDIP/EGPIL) to the European Commission 4. The ELI Report C. The European Commission’s Proposal for a Corporate Sustainability Due Diligence Directive Legislative Fragmentation and Insufficiencies of the EU Proposal A. Some National Initiatives within the EU B. Risks for the Internal Market and Scope of the Future Harmonised Rules 1. The Strategical Importance of Investing the Parent Company with a Duty of Care 2. Required Application Standards 3. The Persistent Need to Harmonise Private International Law International Jurisdiction A. The Alleged “Necessity” of a Forum Necessitatis B. The Problem of Abuse of Process The Applicable Law A. Article 7 of the Rome II Regulation and the Exception Clause B. Overriding Mandatory Rules C. Safety Rules and Conduct –Rome II Regulation, Article 17 Conclusions

The Emergence of the Problem and of the Current Approach

The international community has long been concerned about ensuring access to justice for victims of violations of fundamental rights occurring within the supply chain of companies based in rich countries, particularly in the European Union, whose harmful consequences occur at the other end of the chain: in poor countries to which these companies have outsourced part of their activities. One of the first particularly egregious and shocking cases to reach the courts in Western countries was the industrial accident of 2 December 1984 at the Union Carbide Bhopal facilities, which triggered a reflection on the adequacy of private international law rules allowing victims to have access to justice.1 That experience, together with subsequent experiences, have shown that a considerable amount of time, energy and expense are often consumed in solving all of the classic private international law questions – international jurisdiction, applicable law, recognition and enforcement of foreign decisions and procedural cooperation – before the 1 T. BALLARINO, Questions de droit international privé et dommages cataphiques, R.C.A.D.I., 1990, p. 302.

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Access to Justice in the EU for Violations of Fundamental Rights Abroad liability of the corporation involved in the incident can be addressed. As far as the substance of liability is concerned, in reconstructing both this and following incidents, it is possible to identify responsibilities due to the negligence of multinational companies present (in different capacities) in the territory where the damage occurred; moreover, in other cases, companies have been found liable of having knowingly operated in violation of human and environmental rights of the people in whose territory they operated. Case law considering the potential liability of parent companies for the acts and omissions of subsidiaries is evolving: notably for England, Chandler v. Cape Plc,2 Adams v. Cape,3 Thompson v. Renwick Group,4 AAA v. Unilever,5 Vedanta6 and Okapi7 and, for an example from the Netherlands, Milieudefensie v. Shell.8 The case law illustrates the similarities and differences between the common law and continental law approaches. Whereas, in England, courts have had to use the duty of care approach to assert jurisdiction and to hold parent companies liable for the acts and omissions of supply chain entities, in continental law, it is sufficient to base the tort claim on fault, harm, and a causal link between fault and harm. These tests are nearly identical to the common law requirements of a duty of care, a breach of that duty, and a causal link between the breach of duty and the harm that occurred. A.

A Case Study on International Legal Actions by Victims of the Pollution of the Niger Delta Resulting from the Toxic Wastes of Oil Extraction

An emblematic example is the case of the Nigerian Ogoni people, who suffered serious human losses as a result of concerted actions in the years 1993-1994 between Shell and the local government aimed at curbing their protest against the pollution of the Niger Delta caused by the oil extraction industry.9 Nigeria tried, Court of Appeal of England and Wales, Chandler v. Cape, judgment of April 25. 2012, [2012] EWCA (Civ) 525. 3 Court of Appeal of England and Wales, Adams v. Cape Industries Plc, Judgment. of July 27, 1989, [1990] Ch. 433. 4 Court of Appeal of England and Wales, Thompson v. The Renwick Group Plc, judgment of May 13, 2014, (2014) EWCA CIV 635. 5 Court of Appeal of England and Wales, AAA v. Unilever PLC and Unilever Tea Kenya Limited, judgment of July142018, [2018] EWCA Civ. 1532. 6 Supreme Court of the United Kingdom, Lungowe v. Vedanta Resources plc, judgment of the April 10, 2019, [2019] UKSC 20. 7 Supreme Court of the United Kingdom, Okpabi v. Royal Dutch Shell Plc, judgment of the 12 February 2021, [2021] UKSC 3. 8 Rechtbank Den Haag, Milieudefensie et al/Royal Dutch Shell PLC [26 May 2021] C/09/571932/HA ZA 19-379 (English version) https://uitspraken.rechtspraak.nl/ inziendocument? id=ECLI:NL:RBDHA:2021:5339. 9 See, ex multis, B.R. KONNE, Inadequate Monitoring and Enforcement in the Nigerian Oil Industry: The Case of Shell and Ogoniland, Cornell International Law Journal, 2

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Robert Bray/ Ilaria Pretelli/ Diana Wallis convicted, and hanged nine environmental activists – the “Ogoni nine” – pressing their widows and families to flee Nigeria. A complaint was initially brought by two NGOs (the Social and Economic Rights Action Center and the Center for Economic and Social Rights) against the State of Nigeria before the African Commission of Human and People’s Rights. The African Commission conducted a Mission in March 1997, finding that the support of the Nigerian military provided to the oil companies had resulted in severe breaches of fundamental human rights, including the right to shelter and food, as well as other rights protected by Articles 2, 4, 6, 7, 16, 22 and 24 of the 1981 African Charter on Human and Peoples’ Rights.10 The Commission found that “the oil consortium has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the environment and local waterways in violation of applicable international environmental standards”; that “the Nigerian government has condoned and facilitated these violations by placing the legal and military powers of the State at the disposal of the oil companies;” and that Nigeria must ensure “adequate compensation to victims of the human rights violations, including relief and resettlement assistance to victims of government sponsored raids, and undertaking a comprehensive clean-up of lands and rivers damaged by oil operations”.11 However, since the Commission’s jurisdiction is very limited, and obviously does not include claims against private companies, members of the Ogoni nine families, assisted by NGOs, filed cases, abroad: initially in the USA, and then in the UK and in the Netherlands. 1.

The US Precedents on the Extraterritorial Reach of National Laws – The Uncertain Boundaries of the Alien Tort Statute

A first case was brought by an American NGO on behalf of the family of Ken Saro-Wiwa in a US federal court on the basis of the US Alien Tort Statute (ATS) in 1996, and was settled in 2009.12 Subsequently, another case was brought by Esther Kiobel which led to American decisions declining jurisdiction on the matter. The U.S. District Court for the Southern District of New York had initially decided to hear the case, stating that claims for aiding and abetting torture, crimes against humanity, and arbitrary detention were to be deemed sufficiently defined under

Volume 47, Issue 1 Winter 2014-2013; Nigeria. The Ogoni Crisis: A Case Study of Military Repression in Southeastern Nigeria, July Human 1995, Rights Watch; Nigeria. The Ogoni trials and detentions, 15 September 1995, Amnesty International. 10 Ibid. See, in particular, paras 69 and 70. 11 See The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Comm. No. 155/96, (2001). http://hrlibrary.umn.edu/africa/comcases/155-96b.html (last checked 19.8.2022). 12 NBC News, Shell settles human rights suit for $15.5 million, 6 August 2009. https://www.nbcnews.com/id/wbna31175017#.WWSNOjJaYlI. (Last checked 19.8.2022).

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Access to Justice in the EU for Violations of Fundamental Rights Abroad international law to be actionable under the Alien Tort Statute.13 The case was argued twice before the US Supreme Court: after initial oral arguments, on March 5, 2012, the Supreme Court required additional argument on the question "Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States”14 (referred to as Kiobel I). The second oral argument was held on 1 October 2012, leading to the decision that ATS claims on conduct occurring outside the United States, must “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritorial application” (referred to as Kiobel II).15 Applying that standard to the facts before it, the Court dismissed the plaintiffs’ claims against the foreign corporation for the conduct that had occurred outside the United States, holding that Royal Dutch Shell’s “mere corporate presence” did not sufficiently “touch and concern” the territory of the United States to displace the presumption against extraterritoriality.16

2.

The Joint Use of EU and Domestic Rules on the Joinder of Actions in the Netherlands

In June 2017, a civil action was filed against Shell in the Netherlands, the home country of the parent company. International jurisdiction against the parent company was unquestionable and permitted to attract its Nigerian subsidiary in the same forum. In that respect, the case was successful: on 1 May 2019, the District Court of The Hague declared it had jurisdiction to hear the case against Royal Dutch Shell (RDS), Shell Petroleum NV, and Shell Transport and Trading Company, which have their registered office in the Netherlands, on the basis of Article 4(1) of the Brussels Ia Regulation.17 It also declared it had jurisdiction against the joint defendant Shell Petroleum Development Company of Nigeria Ltd (SPDC, the Nigerian subsidiary, which conducted Shell’s business in Nigeria) on the basis of 13 Kiobel, 456 F. Supp. 2d 457, 468 (S.D.N.Y. 2006). The Second Circuit dismissed the entire complaint, reasoning that the law of nations does not recognize corporate liability. See 621 F. 3d 111 (2010). 14 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert. granted, 132 S. Ct. 472 (Oct. 17, 2011) (No. 10-1491); Kiobel v. Royal Dutch Petroleum Co., No. 101491 (U.S. 2012). 15 The case was decided April 17, 2013. See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013). 16 Ibid: “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required. The judgment of the Court of Appeals is affirmed. It is so ordered.” 17 District Court The Hague, Kiobel v. Shell, 1 May 2019, ECLI:NL:RBDHA:2019:4233. On March 23, The Hague court rejected their civil liability case against Shell, since evidence of such liability was insufficient to prove Shell’s responsibility in the summary execution of the environmental activists hanged by order of the Nigerian authorities.

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Robert Bray/ Ilaria Pretelli/ Diana Wallis Article 8(1) of the same Regulation, read in conjunction with Article 7(1) of the Dutch Code of Civil Procedure.18 Dutch courts had already retained jurisdiction, based on the same rules, in previous litigation involving [various] Shell companies and their Nigerian subsidiary.19 3.

The Revirement of UK Courts

In the meantime, litigation was also commenced in the UK, where rules on the joinder of actions similar to that of Article 8(1) of the Brussels Ia Regulation also exist. However, in the first decisions, UK judges refused to hear cases against SPDC, the Nigerian subsidiary. The Brussels I Regulation was then in force, the High Court of Justice (Queen’s Bench Division) had ruled that it lacked jurisdiction to hear claims against the same four defendants. In particular, the Nigerian subsidiary could not be hailed into court in the UK as an “anchor defendant” in the absence of a specific duty of care of Royal Dutch Shell (RDS) over its extraction activities.20 As in the Netherlands, although jurisdiction over the conduct of RDS could be established pursuant to Article 4 Brussels Ia Regulation, its Nigerian subsidiary SPDC remained out of the reach of that Regulation. And, unlike Dutch law, UK domestic law was not seen as offering a sufficient legal basis to attract such subsidiary before UK Courts.21 The UK Supreme Court later reversed, arguing that RDS’s proven supervision of its subsidiary necessarily included a duty of care over the extraction activities carried out by SPDC, thereby subjecting the company to UK jurisdiction.22 This revirement is plainly justified since, despite the turn the present debate has taken, there is no real need to create a new form of liability by codifying a duty of care. Criminal and civil liability already exist under the laws of the Member States and under international conventions protecting human rights. The problem is, rather, how to find mechanisms and procedural instruments that may ensure that these rights can be enforced. For example, the rule prohibiting child labour is well established and recognised by the 1989 UN Convention on the rights of the child, which has been ratified by over 190 countries, i.e. all the countries of the world 18 Ibid. See Article 7(1) of the Dutch Code of Civil Procedure here: Wetboek van Burgerlijke Rechtsvordering on line at https://wetten.overheid.nl/BWBR0001827/2022-0801 (last accessed on 22.08.2022). 19 Court of Appeal of the Hague, A.F. Akpan v. Royal Dutch Shell, plc; E. Dooh v. Royal Dutch Shell, plc; F.A. Oguru v. Royal Dutch Shell plc, 18 December 2015. See ECLI:NL:GHDHA:2015:3588, Gerechtshof Den Haag, 200.126.804-01 200.126.834-01 (rechtspraak.nl). (Last checked 19.8.2022). 20 [2018] EWCA Civ 191. 21 Reference is to paragraph 3.1(3) CPR Practice Direction 6B on service out of the jurisdiction, which provides that a claim against multiple defendants could be served if (a) the issue between the claimant and the first defendant is a real issue, “which it is reasonable for the court to try”, and (b) the other defendant is a “necessary and proper party to the claim”. See PRACTICE DIRECTION 6B – SERVICE OUT OF THE JURISDICTION – Civil Procedure Rules (justice.gov.uk). (Last checked 19.8.2022). 22 [2021] UKSC 3 on appeal from: [2018] EWCA Civ 191.

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Access to Justice in the EU for Violations of Fundamental Rights Abroad except the US. However, according to the International Labour Organisation, a total of 152 million children (9.6% of all children globally) are victims of child labour, with 73 million in hazardous work likely to harm their health, safety and development.23 The problem is thus more one of “access to remedy”. Access to remedy is also hindered by the insufficiencies of national private international law rules. It is paradoxical that each state tries to solve the problem of conflict of laws on its own, and this vision is still prevalent today. 4.

Retaining Jurisdiction by Means of Existing Rules on Joinder of Actions

Eventually, as opposed to their American colleagues, English and Dutch judges have been able to retain jurisdiction to hear requests for compensation by victims of torts committed by multinational companies in low-income countries, by means of a joint application of the EU Brussels Ibis Regulation and their domestic procedural rules. However, there is still a grave lack of predictability as regards the actual possibility that victims of torts carried out by careless multinational companies may obtain compensation. Notably, restoration of the status quo ante is often impossible. Such unpredictability carries the risk that multinational companies may pursue impunity instead of investing in the sustainability of their activities. The academic community and the EU have sought to address both problems – unpredictability and impunity – by promoting the codification of adequate sets of rules, both in private international law and in substantive law. B.

Recent Initiatives of the EU in Light of Input by the Academic Community

1.

Directive 2014/95/EU as Regards Disclosure of Non-Financial and Diversity Information by Certain Large Undertakings and Groups

A first initiative aimed at preventing human rights violations linked to profit maximisation requirements led the EU to provide for a non-financial reporting obligation, with Directive 2014/95/EU introducing new non-financial items to the financial reporting obligations provided for by Directive 2013/34/EU.24 The undertakings and groups subject to the non-financial reporting obligations are large undertakings and parent undertakings of a large group, respectively defined in Articles 19a and 29a as: “large undertakings which are public-interest entities Global estimates of child labour, International Labour Organisation, 2017, https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/ wcms_575499.pdf (last accessed 23.8.2022). 24 Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups, OJ L 330, 15.11.2014, p. 1. See the Consolidated version here: Consolidated TEXT: 32013L0034 — EN — 21.12.2021 (europa.eu) (last accessed 22.08.2022). 23

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Robert Bray/ Ilaria Pretelli/ Diana Wallis exceeding on their balance sheet dates the criterion of the average number of 500 employees during the financial year” (Article 19a), and “Public-interest entities which are parent undertakings of a large group exceeding on its balance sheet dates, on a consolidated basis, the criterion of the average number of 500 employees during the financial year” (Article 29a). The intent of the Directive is laudable, but the provision containing this obligation does not sufficiently take into account the specific nature of criminal social dumping and the limited extent of the phenomenon. The vast majority of multinational companies seem to pursue an organisational culture that ensures that their subsidiaries and contractors around the world respect human rights because this goal has become part of corporate sustainability requirements guaranteeing the [long term] profits of the brand [in the long run]. Because most companies already implement sustainability policies, it seems neither efficient nor sufficiently effective in improving human rights due diligence to oblige them to add a layer of bureaucracy in the form of non-financial reporting [paperwork]. What needs to be improved is the accountability of those undertakings and of the group which seem to carry out criminal acts including fraudulent evasion of human rights obligations and duties of care. In fact, reporting requirements do not preclude the possibility that multinational corporations will deliberately take advantage of deficiencies in the legal systems of some third countries and suppress the effectiveness of host State judicial mechanisms, while continuing to pursue profit at the expense of human rights and environmental protection in the territory of those States. Experience shows that these deficiencies are often exacerbated by weak administrations and corruption. Reporting requirements are therefore unlikely to be an adequately deterrent tool. Victims of human rights violations, including as a result of environmental damage, often have little or no access to justice in their domestic civil courts.25 Often, claimants in third countries prefer to file suit against parent companies both because local entities in the supply chain are undercapitalised and because experience has shown that local courts are unfavourable to claimants.26 2.

The European Parliament Resolution of 10 March 2021 on Corporate Due Diligence and Corporate Accountability

It is for this reason that the European Parliament adopted a resolution on 10 March 2021 containing recommendations to the Commission concerning due diligence and corporate liability and, in particular, a request “that the Commission submit See the Recitals of Directives 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1) and 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ L 315, 14.11.2012, p. 57). 26 See P.A. BERGKAMP, under the scientific supervision of Prof. Dr M.E. STORME and C. VAN DEN BROECK, Models of Corporate Supply Chain Liability https://www.law. kuleuven.be/apps/jura/public/art/55n2/ bergkampsupplychainliability.pdf. 25

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Access to Justice in the EU for Violations of Fundamental Rights Abroad without undue delay a legislative proposal on mandatory supply chain due diligence”.27 That resolution proposes amendments to European legislation on private international law and conflicts of laws: the Brussels Ibis Regulation on jurisdiction and the recognition and enforcement of judgments28 and the Rome II Regulation on the law applicable to non-contractual obligations. 29 The scope covers “all Union and non-Union large undertakings and highrisk or publicly listed small and medium-sized undertakings operating in the internal market” (Recital 12 of the proposed directive contained in Annex I the resolution). To avoid confusion and disharmony, the definitions of “large” and “highrisk or publicly listed small and medium” sizes must refer to the definitions of the consolidated version of Directive 2013/34/EU. As far as private international law is concerned, the resolution states that relevant provisions of the future directive should be considered overriding mandatory provisions within the meaning of Article 16 the Rome II Regulation (see Article 29 in the annex to the resolution). The annex to the resolution would also insert an Article 6a in the Rome II Regulation providing that in the context of business-related civil claims for human rights violations within the value chain of an undertaking domiciled in a Member State of the Union or operating in the Union, the law applicable to a non-contractual obligation arising out of the damage sustained shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred or on the law of the country in which the parent company has its domicile or, where it does not have a domicile in a Member State, the law of the country where it operates. It also proposes a new Article 8(5) of the Brussels Ibis Regulation providing that in matters relating to business civil claims for human rights violations within the value chain within the scope, an undertaking domiciled in a Member State may also be sued in the Member State where it has its domicile or in which it operates when the damage caused in a third country can be imputed to a subsidiary or another undertaking with which the parent company has a business relationship. In addition, it proposes a new Article 26a providing for a forum necessitatis for business-related civil claims on human rights violations within the value chain of a company domiciled in the Union or operating in the Union so that where no court of a Member State has jurisdiction under Brussels Ibis, the courts of a Member State may, on an exceptional basis, hear the case if the right to a fair trial or the right to access to justice so requires, in particular: (a) if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with 27 Article 32. See https://www.europarl.europa.eu/RegData/seance_pleniere/textes_ adoptes/provisoire/2021/03-10/0073/P9_TA-PROV(2021)0073_EN.pdf (last accessed 22.08.2022). 28 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L p351,20.12.2012, 1. 29 Regulation (EC) No 864/2007 of the European Parliament and of the Council 11 July 2007 on the law applicable to non-contractual obligations (“Rome II”), OJ L 199, 31.7.2007, p. 40.

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Robert Bray/ Ilaria Pretelli/ Diana Wallis which the dispute is closely related; or (b) if a judgment given on the claim in a third State would not be entitled to recognition and enforcement in the Member State of the court seised under the law of that State and such recognition and enforcement is necessary to ensure that the rights of the claimant are satisfied; and the dispute has a sufficient connection with the Member State of the court seised. 3.

The Recommendation of the European Group for Private International Law (GEDIP/EGPIL) to the European Commission

The European Parliament’s proposal was followed in October 2021 by a Recommendation of the Groupe européen de droit international privé/European Group for Private International Law (GEDIP/EGPIL) to the European Commission concerning the Private International law Aspects of the Future Instrument of the European Union on [Corporate Due Diligence and Corporate Accountability], which postulates a directive or a regulation applying to undertakings established in the European Union and those established in a third State when operating in the internal market selling goods or providing services which contains provisions relating to private international law.30 First, without prejudice to the provisions of the Brussels I Regulation, a person not domiciled in a Member State may in matters falling within the scope of this instrument also be sued for compensation or other remedies: (1) where (s)he is one of a number of defendants, in the courts for the place where anyone of them is domiciled, provided the claims are connected such that it is expedient to hear and determine them together; and (2) where no jurisdiction is available within the European Union, and if proceedings outside the European Union are impossible or cannot reasonably be required to be brought, in the courts of a Member State with which the case has a link (forum necessitatis). Second, it is proposed that the provisions of the instrument should have overriding mandatory effect, i.e. that they should apply irrespective of the law otherwise applicable to companies, to contractual obligations and to noncontractual obligations. As far as the law applicable to non-contractual obligations arising out of damage resulting from non-compliance with due diligence obligations is concerned, this should be the law determined by virtue of Article 4(1) of the Rome II Regulation, unless the claimant chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred. Lastly, it is proposed that Article 17 of the Rome II Regulation should not be able to be invoked by the defendant to exonerate or limit its liability. The approach taken by GEDIP/EGPIL of including private international law provisions in a wider-ranging instrument concerning corporate due diligence seems preferable to seeking to make discrete amendments to the Brussels Ibis and the 30 See “Recommendation of the European Group for Private International Law (GEDIP/EGPIL) to the European Commission concerning the Private international law aspects of the future Instrument of the European Union on [Corporate Due Diligence and Corporate Accountability] online at https://gedip-egpil.eu/wp-content/uploads/2021/02/ Recommandation-GEDIP-Recommendation-EGPIL-final-1.pdf (last accessed 22.08.2022).

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Access to Justice in the EU for Violations of Fundamental Rights Abroad Rome II Regulations. If such amendments are adopted, they may be incorporated into those regulations when they are reformed. 4.

The ELI Report

The ELI report is the result of work undertaken by the European Law Institute in co-operation with the Fundamental Rights Agency of the EU (FRA). It has its focus on access to effective remedy in cases of human rights abuse by corporate actors. The word to be highlighted here and which dominated much of the preparatory discussions, is “effective”. Thus, all the proposals made in the report work towards achieving this aim whether by the introduction of a clear duty of care, so as to avoid the described legal issues with international jurisdiction in the UK, harmonised rules of private international law allowing application of the same rules to environmental and non-environmental torts, and mandatory contractual conditions to enhance legal certainty. One of the most felt needs is to assist weaker or ill-resourced parties, who either cannot access the justice system at all or, if they can, have ended up becoming engaged in a long drawn-out process designed to wear them down or cause them to run out of money. There are numerous examples of such cases, in addition to the aforementioned ones, where the arguments over jurisdiction and discovery dwarf the attention paid to the actual substantive case and the human rights breach. All this leads to justice being denied to victims and certainly no effective remedy. In most cases, without the support of NGOs providing legal assistance to victims, many of the proceedings would not have been commenced. Against this backdrop of inequality of arms, ELI was also concerned to construct a legal procedural framework, which could maximise access and minimise legal game playing. Therefore, the report contains a worked through panEuropean system of collective redress designed to facilitate a pathway to effective remedy in the courts. The suggested system builds on the existing European regulation in the field of consumer actions, while taking in the detailed procedural work set out in the ELI UNIDROIT Rules of Civil Procedure.31 Without such a European construct, access to justice in such cases will arguably remain chimerical. a)

The Need for Ad Hoc Institutions

Aware of all these difficulties, the ELI Report also attempts to explore an alternative means of redress, something that had also been mentioned in previous work by FRA,32 in seeking the creation of a fully-fledged European Ombudsman for Corporate Responsibility. Sometimes when the existing legislative patchwork has 31 ELI UNIDROIT Model Rules of Procedure from Transnational Principles to European Rules of Civil Procedure OUP 2021 see particularly Part X1 Collective Proceedings p. 239 et seq. 32 See for example https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020strong-effective-nhris-summary_en.pdf accessed 25/07/22 on the role of National Human Rights Institutions (NHRIs) many of which are Ombuds.

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Robert Bray/ Ilaria Pretelli/ Diana Wallis become very complicated it is appropriate to look as it were to left field and construct something new that may have the ability to cut through many of the old complexities. Of course, the Ombuds idea is not so new or without deep roots and many examples across existing European legal systems, with the most obvious being the Danish Consumer Ombudsman,33 but also the European Ombudsman. The Ombudsman could have extensive investigatory powers, which would assist many of the stalled processes seen in this area of law, sometimes as a consequence of the intricacies of private international law. This is not a “soft” option but an effective option when set against the backdrop of the black letter law changes proposed both in substantive and procedural law. b)

Introducing a Statutory and a Contractual Duty of Care

Harmonising a duty of care within the EU has the advantage of imposing precise obligations on multinational companies located in Member States and creates a potential cause of action in the EU Member State where the company has its seat. The advantages are obvious, as are the positive consequences which would follow. For example, an application for provisional measures could easily be filed in the place where the multinational company’s registered office is located, thus overcoming the barriers to access to remedy caused by insufficient legal protection and weak governance in the host country. Such a duty could also be created by contract, by creating a specific clause in every contract between the principal firm and each of the firms operating in the value chain In other words, it would be a matter of creating a contractually established duty of care covering specific issues. In this way, those who have suffered human rights abuses could bring an action in the courts of the place where the principal company is based. There, its subsidiaries and suppliers could be sued, jointly, if the lex fori so provides. The contractual element has several advantages. First, victims of human rights violations could sue a multinational corporation “at home”, not only on the basis of a duty of care which grants an action for noncontractual liability (tort), but also on the basis of breach of a contractual clause (a kind of social contract, or commitment to respect elementary socio-environmental needs in the territories where its supply chain operates). Secondly, breach of contract may constitute an important element in the assessment of liability. Thirdly, it would offer a norma agendi – i.e., a rule prescribing a specific behaviour which is expected from the principal firm – which clarifies by means of non-exhaustive examples the human rights obligations covered by the duty of care. Finally, it would cover the parts of the supply chain and make the clause more effectively enforceable. The aim is to maximise effective access to justice for victims of human rights violations and environmental damage. Solutions of this kind are already being studied overseas. For example, within the American Bar Association, there is a Working Group to Draft Model Contract Clauses to Protect Human Rights in International Supply Chains.34 https://www.consumerombudsman.dk/about-us/ accessed 25/07/22. See the dedicated portal here: https://www.americanbar.org/groups/human_ rights/business-human-rights-initiative/contractual-clauses-project/. 33 34

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Access to Justice in the EU for Violations of Fundamental Rights Abroad With respect to the duty of care itself, it seems to us that if the English courts, for example, apply case law that imposes a duty of care in this type of situation, drawing it from a general principle of justice, a fortiori the continental law legislature can create a statutory duty of care. It would also be appropriate to consider introducing a clause that stipulates that the contract must provide for a precise commitment on the part of the principal firm to monitor and guarantee respect for human rights by the firms in the supply chain, with a precise duty to inform, and also to train, personnel working on site, as well as extending this duty of care. This means that the principal firm would be subject to a clear obligation from which a certification document could not exempt it (i.e. it could not claim to have fulfilled the duty of care simply because, for instance, it has taken steps to ensure that business links in the supply chain sign a commitment of care , or because it has instructed an external company to carry out a social audit, or because it has properly fulfilled its non-financial reporting obligations, etc.). In fact, the principal firm should be required to take immediate positive action in the event of a breach, including the imposition of sanctions or suspension of the business relationship and, as a last resort, termination of the contract, depending on the severity of the breach. In order to avoid abuses, the termination of the contract could not, however, be made without a request to the competent court in the EU properly to assess the good faith of the EU-based company. This solution could easily be combined with measures to ease the evidentiary burden on victims. The harmonisation of legislation in the area of freedom, security and justice would have the advantage of saving the costs and pitfalls of proceedings involving elements of private international law, in the light of the following considerations. c)

A Minimalist but Realistic Solution and an Ideal Private International Law Development

The ELI Report considers both a minimalist approach and a maximalist approach as regards private international law. The minimalist approach is theoretically unsatisfactory but politically and pragmatically justifiable, since reforming the existing regulations on private international law is a matter warranting careful consideration. The relevant rules have been negotiated between the Member States, have stood the test of time, and have been clarified and strengthened thanks to the decisive contribution of case law. Any further change should be motivated by compelling necessity, given also the increasing difficulty for legal practitioners to keep up with the pace of legislative evolution and proliferation in the European Union. Having regard to Art. 3 of the Protocol on the position of Ireland, annexed to the Treaties, and Art. 1 of the Protocol No 22 on the position of Denmark annexed to the Treaties, the use of Articles 67 and 81 TFEU as a legal basis for possible amendments to EU regulations on conflict of laws could be problematic. Article 27 of the Rome II Regulation and Article 67 of the Brussels Ibis Regulation are without prejudice to provisions of Community law which may, in relation to particular matters, lay down conflict-of-law rules relating to non-contractual obligations and provisions governing jurisdiction and the recognition and enforcement Yearbook of Private International Law, Volume 23 (2021/2022)

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Robert Bray/ Ilaria Pretelli/ Diana Wallis of judgments in specific matters which are contained in instruments of the Union or in national legislation harmonised pursuant to such instruments, respectively. As we will see, this minimalist approach is also that which the European Commission has decided to take in its legislative proposal. In addition, such minimalist approach could be corrected by means of careful judicial interpretation. It must be borne in mind that individuals may be subject to the ability of multinational corporations to engage platoons of lawyers ensuring that they can avoid and circumvent the prohibition of gross violations of human rights and pollution of the environment by exploiting the differences in domestic laws and judicial systems. At the extreme end of this spectrum, there has even been a recent case in which questionable criminal proceedings were brought against the plaintiffs’ lawyer.35 The legal divide in human rights and environmental standards between developing and developed countries may even explain the main reason for corporations to outsource their lucrative activities to lower income countries. When investing in these countries, corporations may keep all of the bargaining strength on their side.36 One of the key elements for putting an end to these appalling practices and curbing their possible increase, is to block the exploitation of the existing differences in domestic legislations and judicial systems. For this reason, the ELI project aims at identifying the possible ways to redirect the responsibility of the outsourced activity from the small local subsidiary or commercial partner, operating within the borders of an emerging State with no substantial bargaining power, to the developed State from which the multinational corporation directs its business and builds its empire. In other words, to borrow a well-known expression, private international law serves here to pierce corporate borders. Jurisdiction is of course the main and first obstacle to overcome. When seeking a forum in the EU, the non-EU victims of human rights violations are of course also looking for a better law, i.e. a law granting better compensation for the grave loss suffered. The Kampf um Forum is indeed a battle over the applicable law. The ELI report considers that the European acquis in private international law is solid. EU judges already dispose of precious private international law instruments, with rules written in their own respective mother tongues that are easy to find in databases with which we are all acquainted. A more ambitious approach consists in giving wider recognition to the principle of favor laesi as compared to that given by the Rome II Regulation. In that Regulation, the applicability of favor laesi is confined to environmental damage, with little consideration for the protection of the weaker party in private international law.37 The ELI project underlines the importance of ensuring that the same rule applies to environmental damage and human rights violations. 35 https://www.theguardian.com/business/2021/jul/26/lawyer-steven-donziger-guilty -chevron accessed 28/06/2022. 36 For an overview, see Umweltatlas Lieferkette - adelphi-Systain-englisch.pdf. 37 An extension of favor laesi in the Rome II Regulation is advocated in any case of substantial inequality of arms here: I. PRETELLI, A Humanist Approach to Private International Law and the Internet: a Focus on Platform Users as Weaker Parties, this Yearbook, Vol. 22 (2020/2021), pp. 201-243, esp. p. 232 et seq.

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Access to Justice in the EU for Violations of Fundamental Rights Abroad In the present framework, this can be ensured by way of interpretation. The easy cases are those in which human rights violations are a consequence of environmental damage. In those cases, victims may benefit from Article 7, which adopts the principle of favor laesi and allows the party bringing the claim to base it on the law of the State where the decision causing the environmental damage and the human rights violations was taken (on the basis of Article 7 of the Rome II Regulation). This place will normally coincide with the place of the registered office, the central administration or principal place of business of the corporation. A more subtle interpretation of the rules of the Rome II Regulation is required in cases of other human rights violations, where it is only possible to base a claim on the law of the place where the decision was taken by characterising this place as that most closely connected with the damage on the basis of Article 4(3) of the Rome II Regulation. In sum, there are two ways to ensure the principle of favor laesi. One is to apply the rule of ubiquity, which allows victims of human rights violations related to environmental damage to invoke Article 7 of the Rome II Regulation. The other is to insist on the application of Article 4(3), which allows victims of torts to invoke the principle of closest connection.38 This norm allows the victim to overcome the lex loci damni referred to in Article 4, paragraph 1. Only by way of interpretation can the EU private international law rules in force ensure corporate accountability for acts committed outside the EU and thereby enhance the credibility of the EU area of freedom, justice and security. The ELI Report suggests that the future Directive encourages, by means of a Recital or an ad hoc rule, a uniform interpretation of Article 4(3) in cases of human rights violation in connection with social damages committed by corporations regardless of their connection with an actual environmental damage. C.

The European Commission’s Proposal for a Corporate Sustainability Due Diligence Directive

On 23 February 2022, the European Commission published its proposal for a Corporate Sustainability Due Diligence Directive.39 The legislative procedure has commenced with the file being allocated to the European Parliament’s Committee on Legal Affairs, which has appointed Lara Wolters as rapporteur.40 The delay with which this proposal was adopted is due partly to the fact that the Regulatory ScruSee also A. PETER/ S. GLESS/ CH. THOMALE/ M.-PH. WELLER, Business and Human Rights: Making the Legally Binding Instrument Work in Public, Private and Criminal Law, Max Planck Institute for Comp. Public Law & In'l Law (MPIL) Research Paper No. 06-2020, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561482. 39 Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, COM(2022)71 final https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0071 (last accessed on 22.08.2022). 40 https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference= 2022/0051(COD)&l=en. 38

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Robert Bray/ Ilaria Pretelli/ Diana Wallis tiny Board issued two negative opinions on the original and revised impact assessments, respectively. While noting the significant revision of the report in response to the Board’s first opinion, the Board nevertheless issued a second negative opinion. In the end, the Vice President for Inter-Institutional Relations and Foresight allowed the file to go ahead in particular on the ground that the additional clarification and evidence provided satisfactorily addressed the shortcomings of the impact assessment identified by the Regulatory Scrutiny Board and were considered in the adapted legal proposal. Although the criticism addressed the impact assessment and not the proposed legislative text, this doubtless foreshadows the difficulties that the text will encounter in the course of the legislative procedure. The Commission’s proposal is ambitious and reflects in part ideas which have formed the content of ELI’s report.41 In particular, the proposal for a directive seeks to advance respect for human rights and the green transition, to create a level playing field for companies in the EU and to avoid fragmentation of national rules.42 According to Věra Jourová, Vice-President for Values and Transparency: “This proposal aims to achieve two goals. First, to address consumers’ concerns who do not want to buy products that are made with the involvement of forced labour or that destroy the environment, for instance. Second, to support business by providing legal certainty about their obligations in the Single Market. This law will project European values on the value chains, and will do so in a fair and proportionate way.” The proposal refers in the preamble to the fact that the directive will contribute to the European Pillar of Social Rights, which promotes rights ensuring fair working conditions and forms part of the EU policies and strategies relating to the promotion of decent work worldwide, including in global value chains, as referred to in the Commission Communication on decent work worldwide.2 The Commission’s Communication published in parallel sets forth plans to tackle forced labour and promote decent work worldwide, which are to include a future, different, proposal to ban products produced with forced or child labour from the EU market. The main objective is to clarify to what extent a corporate due diligence duty must be recognised for large EU and third-country companies, and on smaller companies in certain high-impact sectors (namely sectors with high risk of adverse impacts and for which OECD guidance exists43). More specifically, the new due diligence rules target, according to the proposed Article 2: i) Companies based in the EU with more than 500 employees on average and a net worldwide turnover of more than EUR 150 million during the financial year preceding the last financial year; ii) Companies based in the EU with more than 250 employees on average and a net worldwide turnover of more than EUR 40 million during the financial year See infra at VI. France and Germany already have due diligence legislation (see infra II.A.). According to the Explanatory Memorandum: “A number of Member States have already introduced national rules on due diligence and some companies have taken measures at their own initiative. However, there is need for a larger scale improvement that is difficult to achieve with voluntary action.” Hence the adoption of Article 114 TFEU as the legal basis alongside Article 50 TFEU. 43 See infra. 41 42

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Access to Justice in the EU for Violations of Fundamental Rights Abroad preceding the last financial year, if at least half of that net turnover was generated in specific high-impact sectors,44 iii) Third-country companies established outside the EU with either (i) a net turnover in the EU of more than EUR 150 million during the financial year preceding the last financial year, or (ii) a net worldwide turnover of more than EUR 40 million but a net turnover in the EU of less than EUR 150 million, if at least 50% of the net worldwide turnover was generated in the aforementioned high-impact sectors. Its scope is thus wider than that of the non-financial reporting directive 2014/95/EU. Micro companies and SMEs are not concerned by the proposed rules. However, the proposal provides supporting measures for SMEs, which could be indirectly affected. As it stands, it has been calculated that the proposal will apply to approximately 13,000 EU companies and about 4,000 non-EU companies. This means about 1 percent of EU-registered companies which could be held administratively or civilly liable for failure to carry out or act on effective human rights due diligence. To reach abuses that are likely to occur further down the supply chain, Articles 7(2) and 8(3) of the Directive require those companies to introduce contractual clauses requiring partners with whom they have “established business relationships” to carry out their own human rights due diligence and to cascade those requirements down their own supply chains.45 Under Article 12, the Commission is to produce “voluntary model contract clauses”. The proposed Directive seeks to neutralise important adverse environmental impacts resulting from violation of prohibitions and obligations pursuant to existing international environmental conventions as well as adverse impact on protected persons resulting from the violation of one of the rights or prohibitions enshrined in existing international conventions. The relevant conventions are listed in a proposed Annex.46 In particular, the Annex to the proposal sets out in Part I, “Viola44 The manufacture of textiles, leather and related products (including footwear), and the wholesale trade of textiles, clothing and footwear; agriculture, forestry, fisheries (including aquaculture), the manufacture of food products, and the wholesale trade of agricultural raw materials, live animals, wood, food, and beverages; the extraction of mineral resources regardless of from where they are extracted (including crude petroleum, natural gas, coal, lignite, metals and metal ores, as well as all other, non-metallic minerals and quarry products), the manufacture of basic metal products, other non-metallic mineral products and fabricated metal products (except machinery and equipment), and the wholesale trade of mineral resources, basic and intermediate mineral products (including metals and metal ores, construction materials, fuels, chemicals and other intermediate products). As regards the financial sector, due to its specificities, in particular as regards the value chain and the services offered, even if it is covered by sector-specific OECD guidance, it does not form part of the high-impact sectors covered by the proposal for a directive. At the same time, in this sector, the broader coverage of actual and potential adverse impacts is ensured by also including very large companies in the scope that are regulated financial undertakings, even if they do not have a legal form with limited liability. 45 Marti Flacks and Madeleine Songy, European Union Releases Draft Mandatory Human Rights and Environmental Due Diligence Directive, 11 March 2022, Center for Strategic and International Studies. 46 https://ec.europa.eu/info/publications/proposal-directive-corporate-sustainabledue-diligence-and-annex_en. The authors go on to say that, by defining “established business relationships” as those that are “lasting”, this approach may inadvertently encourage

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Robert Bray/ Ilaria Pretelli/ Diana Wallis tions of rights and prohibitions included in international human rights agreements, and human rights and fundamental freedoms conventions”, and in Part II, “Violations of internationally recognised objectives and prohibitions included in environmental conventions”, the human rights and environmental norms which the directive seeks to protect. The list is not exhaustive, any violation of a prohibition or a right not specifically listed in the Annex which directly impairs a legal interest protected in those conventions may also be covered. In the same vein, the proposed Directive attempts to coordinate its rules with those of a series of other international conventions and European Directives. For instance, companies covered by the proposal for a directive solely on account of their size (i.e., the largest companies) will have to adopt a plan to ensure that their business model and strategy are compatible with a transition to a sustainable economy, as well as with limiting global warming to 1.5 °C (in line with the Paris Agreement). In case climate change is or should have been identified as a principal risk or a principal impact of a company’s operations, emission reduction objectives should be included in the company’s plan. The plan should be taken into account when setting directors’ variable remuneration, if remuneration is linked to directors’ contribution to the company’s business strategy and long-term interests and sustainability. Accordingly, the proposal for a Directive imposes specific human rights and environmental due diligence requirements on companies within its scope. Companies will have to integrate human rights and environmental due diligence into their corporate policies, and adopt a specific due diligence policy. The due diligence policy should include a code of conduct describing the rules and principles to be followed by employees and subsidiaries, and a description of the processes put in place to implement due diligence. The due diligence policy is to be updated annually. Companies will also have to identify actual or potential adverse human rights and environmental impacts arising from both their own operations and those of their subsidiaries. This requirement will extend to the operations of the business relations of the companies concerned, to the extent that their operations are part of the supply chain of the company concerned. Furthermore, companies will have to take measures to prevent and mitigate potential impacts. They will have to develop and implement a prevention action plan in consultation with affected stakeholders; seek contractual assurances (along with measures to verify compliance) from business partners and companies with which they have an indirect relationship; make necessary investments, support SMEs with which they have established relationships where complying with the code of conduct or action plan would be too costly; or collaborate with other entities where appropriate. Where potential adverse impacts are not prevented or sufficiently mitigated by such measures, companies will be required to refrain from entering into new business with the partner in question and, if legally possible, temporarily suspend their commercial relationship (or terminate it altogether if the companies to distance themselves from suppliers over which they could have significant influence. In addition, in a significant concession to business, companies can rely on thirdparty auditors or industry initiatives to verify business partners’ compliance with these requirements, despite substantial research demonstrating the limited effectiveness of such audits and voluntary initiatives in preventing abuses.

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Access to Justice in the EU for Violations of Fundamental Rights Abroad potential adverse impact is severe, but only as a last resort). Member States will have to adapt their contract law to make this possible. Companies will also have to bring adverse impacts to an end, or minimise them where this proves impossible. They may also be required to pay damages to affected persons and provide financial compensation to affected communities. Payments will be proportionate to the significance of the adverse impact and to the contribution of the company’s conduct. Where the adverse impact cannot be brought to an end immediately, the company will have to implement a corrective action plan. As in the case of potential impacts, the company may be required to seek contractual assurances from business partners. Such contractual assurances may in turn require business partners to seek their own assurances from their own business partners. This will be limited to activities relevant to the supply chain (“contractual cascading”). Investment may also be required from covered companies to bring actual adverse impact to an end. Companies may also be required to provide support to affected SMEs and to collaborate with other entities, and to refrain from entering into further business with a given company, suspend their collaboration, or fully terminate their business relationship. As far as access to justice is concerned, apart from the possibility that they may have to face a claim for compensation based on civil liability, companies will have to allow interested parties (affected persons, trade unions and civil society organisations) to submit complaints to them and establish a complaints procedure. Complainants will be entitled to request appropriate follow-up on a complaint and to meet with the company's representatives. The Commission proposes enforcement by means of administrative measures imposed by national supervisory authorities, who are to have powers of investigation. A European Network of Supervisory Authorities is to be established. EU companies covered by the Directive will be supervised by the competent supervisory authority of the Member State in which they have their registered office. Third-country companies will be supervised by the supervisory authority of the Member State in which they have their branch. Should the third-country company not have a branch in a Member State, or have more than one in different Member States, the competent supervisory authority will be that of the Member State in which the company generates the highest turnover within the EU. Supervisory authorities will be empowered to verify compliance with the Directive through information requests and investigations. If they identify a violation of national provisions adopted to implement the Directive, they will be required to grant the company concerned time to take remedial action. They will also have the power to order the cessation of the infringement, abstention from any repetition of the conduct and proportionate remedial action, pecuniary sanctions, and interim measures. Administrative sanctions will be determined by each Member State and imposed by the relevant supervisory authority, and should be effective, proportionate, and dissuasive, and take into account the company’s efforts to comply. In order to ensure effective compensation of victims of adverse impacts, Member States will be required to lay down rules governing the civil liability of companies for damages arising owing to their failure to comply with the due diligence process. The company should be liable for damages if it failed to comply Yearbook of Private International Law, Volume 23 (2021/2022)

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Robert Bray/ Ilaria Pretelli/ Diana Wallis with the obligations to prevent and mitigate potential adverse impacts or to bring actual impacts to an end and minimise their extent. As regards damages occurring at the level of established indirect business relationships, the liability of the company should be subject to specific conditions. The company will not be liable if it carried out specific due diligence measures. However, it will not be exonerated from liability through implementing such measures if it was unreasonable to expect that the action actually taken, including compliance, would be adequate to prevent, mitigate, bring to an end or minimise the adverse impact. In addition, in assessing the existence and extent of liability, due account is to be taken of the company’s efforts, insofar as they relate directly to the damage in question, to comply with any remedial action required of them by a supervisory authority, any investments made and any targeted support provided as well as any collaboration with other entities to address adverse impacts in its value chains. The liability regime does not regulate who should prove that the company’s action was reasonably adequate under the circumstances of the case; therefore the question of the burden of proof is left to national law. As regards civil liability rules, the civil liability of a company for damages arising due to its failure to carry out adequate due diligence is to be without prejudice to the civil liability of its subsidiaries or the civil liability of direct and indirect business partners in the value chain. In addition, the civil liability rules under the proposed directive are to be without prejudice to Union or national rules on civil liability related to adverse human rights impacts or to adverse environ-mental impacts that provide for liability in situations not covered by the future directive or providing for stricter liability than the directive. As regards civil liability arising from adverse environmental impacts, persons who suffer damage will be able to claim compensation under the Directive even where their claims overlap with human rights claims. In order to neutralise the risks of circumvention of EU laws by means of private international law, Article 22(5) obliges States to “ensure that the liability provided for in provisions of national law transposing this Article is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State”. This proposed provision reflects the proposals made by the European Parliament, GEDIP-EGPIL and the ELI and is the only provision of private international law contained in the proposal for a directive. The civil liability regime under the Directive is to ensure that the Environmental Liability Directive prevails and Member States can impose further, more stringent obligations on companies. As regards directors’ duty of care to the company, the Directive sets out to clarify, in a harmonised manner, the general duty of care of directors to act in the best interest of the company, by providing that directors have to take into account sustainability matters as referred to in Directive 2013/34/EU,47 including human rights, climate change and environmental conse47 Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC, OJ L 182, 29.6.2013, p. 19.

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Access to Justice in the EU for Violations of Fundamental Rights Abroad quences in the short-, medium- and long-term horizons. Such clarification will not require changes to existing national corporate structures. Responsibility for due diligence is to be assigned to the company’s directors, in line with the international due diligence frameworks. Directors are therefore responsible for putting in place and overseeing the due diligence actions laid down in the Directive and for adopting the company’s due diligence policy, taking into account the input of stakeholders and civil society organisations and integrating due diligence into corporate management systems. Directors are also to adapt the corporate strategy to actual and potential impacts identified and any due diligence measures taken. Later opportunities will arise to examine this proposal in depth as it moves through the legislative process, but it can already be said that it is to be regretted that this opportunity has not been taken to deal with the question of jurisdiction in accordance with the principle favor laesi or to improve the position of victims in third countries seeking to assert claims in EU Member States.48 It must also be observed that the quality of drafting of the proposed legislation leaves much to be desired. The clarity of the proposed rules would improve if the Commission’s Legal Service used its lawyer-linguists to revise proposals for legislation under the ordinary legislative procedure before releasing them to the colegislators and the world at large. The proposal is just at the beginning of the first reading by the European Parliament and the Council under the ordinary legislative procedure. Once the directive has been adopted it will have to be implemented in national law by the Member States within two years of the entry into force of the Directive for the largest companies involved, with a further two-year transitional period for the smaller companies operating in high-risk sectors specified by the proposal for a Directive.

II.

Legislative Fragmentation and Insufficiencies of the EU Proposal

A.

Some National Initiatives within the EU

A growing number of national laws are beginning to address some aspects of due diligence in relation to basic human rights. Italy has set an example with Article 4.1 of Legislative Decree No 231/2001, under which parent companies can be held liable in Italy for criminal offences committed by a subsidiary abroad but for which the subsiadiry was not prosecuted there.49 Recently, several countries have

48 The solution proposed by the ELI report meets with the approval of Prof. Symeonides, see: Symeon C. SYMEONIDES, Rome II and Cross-border Violations of Human Rights, Infringements of Personality Rights, and Other Cross-Border Torts, this Yearbook, text surrounding note 101. 49 D. Lgs. 8 giugno 2001, n. 231, “Disciplina della responsabilità amministrativa delle persone giuridiche, delle società e delle associazioni anche prive di personalita' giuridica, a norma dell'articolo 11 della legge 29 settembre 2000, n. 300”: Art. 4(1): “[…] gli enti aventi nel territorio dello Stato la sede principale rispondono anche in relazione ai reati

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Robert Bray/ Ilaria Pretelli/ Diana Wallis introduced comprehensive legislation: the Modern Slavery Act50 in the UK; the Wet zorgplicht kinderarbeid (Due Diligence and Child Labour Act)51 in the Netherlands; and the Loi relative au devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre52 in France. The French law on the duty of vigilance imposes a duty on companies with respect to their subsidiaries and their business relationships, and provides the persons concerned with the possibility of enforcing this duty through civil law. In addition, the German parliament recently passed the Gesetz über die unternehmerischen Sorgfaltspflichten in Lieferketten (Law on corporate due diligence in supply chains),53 which adds a specific administrative liability to the civil liability of the company involved. The new due diligence obligations under the law, which were created with the aim of improving the human rights situation in international supply chains, are to be implemented by means of administrative procedures and administrative sanctions. In case of serious violations, companies can also be excluded from public procurement for up to three years. However, the law also allows national trade unions and non-governmental organisations to sue in their own name on behalf of others, enabling them to take legal action if they wish to assert in court the violation of an “eminently important protected legal position” (eine überragend wichtige geschützte Rechtsposition). B.

Risks for the Internal Market and Scope of the Future Harmonised Rules

As shown by the well-known case law on tobacco advertising,54 national innovations may entail risks for the internal market. In light of these recent experiences, it commessi all'estero, purché nei loro confronti non proceda lo Stato del luogo in cui e' stato commesso il fatto.” 50 Modern Slavery Act 2015: https://www.legislation.gov.uk/ukpga/2015/30/ contents/enacted. 51 Wet van 24 oktober 2019 houdende de invoering van een zorgplicht ter voorkoming van de levering van goederen en diensten die met behulp van kinderarbeid tot stand zijn gekomen: A useful summary in English can be found here: H. KERSTHOLT, N. DUTILH, Dutch Child Labor Due Diligence Act Approved by Senate. -Implications for Global Companies (Ropes & Gray, June 5, 2019) https://www.ropesgray. com/en/newsroom/alerts/2019/06/Dutch-Child-Labor-Due-Diligence-Act-Approved-bySenate-Implications-for-Global-Companies. 52 Loi n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre: https://www.legifrance.gouv.fr/eli/loi/ 2017/3/27/ECFX1509096L/jo/texte. 53 Sorgfaltspflichtengesetz (Gesetz über die unternehmerischen Sorgfaltspflichten in Lieferketten) -https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_ BGBl& jumpTo=bgbl121s2959.pdf#__bgbl__%2F%2F*%5B%40attr_ id%3D%27bgbl121s2959. pdf%27%5D 1627473529430. 54 CJEU, 5 October 2000, Germany v. European Parliament and Council, Case C376/98, ECLI:EU:C:2000:544; CJEU, 12 December 2006, Germany v. European Parliament and Council, Case C-380/03, ECLI122006,: ECLI:EU:C:2006:772 and CJEU, 4 May

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Access to Justice in the EU for Violations of Fundamental Rights Abroad is considered that there are good reasons for adopting EU legislation on the basis of Article 114 TFEU providing for a duty of care on the part of parent companies established in the EU with regard to their subsidiaries and business partners, which would better protect the internal market. 1.

The Strategical Importance of Investing the Parent Company with a Duty of Care

The potential content of the duty of care emerges from an analysis of comparative law in this area. The fact that Member States have adopted or are considering adopting different legislation on supply chain liability, while others have no such legislation, has implications for the internal market that justify harmonisation under Article 114. In the case of a multinational corporation based in a Member State, the duty of care is conceived as the obligation to comply with, impose, monitor and enforce rules that establish a specific duty of care in all geographical areas of operation of the multinational corporation. Article 2497 of the Italian Civil Code could be taken as a model in this respect.55 It states that parent companies owe a duty of care (“of proper corporate and business management”) to their subsidiaries and, in the event of non-compliance, shareholders of the subsidiaries can claim compensation from the parent company. A European rule could state that a similar duty of care of the parent company would benefit victims of careless management by the subsidiary. The violation of a duty of care by the parent company would then subject the parent company to sanctions in its own forum, without the need for the victim to provide evidence of the causal link between the tort suffered as a result of the actions of the subsidiaries and the decisions taken at the level of the parent company. In other words, the victims of a tort suffered in a non-EU State, could bring an action against the parent company in the EU without having to prove the direct involvement of the parent company in the decision-making process which ultimately led the subsidiary (or the company situated in the value chain) to commit a violation outside the EU. Litigation in the forum of the parent company in the EU, relying primarily on the law of that Member State, would then be possible without the need for a court order. 2016, Philip Morris Brands and Others, C-547/14, ECLI:EU:C:2016:325 paras 151 et seq. The social objective pursued by the European Union, referred to in paras 153 et seq., allows arguments based on “freedom of expression” to be rejected since: “the second sentence of Article 35 of the Charter and Articles 9 TFEU, 114(3) TFEU and 168(1) TFEU require that a high level of human health protection be ensured in the definition and implementation of all the Union’s policies and activities” (para. 154). 55 See Article 2497(1) of the Italian civil code: “Le società o gli enti che, esercitando attività di direzione e coordinamento di società, agiscono nell'interesse imprenditoriale proprio o altrui in violazione dei princìpi di corretta gestione societaria e imprenditoriale delle società medesime, sono direttamente responsabili nei confronti dei soci di queste per il pregiudizio arrecato alla redditività ed al valore della partecipazione sociale, nonché nei confronti dei creditori sociali per la lesione cagionata all'integrità del patrimonio della società”.

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Robert Bray/ Ilaria Pretelli/ Diana Wallis The proposed Directive postulates that companies oversee “actual and potential human rights adverse impacts and environmental adverse impacts, with respect to their own operations, the operations of their subsidiaries, and the value chain operations carried out by entities with whom the company has an established business relationship”.56 To do so, Member States would need to enact rules ensuring that companies in their jurisdiction comply with the obligation to prevent such adverse impact, thus codifying an explicit duty of care.57 2.

Required Application Standards

A legislative measure providing for the principal company to have specific duties of oversight with respect to its subsidiaries and business relationships with third parties regarding business integrity, environmental protection, and the health and safety of workers and indigenous peoples not only seems desirable, but complies with the United Nations Guiding Principles on Corporate Responsibility, and the duty to respect human rights and to act with due diligence. Article 22 of the proposed Directive is thus to be welcomed, since it requires Member States “to ensure that companies are liable for damages” if they fail to comply with the obligations to oversee the impact of the activities of their subsidiaries and if, “as a result of this failure an adverse impact that should have been identified, prevented, mitigated, brought to an end or its extent minimised through the appropriate measures […] occurred and led to damage”. According to the EU instrument drafters, such a legal duty of care would be meaningless if it were possible to circumvent it by a subtle use of private international law techniques. Accordingly, it is foreseen to prevent such risks by granting the protection of overriding mandatory rules to the aforementioned duty of care. The underlying fear is that EU judges would use the Rome II Regulation which gives relevance to the lex loci delicti for the assessment of the an and the quantum of the damage. In English words, one could argue that if the law of the place where the damage occurred holds a parent company liable only to the extent that its behaviour has directly caused the damage suffered by the victims (e.g., when the parent company has written and posted an order to dispose of wastes in a precise way, etc.), the parent company could not be held liable for the lack of oversight (regardless of the existence, in the lex fori, of a duty of care). In order to avoid a possible circumvention of the obligation to oversee companies in the value chain, by means of the application of local laws, a modification of the Rome II Regulation could have been envisaged and had indeed been foreseen by the European Parliament Resolution and by experts.58 However, instead of questioning the correctness of the connecting factor, the drafters have opted for the characterisation of the duty of care as a mandatory rule. Thus, the proposed Article 22(5) also states that a rule imposing such liability “is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.”

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56

See Art. 1 of the Proposal (note 39).

57

See Ibid. Arts. 4 et seq.

58

See supra sub B.2. and 4. See also SYMEONIDES (note 48).

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Access to Justice in the EU for Violations of Fundamental Rights Abroad As stated by the ELI Report, the characterisation of the duty of care as a mandatory rule does not necessarily, or logically, exclude litigation based on the rules of private international law. 3.

The Persistent Need to Harmonise Private International Law

To make these duties and responsibilities effective, access to the courts is essential. This is guaranteed by rules which award jurisdiction over any dispute relating to possible breaches of this duty of care to the courts of the principal company’s place of business, or to the courts in whose jurisdiction the company may be considered to have a seat according to Article 63 of the Brussels Ibis Regulation. The principal company’s place of business is to be found by reference to Article 4 of the Brussels Ibis Regulation, read in conjunction with Article 63.59 The principal company, or firm, is the company which is on top of the value chain, and organises, and should thus oversee, the work of all of the companies in the value chain, with a view to obtaining a specific, final, product for its market. The codification of a specific duty of care on the part of the company on top of the value chain, and covering every firm within such chain (so that both the principal company and the secondary company are liable for careless behaviours) would make such duty enforceable in EU courts whenever a company on top of the value chain operates in the internal market. To avoid fragmentation, a regulation would provide a better legislative instrument as compared to a directive. Fragmentary legislation may increase the operational costs of corporations, because of the difficulty of complying with multiple sectorial legislations. One of the problems lies in the diversity of the criteria used to identify the corporations on top of the value chain which should be included in the scope of EU legislation: some EU directives refer to companies “operating in the internal market”, others to those “directing activities” in the EU, and yet others to those “having obtained an authorisation to distribute products” in the same area. These and similar criteria, which derive from (often exorbitant) US jurisdiction rules, should be reduced to a uniform criterion and should encourage the use of a specific private international law rule.60

59 Article 63 states: “1. For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: (a) statutory seat; (b) central administration; or (c) principal place of business. 2. For the purposes of Ireland, Cyprus and the United Kingdom, ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place. 3. In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law”. 60 I. PRETELLI (note 37), p. 226 et seq. and Id., A Humanist Approach to Private International Law for the Digital Age, in F. ESTEBAN DE LA ROSA et al. (eds)., Justice, trade, security, and individual freedoms in the digital society, 1st. ed., 2021, pp. 287-355, esp. p. 309.

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III. International Jurisdiction A.

The Alleged “Necessity” of a Forum Necessitatis

In principle, when the defendant is domiciled within the EU, the private international law rules of the EU are already broadly harmonised and thus constitute exclusive EU competence.61 In all other cases, i.e. when a certain matter has not been covered by the European regulations pursuant to Article 81 TFEU, the national private international law rules of each Member State apply. The doctrine has often suggested that a forum rule be introduced for exceptional circumstances, i.e., “necessity”. Along the lines of the rules set out in the Regulation on Succession, the Regulation on Maintenance Obligations and the Regulation on Property Consequences of Registered Partnerships, another ad hoc forum necessitatis for human rights violations and socio-environmental damages should be introduced to allow litigation in the EU. The European Commission proposed the addition of such a forum when it revised the main jurisdictional rules of the Brussels I Regulation in 2012. Yet the European Parliament rejected the proposal on the ground that the more the EU expands its jurisdictional rules to cases that have less of an immediate connection to the EU, the more it is likely to confront procedures that exist elsewhere, and because of political concerns about EU interference in matters that are not necessarily within its competence. Lean and effective jurisdictional rules help speed justice. Moreover, whilst it may provide access to justice for victims of human rights violations, forum necessitatis also creates the risk of forum shopping, potentially increasing uncertainty for defendants particularly when dealing with multinational corporations.62 In addition, even though the Netherlands has a forum of necessity in its legal system, the Dutch Joint Consultative Committees on Private International Law considered that the full harmonisation of the rules of jurisdiction over third country defendants was undesirable because the EU should leave the full harmonisation of the rules of private international law on jurisdiction to the Hague Conference and because the Brussels I system is distributive rather than attributive in nature. In other words, Brussels I was not intended to create new criteria for jurisdiction, but “merely” to create a rational distribution of jurisdictional power among Member States. The foundation of this regime is the Union principle of mutual trust in the legal systems of other Member States, a principle that does not apply to non-member States. Accordingly, there would be no guarantee that the courts of a third State would assume jurisdiction when an EU State could not; nor would the 61 CJEU, Competence of the Community to conclude the new Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, Opinion 1/03 of February 7 ECLI2006:EU:C:2006:81. 62 L. ROORDA & C. RYNGAERT, Business and Human Rights Litigation in Europe: the Promises Held by Forum of Necessity-based Jurisdiction, at p. 1, https://unijuris. sites.uu.nl/wp-content/uploads/sites/9/2014/12/Business-and-Human-Rights-Litigation-inEurope.-The- Promises-Held-by-Forum-of-Necessity-based-Jurisdiction.pdf.

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Access to Justice in the EU for Violations of Fundamental Rights Abroad assumption of jurisdiction by an EU Member State on the basis of the revised Brussels I regime ensure recognition and enforcement by the courts of the third State concerned. Thus, the closed nature of the Brussels I regime does not lend itself to extension to disputes involving defendants from third States.63 For its part, the European Commission had argued that “The harmonised rules compensate for the abolition of existing national rules [...] The forum necessitatis guarantees the right of EU actors to an impartial judge, a right which is particularly relevant for EU companies investing in countries with a legal system which is not yet well developed”.64 This justification does not coincide with the reasons usually given for a forum of necessity for human rights due diligence cases. Furthermore, in its Recommendation of 2 March 2016,65 the Committee of Ministers of the Council of Europe recommended that when business enterprises are domiciled in a country outside the Council of Europe, Member States should consider allowing their national courts to exercise jurisdiction over civil claims of business-related human rights violations if no other effective forum guaranteeing a fair trial (forum necessitatis) is available and there is a sufficiently close connection with the Member State concerned. From the wording of this passage, the preamble, and the various resolutions adopted by the Parliamentary Assembly, it would seem that the authors intended to suggest that Article 6(1) of the European Convention on Human Rights requires the adoption of a forum necessitatis, which is a rather bold reading of the Convention and the jurisprudence of the European Court of Human Rights. On balance, we conclude that, on the one hand, there is little to be gained by including a forum necessitatis in EU law, even if it were narrowly worded to cover only human rights and environmental due diligence cases. On the other, it would be difficult to neutralise critics of its imperialist character, since it is based on the explicit assumption that EU Courts would use such a forum to correct the inefficiencies of a foreign system. In that respect, it undermines the whole legitimacy of the “corporate due diligence” discourse. It is worth recalling that the goal here is to avoid EU-based multinational corporations from relocating profitable but careless activities to non-EU countries. It seems paradoxical to first assume such a goal and then blame the insufficiencies of the legal orders in which the victims are based. Since the main target remains the attribution – i.e. the possibility to – assign responsability for behaviour to its ultimate author – the one based in the EU - there is no necessity to go any further by assuming jurisdiction beyond that specific case. If the EU company has no control – and therefore no duty of care – over a foreign company causing a damage in the non-EU country, there is no reason to assume jurisdiction on the basis of “necessity”. It is important here to avoid a manipulation Ibid, pp. 21-22. COM(2010) Report748,, item https://eur-3.1.2.lex.europa.eu/LexUriServ/ LexUriServ.do? uri=COM:2010:0748:FIN:EN:PDF. 65 Council of Europe, Committee of Ministers, Human Rights and business, Recommendation CM/Rec(2016)3 of the Committee of Ministers to Member States https://edoc.coe.int/en/fundamental-freedoms/7302-human-rights-and-business- recommendation-cmrec20163-of-the-committee-of-ministers-to-member-states.html. 63 64

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Robert Bray/ Ilaria Pretelli/ Diana Wallis of the “corporate due diligence discourse” in order to prevent well known criticisms, which should remain confined to colonialist times. In summary, although at least ten Member States have provisions in legislation or case law concerning such a jurisdictional criterion and four Regulations have already adopted it, forum necessitatis does not appear to be politically wise in the present international context. It is interesting that, despite the support for forum necessitatis in the legislative proposals contained in the Annex to the European Parliament’s resolution of 10 March 2021, and in the recommendation of GEDIP/EGPIL, the European Commission’s proposal for a directive contains no provision providing for such jurisdiction. B.

The Problem of Abuse of Process

On the other extreme, the problem of abuse of process must also receive consideration. It is illustrated by the English case Municipio de Mariana. The case establishes a clear pre-emption of abuse of process. The lawsuit was brought by over two hundred thousand plaintiffs66 seeking compensation for the massive human, environmental and economic damage caused by the collapse of the Fundão mine tailings dam in the Minas Gerais state in south-eastern Brazil in 2015. In a first decision on the case, the High Court of England and Wales rejected the claims as “pointless and wasteful”, thus finding an “abuse of process”.67 Abuse was asserted primarily on the basis that parallel proceedings were at an advanced stage in Brazil; a victim compensation fund had been established in 2015 and another was being negotiated; individual claims had been filed by individuals who were not eligible for such compensation schemes. Although jurisdiction was not lacking, the court discussed obiter the application of the lis pendens rule of the Brussels Ibis Regulation with respect to third States and concluded that, given the real risk of irreconcilable judgments, it would have applied Article 34 of that regulation to stay the proceedings. These rules are inspired by the desirability of an international harmony of solutions. Reference is also made to the old doctrine of comitas gentium. As Lord Collins observed in AK Investment CJSC,68 comitas gentium requires the court to be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court. The decision of the High Court was overturned by the Appellate Court,69 on grounds that “the remedies available in Brazil are not so obviously adequate that it can be said to be pointless and wasteful to pursue proceedings” in the UK.70 After carefully considering the existence of an The exact number is 202,600. High Court of England and Wales, Municipio de Mariana v. BHP Group plc and BHP Group Ltd, judgment of 9 November 2020, [2020] EWHC 2930 (TCC). 68 Judicial Committee of the Privy Council, United Kingdom, AK Investment CJSC v. Kyrgyz Mobil Tel Ltd, judgment of 10 March 2011. [2011] UKPC 7. 69 England and Wales Court of Appeal (Civil Division), Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor, judgment of 8 July 2022, [2022] EWCA Civ 951. 70 Ibid, at 237. 66 67

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Access to Justice in the EU for Violations of Fundamental Rights Abroad actual risk of irreconcilable judgments with a view to examine the necessity to stay proceedings on grounds on lis pendens and related actions (Articles 33 and 34 of Regulation 14215/2012), the Court excluded the relevance of such a risk and allowed the appeal.71

IV. The Applicable Law The rules of the Rome II Regulation on applicable law are of universal application, i.e., subject to the provisions relating to mandatory rules72 and public policy,73 any law specified by the Regulation applies whether or not it is the law of a Member State.74 A.

Article 7 of the Rome II Regulation and the Exception Clause

In the present framework, Article 7 is the only Article in the Rome II Regulation, which adopts the principle of favor laesi and allows a party to choose whether to base her claim on the law of the State where the damage occurred – lex loci damni – or on the law of the place where the behaviour which ultimately led to the damage was adopted – lex loci commissi delicti. The rationale for the rule is the following: on the one hand, there is a cohesion and cultural unity in the society in which the damage occurred which the damage may have disrupted. If the damage is considered to be the result of an “accident” it will be more easily accepted by such a society as compared to damage which is clearly identified, by that society, as the result of a negligent behaviour or mischief. The impact of the damage in that society is better taken into account by the law governing that society, which could also give the best means to repair it and restore societal peace. On the other hand, the local society is not isolated and there is global awareness today that the disvalue of negligent or malicious behaviours cannot be made dependent on the place in which the consequences of such behaviours are felt. The lex loci commissi delicti is thus a better law for torts in the value chain: it has a greater deterrent effect; it prevents dumping; it ensures equality of protection to EU-based and nonEU based victims. If the goal is to prevent a company from escaping liability by taking advantage of foreign permissive laws to engage in behaviours which are tortious “at home”, it is the law of the place where the behaviour causing the damage was assumed that should be made applicable. In corporate due diligence cases, this is the law of the place where the decision causing the environmental damage and the human rights violations was taken. This place will normally

Ibid, at 371. Rome II, Art. 16. 73 Ibid, Art. 26. 74 Ibid, Art. 4. 71 72

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Robert Bray/ Ilaria Pretelli/ Diana Wallis coincide with the place of the registered office, the central administration or principal place of business of the corporation. Case law has shown that victims will not always have an interest in seeking to apply a different law from that of the place where the damage occurred. Such a law is not always and necessarily less stringent than that of the country where the principal firm is based. The best means to correct the inequality of arms is thus to leave the choice to the victim. When the damage is both social and environmental, Article 7 guarantees this outcome. Unfortunately, as already mentioned, Article 7 is the only Rome II Regulation Article, which allows the victims a choice of the applicable law. It is therefore necessary, whenever the tort has not caused environmental damage, to refer to other rules. If, for instance, children have died as a consequence of illegal hazardous work or if adult workers have been victims of forced labour, Article 7 will not help them to base their claims on the law of a Member State. A subtler interpretation of the rules of the Rome II Regulation is thus required in cases of other human rights violations. The only available option, today, for a victim to base her claim on the law of the place where the decision was taken, is to characterise this place as the most closely connected with the damage on the basis of Article 4(3) of the Rome II Regulation. In corporate liability cases, there is certainly a close connection between a tort and the place where the conduct that caused it took place. For example, when the damage is the direct result of intentional conduct such as the decision of a company director to supply arms to the government of a State in order to suppress demonstrations by indigenous peoples to limit the environmental impact of one of its subsidiaries. The solution of implementing favor laesi through the exception clause does not equate the situation of victims of environmental damage with that of victims of human rights violations unrelated to environmental damages, since it does not allow the victim to choose between the two laws (as in Art. 7), but, at the present time, it is the only way forward. However, this approach is not free from implementation difficulties, which only case law will be able to resolve. B.

Overriding Mandatory Rules

Article 16 of the Rome II Regulation provides that the provisions of the Regulation shall not affect the application of the provisions of the law of the forum which are of necessary application, whatever the law applicable to the non-contractual obligation. If certain human rights and environmental rules are to be characterised as provisions of the law of the forum that are of necessary application, then they will have to be applied instead of the law of the country of the subsidiary that would normally be applicable under the general rules of the Rome II Regulation. This characterisation is promoted by the draft Directive. In this respect, Article 16 – and hence the provisions providing for due diligence – could become applicable with the result of setting higher standards of protection. The resolution of the European Parliament of 10 March 2021, pointing out that the victims of

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Access to Justice in the EU for Violations of Fundamental Rights Abroad human rights violations related to the activities of companies are often not sufficiently protected by the law of the country where the damage was caused, considers that the provisions of this article should be applied to all victims. The idea that relevant provisions of the future directive should be considered as provisions of the law of the forum which are of necessary application according to Article 16 of the Rome II Regulation, which was also taken up by GEDIP/EGPIL and the European Parliament in its resolution of 10 March 2021, has been embraced by the Commission in its latest proposal for a directive. However, this is insufficient, since it would only allow the measurement of liability according to EU standards and would not create the conditions for equal compensation regardless of the place where the damage occurred.75 C.

Safety Rules and Conduct – Rome II Regulation, Article 17

The Recital to Article 1776 makes it clear that the rules of safety and conduct in force in the country in which the harmful act was committed" can be taken into account “even if the non-contractual obligation is governed by the law of another country” and that the concept should be “interpreted as referring to all provisions that have a connection with safety and conduct, including for example the rules relating to road safety in the event of an accident”. According to the explanatory memorandum of the Commission’s Brussels I recast proposal,77 “when the designated law is not that of the country where the event causing the damage occurred, Article 13 of the proposed regulation obliges the court to take into account the rules of safety and conduct in force at the place and time when the event giving rise to the damage occurred.” This article is based on the similar provisions of the Hague Conventions on traffic accidents (Art. 7) and product liability (Art. 9). The rule is based on the idea that the author is obliged to comply with the rules of safety and conduct in the country in which he acts, regardless of the law applicable to the civil consequences of his action, and that these rules must also be taken into account when determining liability. “Taking foreign law into consideration does not mean applying it: the judge will only apply the law designated by the conflict rule, but will have to take another law into account as a fact, for example when it comes to assessing, in order to determine the amount of the indemnifiable damage, the gravity of the fault committed or the good or bad faith of the author”. Clearly, these rules were conceived and promulgated with respect to traffic accidents and product liability and, further, to permit consideration of local law when the applicable law is that of a foreign country.

See, amplius, SYMEONIDES (note 48). Recital 34. 77 COM(2003)427https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CE LEX: 52003PC0427&from=EN. 75 76

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Robert Bray/ Ilaria Pretelli/ Diana Wallis The application of local law led to a denial of compensation for damages suffered by workers and their families in the collapse of the Rana Plaza factory.78 Loblaws, Canada’s largest retailer and the main purchaser of clothes produced in the Bangladeshi factory, had requested “social audits” of the factory operating in Rana Plaza, but these had not identified all of the hazards to which workers were exposed and, in particular, those that eventually materialised. The damage suffered by the workers was a direct result of the factory management’s inexplicable decision to ignore the municipal order to evacuate the building. Cracks in the building's three piles, which subsequently collapsed, were clearly visible at the site, prompting the police and the city official to order the workers to leave the building. If the workers had not obeyed their employers' irresponsible order to return to work the next day, despite the police decision, many would not have died. The law applicable to victim compensation was discussed in a class action brought by injured workers and relatives of those who died against Loblaws in Canada. In accordance with the “law of the place where the injury occurred”, the determination of which required a complex investigation, the Court dismissed the claims. In light of the whole of these considerations, Article 17 is not designed to cover the case we are considering and its application would need to be excluded in cases of socio-environmental damage in the supply chain of multinational companies. It is noteworthy that GEDIP/EGPIL considers that while account must be taken, as a matter of fact, and in so far as is appropriate, of the rules of safety and conduct in force at the place and time of the event giving rise to the liability, such rules cannot replace the legal duties established by the future EU instrument and cannot be used to evade the application of its Articles 4 and 7, in the implementation described above, to those duties. It is therefore wise to propose, in line with the GEDIP/EGPIL, a provision to the effect that Article 17 of Rome II cannot be invoked by the defendant to exonerate or limit its liability.

V.

Conclusions

Recent legislative developments at national level present the risk of creating new conflicts-of-law issues and further burdening business bureaucracy. In order to protect the internal market, the European Commission, drawing on a detailed proposal from the European Parliament and on recommendations from GEDIP-EGPIL and the ELI, has presented a proposal for a directive which seeks to provide for the introduction, also by contract, of a duty of care and supervision over the entire supply chain culminating in the introduction of goods and services into the area of freedom, security and justice. What it has not done is to guarantee, effectively, the obligation of neminem laedere on an international scale.

78 Ontario Court of Appeal, Das v. George Weston Ltd, December 122018 2018, ONCA 1053 136 et seq. judgment.

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Access to Justice in the EU for Violations of Fundamental Rights Abroad Indeed, it is worth noting that when the European institutions have seen the devastation caused by corporate failure or wrongdoing such as in the case of Dieselgate or Equitable Life, they have been willing to act.79 However, these are essentially consumer cases, where economic detriment has been suffered. Thus, in a Europe said to be constructed on “values” with human rights at its core, there must not be the slightest reluctance to ensure effective access to civil justice in the case of breaches of human rights. The recent Convention on the Future of Europe might have presented an opportunity to deal with this mismatch, but it will still leave the European legislator to wrestle with finding an unsatisfactory legal base for legislation open to challenge under the principles in the Tobacco Advertising case. It is disappointing that the Commission has not used all the means of private international law at its disposal in order to improve effective access to justice on the part of victims in third countries, who suffer from a manifest inequality of arms vis-à-vis multinational companies. Legislating for overriding mandatory provisions is not sufficient. Private international law has at its disposal effective instruments for avoiding unjust solutions, such as those we have attempted to describe. In the first place, a broader recognition of favor laesi in European private international law regarding violations of fundamental rights and socio-environmental harm in the value chain of multinational companies would be a welcome development.80 The creation of a fully-fledged European Ombudsman for Corporate Responsibility would be as well. In the existing legislative framework, where we see victims who need to rely on NGOs as their only viable path towards compensation, the time may be right to construct something new that may have the ability to cut through the many bureaucratic hurdles. In line with the many examples of 79 PE 386.573v05-0019/06/2007 Report of the Committee of Enquiry on the Crisis of the Equitable Life Assurance Society Recommendations 18 -20: “18. The committee therefore considers that the imperatives of fairness and non-discrimination between policy holders and the prohibitive cost of legal action for the vast majority of them render it necessary to grant consumers of financial services the right under Community law to pool their resources and act collectively against providers or Member States supervisory authorities before national courts. Such a procedure, which consolidates smaller claims into one action, has the advantage of saving time and money and should not replace existing national remedies for seeking compensation for violations of EU or national financial services legislation. 19. It would furthermore be important to clarify that certain indirect losses suffered by policyholders fall within the types of loss, which could be compensated. This would be necessary in order to guarantee the effectiveness of rights derived from Community law. Moreover, a wide interpretation of the extent of damages covering loss of profit and interest is already recognised by the Court of Justice as a limit on national procedural autonomy. Also, a broad meaning must be given to standing, so as to allow claimants having common or related issues of fact or law to act collectively. 20. The committee therefore welcomes the launch of a study on collective redress […] requests the Commission to investigate further the possibility of setting up a legal framework with uniform civil procedural requirements for European cross-border collective actions and report back to Parliament with its findings, provided that any Commission initiative is accompanied by an impact assessment that evaluates the legal basis of the initiative and its compliance with the principles of subsidiarity and proportionality”. 80 See supra parts III and IV.

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Robert Bray/ Ilaria Pretelli/ Diana Wallis Ombuds across existing European legal systems, and the European Ombudsman, an ad hoc institution could be the ideal option. Providing an Ombudsman with extensive investigatory powers would certainly shorten many of the stalled processes seen in this area of law and appears to be a very effective option.81 The EU institutions have been silent, thus far, in this respect, and seem confident that multinational corporations will adopt a pro-active attitude towards due diligence. It is foreseen that a duty of care could be created by encouraging the insertion of a model clause in every contract between the principal firm and each of the firms operating in the value chain. Such a contractual element has several advantages, among which is the possibility to maximise effective access to justice for victims of human rights violations. Solutions of this kind are already being studied within the American Bar Association, where a Working Group to Draft Model Contract Clauses to Protect Human Rights in International Supply Chains has been set up.82 The main problem would remain that of ensuring that EU-based corporations do not make use of the clause to dismiss their collaboration with local entities for reasons other than disrespect of human rights due diligence. Abuses must be fought per se, and should not be a reason to change rules that function well.83 In any event, the legislative process has only just begun. We can expect that the European Parliament will be particularly attentive to victims’ rights and keen to present ideas such as the introduction of a clarification on how to interpret the existing differences in the discipline of torts regarding the environment as opposed to those affecting human rights for full, public debate.

See supra part I.4. Ibid. 83 Ibid. 81 82

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THE FRENCH DUTY OF CARE AFTER A FEW YEARS OF APPLICATION Fabienne JAULT-SESEKE*

I. II.

III.

IV.

V.

Context and Content of the 2017 Act The Glass Half Empty A. Lack of Clarity B. Insufficient Judicial Review The Glass Half Full A. A Political and Social Victory B. The French Legislator – A Pioneer PIL A. Jurisdiction B. Conflict of Laws Conclusive Remarks on the Implementation of the French devoir de vigilance

The Ukrainian crisis is changing our perspective on contemporary history in various ways. It has unexpectedly brought to light new potentialities of the French law on the duty of vigilance adopted in March 2017.1 Indeed, in March 2022, various associations gave formal notice to French groups to cease their commercial activities in the energy sector in Russia. It is argued that ceasing these activities would be necessary to comply with the 2017 Act and prevent human rights and environmental abuses. It is difficult to assess the effectiveness of the law in the context of this crisis, and not only because the law aims to prevent rather than to cure. Nevertheless five years after the publication of this law, and at a time when the European legislator seems ready to establish a duty of vigilance,2 it is interesting to draw the first conclusions. This task was made easier by the French Parliament’s publication, on 24 February 2022, of the Evaluation Report on Corporate Duty of Vigilance Law.3 The report clearly outlines the strengths and weaknesses of the legislation. Nevertheless, remarkably, while the law is unquestionably

Institut universitaire de France, Professor at the University Paris Saclay, UVSQ. French Act No 2017-399 of 27 March 2017 (hereafter the 2017 Act). 2 European Commission, Proposal for a Directive of the European Parliament of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, COM(2022) 71 final. 3 Rapport d'information sur l’évaluation de la loi du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre, No 5124, submitted the 24 February of 2022 (hereafter the Evaluation Report). * 1

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 245-260 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Fabienne Jault-Seseke concerned with private international relations, questions of Private International Law are absent from the Report. It seems necessary to address them. First, it is appropriate to recall the content of the law (I). We will then highlight its weaknesses (II) and qualities (III). Finally, we will approach this law from the perspective of Private International Law (IV). On this last point, the debate is still theoretical.

I.

Context and Content of the 2017 Act

The consecration of the duty of vigilance in France is clearly linked to the collapse of the Rana Plaza building in Bangladesh, which caused the death of more than a thousand workers in the textile industry supplying European brands. After multiple other disasters, this tragic accident has highlighted the inadequacy of standards to hold multinationals accountable and the need to extend into domestic legal orders the OECD Guidelines (1976, revised in in 2011), the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (1977, revised in 2006), the UN Guiding Principles on Business and Human Rights (2011) as well as the Council of Europe Recommendation (2016). The French system imposes a civil liability-sanctioned duty of vigilance, under which any stakeholder (such as an NGO) may sue companies for damages in the event of non-compliance with the 2017 Act. Non-compliance typically occurs when companies have not implemented sufficient measures aimed at guaranteeing the respect of human rights and/or the environment. In establishing a duty of vigilance (devoir de vigilance) for parent companies and contractors in French law, the legislator intended to make transnational corporations accountable in order to prevent tragedies in France and abroad and to obtain compensation for victims in the event of violation of human rights and damage to the environment. The cornerstone of the law is the due diligence plan (plan de vigilance) which must include “reasonable vigilance measures to identify risks and prevent serious violations of human rights and fundamental freedoms, the health and safety of individuals and the environment, resulting from the activities of the company and those of the companies it controls ..., directly or indirectly, as well as from the activities of subcontractors or suppliers with whom there is an established business relationship, when these activities are related to this relationship”. This plan must also be effectively implemented. In a nutshell, companies are required to implement a public, comprehensive plan aimed at identifying risks and preventing and mitigating serious violations of human rights, human health, and the safety of the environment within the entire supply chain. In accordance with its objectives of prevention and reparation, the legislator has provided for two correlative causes of actions to the duty of vigilance. The first, which is qualified as a preventive action in that it is not conditional upon the occurrence of damage, is provided for in Article L. 225-102-4, II, of the French Commercial Code. This action, which is open to any person with a direct interest in the outcome of such litigation, must be preceded by a three-month formal notice, after which the competent court may order the company to comply with its 246

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The French Duty of Care after a Few Years of Application obligations in this area, if necessary under penalty. In particular, the company must draw up a vigilance plan and publish a report on its effective implementation. The second, described as a liability action in that it is based on the classic mechanisms of extra-contractual civil liability (a reference to Articles 1240 and 1241 of the Civil Code is made), is provided for in Article L. 225-102-5 of the Commercial Code. Open to any person with an interest in the matter, this action is brought before the competent court which may order, if necessary under penalty, the enforcement of its decision, well as its publication, distribution or posting. The scope of application of the Act is defined in Article L. 225-102-4, II, of the Commercial Code: the Act applies to companies headquartered in France that employ at least 5000 employees in France, or 10,000 employees worldwide (including through direct and indirect subsidiaries) or foreign companies headquartered outside France, with French subsidiaries, if those subsidiaries employ at least 5000 employees in France. The implementation of these provisions has given rise to some criticisms. Nevertheless, the Act has important qualities. The glass can be seen as half empty or half full.

II.

The Glass Half Empty

The main criticisms of the 2017 Act relate to its lack of clarity and its lack of effectiveness due, in particular, to the difficulties encountered in judicial review. A.

Lack of Clarity

Some shortcomings of the legislation were identified very soon after its enactment. Several provisions of the Act are subject to interpretation, which undermines the effectiveness of the text. This mainly concerns the definition of companies subject to the Act, the assessment of the “serious” nature of violations of human rights and fundamental freedoms, the health and safety of individuals and the environment, the notion of “established business relationship”, which implies a more or less broad consideration of the value chain of the ordering companies, and the assessment of the “effective” nature of the implementation of the plan. Regarding the scope of application, some commentators have highlighted the lack of equal treatment among companies depending on their size (the employees’ number), legal form (only sociétés anonymes and sociétés par actions simplifies are explicitly concerned), and country of incorporation (only French companies are concerned).4 It is well known that this point was a major source of opposition to the adoption of the Act, as the companies concerned feared losing their competitiveness.

4 See C. HANNOUN, Le devoir de vigilance des sociétés mères et entreprises donneuses d’ordre après la loi du 27 mars 2017, Droit social 2017, p. 806.

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Fabienne Jault-Seseke For other stakeholders, the scope is also too narrow. The narrow focus on large companies (originally intended to take into account the resources available to companies to implement the innovative obligation) excludes companies which, whatever their size, can have a potentially significant impact on human rights and the environment.5 The evaluation report notes that in low labour-intensive sectors, such as digital or biotechnology, the environmental or human rights impact of these companies is more related to the turnover achieved than to the number of employees. It also notes, taking the example of the cocoa sector, that important players in the French market are outside the scope of the Act: only Nestlé Holding France, a subsidiary of the Swiss company Nestlé SA, which has more than 5,000 employees in France and accounts for almost 10% of the French market, is required to establish a vigilance plan; the other main international players in the sector (in particular Barry Callebaut, Mars and Ferrero, which account for more than 50% of the French market) are not located in France and do not employ more than 5,000 people in France. The scope of the duty of care itself also raises questions. There is a lack of precision concerning the economic partners that must be taken into account by the vigilance plan. The text does not specify whether the subcontractors and suppliers whose activities fall within the scope of the plan are only those of the company that has drawn up the plan and of the companies it controls, or whether they include, in cascade, the economic partners of subcontractors and suppliers. This imprecision was corrected by the Constitutional Council, which noted that ”the perimeter of the business partners of the company that are subject to the obligation to draw up an oversight plan pursuant to the contested provisions includes all companies controlled directly or indirectly by this company as well as any sub-contractors and suppliers with which they have established commercial relations, irrespective of the nature of the operations of these enterprises, their workforce, their economic weight or their place of establishment”.6 That is undoubtedly the intention of the legislator to cover the whole business chain of companies as soon as there is a commercial relationship (e.g., suppliers, distributors, or commercial partners). Of course, questions of proof of their relationship will necessarily arise. The difficulty is not unique to French law. The concept of business relations is the one used by the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles. The proposed EU Directive is also aligned with this proposition, as it aims to cover the companies’ own operations, the operations of their subsidiaries, and the value chain operations carried out by established business relationships.7 One should note that existing European regulations – the 2014/95/EU directive on financial reporting and the 2020/852 European regulation on European taxonomy (defining the notion of sustainable activity) – already address somewhat similar topics. Evaluation Report (note 3), p. 54. Conseil constitutionnel, Decision No 2017-750 DC, 23 March 2017, pt 11. 7 A business relationship is defined as a “business relationship, whether direct or indirect, which is, or which is expected to be, lasting, in view of its intensity or duration and which does not represent a negligible or merely anc illary part of the value chain” (Article 3(f) of the proposal). 5 6

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The French Duty of Care after a Few Years of Application Regarding the “serious” nature of violations, the appreciation is left to the judge and the companies do not know to what standards they should refer to assess the respect of human rights or the protection of the environment. By comparison, the Proposed EU Directive retains a narrower scope, as it would cover actual or potential human rights and environmental adverse impacts that can be found in selected international conventions.8 The Report also takes note of the lack of clarity in the law with regard to the role of the stakeholders, in particular, NGOs and trade unions. It recommends making consultation of stakeholders compulsory for each company and believes this measure to be beneficial in the long run, as it will likely increase individual standards and promote a general harmonisation of vigilance plans. Indeed, there are some hesitations on the implementation of the alert mechanisms (i.e., pathways provided to employees or third parties to report human rights and environmental violations to the company). For the sake of simplicity, companies tend to merge the alert mechanism required under the 2017 Act for vigilance purposes and the alert mechanisms under the Sapin 2 Act, which imposes similar obligations on companies regarding corruption risks.9 While the French government is considering officially endorsing this practice, the evaluation Report warns against it. The Report recommends maintaining a strict separation between the duty of vigilance alert mechanism and the Sapin 2 alert mechanisms and reaffirms that, unlike the latter, those who have access to the pathway of duty of vigilance alert mechanism are not defined. Regarding the alert mechanism, one of the features of the 2017 Act is to establish a consultation with the representative trade unions of the company. The implementation of this consultation appears laborious, but this is not necessarily a reason to abolish it. The Sapin 2 and the 2017 Acts have different uses. The judicial application of the 2017 Act also raises many questions. The first 5 years of application of the law have resolved none of them. B.

Insufficient Judicial Review

The sanction for non-compliance with due diligence obligations is not yet a reality. First of all, the legislator did not succeed in imposing a civil fine mechanism. Secondly, there are many obstacles to the actions brought on the basis of the 2017 Act. The legislator had provided that the violation of the law would be sanctioned by a civil fine of up to ten million euros. This provision was censured by the constitutional judge. Indeed, commentators are not the only ones to have complained about the lack of precision in the duty of care. The Conseil constitutionnel considered that the obligation of vigilance was insufficiently precise and based on the principle of no punishment without law censured the civil fine that the legislator had introduced.10

Article 3(b) and (c) of the proposal. Law No 2016-1691 of 9 December 2016. 10 Conseil constitutionnel, Decision No 2017-750 DC, 23 March 2017, pt 13. 8 9

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Fabienne Jault-Seseke In view of the imprecision of the concepts used in the text, the effectiveness of the duty of care is largely in the hands of the interpreter, i.e. ultimately in the hands of the judge. It is up to him or her to say whether the plan is adequate and well implemented. However, on the six proceedings initiated to date (four aiming at obtaining interim measures, two at obtaining compensation), none has yet been decided on the merits, given the ongoing debate about which courts should have jurisdiction to hear these cases. This uncertainty about jurisdiction – the Act only refers to the competent jurisdiction - proved to be the Achilles heel of the Act. Thus the first legal action based on the 2017 Act, brought by six associations against the oil giant Total, gave rise to a procedural battle.11 After Total claimed that the commercial court had jurisdiction, it took two years for the jurisdiction of the civil court to be admitted. 12 Yet Total's argument was not in line with the spirit of the Duty of Vigilance Act: the purpose of the Act is to make companies accountable for the consequences of their activities on the employees of their subsidiaries, suppliers and subcontractors, on local communities and on the environment and disputes concerning the protection of human rights. It is obvious that environmentally related claims cannot be qualified as commercial disputes. It was thought that the Climate Change Act13 would be an opportunity to clarify things. Proposals for modification were made, but none were accepted. Finally at the end of 2021, the French legislator specified that all actions pursuant to the 2017 Act should be brought before the Paris Civil Court (Tribunal judiciaire de Paris).14 This means that neither subject-matter jurisdiction nor territorial jurisdiction can be challenged in the future. This is a good thing. The question of international jurisdiction remains open, but as long as the debtor of the obligation of vigilance is a French company, it should not be a problem (infra IV). Other injunctive actions are pending and provide hope for upcoming decisions. In a case in which Total is criticized for failing to include in its risk mapping the risk of climate change resulting from the global increase in greenhouse gas emissions, the Versailles Court of Appeal confirmed the jurisdiction of the

On the substance of the case, see Le Monde’s report, published on November 26, 2021: “En Ouganda, le pétrole de Total impose le silence et la peur”. In 2019, French and Ugandan NGOs filed a lawsuit against Total who planned to drill over 400 oil wells in Western Uganda, partly in a national park, and to construct a pipeline from Uganda to Tanzania. The NGOs argued that the oil activities would lead to the dispossession of up to 50,000 persons, negative health impacts, and a loss of livelihoods and biodiversity. Total responded that its subsidiary, responsible for the relocation of rural communities in Uganda, would constitute an autonomous entity, thereby referring to the “separation principle” that the 2017 law aims to erase. 12 Cass. (Commercial Chamber), 15 December 2021, No 21-11.957, No 21-11.882: the vigilance plan does not constitute a commercial act and the non commercial applicant has the choice of bringing the matter before the civil court or the commercial court. 13 Law No 2021-1104 of 22 August 2021 “portant lutte contre le dérèglement climatique et renforcement de la résilience face à ses effets”. 14 Article L. 211-22 of the Code de l’organisation judiciaire, Law No 2021-1729 of 22 December 2021 “pour la confiance dans l’institution judiciaire”. 11

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The French Duty of Care after a Few Years of Application Nanterre judicial court.15 The decision on the merits is pending. In the EDF case, a Mexican indigenous community and various associations have sued the company for activities relating to a wind farm in Mexico. The Paris judicial court rejected the request for precautionary measures because the writ did not refer to the vigilance plan updated by the company. Lastly, on June 2021, associations summoned Suez to appear before the Nanterre judicial court to request the implementation and publication of effective due diligence measures in connection with the water supply activities of its Chilean subsidiary. The decision on the merits is still pending. As far as compensation for damages is concerned, the record is also limited. A first liability action was filed in 2021. It was directed against the company Casino before the judicial court of Saint-Étienne: representatives of indigenous peoples of Amazonia request reparations for their consecutive damages resulting from the marketing in South America of beef produced on deforested lands.16 A second action in responsibility was introduced in March 2022 before the Paris civil court. It concerns the Yves Rocher group, which is alleged to have violated workers' rights in Turkey. These recent developments tend to demonstrate the rise of litigation based on the 2017 Act even if no injunction or sanction has yet been issued. The weaknesses of the law can thus be put into perspective.

III. The Glass Half Full The absence of court decisions does not necessarily mean that the Act is just a scrap of paper. The Act can be seen as a victory and a first step in a better implementation of the devoir de vigilance. A.

A Political and Social Victory

The legislative process was long and, before reaching the 2017 Act, multinationals, fearing that the new duty would negatively affect the competitivity of French groups, engaged in significant lobbying against it. However, the duty of care can also be seen in a positive light by companies: it is an instrument for managing the risk of litigation, but also an instrument for enhancing the value of the company on/in? the market. Moreover, many companies did not wait for the 2017 Act to establish vigilance plans or adopt codes of good conduct. Today, the entire political spectrum is convinced of the usefulness of this duty. The Evaluation Report and the proposal for a European resolution aiming to include among the priorities of the French Presidency of the EU the adoption of

15 16

Versailles Court of Appeal, 18 November 2021, No 21/0166. On the PIL aspects, see IV.

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Fabienne Jault-Seseke ambitious legislation on the duty of care of multinationals were unanimously approved by the members of the French Parliament.17 The Evaluation Report notes that, “far from having harmed the French economy, this new obligation guarantees quality for French companies, protecting their reputation and brand image. It contributes to the attractiveness of hiring processes, as well as to better control of the production chain and to the strengthening of commercial relations with subcontractors and suppliers. It creates the conditions for ethics in globalisation and will meet the high expectations of citizens as consumers, employees, but also as savers and investors”. The implementation of the Act is a concrete reality. Many vigilance plans have been adopted. Their number is growing. In 2021, of the 263 companies that would be subject to the duty of care, only 44 (i.e. 17 %) did not publish a due diligence plan.18 The published plans are far from perfect. They are brief and not very readable because they often refer to other documents. They often do not indicate the scope of the risks they are supposed to cover, particularly with regard to the companies' suppliers and subcontractors. The succinct nature of the plans is partly explained by the risks caused by a detailed plan if the information contained in it is inaccurate or if the initiatives announced are not perfectly carried out. However, progress is being made. The Shift association, which studies the application of the United Nations Guiding Principles on Business and Human Rights (UNGP), published a study in December 2019 comparing the reporting activities of the 20 largest French companies before and after the entry into force of the Act of 27 March 2017 and noted an improvement in reporting, and a willingness to identify, assess and prioritise risks.19 The 2017 Act is a first step. It is now possible to go further, namely by expanding its scope. In this line, the Evaluation Report recommends that the 2017 Act apply to all corporate forms, including “société à responsabilité limitée” (SARL) and “société en nom collectif” (SNC). Thus it will apply to some major French groups which do not fall under the most widely used forms i.e. SA (“société anonyme”) and SAS (“société par actions simplifiée”) which fall within the scope of the 2017 Act. This will be an important development in particular in the textile and retail sectors, which are under close scrutiny as regards human rights and environmental matters. It is also suggested, with respect to the number of employees, to lower the threshold for the application of the Act and to use the company’s turnover as an alternative criterion to the number of employees. The Evaluation Report underlines Assemblée nationale, Résolution visant à inscrire parmi les priorités de la présidence française du Conseil de l’Union européenne l’adoption d’une législation ambitieuse sur le devoir de vigilance des multinationales, adopted on 20 January 2022. 18 Le “radar de la vigilance” implemented since 2019 by various NGOs (Sherpa, Catholic Committee against Hunger and for Development (CCFD) – Terre solidaire) is published annually. It lists the companies concerned and monitors compliance with their legal obligations. 19 SHIFT, Reporting et droits de l’homme en France – deux ans plus tard: la loi sur le devoir de vigilance a-t-elle entraîné une meilleure divulgation ?, December 2019, quoted by the Evaluation Report (note 3), p. 24. 17

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The French Duty of Care after a Few Years of Application that large companies are already defined under French law by using the criterion of the turnover or of the balance sheet. It also proposes to align with the thresholds provided for in the Non-Financial Reporting European Directive (Directive 2014/95/EU), implemented in French law in Article L. 225-102-1 of the Commercial Code: a company must include a declaration of extra-financial performance in its management report when its balance sheet exceeds 100 million euros, or the net amount of turnover exceeds 100 million euros, or the average number of permanent employees employed during the financial year exceeds 500. As other European countries adopt similar legislation and other European companies become subject to a similar duty of care, the constraints, and consequent protections, may become increasingly acceptable. B.

The French Legislator – A Pioneer

French legislation is no longer isolated. Along with the Modern Slavery Act adopted in 2015 in the UK, it has served as a catalyst. This could be the main quality of the Act. With the 2017 Act, France bolstered what now appears to be a global movement of regulation of corporate activity through supply chain-related legislation. The Netherlands (2019, in relation to child labour only) and Germany (2021) have already joined the group. Meanwhile, Belgium, Norway, Finland, Luxemburg and Spain are discussing similar legislation. In Spain, the trade unions have taken up the issue and reached an agreement with the well-known Spanish department store El Corte Inglés which recognises the principle of due diligence in selecting the company’s product suppliers.20 Moreover, the 2017 Act contributes in an important way to the debate on the introduction of corporate sustainability due diligence regulation at the EU level. In the context of this debate, what some see as a lack of clarity (supra I) turns out to be an asset. The French Ministry of Justice, through the Directorate of Civil Affairs and the Seal, sees this flexibility as a guarantee of the law's effectiveness. It stated: “it would be impossible, by law, to indicate precisely for each parent company what the relevant risks are and how to deal with them” and argued that an overly precise legal approach would transform the duty of vigilance into essentially a formal obligation, which would then miss the target.21 The deliberately imprecise scope allows the Act to be adapted to all risks likely to have consequences for third parties, while avoiding unnecessary detail that would certainly have been the subject of litigation. By comparison, the draft directive and the 2021 German Act may appear less ambitious. For instance, we can note that the draft directive includes social and labour rights with reference to a very limited number of international standards but with no reference to key European Human Rights

Available at https://industria.ccoo.es/9926947d51cdb5f01efeb8f09cd63b5d000 060.pdf, accessed on 21.7.2022. 21 Evaluation Report (note 3). 20

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Fabienne Jault-Seseke acts such as the Council of Europe European Convention on Human Rights and European Social Charter, or the EU Charter of Fundamental Rights.22 The key issue is the distinction between compliance and conformity. In this respect, it should be possible to engage the liability of a company even when it has obtained the necessary authorisations to carry out its activity.23 In this regard, the 2017 Act has brought to light some controversial practices of major economic actors. Some have seen in the duty of care a purely procedural obligation by which they would simply check predetermined boxes to comply with the law without effectively considering the scope of potential environmental or human rights risks that their activities may entail. This is not the purpose of the French Act. Nor should it be the purpose of the EU Directive. That is why Article 22.2 of the draft directive, which can be seen as a cause for exemption, is so controversial Finally, to add another positive note, it is hoped that, now that the question of jurisdiction has been resolved (see II.), the first decisions will soon be issued. They will undoubtedly be closely scrutinised by PIL specialists.

IV. PIL The 2017 Act does not contain any specific rules on Private International Law. However, it indirectly solves the main questions that arise. In the absence of a specific law like the French Act, it is well known that the debates are intense.24 Often, victims have been unable to establish the liability of multinationals, due to 22 European Commission, Proposal for a Directive of the European Parliament of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, COM(2022) 71 final, Art. 3 (b) and (c) and Annex Part I and II. The texts mentioned in these annexes are considered insufficient for instance by the Commission nationale consultative des droits de l’homme in its Declaration for an ambitious EU Directive on corporate responsability to respect human rights and the environment in global value chains, points 9-13 (adopted on the 24 March 2022). For a comparison between the rights covered by the proposal for a Directive, the French Law and the German Law, see: S. BRABANT/ C. BRIGHT/ N. NEITZELN et al., Due Diligence Around the World: The Draft Directive on Corporate Sustainability Due Diligence (Part 1), Verfassungsblog, 15 March 2022, available at https://verfassungsblog.de/due-diligence-around-the-world/ accessed on 21.7.2022. 23 For a recent example (outside the field of the devoir de vigilance), see the Merck Judgment, Cass. Civ. 1re, 16 March 2022, No 20-19-786: the validation by the health authority of the product's package leaflet and labelling does not, in itself, preclude liability for the producer's fault. 24 For the latest developments, see the GEDIP proposal concerning the private international law aspects of the future European instrument on corporate due diligence and corporate accountability, October 2021. See O. BOSKOVIC, Update on PIL Aspects of Environmental Damage and Human Rights Violations in Supply Chains, available at https://eapil.org/2021/12/21/update-on-pil-aspects-of-environmental-damage-and-humanrights-violations-in-supply-chains/ accessed on 21.7.2022; O. BOSKOVIC, Les aspects de droit international privé du devoir de diligence et de la responsabilité des entreprises: bilan d'étape, Recueil Dalloz 2022, p. 185.

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The French Duty of Care after a Few Years of Application the lack of a welcoming forum. At best, they managed to conclude settlements. Things are changing. The Shell case is emblematic.25 The implementation of the French Act makes it possible to reflect more specifically on questions of jurisdiction and applicable law. A.

Jurisdiction

As regards actions brought based on the French Act of 2017, things are relatively easy. The jurisdiction of the courts of the defendant's domicile, in this case the company subject to a duty of care, is established by Article 4 of the Brussels I bis Regulation. Therefore, actions brought against French companies on the basis of the 2017 Act will fall under the jurisdiction of the French judge, more precisely now of the Paris civil court (see I). There is no room for discussion.26 Since in most cases it will be NGOs or trade unions that bring the action, the conditions set for the admissibility of the action, however, can be problematic. A recent ruling against the oil company Perenco gives cause for optimism. In that case, the action does not concern the implementation of the duty of care, as Perenco does not have the number of employees necessary to require compliance with the 2017 Act. Nevertheless, the reasoning of the court is interesting and the solution could in the future be applied to actions based on breach of the duty of care. It is stated that the standing of associations seeking to hold multinationals liable for their activities abroad (in this case, they were requesting an investigation to gain access to the company's internal documents) is assessed not in the light of lex causae, but in the light of the lex fori with regard to the conditions for exercising the action, and according to the law of the association with regard to the limits of the statutory purpose of the association pursuant to which the association brings the action.27 The application of the French rules is thus restored entirely (for the French associations) or partly (for the foreign ones). The jurisdiction issue should be addressed where the complaint is brought against foreign companies. When dealing with the liability of multinationals, it is common to consider cases where suits are brought against several companies. Here the jurisdiction of the French courts for all the companies should pose no difficulty as long as the actions are closely linked. Either (i) the companies sued are established in another EU Member State and the concentration of the litigation is permitted on the basis of Article 8.1 of the Brussels I bis Regulation or (ii) the companies concerned are established in a third country and the French court will have jurisdiction over all the defendants under Article 42(2) of the Code of Civil Procedure. Nevertheless, the duty of vigilance as enshrined in the 2017 Act makes The Hague Court of Appeal 29th of January 2021. See S.M. BARTMAN/C. DE GROOT, “The Shell Nigeria Judgments by the Court of Appeal of the Hague, a Breakthrough in the Field of International Environmental Damage? UK Law and Dutch Law on Parental Liability Compared”, (2021), 18, European Company Law, Issue 3, pp. 97-105. 26 E. PATAUT, Le devoir de vigilance – Aspects de droit international privé, Droit social 2017, p. 833. 27 Cass. civ. 1re, 9 mars 2022, No 20-22.444. 25

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Fabienne Jault-Seseke this question irrelevant since the action will necessarily be directed against the French company, which is strictly speaking the only debtor of the duty of vigilance. The question becomes relevant again if the victims intend to obtain damages directly from foreign companies. Now that the law clearly identifies the competent court by designating the Paris judicial court, the implementation of the duty of vigilance should no longer give rise to difficulties at the jurisdictional stage. The situation is a little less clear in the area of conflict of laws, although there are some certainties. B.

Conflict of Laws

French law and, as a result, the duty of care are symptomatic of the evolution of Private International Law. The classic reasoning based on a connecting factor and seeking to articulate domestic laws is undermined in two ways.28 Firstly, in a globalised world, the localisation of legal situations is becoming unrealistic. Secondly, the duty of care, although established by a domestic law, requires non-state standards to be taken into account and it encourages companies to “preventively rationalise the impact” of conflict of laws.29 Nevertheless, the spatial application of the 2017 Act offers certainty. The connecting factor with France is clearly identified.30 It is the head office in France of a company of a certain size.31 This connecting factor is in no way innovative. It is common in international company law. In this respect, the establishment and implementation of a due diligence plan can be considered as a matter of lex societatis. Even if the determination of the lex societatis is the subject of much debate, none of them question the prevalence of the statutory seat.32 Of course, the use of the seat criterion may raise concerns.33 It is easy to use it in such a way that companies could escape their duty of care, simply by setting up outside France. But this risk has not been realised. The fact that the duty of 28 On the overall issue, see H. MUIR-WATT, Devoir de vigilance et droit international privé. Le symbole et le procédé de la loi du 27 mars 2017, Rev. int. Compliance et éthique des affaires 2017, No 50, p. 48; C. KESSEDJIAN/ H. CANTU RIVERA (eds), Questions de droit international privé de la responsabilité sociale des entreprises / Private international law for corporate social responsibility, Paris/ Monterrey 2020; V. PIRONON, Le devoir de vigilance et le droit international privé, Influences croisées, Paris 2021, p. 223 and the references. 29 L. D’AVOUT, L’entreprise et les conflits internationaux de lois, Collected Courses of the Hague Academy of international Law, 2019, No 288. 30 In theory, but in practice it can be difficult to determine whether the thresholds set by law are met. 31 The clarification on the seat in France has been made by the Constitutional Council. 32 Rapport sur le rattachement des sociétés du Haut comité juridique de la place financière de Paris, 31 March 2021 available at https://www.banque-france.fr/sites/ default/files/rapport_41_f.pdf accessed on 21.7.2022; Proposal of a French code (Projet de code de droit international privé) submitted to the Garde des sceaux on the 31 March 2022, article 86. 33 E. PATAUT (note 26).

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The French Duty of Care after a Few Years of Application vigilance is only addressed to large companies is probably not unrelated. It is hard to imagine Total moving its headquarters abroad … On other points, the law is more ambiguous. The vigilance plan must include the entire value chain, which gives it a certain extraterritoriality. We will not go back to the vacuity of the territoriality principle here. However, the question of the qualification of the law as an overriding mandatory rule (loi de police) is raised. The French law is undeniably mandatory since it is possible to enjoin the company to establish a due diligence plan. This does not necessarily make it a “loi de police”. At this stage, it is important to distinguish between the different parts of the law, the obligation to draw up a plan on the one hand, and civil liability on the other. Regarding the plan, it is sufficient to note that only the French company is bound by the duty of care and that the law does not apply directly to subsidiaries and subcontractors established abroad, thus avoiding a conflict of laws that would require the French law to be qualified as an overriding mandatory rule to ensure its application.34 In other words, French law, by its terms, only applies to French companies, there is therefore no point in looking for a way to make French law applicable with respect to foreign companies. If only French companies are concerned, it is important to remember that all their activities, wherever they are carried out, must in principle be covered by the plan. However, some provisions limit the scope of the duty of care by requiring an additional connection with France for certain specific activities. For instance, the new wordings of article L. 225-102-4 of the Code de commerce provides, for companies producing or marketing products derived from agriculture or forestry, that the vigilance plan must include, in particular, reasonable vigilance measures to identify the risks of, and to prevent, deforestation associated with the production and transport to France of imported goods and services.35 Thus, only goods produced or imported into France are concerned. Regarding liability, the question has been raised whether the 2017 Act is intended to apply to damage occurring abroad.36 A positive answer seems to us to be in line with the spirit of the law, and the Constitutional Council has accepted it.37 We also note in passing that two currently pending liability claims concern such damages. Some scholars have first argued that the application of French law to the liability action (as evidenced by the reference in the text to Articles 1240 and 1241 of the Civil Code) can only be explained by the mechanism of “loi de police”, since it is a derogation from the lex loci delicti.38 Another interpretation is nevertheless possible. Firstly, the reference to French civil liability law should be 34 See detailed demonstration of V. PIRONON (note 28). See L. D’AVOUT, Panorama Droit du commerce international, Recueil Dalloz 2017, p. 2059.

Law No 2021-1104 du 22 août 2021 portant lutte contre le dérèglement climatique et renforcement de la résilience face à ses effets. The provision is scheduled to come into force on January 1, 2024. Comp. with the action against Casino mentioned above. 35

L. D’AVOUT (note 34), p. 2059. Conseil constitutionnel, Decision No 2017-750 DC, 23 March 2017, pt 28. 38 O. BOSKOVIC, Brèves remarques sur le devoir de vigilance et le droit international privé, Recueil Dalloz 2016, p. 385. 36 37

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Fabienne Jault-Seseke understood as an intent to apply the rules of ordinary liability law in the event of a breach of the duty of care. In other words, and this is clear from the preparatory work on the law, it would reflect a refusal to create a specific liability regime. The character of a “loi de police”, insofar as it derives from the specificities of the rule, would be undermined. Moreover, qualifying the French Act as an overriding mandatory rule would likely weaken it. Firstly, it would make its application by foreign courts very uncertain since Article 16 of the Rome II Regulation does not consider the application of foreign overriding mandatory rules (the argument can be relativised since there is normally jurisdiction of the French courts). Secondly, the French judge must ensure that its application is not contrary to EU law, i.e. that it is not a barrier to fundamental freedoms. In any case, a refinement of the conflict rule seems better than the characterisation as a “loi de police”. It is already possible to find such a refinement in the current rules. It would gain by being highlighted either in the framework of the European Directive or in the framework of a recasting of the Rome II Regulation.39 In this respect, the draft directive is disappointing as it is limited to reasoning in terms of overriding mandatory application.40 Article 7 of the Rome II Regulation is already useful. It covers environmental damages and offers the claimant a choice between the law of the place of the event giving rise to the damage and the law of the place where the damage occurred. The suggestion that the “event giving rise to the damage” can be located at the place where the decisions were or were not taken, i.e. at the domicile of the parent company, is very welcome.41 This interpretation, which was adopted by the Hague Tribunal in the Shell case is relevant. It is consistent with the identification of the person bound by the duty of care. As a result, regardless of the location of the environmental damage, French law would govern the liability of the French company sued for breach of its duty of care. For non-environmental damages, it is more difficult to designate the French law since, in principle, they are governed by the law of the place where the damage occurred. Nevertheless, the application of French law remains possible. Firstly, Article 17 of the Rome II Regulation can be used. It states: “In assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to liability”. With regard to the dominant company, this text makes it possible to take account of the standards of vigilance in force at the (actual) headquarters of the parent company, since it is there that it took or omitted to take reasonable vigilance measures. On the one hand, this text acts as a protective shield for companies that have complied with this standard. They thus have the means to prove that they have been vigilant. On the other hand, if the company has not fulfilled its duty of care, it can be inferred that a rule of conduct has not been observed, which may be analysed as a

39 La loi applicable aux “actions pour violations des droits de l’homme en matière commerciale, Recueil Dalloz 2021, p. 252. 40 Draft directive, Article 22.5. 41 O. BOSKOVIC (note 39).

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The French Duty of Care after a Few Years of Application fault engaging the liability of its debtor under the lex causae.42 Liability would thus be incurred. Nevertheless, the remedy provided by the lex causae would still need to be sufficient for this solution to be satisfactory. Secondly, the public policy of the forum could be invoked against a foreign law that does not sanction a breach of the duty of vigilance as provided by Article 26. The duty of care would then be established as an essential principle of French law. This is not a theoretical hypothesis. Judges tend to see in the solutions newly set out by the legislator an element of public policy.43 Valérie PIRONON makes another suggestion. 44 She highlights the unsuitability of the conflict of laws rule, and advocates for the adoption of an international substantive rule. It would not be the law applicable to civil liability that would determine the existence of a duty of care, since this duty would be admitted by virtue of a substantive rule whose beginnings can be found in soft law. 45 The work in progress at the UN and in the EU tends to recognise the existence of the duty of vigilance. In the meantime, there is nothing to prevent the French judge from formulating this international material rule. It has already formulated some such rules to serve the interests of international trade.46 These various arguments lead to only a second best solution. Having a special choice of law would be clearer as was proposed by the GEDIP, which suggested last year the following rule: “The law applicable to a non-contractual obligation arising out of damage as a result of noncompliance in respect of matters falling within the scope of this Instrument is the law determined by virtue of Article 4, paragraph 1 of the Rome II Regulation, unless the plaintiff chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred”.47 This suggestion would amount to rewriting Article 7 of regulation Rome II in order to include the different violations of a duty of care.48

See L. D’AVOUT (note 34). Comp. Cass. Civ. 1e 28 janv. 2015, No 13-50.059 (regarding same sex marriages). 44 V. PIRONON (note 28). 45 Supra I. For a detailed explanation, see European Commission DG Just, F. TORRES- CORTES/ C. SALINIER/ H. DERINGER et al., Study on due diligence requirements through the supply chain, final Report 2020. 46 The classic example is given by the Messageries maritimes judgment, Cass. civ., 21 juin 1950, Rev. crit. dr. int. priv. 1950, p. 609, note BATIFFOL; Y. LEQUETTE/ B. ANCEL, Grands arrêts de la jurisprudence française de droit international privé, Paris 2006, No 22. See B. OPPETIT, Le développement des règles matérielles, Paris 1988, p. 121. 47 Available at https://gedip-egpil.eu/wp-content/uploads/2021/02/RecommandationGEDIP-Recommendation-EGPIL-final-1.pdf accessed on 21.7.2022. 48 See also O. BOSKOVIC (note 39), limiting the extension of Article 7 to human rights violations. 42 43

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Fabienne Jault-Seseke

V.

Conclusive Remarks on the Implementation of the French devoir de vigilance

A review of the first cases brought on the basis of the French devoir de vigilance is disappointing. The effectivity of judicial remedies has not yet been demonstrated in relation to the 2017 Act. It may still be too early. For some, this is already a sign of failure and it has been suggested that, in order to ensure the implementation of the 2017 Act, an administrative authority should monitor the application of the text, even if multinationals could be civilly liable regardless of the procedure followed for public enforcement, The idea is not to charge this authority with the certification of the vigilance plans. This suggestion is echoed in the draft Directive, which provides for each Member State to designate a national supervisory authority and creates a European Network of Supervisory Authorities49. The duty of vigilance would then be added to the many rules whose enforcement is entrusted to national administrative authorities more or less organised in a network, cooperating at the European level by following more or less binding procedures, or even under the leadership of a European authority.50 The growing role of these authorities deserves discussion.51 The duty of vigilance is only a small part of it. After five years, the future of French law is now being written at the EU level. The transposition of the forthcoming EU directive into French law would provide an opportunity to improve the French duty of vigilance. With the benefit of five years of hindsight, the French legislator is fortunate not to be starting from a blank page.

Articles 17 to 21 of the Proposal. One thinks of course of the anti-corruption agencies. Beyond that, each new European rule seems to call for the creation of a new authority and leads to discussions on the scope of the competence of these authorities. See for example the discussion on the Digital market Act and the Digital Services Act, in L. IDOT, Quel système de gouvernance pour le DMA et le DSA?, Europe 2022, p. 9. 51 This is the purpose of the project I am leading within the Institut universitaire de France titled Rethinking methods of cooperation in private international relations. 49 50

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THE “EVENT GIVING RISE TO THE DAMAGE” UNDER ART. 7 ROME II REGULATION IN CO2 REDUCTION CLAIMS Madeleine Petersen WEINER*/ Marc-Philippe WELLER** I.

II.

III.

IV.

V.

Introduction A. Applicable Law as a Crucial Prerequisite B. The Law of the State where the Damage Occurred (Erfolgsort) C. The Law of the State in which the Event Giving Rise to the Damage Occurred Milieudefensie et. al. v. Shell A. Facts of the Case and Legal Reasoning on the Merits B. The District Court’s Stance on the Applicable Law 1. Substantive Scope of Art. 7 Rome II Regulation 2. Applicable Law under Art. 7 Rome II Location of the Handlungsort in Art. 7 Rome II in Jurisprudence and Legal Scholarship to Date A. Legislative History and Telos Regarding the Injured Party’s Right to Opt for the Law of the Handlungsort B. Legal Debate on the Location of the Handlungsort 1. The Place of the Business Decision 2. The Place of the Emitting Plant(s) 3. The Focal Point Approach 4. The Choice by the Victim Approach Proposal for the Interpretation of the Handlungsort under Art. 7 Rome II A. Starting Point – The “Mosaic Approach” B. Modification of the Mosaic Approach – Discretion of the Courts to Estimate the Proportion of Each Plants’ CO2 Emissions C. Fall-back Mechanism – The Central Place of Action D. Ultima Ratio – Place of the Business Decision at the Real Seat of the Company Concluding Theses

Senior Research Fellow at Heidelberg University at the Institute for Comparative Law, Conflict of Laws and International Business Law. ** Professor at Heidelberg University and Director of the Institute for Comparative Law, Conflict of Laws and International Business Law. *

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 261-280 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Madeleine Petersen Weiner/ Marc-Philippe Weller

I.

Introduction

With climate change litigation against companies on the rise, European legal orders are confronted with a variety of open and disputed legal questions of substantive law such as duties of care with regard to CO2 emissions, establishing causation between the emissions and the damage, attribution of a potential liability, how to calculate the damages, etc.1 A.

Applicable Law as a Crucial Prerequisite

However, due to the global nature of climate change, the prerequisite in order to be able to answer those questions is the determination of the applicable law.2 The applicable law is of paramount importance since legal systems vary greatly with respect to the climate accountability of private entities. Due to the fact that the Rome-II Regulation de lege lata lacks a specific framework governing climate claims, Art. 7 Rome II Regulation,3 with its broader scope on environmental damage as such, comes to mind. Art. 7 Rome II provides: Environmental Damage. The law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred. (emphasis added) 1 Cf. W. KAHL/ M.-P. WELLER, Climate Change litigation, Munich/Oxford 2021; A. GHARIBIAN/ N. PIEPER/ J. WEICHBRODT, Climate Change Litigation – aktuelle Entwicklungen, Betriebs-Berater 2021, p. 2812 et seq.; P. THIELBÖRGER, Stärkere KlimaVerantwortlichkeiten von Unternehmen, Neue Zeitschrift für Gesellschaftsrecht 2021, p. 1137 et seq.; B. WEGENER, Menschenrecht auf Klimaschutz? Grenzen grundrechtsgestützter Klimaklagen gegen Staat und Private, Neue Juristische Wochenschrift 2022, p. 425 et seq.; C. MACCHI/ J. VAN ZEBEN, Business and human rights implications of climate change litigation: Milieudefensie et al. v Royal Dutch Shell, RECIEL 2021, p. 409 et seq. 2 E.-M. KIENINGER, Das internationale Privat- und Verfahrensrecht der Klimahaftung, IPrax 01/2022, p. 1.; L. KÖNIG/ S. TETZLAFF, “Forum shopping” unter Art. 7 Rom IIVO – neue Herausforderungen zur Bestimmung des anwendbaren Rechts bei “Klimaklagen”, RIW 2022, p. 26; M. LEHMANN/ F. EICHEL, Globaler Klimawandel und Internationales Privatrecht – Zuständigkeit und anzuwendendes Recht für transnationale Klagen wegen klimawandelbedingter Individualschäden, RabelsZ 2019, vol. 83, pp. 77-110. M.-P. WELLER/ J.-M. NASSE/ L. NASSE, Klimaklagen gegen Unternehmen im Lichte des IPR in C. BENICKE/ S. HUBER (eds), National, international, transnational: Harmonischer Dreiklang im Recht, Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, p. 619. 3 Regulation (EC) No 864/2007 of the European Parliament and the Council of 11 July 2007 on the law applicable to non-contractual obligations, OJ L 199, 31.07.2007, (hereinafter: Rome II).

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Location of the Event Giving Rise to the Damage under Art. 7 Rome II Regulation In contrast to the general conflict rule for torts, Art. 4(1) Rome II, which leads to the place where the damage occurred (Erfolgsort), the principle of ubiquity applies under Art. 7 Rome II, which specifically governs environmental tort claims. Thus, the person seeking compensation or a prohibitive injunction for environmental tort claims can unilaterally choose between two laws: either the law of the state in which the event giving rise to the damage occurred (Handlungsort) or the law of the state to which Art. 4(1) Rome II would point (Erfolgsort).4 B.

The Law of the State where the Damage Occurred (Erfolgsort)

The law of the state where the damage occurred (Erfolgsort), however, determines only the law applicable to a specific damage or injunction related to a concrete violation of a subjective right in that state (i.e., health or property). If the event giving rise to an environmental damage causes several instances of damage in different states, the designation of the law of the state where the damage occurred applies only to the damage within that state (mosaic perspective). By contrast, if the climate claim aims to reduce the overall CO2 emissions of a company, the designation of the law of the state where the damage occurred would be limited to the proportional amount of CO2 emissions affecting that specific state. In other words: the change of the entire business policy of a company by aiming to reduce its global emissions cannot be assessed according to the law where the damage occurred. In those CO2 reduction claims, therefore, the law of the event giving rise to the damage is of paramount importance. C.

The Law of the State in which the Event Giving Rise to the Damage Occurred

Recently, as more cross-border climate cases rely on Art. 7 Rome II (most notably, the landmark decision in Milieudefensie et al. v Shell5 by the district court of The Hague, Netherlands), the question resurfaces as to how to determine accurately the location of the Handlungsort. In particular, it is being discussed whether, in the context of climate change litigation, the location of the Handlungsort should be located at the place where the (potentially harmful) business policy of the company in question was adopted, or rather where the emitting plants are located. Against that background, this article will (only) investigate and discuss the different approaches that exist with regard to the location of the event giving rise to the damage. It will then propose a new approach to locate the Handlungsort, taking into account the unique purpose of the provision and the need to implement this approach in practice. 4 A. DICKINSON, The Rome II Regulation, Oxford 2008, p. 439; A. PETERS/ S. GLESS/ C. THOMALE et al., Business and Human Rights: Making the Legally Binding Instrument Work in Public, Private and Criminal Law, , MPIL Research Paper Series No. 2020-06, p. 26. 5 Rechtbank Den Haag, decision from 26.5.2021 – C/09/571932 / HA ZA 19-379, ECLI:NL:RBDHA:2021:5339 (English translation).

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II.

Milieudefensie et. al. v. Shell

In the following section, the Milieudefensie et al. v. Shell decision by the district court of The Hague shall serve as an example for the question of how to locate the Handlungsort that leads to the so-called lex loci delicti comissi. A.

Facts of the Case and Legal Reasoning on the Merits

The plaintiffs – Milieudefensie (a Dutch NGO for environmental issues) along with other NGOs – sued the defendant Royal Dutch Shell plc (hereinafter: Shell), the Shell group’s parent company based in The Hague, with the aim of obliging Shell to reduce its CO2 emissions. Under Dutch Law, interest groups such as Milieudefensie have standing before Dutch courts pursuant to Art. 3:305a BW as regards the protection of similar interests of other persons, insofar as these interests correspond to the purpose of the articles of association of these groups.6 The plaintiffs argued “[…] that the aggregate annual volume of CO2 emissions into the atmosphere (Scope 1, 2 and 3) due to the business operations and sold energy products of [Shell] and the companies and legal entities it commonly includes in its consolidated annual accounts and with which it jointly forms the Shell group constitutes an unlawful act towards Milieudefensie et al.”7. The district court ruled in favor of Milieudefensie et al. and found that Shell had breached the required – although unwritten – duty of care laid down in the general tort clause in Book 6 Section 162 Dutch Civil Code. The court determined the duty of care based on Shell’s obligations under among other things: (i) the group-wide corporate policy implemented by the Shell parent company (ii) the CO2 emissions attributable to the Group, (iii) the impact of the CO2 emissions for the Netherlands and the Wadden region, (iv) the right to life and the right to respect for the private and family life of Dutch residents and the residents of the Wadden region as guaranteed under the ECHR, (v) the UN Guiding Principles on the Human Rights Responsibilities of Businesses, (vi) Shell's control and influence over its CO2 emissions of the Shell Group and its business partners, (vii) necessary measures to mitigate climate change, (viii) possible reduction pathways, (ix) the twin challenges of climate change mitigation and growing energy demand, (x) emissions trading schemes, operating permits, and Shell's role in providing energy to the population, (xi) the effectiveness of the obligation to reduce CO2, (xii) the state’s and society’s climate responsibility, (xiii) the difficulty for Shell and the group to reduce its emissions, and (xiv) the proportionality in doing so.8 The district court ultimately ordered Shell to reduce its greenhouse gas emissions

6 M.-P. WELLER/ M.-L. TRAN, Milieudefensie et al. versus Shell: Auswirkungen für Klimaklagen gegen deutsche Unternehmen, EurUP 2021, p. 6, M.-P. WELLER/ M.-L. TRAN, Climate Litigation against companies, Climate Action 2022, p. 4. 7 Rechtbank Den Haag (note 5), section 3.1 (emph. added). 8 M.-P. WELLER/ M.-L.TRAN (note 6), p. 6; Rechtbank Den Haag, (note 5), sections 4.4., M.-P. WELLER/ M.-L. TRAN, Climate Litigation against companies (note 6), p. 5.

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Location of the Event Giving Rise to the Damage under Art. 7 Rome II Regulation by 45% as compared to those emitted in the year 2019.9 Shell has appealed the ruling; hence, the case is still pending. B.

The District Court’s Stance on the Applicable Law

1.

Substantive Scope of Art. 7 Rome II Regulation

Before the court could reach the substantive legal questions, however, it had to determine the applicable law. Since Art. 7 Rome II takes precedence over the general rule of Art. 4 Rome II,10 the court had to determine first whether climate impacts fall within the scope of application of Art. 7 Rome II, which applies to environmental damage or damages sustained by persons or property as a result of such damage. The court answered this question in the affirmative, stating that “[…] climate change, whether dangerous or otherwise, due to CO2 emissions constitutes environmental damage in the sense of Article 7 Rome II”.11 Although this was not further discussed by the district court, this interpretation did not remain unchallenged.12 In particular, it is being argued that global warming itself does not constitute an ecological damage, but can only cause it.13 Nonetheless, there is agreement that CO2 emissions fall within the scope of application of Art. 7 Rome II because it suffices if the damage is caused via an “environmental pathway” (Umweltpfad).14 2.

Applicable Law under Art. 7 Rome II

Since climate change thus falls within the scope of application of Art. 7 Rome II according to the district court, the court continued its legal analysis by determining the applicable law pursuant to Art. 7 Rome II. The court found that the person seeking compensation for damage – in this case, Milieudefensie et al. – made use of its option to choose the law of the country in which the event giving rise to the damage occurred (Handlungsort), instead of the law of the country in which the damage occurred pursuant to Art. 4(1) Rome II (Erfolgsort).15 Since Shell’s individual oil-producing facilities are located in various countries and the emis9 While Milieudefensie et al. won the case against Shell before The Hague district court, it should be noted that Shell has appealed this judgment, see https://en.milieudefensie. nl/news/shell-is-appealing-the-climate-case [accessed on 3.3.2022]. 10 G. RÜHL in beck-online.Grosskommentar, 1.12.2017, Art. 4 Rome II Regulation, No. 31. 11 Rechtbank Den Haag (note 5), section 4.3.2. 12 M. LEHMANN/ F. EICHEL, Globaler Klimawandel und Internationales Privatrecht, RabelsZ 2019, vol. 83, p. 94. 13 M. LEHMANN/ F. EICHEL (note 12), p. 94. 14 M. LEHMANN/ F. EICHEL (note 12), p. 94; G. WAGNER, Die neue Rom-IIVerordnung, IPrax 2008, p. 9. 15 Rechtbank Den Haag (note 5), section 4.3.1.

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Madeleine Petersen Weiner/ Marc-Philippe Weller sions from the combustion of the fuels are distributed all over the world, many different sets of laws potentially come into play. The court was now confronted with the question of how and where to locate the event giving rise to the damage in the present case. Milieudefensie et al. submitted that the Handlungsort was to be located in the Netherlands, which would consequently lead to the application of Dutch law.16 In this context it was not the result, but the legal reasoning that was unusual. Milieudefensie et al. argued that the event giving rise to the damage was the corporate policy which was “[…] determined for the Shell group by RDS in the Netherlands”.17 The NGO therefore argued that the Handlungsort was at the place of the management of the Shell group in the Netherlands because the relevant business decisions concerning the running of the emitting plants took place in the Netherlands, not because that was where Shell operated emitting plants. This marks a new concept of interpretation: the event giving rise to the damage. Shell, on the other hand, “[…] asserts that the event giving rise to the damage are the actual CO2 emissions, whereby the choice of law of Milieudefensie et al. leads to the applicability of a myriad of legal systems”.18 Shell viewed the corporate policy as a mere “[…] preparatory act that falls outside the scope of this article because in the opinion of [Shell], the mere adoption of a policy does not cause damage.”19 In short, the court was confronted with two opposing approaches to interpretation of the Handlungsort: the narrow one preferred by Shell and a broad one adopted by the NGO. The district court sided with the interpretation adopted by Milieudefensie. It found that Shell’s adoption of the corporate policy constituted an independent cause of the damage and therefore served as an event giving rise to the damage, which was located in the Netherlands.20 As a basis for this line of argumentation, the court pointed out that – while Shell could not be held personally responsible for climate change in general – “[…] its actions in conjunction with others’ CO2 emissions cause environmental damage”.21 The court added that “the concept of protection underlying the choice of law in Art. 7 Rome II”22 (following from recital 25) also speaks in favor of applying a wider approach. It concluded by arguing that these aspects had to be reflected in the applicable law provision, thereby adopting a broad approach to the interpretation of the Handlungsort under Art. 7 Rome II.23

Rechtbank Den Haag (note 5), section 4.3.1. Id. at section 4.3.2. (emph. added). 18 Id. at section 4.3.2. (emph. added). 19 Id. at section 4.3.6. (emph. added). 20 Id. at section 4.3.6. 21 Id. at section 4.3.5. 22 Id. at section 4.3.6. 23 E.-M. KIENINGER, Das internationale Privat- und Verfahrensrecht der Klimahaftung, IPrax 01/2022, p. 6, M.-P. WELLER/ M.-L. TRAN, Climate Litigation against companies (note 6), p. 4. 16 17

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Location of the Event Giving Rise to the Damage under Art. 7 Rome II Regulation

III. Location of the Handlungsort in Art. 7 Rome II in Jurisprudence and Legal Scholarship to Date The discussion regarding the question of where to locate the event giving rise to the damage (Handlungsort) in Art. 7 Rome II is only just beginning.24 In particular, the previous legal approaches do not seem to offer sufficient solutions in the case of global damage of the atmosphere as well as a multitude of contributions to climate change occurring globally.25 The problem can be summed up as follows: in general, the Handlungsort in Art. 7 Rome II is to be located at the place where the cause of the environmental damage took place, i.e., in the case of consequential damages caused by greenhouse emissions, the location of the emitting plant.26 However, when drafting the provision, EU legislators had a particular type of environmental damage in mind that would lead to several potential applicable laws, e.g., by a company discharging waste in a river in one state that caused damage in another state. However, this is further complicated if “the damage is the result of a combination of several mutually independent events, for example air pollution originating from two chemical factories located in different countries”.27 This is precisely the case in climate change litigation in which a corporate group is usually being held accountable for its emitting plants in different countries. Moreover, this is also the case, for example, where several different legal entities in group relationships, e.g., a parent company and its subsidiary, contribute to the damage,28 which may make it necessary to re-examine the result of locating the Handlungsort at the place where the event which was the cause of the environmental damage occurred. This article will do so by taking into account the provision’s legislative history and purpose regarding the injured party’s right to opt for the application of the law of the Handlungsort (A.), and giving an overview of the legal debate on this question (B.).

24 M.-P. WELLER/ J.-M. NASSE/ L. NASSE, Klimaklagen gegen Unternehmen im Lichte des IPR in C. BENICKE/ S. HUBER (eds.), National, international, transnational: Harmonischer Dreiklang im Recht, Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, p. 619. 25 L. KÖNIG/ S. TETZLAFF (note 2), p. 33. 26 M.-P. WELLER/ J.-M. NASSE/L. NASSE (note 24), p. 618 et. seq. 27 M. BOGDAN in J. AHERN/ W. BINCHY (eds.), The Rome II Regulation on the law applicable to non-contractual obligations, Leiden/Boston 2009, p. 228. 28 M.-P. WELLER/ J.-M. NASSE/ L. NASSE (note 24), p. 619. This particular situation is not, however, discussed in detail in this article since the parent company, Royal Dutch Shell, was held responsible for breach of its own duty of care, rather than for the attribution of its subsidiaries’.

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Legislative History and Telos Regarding the Injured Party’s Right to Opt for the Law of the Handlungsort

The choice of the injured party granted by Art. 7 Rome II can be explained by its drafting history. In light of the international dimension of environmental damage, the Commission deemed it appropriate to introduce a special provision to deal with environmental damage.29 Since its introduction into the Rome II Regulation, Art. 7 Rome II has however been the source of much controversy. Notably, the European Parliament did not share the view of the Commission, which had recognized the need for a special provision due to the lack of harmonization in the conflict rules on the European or international level.30 The Parliament even rejected the special rule at the first and second reading.31 However, despite this resistance, Art. 7 Rome II managed to prevail. It is now the product of compromise: a compromise between the Commission’s proposal and the reservations made by the European Parliament, and, at the same time, a compromise among the varying conflict rules on environmental damage that existed in the Member States. As a result, the Commission adopted an approach seeking to incorporate the benefits of the various solutions into one – namely the major role for the place where the damage was sustained, and the principle of favoring the victim.32 Thus, under Art. 7 Rome II, the law applicable to environmental damage is that of the country in which the damage occurred pursuant to Art. 4(1) Rome II, unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage happened. Hence, the victim can choose between the law of the Handlungsort and the law of the Erfolgsort if the former is more favorable to the victim. The victim is given this choice so that the tortfeasor is discouraged from calculating its actions (only) according to the law of the place where the damage was sustained.33 B.

Legal Debate on the Location of the Handlungsort

Bearing in mind the drafting history of the provision, there is heavy debate regarding the location of the event giving rise to the damage when it comes to climate cases. So far, four main approaches in jurisprudence and legal scholarship can be found with regard to “standard” environmental damage claims: (1.) a broad approach, (2.) a narrower one, (3.) one that determines a focal point of the places where emitting plants are located and deems this to be the event giving rise to the damage, (4.) and one that allows the plaintiff to choose among several laws on events which gave rise to the damage.

A. DICKINSON (note 4), p. 429 et. seq. Id. at p. 429 et. seq. 31 Id. at p. 430 et. seq. 32 Id. at p. 430. 33 D.-C. BITTMANN in M. WELLER (ed), Europäisches Kollisionsrecht, Baden-Baden 2016, p. 190, No. 307. 29 30

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Location of the Event Giving Rise to the Damage under Art. 7 Rome II Regulation 1.

The Place of the Business Decision

a)

The Broad Approach as Adopted in Milieudefensie et al. v Shell: Locating the Handlungsort at the Place of the Business Decision

The district court of The Hague in Milieudefensie et al. v Shell follows a “broad approach”. According to this broad interpretation of Art. 7 Rome II, the event giving rise to the damage is at the place where the business decision is made or the policy is adopted.34 This place is identical to the effective headquarters of the group, i.e., in the case of Shell, in The Hague. Within this broad approach, HEINZPETER MANSEL differentiates between several situations:35 First, MANSEL locates the event giving rise to the damage at the seat of the subsidiary company when the event in question is that the parent company failed to monitor and control its subsidiary on site.36 Second, in the absence of the parent company’s own actions, MANSEL also locates the event giving rise to the damage at the seat of the subsidiary company when the actions of the subsidiary are attributed to the parent company (according to the law of the hypothetical place of action37).38 Third, with respect to the parent company’s own duty, MANSEL locates the event giving rise to the damage at the place of the parent company when it was in breach of its own supervisory duties.39 According to MANSEL, that place is identical to the effective headquarters of the group.40 b) Discussion and Critique The broad approach, as adopted in Milieudefensie et al. v. Shell in which the Handlungsort was located at the place of the business policy decision, would result in a significant improvement for the injured party. Since the real seat of defendant companies is regularly located in countries where a high degree of environmental protection is guaranteed,41 it is in the interest of the injured party to subject the See supra II.B; L. ENNEKING also follows this approach, cf. L. ENNEKING, The Common Denominator of the Trafigura Case, Foreign Direct Liability Cases and the Rome II Regulation, European Review of Private Law 2008, p. 302. 35 H.-P. MANSEL, Internationales Privatrecht de lege lata wie de lege ferenda und Menschenrechtsverantwortlichkeit deutscher Unternehmen, ZGR 2018, p. 462. 36 H.-P. MANSEL (note 35), p. 462. 37 A. JUNKER in MüKoBGB, Art. 7 Rome II, No. 22; H. DÖRNER in Schulze BGB, Art. 7 Rome II, No. 3. 38 H.-P. MANSEL (note 35), p. 462. 39 Id. at p. 462. 40 Id. at p. 463. 41 See for example in the case Milieudefensie et al. v Shell in which the seat of the Royal Dutch Shell company was in the Netherlands where the general clause of Dutch tort law, Art. 6:162 BW allows for room for interpretation. The Dutch courts are ready to assume a standard of care on the part of the company regarding climate change (as they did in Milieudefensie et al. v Shell). 34

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Madeleine Petersen Weiner/ Marc-Philippe Weller environmental violation with respect to the total (worldwide) damage to the (single) law of that country. By applying this business policy decision approach, the Hague district court was able to apply Dutch law to all Scope 1, 2 and 3 emissions42 of Shell, irrespective of whether they were created in the Netherlands or abroad. On the other hand, this broad interpretation of Art. 7 Rome II places a further burden on the person causing the damage. This can only be justified when conjuring up the explicit purpose of the provision, which is to achieve the highest possible level of environmental protection:43 Pursuant to recital 25, the precautionary principle, the principle of priority for corrective action at the source, and the principle that the polluter pays, all justify a disadvantage of the person causing the damage.44 It is unclear, however, whether such a broad approach is in line with the interpretation of the wording of Art. 7 Rome II (“event giving rise to the damage”; singular) which appears to provide for one event which leads directly to the damage in question. After all, the event giving rise to the damage is usually understood as a physical action which directly leads to the damage.45 Mere preparatory events do not count. Consequently, Shell argued that the adoption of the company policy was a mere preparatory act which falls outside the scope of Art. 7 Rome II.46 Against this background, it is doubtful whether European legislators had the same reasoning in mind, when drafting Art. 7 Rome II, as the district court, which found the wording of Art. 7 Rome II to be open enough to be construed as encompassing the decision-making process.47 Moreover, a company can relocate its headquarters to another state without any significant effort and thus escape (for the future) an injunction that is subject to the law of the (former) Handlungsort.48 In addition, this can also be said for the hypothetical place where the parent company failed to fulfil its supervisory duties. This, too, does not directly lead to damage and can therefore not be the place of the event giving rise to the damage.

Rechtbank Den Haag (note 5), section 2.5.4. K. THORN in O. PALANDT (ed.), Bürgerliches Gesetzbuch, München 2018, Art. 7 Rome II, No. 6. 44 See also A.V. DICEY/ J.H.C. MORRIS/ L. COLLINS, Conflict of Laws Vol. 2, London 2012, p. 2239, No. 35-069. 45 S. HUBER in beck-online.Grosskommentar zum Zivilrecht, Art. 7 Rome II, No. 38. 46 Rechtbank Den Haag (note 5), section 4.3.6. 47 Id. at section 4.3.6: “Although Article 7 Rome II refers to an « event giving rise to the damage », i.e. singular, it leaves room for situations in which multiple events giving rise to the damage in multiple countries can be identified, as is characteristic of environmental damage and imminent environmental damage.” 48 Shell, for example, moved its headquarters to London. The official reasons given by company management were apparently tax reasons, although some suggest the change may have to do with Dutch tort law and the Dutch courts readiness to hold companies accountable in terms of climate change, https://www.sueddeutsche.de/wirtschaft/oelkonzern -shell-verlegt-hauptsitz-1.5464598 [accessed on 5 January 2022]. 42 43

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Location of the Event Giving Rise to the Damage under Art. 7 Rome II Regulation 2.

The Place of the Emitting Plant(s)

a)

The Narrow Approach: Locating the Handlungsort only at the Last Place which Leads to the Damage

Pursuant to a narrower approach adopted in legal scholarship, the event giving rise to the damage shall be the place where the direct cause of the violation of the legal interest was set. Pursuant to this approach, i.e., in the case of resultant damage caused by greenhouse gas emissions, (only) the location of the emitting plant,49 and not the headquarters of the group, is to be considered as the Handlungsort. This approach regards the business decision as a mere preparatory step in a sequence of events which is to be disregarded when determining the event giving rise to the damage.50 b)

Discussion and Critique

While the abovementioned broader interpretation of Art. 7 Rome II may push the limits of a strict textual approach, it does promote the purpose of environmental protection following from Art. 191 TFEU51 more than the narrow approach. In Milieudefensie et al. v. Shell, the district court even held that the narrow approach is “not in line with the characteristics of responsibility for environmental damage and imminent environmental damage nor with the concept of protection underlying the choice of law in Article 7 Rome II”.52 Indeed, recent developments of Private International Law show that conflict provisions do not necessarily need to be interpreted in a neutral way, but can be subject to political considerations or goals53 such as the goal of environmental protection in Art. 191 TFUE. The narrow approach, which locates the Handlungsort at the place of the emitting plant, however, while dogmatically stringent, does not offer an effective solution for climate actions and ultimately leaves the resulting problem of lack of determinability unresolved.54 After all, this approach offers no means to address the issue concerning the difficulty – if not impossibility – of determining which plant led to the environmental damage since it is likely that emissions as a whole result in air pollution. 49 M.-P. WELLER/ J.-M. NASSE/ L. NASSE (note 24), p. 619; M. LEHMANN/ F. EICHEL (note 12), p. 96; G. WAGNER, Haftung für Menschenrechtsverletzungen, RabelsZ 2016, vol. 80, p. 744; T. PFEIFFER, Öffentlich-rechtliche Anlagegenehmigung und deutsches internationales Privatrecht, Jahrbuch des Umwelt- und Technikrechts 2000, p. 266. 50 A. JUNKER in MüKoBGB, Art. 7 Rome II, No 22. 51 Recital 25 refers to Art. 174 of the EC Treaty which is now Art. 191 Treaty on the Functioning of the European Union (TFEU). 52 Rechtbank Den Haag (note 5), section 4.3.6. 53 M.-P. WELLER/ A. SCHULZ, Political Private International Law – How European are Overriding Mandatory Provisions and Public Policy Exceptions?, in J. v. HEIN/ E.-M. KIENINGER/ G. RÜHL (eds), How European is European Private International Law, Cambridge 2019, p. 1 et seq. 54 L. KÖNIG/ S. TETZLAFF (note 2), p.39.

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The Focal Point Approach

a)

Locating the Handlungsort at the Place which Led to the Damage in the Most Predominant Way

The third approach seeks to locate the Handlungsort at the place which led to the damage in the most predominant way by choosing one focal point out of several events that may have given rise to the damage.55 One would therefore need to determine a focal point from among several polluting plants, to establish where the damage is caused in the most predominant way. The plaintiff could then seek relief in respect of the whole damage under the law of the place where this focal point lies. This approach prevails in legal scholarship and jurisprudence regarding jurisdiction in international environmental damage claims under Art. 7 Nr. 2 Brussels I bis Regulation.56 The underlying principle of this approach is thus to transfer the same rationale to the applicable law under Art. 7 Rome II. b)

Discussion and Critique

The approach which aims to identify a focal point from among several events, is in line with the view adopted regarding Art. 7 No. 2 Brussels I bis Regulation.57 An identical interpretation in terms of the applicable law would lead to the usually desired concurrence of forum and ius and be in line with the requirement of concordance pursuant to recital 7 of Rome II. However, the interpretation of Art. 7 Rome II need not necessarily be the same as that of Art. 7 No. 1 Brussels I bis. The principle of legal predictability, which plays a tremendous role in terms of jurisdiction, is less predominant in terms of the applicable law.58 The latter is more concerned with identifying the law which is the most suitable for a set of facts. However, the idea of a focal point was also adopted by scholars and the CJEU regarding Art. 8 Rome II.59 Much speaks in favor of transferring this approach to Art. 7 Rome II: here, too, the large number of possible acts of infringement leads to more difficult predictability of the narrow approach.60 55 M. BOGDAN (note 27), p. 228 et seq.; A.V. DICEY/ J.H.C. MORRIS/ L. COLLINS, (note 44), p. 2238, 35-070. 56 S. LEIBLE in T. RAUSCHER, Europäisches Zivilprozess- und Kollisionsrecht, Köln 2021, Art. 7 Brussels-I bis, No. 135. 57 S. LEIBLE in T. RAUSCHER (note 56), No. 135. 58 M.-P. WELLER/ J.-M. NASSE/ L. NASSE (note 24), p. 617. 59 CJEU, 27 September 2017, Nintento Co. Ltd. v. BigBen Interactive GmbH et al., ECLI:EU:C:2017:724, WRP 2017, 1457-1465, para. 111: “In cases where the same defendant is accused of different acts of infringement committed in different Member States, the determination of the event giving rise to the damage shall not be based on each individual act of infringement of which he is accused, but on an overall assessment of his conduct in order to determine the place where the original act of infringement giving rise to the conduct alleged was committed or threatened” 60 L. KÖNIG/ S. TETZLAFF (note 2), p. 37.

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Location of the Event Giving Rise to the Damage under Art. 7 Rome II Regulation 4.

The Choice by the Victim Approach

a)

Locating the Handlungsort According to the Victim’s Choice from Among Several Laws of the Events Giving Rise to the Damage

Another possibility in determining the location of the event giving rise to the damage from among several places could be to permit the victim to choose between the laws of these different places.61 This would certainly provide a tremendous advantage to the victim in bringing his or her suit against the opposing party because the victim could choose the law which is most favorable to them. At the same time, this approach causes serious disadvantages for the defendant since this law may be only loosely connected to the dispute, and therefore less foreseeable for the defendant. Proponents of this approach add, however, that such a farreaching interpretation would require final clarification by the Court of Justice of the European Union (CJEU) by means of a preliminary ruling within the meaning of Art. 267 TFEU.62 b)

Discussion and Critique

The approach which gives the victim of environmental damage due to climate change the choice among several possible laws of the place where the event giving rise to the damage occurred, could turn Art. 7 Rome II into an overarching protection mechanism which was not intended to function in that way when it was first drafted.63 Art. 7 Rome II could thereby become a gateway for rigid climate change liability under a legal system to which the liable parties have no connection.64 It could thereby promote “law shopping”, which would go against the predictability that the Rome II Regulation seeks to provide, as evidenced by recitals 6, 15 and 16.65

IV. Proposal for the Interpretation of the Handlungsort under Art. 7 Rome II Based on these considerations, the event giving rise to the damage under Art. 7 Rome II in the case of environmental damage due to climate change should, in our view, be determined in the following way: S. HUBER (note 45), Art. 7 Rome II, No. 38. S. HUBER (note 45), Art. 7 Rome II, No. 38. 63 For the drafting history, see above III. A.; A.V. DICEY/ J.H.C. MORRIS/ L. COLLINS (note 44), p. 2239, No. 35-070, fn. 359. 64 M. LEHMANN/ F. EICHEL (note 12), p. 97. 65 L. KÖNIG/ S. TETZLAFF (note 2), p. 36. Recitals 6, 15 and 16 all refer to the predictability of the applicable law of non-contractual obligations. 61 62

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Starting Point – The “Mosaic Approach”

First, it should be reflected in the applicable law that the event giving rise to the damage is that which directly results in the climate change impact. This is in line with the previous interpretation of the Handlungsort in Art. 7 Rome II and thus avoids a dogmatic break (principle of ultimate responsibility). The event leading directly to the damage occurs through the emitting plant. If there are several emitting plants attributable to one tortfeasor, all of these emitting plants must be taken into account when assessing the relevant tort law pursuant to Art. 7 Rome II. However, in order not to give effect to all of these potential laws equally, thereby promoting “law shopping”, not all of these locations can be invoked to determine the applicable law to the full extent of the damage in a climate action. Rather, each law should be applicable only to the extent that the relevant plant emits CO2. According to the mosaic approach, the events giving rise to the damage are assessed separately under the respective law applicable to those events. Applying this rationale to the Handlungsort in climate actions, the proportional damage must be apportioned among each of the emitting plants and a separate determination under a different applicable law takes place for each emitting plant. This is appropriate against the background that the plant which emits the most CO2 and is located in a jurisdiction with certain tort laws will be held liable for the total damage under those tort laws only to the extent that it actually “gives rise to the damage”. This also prevents a situation in which the law of one emitting plant, which perhaps is the least responsible for the company’s total CO2 emissions, would govern the entire climate claim – which would be the case, if the injured party were given the possibility to choose one law for the full claim from among all of the emitting plants. This legal thought stems from the CJEU’s “mosaic approach” adopted for press torts under Art. 7 Nr. 2 Brussels-I bis-Regulation.66 The Shevill decision was issued in the context of international jurisdiction and related to the place where the harmful event occurred or may occur (Erfolgsort) in terms of press offenses. However, this approach should also be applied for the purpose of the law applicable to climate change actions under the Handlungsort in Art. 7 Rome II for two reasons: First, the situation is comparable with regard to the applicable law. Here, the task is to identify the “seat of the legal relationship”.67 In Shevill et al. v. Press Alliance SA, the CJEU held the following: “[…that] the courts of each Contracting State in which the defamatory publication was distributed and in which the victim claims to have 66 CJEU, 7 March 1995, Fiona Shevill et al., v. Press Alliance SA, ECLI:EU:C:1995:61, paras 31-32. 67 F. C. v. SAVIGNY, System des heutigen römischen Rechts, Band 8, I, Berlin 1849, p. 27 et seq.: “[Es] lässt sich nunmehr die gemeinsame Aufgabe dahin bestimmen, daß bei jedem Rechtsverhältnis dasjenige Rechtsgebiet ausgesucht werde, welchem dieses Rechtsverhältnis seiner eigenthümlichen Natur nach angehört oder unterworfen ist” (translation by the author: The common task can now be defined as selecting for each legal relationship that area of law to which this legal relationship belongs or is subject according to its peculiar nature). The term “seat” of the legal relationship is expressly mentioned on p. 108 and p. 118.

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Location of the Event Giving Rise to the Damage under Art. 7 Rome II Regulation suffered injury to his reputation are territorially the best placed to assess the libel committed in that State and to determine the extent of the corresponding damage.”68 The same holds true, mirroring this line of argumentation relating to the respective tort laws of each state in which the emitting plants are located. These are best equipped to assess the climate change action concerning the pollution resulting from each plant, thereby representing the “seat of the legal relationship”, i.e. the closest connection. At the same time, this protects the tortfeasor in that it can look into the respective environmental protection laws in advance before establishing and operating an emitting plant in a certain state. This satisfies the principle of legal certainty as proclaimed by recitals 6 and 16 of the Rome II Regulation.69 Second, it is also suitable to extend the rationale of the “mosaic approach” from press offenses to damages resulting from climate change. This is due to the fact that, while press offenses are naturally “scattered” across several states, damages through climate change are the product of a summation of CO2 emissions. In the latter case, it is sometimes even argued that it would be impossible to subsequently determine who was responsible for which part of the damage, if the damage is the product of a multitude of emissions by several different actors.70 This problem does not arise, however, if the claim is brought against one company which operates several plants. In this case, for the contributions of each plant to be calculable, it would be sufficient to determine the biggest or the most active emitting plant within the company, and allocate a percentage of the damage to that plant. A percentage of the damage could also be allocated to the remaining operating plants which also emit CO2, accordingly. This would give an exact picture of contributions to the environmental damage in question and would be reflected in the applicable law. Moreover, the “mosaic approach” relating to climate change actions has a further advantage: in Shell, the district court in The Hague relied on Shell’s Scope 1, 2, and 3 emissions in terms of its act of infringement.71 The Scope 1, 2 CJEU, 7 March 1995, Fiona Shevill et al., v. Press Alliance SA, ECLI:EU:C:1995:61, para 31. 69 L. KÖNIG/ S. TETZLAFF are of the opinion that the “mosaic approach” would counteract the principle of legal certainty, cf. L. KÖNIG/ S. TETZLAFF (note 2), p. 36. However, the defendant in climate change actions will know in advance where its emitting plants are located and therefore be in a position to calculate its actions according to those respective tort laws. The plaintiff in a climate action, on the other hand, may not necessarily know the location of every single one of the emitting plants, however, it is sufficient for the purpose of legal certainty that the locations be determinable, and the plaintiff can always revert to the law of the Erfolgsort. 70 Cf. K. KINKEL, Möglichkeiten und Grenzen der Bewältigung von umwelttypischen Distanz- und Summationsschäden: Bestandsaufnahme und rechtspolitischer Ausblick, Zeitschrift für Rechtspolitik 1989, p. 294. KINKEL mentions that it probably will not be possible to hold everyone partially, or even totally, accountable for contributing to air pollution. 71 Rechtbank Den Haag (note 5), section 5.3: “[The court] orders RDS, both directly and via the companies and legal entities it commonly includes in its consolidated annual 68

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Madeleine Petersen Weiner/ Marc-Philippe Weller and 3 emissions are an accounting notion which is defined by the so-called Greenhouse Gas Protocol: Scope 1 emissions are “direct emissions from sources that are owned or controlled in full or in part” by the reporting company.72 Scope 2 emissions are “indirect emissions from third-party sources from which the organization has purchased or acquired electricity, steam, or heating for its operations”.73 Scope 3 emissions are “all other indirect emissions resulting from activities of the organization, but occurring from greenhouse gas sources owned or controlled by third parties, such as other organizations or consumers, including emissions from the use of third-party purchased crude oil and gas”.74 However, the categories Scope 1, 2 and 3 are not recognized in tort law, which follows the principle that every person is (only) responsible for its own acts (principle of immediacy), not for acts resulting from third parties.75 The latter would in addition contradict the principles of legal certainty and predictability as proclaimed by recitals 6 and 16 of the Rome II Regulation. Hence, Shell’s climate responsibility for its Scope 3 emissions was the most disputed between the parties.76 This is due to the fact that the Scope 3 emissions result from individuals acting autonomously; they are independent from the reporting company (i.e. Shell). Therefore, according to the aforementioned principle of immediacy, those emissions cannot be attributed to another person (at least with respect to a tortious liability; a political responsibility might be treated differently). Since the “mosaic approach” identifies the applicable law by connecting it with the respective emitting plant, there is no need to take into account the Scope 3 emissions as regards the Handlungsort of the reporting company. The Scope 3 emissions rather constitute a Handlungsort of each acting entity upstream in the supply chain or downstream in the retailing line. In summary, the mosaic approach is in line with the principle of legal certainty and predictability in that the tortfeasor knows where its emitting plants are operated and can adjust its conduct accordingly. The principle of ultimate responsibility is also met since only the location of the actual emitting plants is taken into account, and not previous preparatory acts such as the business decision, or later, only loosely connected actions such as the actions of the end users (Scope 3 emissions).

accounts and with which it jointly forms the Shell group, to limit or cause to be limited the aggregate annual volume of all CO2 emissions into the atmosphere (Scope 1, 2 and 3) due to the business operations and sold energy-carrying products of the Shell group to such an extent that this volume will have reduced by at least net 45% at end 2030, relative to 2019 levels.” (emph. added). 72 Rechtbank Den Haag (note 5), section 2.5.4. 73 Id. at section 2.5.4. 74 Id. at section 2.5.4. 75 M.-P. WELLER/ M.-L.TRAN (note 6), p. 8. 76 Rechtbank Den Haag (note 5), section 4.4.25: “The subject that is most disputed between the parties is the control and influence RDS exerts over the Scope 3 emissions of the Shell group, which are released by the end-users”.

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Location of the Event Giving Rise to the Damage under Art. 7 Rome II Regulation B.

Modification of the Mosaic Approach: Discretion of the Courts to Estimate the Proportion of Each Plants’ CO2 Emissions

In order not to give effect to a myriad of legal systems, this mosaic approach should be slightly moderated such that courts are given the opportunity to make estimations of proportions of liability in order not to impose rigid calculation methods. For example, if a company operates emitting plants all over the world,77 the court should be able to roughly define the proportions of each plant’s contribution, so as to prevent potentially hundreds of legal systems from coming into play to account for a percentage of the total emissions. Rather, the court should only be required to estimate the rough lines of contributions of up to approximately ten places. This would make this approach more practice-oriented and accessible in dealing with the challenges of locating the Handlungsort. This slight modification of the “mosaic approach” is inspired by a parallel discussion with regard to Art. 8 Rome II.78 Art. 8 Rome II deals with intellectual property rights. Here, the same problem of several potential events giving rise to the damage arises: it is imaginable that a supplier of intellectual property infringing goods advertises them through a website in one state, which is also accessible in another state where the goods are delivered.79 The CJEU decided in Nintendo Co. v. Big Ben Interacitve et al.80 that the act of infringement under Art. 8 Rome II was to be determined through an “overall assessment of that defendant’s conduct”.81 In other words: the tribunal has a margin of appreciation when it comes to attributing CO2 emissions to specific industrial plants. C.

Fall-back Mechanism – The Central Place of Action

Bearing in mind the practical issues which can arise in implementing the aforementioned approach, our proposal sets forth a fall-back mechanism: the abovementioned starting point is based on the assumption that it is factually possible to accurately determine each plant’s respective percentage of responsibility for the com77 Shell, for example, has manufacturing locations in South Africa, Canada, the U.S., China, Malaysia, Singapore, Germany, the Netherlands, the U.K., and Qatar, see https://www.shell.com/business-customers/chemicals/manufacturing-locations.html (accessed on 5 April 2022]. 78 L. KÖNIG/ S. TETZLAFF (note 2), p. 36; A. KUR, Durchsetzung gemeinschaftsweiter Schutzrechte: Internationale Zuständigkeit und anwendbares Recht, GRUR Int. 2014, p. 758 with the reservation that the mosaic approach should only be applied under Art. 8 para. 2 Rome II, if a central infringing act cannot be identified in the EU. 79 See e.g., M. GRÜNBERGER, in R. HÜßTEGE/ H.-P. MANSEL (eds.), BGB, RomVerordnungen, EuGüVO, EuPartVO, HUP, EuErbVO, Band 6, 3. Aufl. Baden-Baden 2019, p. 463, No. 67. 80 See CJEU, 27 September 2017, Nintento Co. Ltd. v. BigBen Interactive GmbH et al., ECLI:EU:C:2017:724 (note 59). 81 CJEU, 27 September 2017, Nintento Co. Ltd. v. BigBen Interactive GmbH et al., ECLI:EU:C:2017:724 (note 59), para. 111.

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Madeleine Petersen Weiner/ Marc-Philippe Weller pany’s total climate output, or that it is at least possible to estimate roughly proportions of contribution. Should this calculation not be possible, in the interest of a practical way of interpreting the Handlungsort under Art. 7 Rome II, the court should revert to the following fall-back mechanism: in the absence of an exact calculation method for each emitting plant, one should identify the central place of action in terms of the company’s environmental tort responsibility. Taking into account the principle of ultimate responsibility and the principle of legal certainty, this will usually be at the location of the emitting plant which emits the most CO2 for the longest period of time and which has the most direct impact on the environmental damage resulting from climate change as alleged in the statement of claim. With this fall-back mechanism, we adopt the approach of a focal point adopted by the CJEU regarding Art. 8 Rome II.82 Much speaks in favor of transferring this approach to Art. 7 Rome II, as the underlying ratio holds true for both situations: in both situations, the large number of possible acts of infringement lead to reduced predictability.83 This, too, makes it foreseeable for both the plaintiff and the defendant, which law will be applicable in order that the plaintiff will know in advance what its options are under Art. 7 Rome II, and the defendant will be able to calculate its actions according to the applicable environmental tort laws pursuant to Art. 7 Rome II. D.

Ultima Ratio: Place of the Business Decision at the Real Seat of the Company

As a last resort, should it not be possible to calculate the contributions to the pollution of each emitting plant, and to identify one central place of action out of several emitting plants, the Handlungsort under Art. 7 Rome II should be located at the place where the business decisions are taken.84 The business decisions of the board of directors should be seen as having taken place at the real seat of the parent company for the purpose of efficiency. In particular, this is due to the fact that in terms of climate actions aimed at a reduction of a company’s CO2 emissions, the business

CJEU, 27 September 2017, Nintento Co. Ltd. v. BigBen Interactive GmbH et al., ECLI:EU:C:2017:724, WRP 2017, 1457-1465, (note 59) para. 111: “In cases where the same defendant is accused of different acts of infringement committed in different Member States, the determination of the event giving rise to the damage shall not be based on each individual act of infringement of which he is accused, but on an overall assessment of his conduct in order to determine the place where the original act of infringement giving rise to the conduct alleged was committed or threatened” 83 L. KÖNIG/ S. TETZLAFF (note 2), p. 37. 84 This approach has already been adopted regarding claims arising out of corporate social responsibility (CSR), pursuant to Art. 4 para. 3 Rome II, see M.-P. WELLER/ C. THOMALE, Menschenrechtsklagen gegen deutsche Unternehmen, Zeitschrift für Unternehmens- und Gesellschaftsrecht, p. 524 et seq. 82

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Location of the Event Giving Rise to the Damage under Art. 7 Rome II Regulation decision has a “direct steering effect”,85 which makes the real seat of the parent company particularly relevant.86 This interpretation (starting point (A.), the modified mosaic approach (B.) the fall-back mechanism (C.), and ultima ratio (D.) should allow for an adequate way to determine the Handlungsort, so that it is foreseeable which law will govern the climate action.

V.

Concluding Theses

1. Milieudefensie et al. v. Shell has paved the way for a legal debate which was long overdue. With its overarching approach, the district court has tested the limits of the interpretation of the Handlungsort under Art. 7 Rome II by making the place of the business decision at the real seat of the parent company the relevant connecting factor in the question of Shell’s worlwide emissons (of Scope 1, 2 and 3 emissions). Unfortunately, the district court did not provide further guidance or reasons (other than the precautionary principle) for doing so. 2. Art. 7 Rome II has long been the subject of controversy. Its legislative history demonstrates that the European Commission and the European Parliament at first had difficulties balancing the various legal interests of the parties involved: this is reflected in the difficulty in determining the Handlungsort under Art. 7 Rome II today. 3. As it relates to “standard” environmental damage claims, four main approaches have been brought forth thus far: a) a broad approach, locating the Handlungsort at the place of the business decision; b) a narrow approach, locating the Handlungsort at the place of the emitting plant; c) a focal point, locating the Handlungsort at the place which led to the damage in the most predominant way; d) and a choice by the victim, locating the Handlungsort wherever the injured party chooses to base his or her claim from among several possible laws. 4. None of the aforementioned approaches are capable of providing a satisfactory solution when it comes to the Handlungsort in terms of climate actions (CO2 reduction claims). Thus, it is necessary to look at the interpretation of Art. 7 Rome II from a new angle, taking into account its legislative history, its

85 This means that the business decision has a “governance effect” in that it is followed by subsidiaries. 86 See also L. KÖNIG/ S. TETZLAFF (note 2), p. 39. L. KÖNIG/ S. TETZLAFF state that it would be justified to characterize the corporate policy decision in the context of climate actions because it did not appear to be a less dominant preparatory act, but is the direct outcome and cause of the company's overall emissions behavior (“Emissionsverhaltens”).

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Madeleine Petersen Weiner/ Marc-Philippe Weller underlying principles, and the parties’ interests.87 We propose the following cascade approach: a) As a starting point, the Handlungsort in terms of climate actions should be located at each emitting plant with the limitation that the applicable law only applies to the plant’s emissions that have a causal link to the damage or injunction in question. The underlying rationale is the CJEU’s “mosaic approach” as adopted in Shevill et al. v. Press Alliance SA for Art. 7 Nr.2 Brussels-I bis Regulation. b) In the absence of an adequate method to calculate and attribute concrete CO2 emissions to a specific plant, the courts have the power to adequately estimate which plant contributed how much and to what extent to the damage in question. This margin of appreciation also encompasses the possibility of the courts to locate the Handlungsort at the place which led to the damage in the most predominant way, i.e., at the place of the emitting plant which emitted the most CO2. c) Lastly, if it is not possible to identify one emitting plant and therefore one applicable law which demonstrates the largest contribution to the pollution, it is appropriate to resort to the place of the business decision as the Handlungsort. This is to be located at the real seat of the parent company when it adopted the respective business policy.

With regard to injunctions forbidding certain actions in the future (contrary to damages which have already occurred), the applicable law might change when the place of the business decision (real seat) is transferred to another country. We will discuss this issue in another article. 87

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NATIONAL REPORTS ________________

RECIPROCITY AND EXECUTION OF FOREIGN JUDGMENTS UNDER ETHIOPIAN LAW – LATEST DEVELOPMENT Bebizuh MULUGETA MENKIR*

I.

VI.

Introduction A. The Ethiopian Federal State and its Judiciary B. The Ethiopian Legal Tradition The Ethiopian Private International Law Codified Rules on Recognition and Enforcement Reciprocity in the Enforcement of Foreign Judgments The Implementation of Reciprocity in Ethiopian Court Decisions A. In Prior Court Decisions B. W/ro Frehiwote Gebeyehu vs. Ato Zerihun Tefera Case Conclusion

I.

Introduction

II. III. IV. V.

Ethiopia is a country located in East Africa bordering Sudan, South Sudan, Kenya, Somalia Djibouti and Eritrea. Ethiopia is an ancient country with a recorded history of statehood that goes back for more than three thousand years. The Ethiopian legal system is composed of customary laws of various ethnic groups and of modern laws.1 The customary laws have evolved over a long period of time and they are predominantly unwritten.2 The codified modern laws developed from the nineteenth century up to the mid-twentieth century. Emperor

Lecturer of Laws (currently on leave) at the School of Law, University of Gondar, and former Public Prosecutor at the Ethiopian Ministry of Justice. 1 A. JEMBERE, An Introduction to the Legal History of Ethiopia 1434-1974, Shama Books 2019, pp.39 & 183. 2 T. BERU, Brief History of the Ethiopian Legal Systems – Past and Present, International Journal of Legal Information, Vol. 41(3), p. 338. *

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Printed in Germany

Bebizuh Mulugeta Menkir Hailesilassie I of Ethiopia (ruled from 1930 to 1974) is credited with the modernization of the legal system, including codification of the six major Ethiopian codes.3 A.

The Ethiopian Federal State and its Judiciary

In its long history of statehood, Ethiopia has passed through different types of change and forms of government.4 According to the current constitution, which has been in force since 1995, Ethiopia is a federal country, whereby power is divided between the federal government and the regional states.5 According to the constitution (1995), the federal government and regional states have their own legislative, executive and judicial organs. The judiciary at the federal level is composed of three layers of courts: the Federal Supreme Court, the Federal High Court and the Federal First Instance court.6 The Federal Supreme Court of Ethiopia is the highest judicial organ on federal matters.7 The Federal Supreme Court exercises first instance and appellate jurisdictions over matters set out in Articles 8 and 9 of the Federal Courts Proclamation.8 In addition, the Federal Supreme Court has power of cassation over any final court decision containing a basic error of law.9 As such, interpretations given by the cassation bench are binding in both federal and state courts.10 B.

The Ethiopian Legal Tradition

As a result, the modern laws consist of extensive federal and state legislation and major codes, including those that were transplanted from different foreign sources in the 1950s and 1960s. Where the codes are concerned, the substantive civil codes 3 A. JEMBERE (note 1) p. 25. These codes are The Civil Code of the Empire of Ethiopia (Proclamation No 165/1960); Penal Code of the Empire of Ethiopia (Proclamation No 158/1957); Civil Procedure Code of the Empire of Ethiopia (Extraordinary Issue No. 3/1965); Criminal Procedure Code of the Empire of Ethiopia (Proclamation No 185/1961); Commercial Code of the Empire of Ethiopia (Proclamation No 166/1960); Maritime Code of the Empire of Ethiopia (Proclamation No 164/1960). Out of these codes, the Penal Code of the Empire of Ethiopia (Proclamation No 158/1957) has been replaced by the Criminal Code of the Federal Democratic Republic of Ethiopia (Proclamation No 414/ 2004) and the Commercial Code of the Empire of Ethiopia (Proclamation No 166/1960) has been replaced by the Commercial Code of the Federal Democratic Republic of Ethiopia (Proclamation No 1243/2021). 4 A. JEMBERE (note 1), pp.1-8. 5 Constitution of the Federal Democratic Republic of Ethiopia, 1995, Proclamation No 1, FED. NEG. GAZETTA, 1st year, No 1, Article 50. 6 Federal Courts Proclamation, Proclamation No 1234/21, FED. NEG. GAZETTA, 27th Year No 26 ADDIS ABABA 26 April, 2021. 7 Constitution, (note 5), Article 80(1). 8 Federal Courts Proclamation (note 6). 9 Constitution, (note 5), Article 80(3)(a). 10 Federal Courts Proclamation (note 6), Article 10(2).

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Reciprocity and Execution of Foreign Judgments Under Ethiopian Law of Ethiopia are from the civil law legal tradition and the Civil Procedure Code is from the common law legal tradition.11 Nevertheless, characterising the Ethiopian legal system as a single legal tradition is not yet a settled question. While some argue that Ethiopia is characterized as a civil law country, others on the other hand contend that it is a mixed country.12 But here, though there has been legal transplantation, no specific code from a single country has been fully adopted. Rather, the rules incorporated into the codes were selected from various foreign legal systems.13 For instance, the Civil Codes of Egypt, France, Greece, Italy and Switzerland were the principal sources used to codify the Civil Code of Ethiopia.14 And most of the provisions of the Civil Procedure Code were borrowed from the Indian Code of Civil Procedure in such a way that they are workable in the Ethiopian situation.15

II.

The Ethiopian Private International Law

The Ethiopian legal system is characterized by the absence of codified rules of private international law and a dearth of judicial decisions on the matter.16 Despite the absence of codified law, rules of private international law are scattered across different laws. The Civil Procedure Code of the Empire of Ethiopia,17 the Civil Code of the Empire of Ethiopia18 and the Federal Courts Proclamation19 are among the domestic laws containing rules of private international law. The absence of codified rules of private international law and a settled precedent system in Ethiopia makes the task of presiding over these cases a difficult one for judges.20 And in cases where the existing rules scattered across different laws are not sufficient to resolve legal disputes related to private international law, Ethiopian courts resort to applying/referring to principles of private international law.

R.A. SEDLER, Ethiopian Civil Procedure, Oxford University Press 1968, p. 4. M. AYALEW, Ethiopia, in J. Herbots. Alphen aan den Rijn (eds), International Encyclopaedia of Laws: Contracts, NL: Kluwer Law International, 2010, p. 19. 13 R. DAVID, Sources of the Ethiopian Civil Code, Journal of Ethiopian Law, 1967 Vol 4(2), p. 346. 14 R. DAVID, (note 13), p. 347. 15 R.A. SEDLER, (note 11) p. 3. 16 I. IDRIS, Ethiopian Law of Execution of Foreign Judgments, Journal of Ethiopian Law, 1999, 1999, Vol. 19, p. 21. 17 Civil Procedure Code of the Empire of Ethiopia (Extraordinary Issue No 3/1965). 18 The Civil Code of the Empire of Ethiopia (Proclamation No 165/1960). 19 Federal Courts Proclamation, (note 6). 20 S.TESHALE, Towards Rationalizing Judicial Jurisdiction in Ethiopia, TFLR Private International Law, Vol 8: 195, p. 195. 11

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Bebizuh Mulugeta Menkir For instance, in the Ato Kasahun Taddele vs. Tsedale Haftaye21 case, the Federal Supreme Court of Ethiopia referred to principles of private international law in order to settle how to prove foreign law on the pecuniary effects of divorce in irregular union. In this case, the cassation bench stated that “…according to private international law, expert opinion given by a scholar in the specific area of law can be presented as evidence.”22 In W/ro Eyerusalem Asegedom vs. Ato Tewelde H/Mariam,23 the cassation bench again made reference to principles of private international law to resolve the question of when a foreign element (foreign contact) that requires the application of private international law can be considered to exist in a given case. On a related matter, Samuel Teshale also stated that “Ethiopian courts seem to have adopted three different approaches to the issues of judicial jurisdiction. They are: silence regarding judicial jurisdiction; recourse to the Civil Procedure Code; recourse to general jurisprudence”.24 As Ethiopia is a federal country, the federal government and regional states have the power to adopt civil laws. Accordingly, the federal government enacts patent and copyright law, labour code, commercial code and any other civil laws that are deemed necessary by the House of Federation to establish and sustain a 21 Ato Kasahun Taddele vs W/ro Tsedale Haftaye, Federal Supreme Court of Ethiopia, Cassation File No. 123132, Vol. 21 (May 2017). In this case, the legal dispute arose because Tsedale Haftaye filed a suit (in the Federal High Court) demanding division of property (a house located in Addis Ababa and a car) acquired while she was living with Kasahun Taddele in irregular union in Italy. Ato Kasahun Taddele put forward the defence that under Italian law, if individuals were living in irregular union, at the time of termination of the union, one could not claim property registered in the name of the other. And to prove this he presented a legal opinion given by a practising lawyer in Italy. It was on this issue that the cassation bench resorted to principles of private international law and opined that “ …according to private international law, expert opinion given by a scholar in the specific area of law can be presented as evidence to prove foreign law ” (emphasis and translation mine). 22 Federal Supreme Court of Ethiopia, Cassation File No. 123132 (note 21). 23 W/ro Eyerusalem Asegedom vs. Ato Tewelde H/Mariam, Federal Supreme Court of Ethiopia, Cassation File No. 152590 (October 2018). In this case, after the divorce had been declared, W/ro Eyerusalem Asegedom filed a suit in the Federal First Instance Court seeking division of matrimonial property. Ato Tewelde H/Mariam raised an objection against the Federal First Instance Court’s exercise of jurisdiction. Ato Tewelde argued that the property in the suit was located in the USA, which is a foreign contact that would trigger the application of private international law. Ato Tewelde added that according to Ethiopian law, private international law cases are under the jurisdiction of the Federal High Court. His objection was accepted by the Federal First Instance Court and later also confirmed by the Federal High Court. W/ro Eyerusalem lodged an appeal to the Federal Supreme Court of Ethiopia cassation bench against these decisions of the lower courts. The cassation bench stated that “…according to general principles of private international law, a foreign element shall be considered to exist when the dispute in a given case is related to the laws of different countries containing conflicting provisions as to how the case shall be resolved, which in turn requires choosing the applicable law from among these conflicting laws” (emphasis and translation mine). 24 S.TESHALE, (note 20 ), p. 201.

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Reciprocity and Execution of Foreign Judgments Under Ethiopian Law single economic community.25 On the other hand, the regional states may enact laws (including civil laws) in the areas that are not “expressly given to the federal government alone or concurrently to the federal government and regional states.”26 The enactment of civil laws by the federal government and regional states has the potential to give rise to inter-state and intra-state private international law disputes in relation to both federal and state laws.27 Inter-state disputes arise when the laws of the federal government or the regional states are in conflict with the laws of another sovereign country.28 The dispute will be intra-state when the law of one regional state in Ethiopia is in conflict with the law of another regional state.29 In addition, since the federal government has enacted its own Family Code,30 private international law disputes may also arise between federal family law and state family laws. Though regional states in Ethiopia can exercise jurisdiction on private international law cases that are related to their respective laws, in practice all private international law cases are under the jurisdiction of the Federal High Court. This is because the Federal Courts Proclamation and the Federal Supreme Court cassation bench, in the judgment given in the Meseret Alemayehu vs. Emushet Mulugeta case, brought all private international cases under the jurisdiction of the Federal High Court.31 The absence of law on private international law is also true of intra-state private international law disputes between the laws of two regional states of Ethiopia. The Full Faith and Credit Clause is also not recognized under the Ethiopian constitution. Though this cannot provide a comprehensive solution to the problem, cases arising between persons permanently residing in different regions fall under the civil jurisdiction of the Federal Courts, which must resolve the case by applying regional state law.32 But it remains unclear how the choice of law is to be made and how judgments given by one state court are to be executed in another court. Constitution, (note 5), Article 55(2)(h), Article 55(3), Article 55(4), Article 55(6). Constitution, (note 5), Article 52(1). 27 M. TSEGAYE, The Ethiopian Federation and Private International Law: The Contours of the Federal and the State Governments’ Jurisdictions, Journal of Private International Law, 2019, vol 15 (2), p. 419. 28 M. TSEGAYE, (note 27) p. 419. 29 M. TSEGAYE, (note 27) p. 419. 30 The Revised Family Code, Proclamation No. 213/2000, FED. NEG. GAZETTA EXTRAORDINARY ISSUE NO. 1/2000, ADDIS ABABA 4 July 2000. 31 M. TSEGAYE, (note 27), p. 419. A good opportunity to correct/clarify the jurisdiction of the Federal High Court, in private international law cases, had been missed when the former Federal Courts Proclamation (Proclamation No 25/1996), which was a basis for the cassation bench decision (Meseret Alemayehu vs. Emushet Mulugeta case), was repealed by the current Federal Courts Proclamation (Proclamation No 1234/21). 32 Federal Courts Proclamation (note 6), Article 5(1)(h) & Article 6(1)(b). As compared to a former Federal Courts Proclamation (Proclamation No 25/1996), the current Federal Courts Proclamation (Proclamation No 1234/21) made progress in this respect. This is because according to the former proclamation, federal courts ruling on matters related to 25 26

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III. Codified Rules on Recognition and Enforcement Rules on recognition and enforcement of foreign decisions can be found in the Civil Procedure Code of the Empire of Ethiopia (1960) (hereinafter referred as the CPC). Articles 456-460 of the CPC are provisions regulating the enforcement of foreign judgments in Ethiopia.33 Specifically, Article 456(1) of the CPC states that unless otherwise stipulated in the international conventions to which Ethiopia is a party, the execution of foreign judgments is to be carried out in accordance with the provisions of the CPC. Article 458 of the CPC stipulates five conditions that must be met in order for permission to be granted for executing foreign judgments, namely: i) if Ethiopian judgments are allowed to be enforced in the country whose judgment is presented for execution in Ethiopia; ii) if the judgment was given by a court duly established and constituted; iii) if the judgment-debtor was given the opportunity to appear and present his defence; iv) if the judgment to be executed is final and enforceable; v) and if execution is not contrary to public order or morals.34 The first condition is commonly referred to as the reciprocity requirement. Nevertheless, the existing lack of clarity on the provisions of the CPC on execution of foreign judgments, coupled with the dearth of court decisions develstate laws must apply federal law if the state law is found inconsistent with federal law and international treaties. (see Proclamation No 25/1996, Article 6(b)). 33 Chapter II of the Civil Procedure Code regulating this aspect is entitled “execution of foreign judgments”, and the provisions (Article 456, 457, 458) talk only about execution of foreign judgments without explicitly referring to “recognition” of foreign judgments. This omission of “recognition of foreign judgments” is not deliberate. It is rather attributable to drafting errors. When we see the drafting history of the code, it was drafted by a single person and subsequently passed [as a law] by decree of the emperor, without the participation of the Ethiopian Parliament. As a result, the draft code missed the opportunity to have errors, including this one, corrected through parliamentary debates and the opinion of legal experts (I. IDRIS, (note 16) p.21). In addition, the Federal Supreme Court of Ethiopia, cassation bench, in Rawda Mume vs. Ambassador Abdella Abdurahiman (Volume 12, Cassation file No 54632, June 2011) and W/ro Alemnesh Abebe vs. Ato Tesfaye Gesesse (Volume 12, Federal Supreme Court of Ethiopia Cassation file No 59953, July 2011), decided that the provisions of the CPC (Article 456 et seq.) were applicable to cases on recognition of foreign judgments too. 34 The full text of Article 458 reads as follows “Permission to execute a foreign judgment shall not be granted unless (a) the execution of Ethiopian judgments is allowed in the country in which the judgment to be executed was given; (b) the judgment was given by a court duly established and constituted; (c) the judgment-debtor was given the opportunity to appear and present his defence; (d) the judgment to be executed is final and enforceable; and (e) execution is not contrary to public order or morals.” (Official English Translation).

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Reciprocity and Execution of Foreign Judgments Under Ethiopian Law oping the local jurisprudence, makes the practical application of the provisions difficult for Ethiopian courts.35 One of the problematic areas in this regard is the application of the reciprocity as a condition for executing foreign judgments provided for under Article 458(a) of the CPC. Ethiopian courts generally tend to require the existence of an international treaty signed between Ethiopia and the country whose court judgment is presented for execution. This stance of Ethiopian courts has been criticized, among other reasons for missing the general objectives of reciprocity and practically making Articles 456(1) and 458(a) of the CPC contradictory and redundant.36 The strict stance of the Ethiopian courts can also be criticized when it is seen against the background of the developing trend in other countries that seem to be relaxing the amount of proof required to show reciprocity. Unlike other judgments, the decision of the Federal Supreme Court of Ethiopia cassation bench in the W/ro Frehiwote Gebeyehu vs. Ato Zerihun Tefera37 case is unique in that it sets a new precedent regarding the application of Article 458(a) of the CPC: to show the required condition of reciprocity in order to allow execution of a foreign judgment. Although this decision of the cassation bench is commendable, to some extent it falls short of addressing the questions of burden of prove (onus) and the kinds of evidence (not necessarily an exhaustive list) that can be presented to show reciprocity as per Article 458(a) of the CPC. Under Article 458(a), one of the conditions required for the execution of foreign judgments is reciprocity, i.e. that Ethiopian judgments are allowed to be executed in the country whose judgment is presented for execution in Ethiopia. Reciprocity can be established either through an international treaty placing an obligation on courts to enforce foreign judgments or through proof of factual reciprocity or potential for reciprocity.

IV. Reciprocity in the Enforcement of Foreign Judgments In principle, a judgment/decree/order given by one country’s court is enforceable only within its territory.38 This is mainly because the sovereignty of states stands in the way of automatic enforcement of a judgment passed in one country’s court in the territory of another sovereign country. 35

Explanatory Document, Ethiopian Private International Law Draft, Chapter 13,

p. 21. S. TESHALE, Reciprocity with Respect to Enforcement of Foreign Judgments in Ethiopia: A Critique of the Supreme Court's Decision in the Paulos Papassinous Case, African Journal of International and Comparative Law, 2000, Vol 12(3). 37 W/ro Frehiwote Gebeyehu vs. Ato Zerihun Tefera, Federal Supreme Court of Ethiopia, Cassation File No 161597, Vol. 24 (December 2021). 38 PM. NORTH/ J.J. FAWCETT, Cheshire and North’s Private International Law, Oxford University Press (1999) p. 405. 36

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Bebizuh Mulugeta Menkir However, in the contemporary world, globalization and international movement of individuals give rise to cases that require a judgment given by one country’s court to be recognized and/or enforced in the territory of another state.39 In such types of case, strict application of the sovereignty of the state leads to unjust and prejudicial outcomes as regards the interests of the judgment-creditors. In this regard, private international law rules on recognition and enforcement of foreign judgments will be helpful in balancing these conflicting interests.40 However, the existence of private international law rules may not necessarily guarantee automatic recognition and enforcement of foreign judgments. Rather, as evidenced by the private international law rules of different countries, there are preconditions that must be fulfilled before foreign judgments can be recognized and enforced. The type and strictness of the preconditions vary from one country to another. As we have seen, there are two legal bases for the recognition and enforcement of foreign judgments in Ethiopia: treaty-based grounds and statutory grounds. According to Article 456(1) of the CPC, the execution of foreign judgments is to be undertaken in accordance with the provisions of the CPC (statutory grounds), unless stated otherwise in the international conventions to which Ethiopia is a party (treaty-based grounds).41 Though this cannot be generalized to include all countries, nor all international conventions, reciprocity is one the preconditions often required to enforce foreign judgments. Accordingly, if the judgment-rendering country does not recognize the judgments of another country, the latter will not recognize the judgments coming from the former.42 Reciprocity as a requirement for the enforcement of foreign judgments is criticized mainly because it means that private individuals bear the brunt of the policy decision taken by the country of the judgmentrendering court.43 The critics of reciprocity, as a condition to ensure that judgments issued by one country’s court are enforceable in another country,44 argue that “reciprocity is employed as a means of retaliation that punishes the attitude of the rendering state for not honouring the forum’s judgments.”45 Nevertheless, despite its presence in the legal framework, as recent developments in the area show, the practical

Recognition and Enforcement of Foreign Judgments in U.S. Courts: Problems and Possibilities, S.I. Strong, p. 1. 40 I. IDRIS, (note 16), p. 17. 41 S. TESHALE, (note 36). 42 I. IDRIS (note 16), p. 24. 43 I. IDRIS (note 16), p. 24; T.H. BAHTA, Recognition and Enforcement of Foreign Arbitral Awards in Civil and Commercial Matters in Ethiopia, Mizan Law Review, 2011, Vol 5, No 1, p. 122. 44 S. TESHALE (note 36). 45 B. ELBALTI, Reciprocity and the Recognition and Enforcement of Foreign Judgments: A Lot of Bark but Not Much Bite, Journal of Private International Law, 2017, Vol. 13(1), p. 187. 39

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Reciprocity and Execution of Foreign Judgments Under Ethiopian Law relevance of reciprocity is either diminishing or the amount of proof required to demonstrate it is being relaxed.46

V.

The Implementation of Reciprocity in Ethiopian Court Decisions

A.

In Prior Court Decisions

The practices in former Ethiopian court decisions show inconsistent application of Article 458(a) with respect to reciprocity. As observed in some judgments, courts would require an international treaty signed between Ethiopia and a foreign country in order to show the reciprocity required by Article 458(a) of the CPC. According to the courts, the condition of reciprocity cannot be fulfilled unless there is a treaty showing that Ethiopian judgments are allowed to be executed in the foreign country which rendered the judgment that is to be executed in Ethiopia.47 On the other hand, there are also judgments that did not require the existence of a treaty to show reciprocity.48 For instance, in the Goh-Tsibah Menkreselassie v Dr. Bereket Habteselassie49 case, the Federal High Court decided that the absence of a treaty between Ethiopia and other countries should not be an obstacle to executing foreign judgments in Ethiopia. In the Paulos Papassinous case, the Federal Supreme Court of Ethiopia denied execution of a succession judgment issued by a Greek court. The absence of a treaty signed between Greece and Ethiopia was the reason why execution of the judgment was refused in Ethiopia.50 In the W/ro Yesura Abdulemuin et al. vs. Abdulqeni Abdulmuin case,51 the Federal Supreme Court, appellate bench, stated that an agreement signed between Yemen and Ethiopia was mandatory in order to show that Ethiopian judgments are executable in Yemen. Though the cassation bench of the Supreme Court rejected the decision of the appellate bench, the reason for the rejection was not that the appellate bench required a treaty to prove reciprocity. The cassation bench rejected the appellate court’s decision because the latter, before it rendered its judgment, did not to prove (by its own motion) the existence or otherwise of an agreement between Ethiopia and Yemen. B. ELBALTI (note 45), p. 185. T.H. BAHTA, (note 43), p. 123. 48 T.H. BAHTA, (note 43), p. 123. 49 Goh-Tsibah Menkre-Selassie vs. Dr Bereket Habte-Selassie, Federal High Court of Ethiopia, Civil Case No.85/92, 2001, cited in T.H. BAHTA, (note 43), p. 124. 50 S. TESHALE (note 36). 51 W/ro Yesura Abdulemuin et al vs. Abdulqeni Abdulmuin, Federal Supreme Court of Ethiopia, Cassation File No. 78206, Vol. 15 (June 2013). 46 47

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Bebizuh Mulugeta Menkir In its judgment the cassation bench stated that “…. if the applicant failed to present the required agreement between Ethiopia and Yemen, the court should, by its own initiation, order the appropriate organ to present the agreement signed (if any)”52. In the part of the judgment quoted, the cassation bench seems to hold the same opinion as the appellate bench on the requirement for a treaty to show reciprocity that is set out in Article 458(a) of the CPC. The assumption of reciprocity only in association with a treaty has been criticized on multiple grounds. The requirement of a signed treaty to show reciprocity as per Article 458(a) of the CPC practically makes Articles 456(1) and 458(a) contradictory and redundant.53 As stated in Article 456(1),54 international agreement is required only when the execution of foreign judgments is to be conducted in a manner other than that stipulated by the provisions of the CPC, including the condition stated in Article 458(a). While Article 456(1) requires a signed treaty, Article 458(a) covers situations where there is no treaty and “...to demand a showing of a treaty under the latter…. makes the two disparate provisions redundant, contrary to the canon of positive interpretation”.55 Strict requirement of a signed treaty to meet Article 458(a) will potentially make Ethiopian judgments unenforceable in countries that do not require international agreements to prove reciprocity. This will defeat the purpose that the law intends to achieve through reciprocity, namely to ensure that Ethiopian judgments are executable in other countries.56 In addition, the other reason for reciprocity is “…retaliating… the attitude of the rendering state for not honouring the forum’s judgments.”57 Demanding a treaty to show reciprocity is also unjustified when seen in the light of this, because there is nothing that Ethiopia would retaliate in the absence of proof showing that Ethiopian decisions were not “honoured” by the state whose court’s judgement is presented to be recognised in Ethiopia. As reciprocity can also be proved by actual reciprocity or potential for reciprocity,58 evidence that another country would enforce Ethiopian judgments can be given in many ways, other than an international agreement, and the Ethiopian judge should consider these alternative ways sufficient to allow the execution of judgments coming from that country as per Article 458(a). This is of course not applicable to countries that do strictly require an international agreement in order to enforce foreign judgments. In these types of case, if an application for execution of judgments issued by such a country is filed in Ethiopia, it may be appropriate to impose the same standard in order to allow exeFederal Supreme Court of Ethiopia, Cassation File No 78206, (note 51) (translation and emphasis mine). 53 S. TESHALE, (note 36). 54 Article 456(1) of the CPC reads as follows: “Unless otherwise expressly provided for by international conventions, foreign judgments may not be executed in Ethiopia except in accordance with the provisions of this Chapter.” 55 S.TESHALE, (note 36 ). 56 S. TESHALE, (note 36 ). 57 B. ELBALTI, (note 45), p.187. 58 B. ELBALTI, (note 45), p. 217. 52

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Reciprocity and Execution of Foreign Judgments Under Ethiopian Law cution in Ethiopia, because that is indicative of the fact that Ethiopian judgments are not enforceable in that country.59 ELBALTI quotes a German decision by the Higher Regional Court of Stuttgart, which refused to recognize a judgment rendered by a Liechtenstein court because in Liechtenstein foreign judgments cannot be recognized in the absence of a treaty obligation to do so.60 However, the existence of the international agreement per se cannot be a ground for disregarding the conditions for the execution of foreign judgments stated in Article 458 of the CPC. This is because, as stated in the text of Article 456(1),61 in addition to the existence of an international convention, there must be an explicit provision/statement in the convention that contradicts or expressly upholds the provisions of the CPC, including the conditions listed under Article 458. And hence, if the agreement has nothing to say about the execution of judgments, the court should continue to entertain cases on execution of judgments, in accordance with Article 458 of the CPC. B.

W/ro Frehiwote Gebeyehu vs. Ato Zerihun Tefera Case

Unlike the aforementioned court cases, the Ethiopian Supreme Court in the W/ro Frehiwote Gebeyehu vs. Ato Zerihun Tefera62 case set a precedent that corrects the inconsistencies and errors regarding the condition of reciprocity stated in Article 458(a) of the CPC. As stated in the cassation bench’s judgment, the case of W/ro Frehiwote Gebeyehu vs. Ato Zerihun Tefera involves the enforcement of a judgment rendered by an American court on the division of matrimonial property following the divorce between the parties. Ms Frehiwote presented to the Federal High Court of Ethiopia the decision in order to have the division of matrimonial property made in conformity with the decision rendered by the US court. The Federal High Court, as is usual, ordered the Ethiopian Ministry of Foreign Affairs to clarify whether there was a treaty signed between Ethiopia and the United States on the execution of court judgments and whether Ethiopian judgments were executed in the United States.63 The Ministry of Foreign Affairs responded by declaring the non-existence of a treaty signed between Ethiopia and the United States of America on the execution of court judgments. The Ministry also added that Ethiopian judgments are not executed in the US. Even here, there should be a cautious examination of a given case in order not to cause damaging outcomes for Ethiopian nationals and interests (see S. TESHALE (note 36)). 60 B. ELBALTI, (note 45), p. 206 with reference to a decision of July 2014. 61 Article 456(1) reads: “Unless otherwise expressly provided for by international conventions, foreign judgments may not be executed in Ethiopia except in accordance with the provisions of this Chapter.” (Emphasis added.) 62 In W/ro Frehiwote Gebeyehu vs. Ato Zerihun Tefera, Federal Supreme Court cassation File No 161597, Vol 24. (December 2021). 63 The usual way that Ethiopian courts prove the existence of an international treaty between Ethiopia and other countries concerning execution of foreign judgments is by asking the Ethiopian Ministry of Foreign Affairs about the matter. 59

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Bebizuh Mulugeta Menkir Based on the response received from the Ministry of Foreign Affairs, the Federal High Court rejected Ms Frehiwote’s application. The reason for rejection was the absence of a treaty signed between Ethiopia and the United States on execution of court judgments. An appeal against the aforementioned decision of the High Court was lodged with the Federal Supreme Court (appellate bench), but it was rejected for similar reasons. Ms Frehiwote finally took the case to the Federal Supreme Court (cassation bench), demanding the correction of a basic error of law committed by the lower courts. The cassation bench then rejected the decisions of the lower courts in such a way that it set a new precedent on the execution of foreign judgments in Ethiopia. Among others, the following comment of the cassation bench is worth noting. “In principle, execution of foreign judgments shall be allowed in Ethiopia when there is a bilateral agreement, on the subject matter, signed between Ethiopia and the country of the judgment rendering court. And in exceptional situations where the conditions stated under Article 458 of the CPC are fulfilled.”64 But here the judgment’s association of Article 458 with exceptional circumstances in the execution of foreign judgments can be challenged. This is because, according to Article 456 of the CPC, execution of foreign judgments in principle is to be handled according to its provisions, i.e., Article 458 et seq., unless there is an international agreement containing provisions to the contrary.65 As is clearly stated in the judgment of the cassation bench, a treaty is not required for the execution of foreign judgments, there being no mention of such a condition among the requirements listed in Article 458 of the CPC, including reciprocity (Article 458(a)). And specifically on reciprocity, the cassation bench stated that “ …whether Ethiopian judgments are executed in America is a condition that should be proved by tangible evidence just like other conditions stated under Article 458”.66 Moreover, it added that “ …since the kind of evidence that should be presented to prove the same are not specifically listed by law, the court has the responsibility to prove the same by ordering and examining any evidence.”67 Federal Supreme Court Cassation File No 161597, (note 62) (translation mine). In the quoted statement of the judgment the cassation bench unwittingly focuses on bilateral agreements between Ethiopia and another country so as to allow execution of judgments coming from the latter. This may be mistakenly perceived as if it is only bilateral agreements that can be the basis for allowing execution foreign judgments. However, as the cassation bench also mentioned elsewhere in its judgment, irrespective of the type of international agreement, bilateral agreements and multilateral agreements to which Ethiopia is a party can be grounds to execute foreign judgments so long as they have provisions concerning the execution of foreign judgments in Ethiopia. 65 Article 456(1) reads “Unless otherwise expressly provided for by international conventions, foreign judgments may not be executed in Ethiopia except in accordance with the provisions of this Chapter.” (Official English Translation) 66 Federal Supreme Court Cassation File No 161597, (note 62) (translation mine). 67 Federal Supreme Court Cassation File No 161597, (note 62) (translation mine). 64

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Reciprocity and Execution of Foreign Judgments Under Ethiopian Law In the statements quoted above, the cassation bench leaves the door open regarding the kind of evidence to be presented to prove reciprocity required under Article 458(a). Even though providing an exhaustive list of the admissible types of evidence to show reciprocity is not possible, as we can learn from the experiences of other countries, reciprocity can be proved: i) By presenting the relevant statutory or case law/s of the country of the judgment-rendering court; ii) By presenting real court cases from the country of the judgment-rendering court showing prior judicial practice in executing Ethiopian judgments. Though the cassation bench’s decision has commendable aspects in correcting the application of reciprocity in Ethiopia, there are additional issues that will probably arise in future cases demanding the execution of foreign judgments. One question to be asked is: when application for execution of foreign judgments is filed in Ethiopia, who bears the burden of proving reciprocity? Article 458 and other provisions of the CPC, as well as the statement in the cassation bench’s judgment that reads “…the court has the responsibility to prove the same by ordering and examining any evidence”,68 cannot provide a clear answer in this respect. In the experience of other countries that maintain reciprocity in their laws, reciprocity is presumed unless the contrary is proved.69 In the case of Ethiopia too, any country whose judgment is presented for execution in accordance with Article 458(a) is presumed to execute Ethiopian judgment unless the contrary is proved.70 The cassation bench should have adopted a clear stance in this respect. In particular, the court should have made it clear when courts should accept judgmentdebtors’ defences based on reciprocity. In this respect, Article 459 of the CPC does not guarantee an absolute right for the judgment-debtor to present his defences in respect of applications for execution of foreign judgments.71 Furthermore, if the judgment- debtor wishes to present defences based on reciprocity, he must first put forward a sufficient case justifying why he should be permitted to present his defences. Furthermore, the Ethiopian court can require additional evidence to be presented when it deems this necessary. In particular, when the required evidence is not accessible to the parties to the case, the court may take the extra step of ordering the body concerned to present the evidence required. In this context, the cassa-

Federal Supreme Court Cassation File No 161597 (note 62). B. ELBALTI (note 45), p.217. 70 R.A. SEDLER, (note 11) p.394. 71 The Civil Procedure Code of the Empire of Ethiopia (note 16), Article. 459. The full text of this provision reads as follows; “Procedure (1) The court to which the application is made shall enable the party against whom the judgment is to be executed to present his observations within such time as it shall fix. (2) The court shall decide whether pleadings may be submitted. (3) In cases of doubt the court may suspend its decision until all doubtful points have been clarified.” ( Official English Translation ) 68 69

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Bebizuh Mulugeta Menkir tion bench, in the W/ro Yesura Abdulemuin vs. Abdulqeni Abdulmuin case,72 refers to Article 345(1)(b)73 of the CPC to justify the wider discretion that Ethiopian appellate courts considering execution of foreign judgments have in the production of evidence. This being so, those courts handling the same types of case in first instance jurisdiction should also, mutatis mutandis, have a wider role to play in the production of evidence on reciprocity.

VI. Conclusion Reciprocity is one of the conditions required to execute foreign judgments in Ethiopia under Article 458(a) of the CPC. In some cases, Ethiopian courts have required an international agreement signed between Ethiopia and the judgment-rendering country in order to execute judgments coming from the latter, pursuant to Article 458(a) of the CPC. These judgments have been criticized on multiple grounds. The Ethiopian Supreme Court cassation bench, in the W/ro Frehiwote Gebeyehu vs. Ato Zerihun Tefera case, set a binding precedent regarding the application of reciprocity required under Article 458(a) of the CPC. According to this precedent, which binds lower courts at both federal and state level, a treaty signed between Ethiopia and other countries is not required in order to show reciprocity under Article 458(a) of the CPC. Although the cassation bench’s decision is commendable in correcting the application of reciprocity in Ethiopia, the burden of proving reciprocity still remains unclear. Since the requirement of reciprocity is being relaxed, the reciprocity required under to Article 458 (a) should be presumed unless the contrary is proven. Moreover, Article 459 of the CPC does not guarantee an absolute right for the judgment-debtor to present his defences in respect of applications for execution of foreign judgments. And hence, if the judgment-debtor wants to present his defences based on reciprocity, he must first present a sufficient case justifying why he should be permitted to present his defences.

Federal Supreme Court of Ethiopia, Cassation File No 78206, (note 51). Article 345(1)(b) reads as follows: “[…] The Appellate Court may, of its own motion or upon an application for permission to call additional evidence […] allow such evidence or document to be produced, or witness to be examined. (Official English Translation) 72 73

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COMPOSITE MARRIAGE CONTRACTS IN POLISH PRIVATE INTERNATIONAL LAW Paulina TWARDOCH*

I. II.

IV.

Introduction Methods of Searching for Law(s) Relevant to a Composite Marriage Contract in Polish Private International Law A. Segment-by-Segment Approach B. The Closest Connection Approach Specific Clauses (Agreements) – Analysis for the Purposes of a Segment-bySegment Approach A. Matrimonial Advantages B. Gifts of Existing Property C. Clauses Regarding Parental Authority/Custody D. Clauses as to Dissolution of Marriage by Divorce E. Clauses Regarding Alimony, Compensatory Allowance or Contribution to Marriage/Family Expenses F. Clauses as to Assignment of Use of Dwelling in the Event of Divorce G. Contractual Derogations from a Special Regime of Equalisation of Pension Rights H. Clauses as to Succession 1. Gifts of Future Property 2. Valkeniers Pact 3. Waiver of Right of Election 4. Contracts to Make or Not to Make a Will Final Remarks

I.

Introduction

III.

Considered in a broad sense, the marriage contract or (pre)marital agreement under certain legal systems may have a composite character, in the sense that it may contain clauses (agreements) on diverse matters. These are e.g.: - as regards French, Belgian or Spanish law – in particular, clauses regulating matrimonial property regime, gifts of existing property, gifts of future property (see respectively: Article 1081 et seq. of the French Civil Code (hereinafter: the FCC), Article 4.232 et seq. of the Belgian Civil Code (hereinafter: * Associate Professor, Faculty of Law and Administration, University of Silesia, Katowice, Poland.

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 295-321 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Paulina Twardoch the BCC), Article 1336 et seq. of the Spanish Civil Code (hereinafter: the SCC)); - as regards Russian or Bulgarian law – in particular, stipulations on matrimonial property regime, stipulations on mutual maintenance (see respectively: Article 42(1) of the Family Code of the Russian Federation (hereinafter: the FCRF), Article 38(1) of the Bulgarian Family Code (hereinafter: the BFC)); - as regards the American Uniform Premarital Agreement Act (UPAA)1 – provisions, among others, on the rights and obligations of each of the parties in any of the property of either or both of them, on spousal support, on making of a will, on personal rights and obligations (see Section 3 of the UPAA). In this article, I will discuss how to search for the law or the laws relevant to a marriage contract or (pre)marital agreement of such a broad content under the Polish private international law. For the sake of clarity, within references to conflict of laws “marriage contract” will be used as a main and generic appellation, but the terms “premarital agreement” or “marital agreement” will be employed where the context so requires, in particular if special attention should be drawn to contracts such as those provided for in some common law jurisdictions, like the US – e.g. under the UPAA, under the Uniform Premarital and Marital Agreements Act (UPMA)2 or under Section 236 (B)(3) of the New York Domestic Relations Laws (hereinafter: the N.Y.DRL). In the framework of the comparative remarks concerning the substantive law solutions adopted in different legal systems, the terminology will be more nuanced, depending on the legislation or doctrine referred to. As there is a plurality of sources of private international law in force in Poland, my analysis will be carried out not only in the context of the Polish Act on Private International Law of 2011 (hereinafter: the Polish PIL Act), but also with respect to normative acts of supranational or international origin, which are being applied in Poland since relatively recently, such as: the EU Succession Regula-

1 The Uniform Premarital Agreement Act, issued by the Uniform Law Commission in 1983, is a model law aimed at creating consistency in the treatment of prenuptial agreements from state to state. 2 The Uniform Premarital and Marital Agreements Act, issued in 2012, is the updated and revised version of the UPAA.

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Composite Marriage Contracts in Polish Private International Law tion,3 the Rome I Regulation,4 the Hague Protocol of 2007,5 and the Hague Convention of 1996 on Parental Responsibility.6 Poland does not participate in the enhanced cooperation established within the European Union in matters of matrimonial property regimes. Nevertheless, certain hypotheses will also be formulated with reference to the EU Regulation on Matrimonial Property Regimes.7 Similarly, some observations will refer to the Rome III Regulation,8 even though Poland does not take part in the enhanced cooperation in the latter domain.

II. Methods of Searching for Law(s) Relevant to a Composite Marriage Contract in Polish Private International Law In the Polish private international law there is no single, specific conflict rule that would determine the law applicable to the marriage contract encompassing clauses (agreements) on diverse matters, such as those enumerated above. Hence, in principle, two methods of identifying the law(s) relevant to such a composite marriage contract may be envisaged. A.

Segment-by-Segment Approach

In principle, the applicable law should be searched for separately for each segment of a composite marriage contract, with the segments (which may be clauses/ agreements/sets of stipulations) being distinguished as a function of what we could

3 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201/107, 27.7.2012. 4 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177/6, 4.7.2008. 5 Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. 6 Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. 7 Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183/1, 8.7.2016. 8 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.

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Paulina Twardoch call – in simplified terms9 – the matter constituting the object of each given segment.10 This leads to the possibility of the so-called conflict-of-laws fragmentation of a legal situation – a phenomenon, which, in the Polish doctrine, is distinguished from the splitting of the applicable law. Accordingly, under the Polish PIL Act, in regard to a segment consisting of clauses regulating the matrimonial property regime sensu stricto, the applicable law should be identified by using the conflict-of-laws provision of Article 52(2), indicating the law applicable to the matrimonial property agreement. By contrast, in relation to a segment that, for the purpose of the conflict of laws, should be characterised as a “maintenance obligation” within the meaning of the Hague Protocol of 2007, the relevant law is the law indicated by the latter act. Following the same line of reasoning, a single segment of a composite marriage contract may fall within the scope of the law applicable to agreements as to succession, as indicated in Article 25 of the EU Succession Regulation, of the law applicable to the personal relations between the spouses determined in Article 51 of the Polish PIL Act, of the law applicable to the attribution or extinction of parental responsibility by an agreement, indicated in Article 16 of the Hague Convention of 1996 on Parental Responsibility, and so on. It is important to emphasise here that the formal validity of the marriage contract should be dealt with separately, i.e. the applicable law should be identified, for each segment separately, by means of the conflict rule regarding the form of a relevant (depending on the nature of a given segment) legal act. The same concern exits with respect to the capacity of the parties. Since, due to their complexity, these two latter problems deserve to be analysed in a different study, they will not be treated in this article.

In case of certain categories of clauses that may be included in a marriage contract, e.g. gifts, there may exist different personal configurations. 10 P. TWARDOCH, Umowy małżeńskie w prawie prywatnym międzynarodowym, Warszawa 2019, pp. 41-44. In a similar vein, e.g.: G. WIEDERKEHR, Les conflits de lois en matière de régime matrimonial, Paris 1967, pp. 249-250; M.P. DIAGO DIAGO, Pactos o capitulaciones matrimoniales en derecho internacional privado, Zaragoza 1999, pp. 57-61; B. AÑOVEROS TERRADAS, Los pactos prematrimoniales en previsión de ruptura en el derecho internacional privado, Anuario español de Derecho internacional privado, 2010/10, pp. 441-469; idem, El régimen conflictual de las capitulaciones en los nuevos reglamentos de la Unión Europea en materia de regímenes económicos matrimoniales y efectos patrimoniales de las uniones registradas, Anuario español de Derecho internacional privado, 2017/17, pp. 829-830; A. DUTTA, Marital Agreements and Private Autonomy in Germany, in J.M. SCHERPE (ed), Marital Agreements and Private Autonomy in Comparative Perspective, Oxford/ Portland/ Oregon 2012, pp. 191-192; I. ANTÓN JUÁREZ, Acuerdos prematrimoniales internacionales, Valencia 2019, pp. 166-167. Among authors referring to an analogous method: S. HAMOU, Contrat de mariage dans un contexte international: possibilités et limites, Gazette du Palais, 2016/37, pp. 44 et seq.; E. GALLANT, Contrats nuptiaux internationaux et anticipation des conséquences financières du divorce: quel ordre public?, InDret Revista para el análisis del derecho 2017/2, p. 144; CH. CHALAS, Les méthodes du droit international privé à l’épreuve des contrats nuptiaux internationaux, in M.-E. ANCEL/ L. D’AVOUT/ J.C. FERNANDEZ ROZAS et al. (eds), Le droit à l’épreuve des siècles et des frontières. Mélanges en l’honneur du Professeur Bertrand Ancel, Paris/Madrid 2018, p. 393. 9

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Composite Marriage Contracts in Polish Private International Law It is possible that, even though the applicable law has been identified by using a different conflict rule for each segment of a composite marriage contract, all the segments of the contract are governed by the law of the same state. This is in particular the case when the parties have chosen the same applicable law for all the segments and this choice is valid. Consequently, in that hypothesis, application of the law that has been identified as relevant, is less complicated as one only needs to apply one legal system in regard to all the segments. By contrast, if the conflict rules relevant to the respective segments of a marriage contract lead to different legal systems (i.e. if different segments are governed by different laws), inconsistency or at least disharmony among the relevant substantive law rules and concepts belonging to these different legal systems is likely to emerge. However, the difficulties resulting therefrom may be resolved by carrying out adaptation11 (French: adaptation, German: Anpassung). It is noteworthy that, in the case of the segment-by-segment approach, the law identified as applicable to a given element (clause/agreement/set of stipulations, being a segment of the composite marriage contract in question) is relevant, inter alia, as to the question of whether this element may – given the rules governing the material validity – constitute a part of the marriage contract and be combined with other particular elements (clauses/agreements/sets of stipulations) within this contract. But the final resolution of the issue of what elements (clauses/ agreements/sets of stipulations) may coexist as parts of the marriage contract in question should be settled by drawing a conclusion from the answers (provided regarding the respective segments by the applicable laws) considered together, and may require adaptation. It is also worth mentioning the issue of whether the nullity of clause A/agreement A, concerning e.g. the matrimonial property regime, entails the nullity (or voidability) of clause B/agreement B, being e.g. a gift, included in the same marriage contract. Apart from the hypothesis that the agreement concerning the matrimonial property regime may be treated in a particular legal system as an indispensable element of the marriage contract, in which case other clauses may not be retained in case of nullity of that principal agreement, an impact of the nullity of clause A/agreement A on clause B/agreement B may be expected for example when a gift from one of the (future) spouses in favour of the other one or from a third party to both (future) spouses is motivated by a particular matrimonial property regime established in the marriage contract in question and therefore loses its 11 Adaptation (or adjustment) is an operation aimed at avoiding an unjust or absurd outcome resulting from the inconsistency or at least disharmony amongst different legal systems that constitute the applicable laws within one legal situation. Its essence consists in modifying or setting aside relevant substantive norms of the applicable law for the purpose of an individual case. In particular, when using adaptation one may synthesize substantive norms belonging to the adjacent applicable laws or even create a completely new substantive rule. In some jurisdictions, adaptation is also construed as an operation consisting of modifying in casu the scope of the relevant conflict rules. For additional discussion of adaptation – see: G. DANNEMANN, in J. BASEDOW, G. RÜHL, F. FERRARI, P. DE MIGUEL ASENSIO (eds), Encyclopedia of Private International Law. Vol. 1, Cheltenham, Northampton 2017, pp. 8-13; K. SZNAJDER-PEROŃ, in M. PAZDAN (ed), Prawo prywatne międzynarodowe. Komentarz, Warszawa 2018, pp. 74-78.

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Paulina Twardoch rationale if the agreement on matrimonial property regime is null and void. The inverse configuration can also be true. Thus, the choice of a particular matrimonial property regime may be motivated by a gift or a sale provided for in the same marriage contract, in which case the selected property regime may lose its justification, in light of the spouses’ intention, if the gift or sale proves to be null and void. In application of the segment-by-segment approach, the law applicable to clause B/agreement B should be deemed relevant in settling this question, but again adaptation may be needed to achieve a just outcome. B.

The Closest Connection Approach

It may be more appropriate to characterise a particular composite marriage contract as sui generis covered by none of the conflict-of-laws rule in force in Poland and, consequently, to apply the generic provision laid down in Article 67 of the Polish PIL Act, aimed at filling gaps in private international law and referring to the principle of the closest connection. According to that provision, if neither the Polish PIL Act, special provisions12, ratified international conventions effective in the Republic of Poland, nor the law of the UE determine the law applicable to the relationship at issue, the law most closely connected with this relationship applies. As regards a composite marriage contract, concretisation of this generic rule may consist in adopting as a connecting factor the common nationality of the spouses, their common domicile or their common habitual residence at the time of conclusion of the contract. The intention of the parties to the contract should be one of the essential considerations in this context. As for the lex loci contractus as a law potentially applicable to a composite marriage contract under Article 67 of the Polish PIL Act, it should be noted that such a place may be completely fortuitous. This is the case for example when future spouses conclude the contract while staying in the country where they intend to enter into the marriage, but with which they are otherwise not connected.

III. Specific Clauses (Agreements) – Analysis for the Purposes of the Segment-by-Segment Approach Continuing with the segment-by-segment approach, in the next sections I will analyse – in the context of private international law – several types of clauses (agreements) that are potential components of composite marriage contracts.

12 “Special provisions” as referred to in Article 67 of the Polish PIL Act denote conflict rules that are contained in other Polish normative acts, distinct from the Polish PIL Act.

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Composite Marriage Contracts in Polish Private International Law A.

Matrimonial Advantages

Among marriage contract clauses whose characterisation with respect to conflict of laws traditionally raises difficulties,13 one should mention the clauses establishing the so-called “matrimonial advantages” (Fr. les avantages matrimoniaux), as provided in French law.14 In the light of the provision of Article 1527 of the FCC matrimonial advantages are the benefits that one spouse may draw from clauses of a contractual community regime or that may result from intermingling of movables or debts. As S. Piedelièvre explains, the FCC indicates that the matrimonial advantages result from the functioning of a community regime.15 However, certain French authors, S. Piedelièvre among them,16 propose to extend this category to benefits accruing through other property regimes, and contemporary French jurisprudence upholds that concept.17 The clauses establishing the matrimonial advantages are for example: the preciput clause, the clause of unequal shares, or the clause providing for the allotment of the entire community to the surviving spouse. According to the FCC, the preciput clause consists in authorising the surviving spouse or one of the spouses (specifically designated), if he or she survives, to levy on the community, without any indemnity and before any partition, either a certain sum or certain assets in kind or a certain quantity of assets of a determined kind. The other two clauses modify the division of the community property. Some substantial guidance as to the characterisation of the clauses establishing the matrimonial advantages may be deduced from the judgment rendered by the CJEU on the 1st of March 2018 in the Mahnkopf case,18 concerning paragraph 1371(1) of the BGB. The rule laid down in this paragraph determines the method of equalisation of accrued gains under the German statutory matrimonial property regime (Zugewinngemeinschaft) in the event of termination of that regime by the death of one of the spouses. The method consists in increasing the surviving spouse’s share of the estate on intestacy by one quarter of the estate. It is irrelevant in this regard, whether from the arithmetic point of view, there are, in a given case, the grounds for equalisation of the accrued gains. The Court held that national provisions of that kind, which prescribe “on the death of one of the spouses, a fixed allocation of the accrued gains by increasing the surviving spouse’s share of the estate” fall within the scope of the EU Succession Regulation. One of the main elements to which the CJEU attached importance in its reasoning was that the rule of Paragraph 1371 (1) of the BGB “concerns not the division of assets between 13 See in particular: F. BOULANGER, Les successions internationales. Problèmes contemporains, Paris 1981, pp. 141-144; A. BONOMI, The Interaction among the Future EU Instruments on Matrimonial Property, Registered Partnerships and Successions, Yearbook of Private International Law, 2011/13, pp. 219-220. 14 See: Article 1497, Article 1515 et seq., Article 1520 et seq. and Article 1527 of the FCC. 15 S. PIEDELIEVRE, Les régimes matrimoniaux, Bruxelles 2016, p. 500. 16 Ibid, p. 501. 17 See R. CABRILLAC, Droit des régimes matrimoniaux, Issy-les-Moulineaux 2019, pp. 281-282. 18 CJEU, 1 March 2018, Mahnkopf, ECLI:EU:C:2018:138.

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Paulina Twardoch spouses but the issue of the rights of the surviving spouse in relation to assets already counted as part of the estate”. As the Court explained further: “that provision does not appear to have as its main purpose the allocation of assets or liquidation of the matrimonial property regime, but rather the determination of the size of the share of the estate to be allocated to the surviving spouse as against the other heirs”. In contrast, the assets that are the object of a preciput clause, of a clause of unequal shares or of a clause of the allotment of the entire community, as E. Fongaro explains in reference to French law, will not be included within the assets of the estate.19 As the above-mentioned author points out, these clauses enable the surviving spouse to receive assets prior to settling the succession.20 The advantages following from such clauses provided for in French law do not have as their object a share of the estate.21 Hence, they do not concern the succession, but, rather, the liquidation of matrimonial property regime (division of assets). Thus, taking as a reference point the criteria emerging from the judgment rendered in the Manhkopf case one should consider, in the light of the foregoing characteristics, that – unlike the rule of Paragraph 1371(1) of the BGB – the clauses of that nature fall outside the scope of application of the EU Succession Regulation. At the same time, it is legitimate to hold that they are covered by the EU Regulation on Matrimonial Property Regimes.22 However, the law indicated by the EU Succession Regulation governs the system of the legal reserve and the mechanisms of the protection, resulting from that system, of certain heirs in the presence of the clauses considered here, in particular the action to obtain a reduction of the matrimonial advantage that exceeds the disposable portion.23 As for Poland, which does not participate in the enhanced cooperation established by the EU Regulation on Matrimonial Property Regimes, in cases that have a relevant connection with France and Poland, the provisions of Article 6(1)

19 E. FONGARO, L'anticipation successorale à l'épreuve du « règlement successions », Clunet, 2014/2, pp. 476-540. 20 Ibid, pp. 476-540. 21 In that vein, in reference to the matrimonial advantage consisting in allotment of the entire community – I. BARRIÈRE-BROUSSE, Conflit de lois. – Successions internationales. – Règlement (UE) n° 650/2012, Clunet, 2018/4, pp. 1213-1228. 22 See M. REVILLARD, Droit international privé et européen: pratique notariale, Paris 2022, pp. 378-379, 693-694. This author adopts such characterisation in regard to matrimonial advantages in general. 23 This approach, which assumes the differentiation, in relation to the matrimonial advantages considered here, between the questions covered by the law of the regime and the succession law, seems to coincide with that of P. Wautelet – see: P. WAUTELET, in A. BONOMI/ P. WAUTELET, Le droit européen des relations patrimoniales de couple. Commentaire des Règlements (UE) nos 2016/1103 et 2016/1104, Bruxelles 2021, pp. 148149. On the characterisation of the action to obtain a reduction of a matrimonial advantage provided for in Art. 1527(2) of the FCC as belonging to the scope of the law applicable to the succession – see: E. FONGARO (note 19), pp. 476-540. See also an analogous characterisation of the action to obtain a reduction of gifts – P. LAGARDE, in U. BERGQUIST D. DAMASCELLI, R. FRIMSTON, P. LAGARDE, EU Regulation on Succession and Wills. Commentary, Köln 2015, pp. 141-142.

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Composite Marriage Contracts in Polish Private International Law or (2) of the bilateral French-Polish convention of 196724 may come into play in regard to the clauses of the kind considered here. These provisions determine the law applicable to the conditions of validity and to the effects of the matrimonial property agreements, and have precedence over the Polish PIL Act. In the cases covered by the Polish PIL Act one should apply with respect to clauses of the kind here in question the conflict-of-laws provision of Article 52(2) of the Polish PIL Act, which refers to the category of “matrimonial property agreement”, encompassing issues falling within the contractual matrimonial property regime. However, since the EU Succession Regulation is applied in Poland, the legal reserve and such mechanisms as the action to obtain a reduction of the matrimonial advantage that exceeds the disposable portion are governed by this Regulation. B.

Gifts of Existing Property

There are legal systems, such as French or Spanish law, under which the marriage contract may encompass gifts of existing property (Fr. les donations de biens présents, Span. las donaciones de bienes presentes), that is of assets belonging to the donor on the day of the gift (as opposed to gifts of future property, cf. infra III, H, 1). Insofar as rules of the ordinary law of obligations are concerned, gifts of this kind, albeit contained in a marriage contract, are covered by the material scope of the Rome I Regulation. Meanwhile – in light of the exclusion laid down in Article 1(2)(c) of the Rome I Regulation, interpreted in conjunction with a broad definition of the matrimonial property regime set out in Article 3(1)(a) of the EU Regulation on Matrimonial Property Regimes – potential special rules governing gifts of existing property between the future spouses or from a third party in favour of one or both of the future spouses, dictated by the specificity of marriage, seem to fall outside the Rome I Regulation and to belong, within the enhanced cooperation, to the material scope of the EU Regulation on Matrimonial Property Regimes or, under the Polish PIL Act, of the conflict rules of Articles 51 and 52(1), determining the law applicable to the spouses’ property relations. C.

Clauses Regarding Parental Authority/Custody

In certain legal systems, the marriage contract (premarital or marital agreement) may encompass clauses concerning parental authority or custody. For example, the New York lawmaker explicitly provided for contractual provisions of this kind. Thus, as is clear from Section 236 (B)(3)(4) of the N.Y.DRL, a prenuptial or postnuptial agreement may include provision for the custody, care and education of any child of the parties. However, the rules of Section 240 of the N.Y.DRL give the court discretion to rule on custody of a child

24 Convention between Poland and France on Applicable Law, Jurisdiction and the Enforcement of Judgments in the Field of Personal and Family Law, concluded in Warsaw on the 5th of April 1967.

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Paulina Twardoch of a marriage as justice requires in light of the circumstances of the case and of the best interests of the child.25 In the French legal system, the provisions of Articles 376 and 1388 of the FCC are relevant. According to the former, “no relinquishment or transfer of parental authority may be effective, except by virtue of a judgment in the cases determined by the rules that follow” (Fr. “Aucune renonciation, aucune cession portant sur l'autorité parentale, ne peut avoir d'effet, si ce n'est en vertu d'un jugement dans les cas déterminés ci-dessous”).26 The latter provision, set out in the chapter encompassing the general provisions on the marriage contract, states that the spouses may not derogate from, inter alia, the rules on parental authority. As Ch. Vernières explains, the future spouses are precluded in particular from renouncing – by way of marriage contract – their parental authority, from regulating this authority by defining e.g. “usual acts of parental authority” (a notion employed by the lawmaker27), and from adopting any clause that would adversely affect attributes of parental authority relating to the minor’s property.28 Also noteworthy are the provisions of Article 1699.1. of the Portuguese Civil Code, stating explicitly that an antenuptial agreement may not have as its object alteration of the parental rights and duties, and of Article 42(3) of the FCRF, which expressis verbis precludes the spouses from regulating their rights and duties relative to their children in the marriage contract (a similar explicit rule is set out in Article 3.105(6) of the Lithuanian Civil Code – hereinafter: the LCC).29 As regards the clauses that have as their object the waiver or transfer of parental authority or of an analogous authority in relation to the person or the property of the child, their admissibility, under the Hague Convention of 1996 on The UPMAA addresses the question of defining, in a premarital or marital agreement, the rights or duties of the parties regarding custodial responsibility. As the provision of Section 10(c) of this Act states, such a term in a premarital or marital agreement is not binding on the court. As for the statutes and case law throughout the U.S. – see L.J. RAVDIN, Premarital Agreements. Drafting and Negotiation, Chicago 2017, p. 148. 26 Translation by the author. 27 See Article 372-2 of the FCC. 28 CH. VERNIÈRES, in M. GRIMALDI (ed), Droit patrimonial de la famille, Paris 2017, no. 121.124. 29 As for the discussion held in the Spanish doctrine on the issue of validity and binding effect of different premarital or marital agreement clauses concerning parental authority or guardianship and custody, in particular these relating to the manner of exercising parental authority or to distribution of guardianship and custody in case of separation or divorce – see: C. MARTÍNEZ ESCRIBANO, Pactos prematrimoniales, Madrid 2011, pp. 111-114; M. FIGUEROA TORRES, Autonomía de la voluntad, capitulaciones matrimoniales y pactos en previsión de ruptura. En España, Estados Unidos y Puerto Rico, Madrid 2016, p. 214; V. GUILARTE GUTIÉRREZ/ C. GUILARTE MARTÍN-CALERO/ C. MARTÍNEZ ESCRIBANO/ N. RAGA SASTRE, Las capitulaciones matrimoniales. Las donaciones por razón de matrimonio, in M. YZQUIERDO TOLSADA/ M. CUENA CASAS (eds), Tratado de derecho de la familia, vol III. Los regímenes económicos matrimoniales (I), Cizur Menor (Navarra) 2017, pp. 537-538; F.J. COLAO MARÍN, Los acuerdos prematrimoniales en el derecho civil español. El contenido posible, Madrid 2018, pp. 204216. 25

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Composite Marriage Contracts in Polish Private International Law Parental Responsibility,30 should be assessed either in light of the law determined by the conflict rule of Article 16(2), i.e. the law applicable to the attribution or extinction of parental responsibility by an agreement or a unilateral act, without intervention of a judicial or administrative authority,31 or in light of the law identified on the basis of the conflict rule of Article 15(1) or (2), i.e. the law applicable to the protection measures taken by a judicial or administrative authority.32 It must be explained here that the latter variant concerns those cases where the attribution or extinction of parental responsibility by a legal act must be examined as to the substance of the matter by a judicial or administrative authority. If the intervention of the judicial or administrative authority is a so-called passive intervention, e.g. limited to registration, without any control over the substance of the matter, the case falls within the scope of the conflict rule of Article 16(2).33 The law determined – respectively – in Article 16(2) or in Article 15(1) or (2) is also relevant to the question of whether the above-mentioned clauses may be agreed in order to later apply in the event of divorce or legal separation. Moreover, this law governs in principle the opposability of the clauses considered here against third parties. Nevertheless, the provision of Article 19, aimed at protection of the third parties at the conflict-of-laws level, may come into play. It is worth noting that in light of the conflict rule of Article 16(2), the moment relevant to identify the law applicable to the attribution or extinction of parental responsibility by an agreement (or a unilateral act) is the time when the agreement (or unilateral act) takes effect.34 Hence, in the case of an agreement upon divorce, the relevant moment may be the date of the dissolution of marriage. Thus, in the face of this temporal criterion there is not always – at the time of the conclusion of the agreement – certainty as to the applicable law. Unlike the provision of Article 16(2), that of Article 17, concerning the exercise of parental responsibility, does not use the notion of agreement. However, it seems legitimate to consider that the latter provision also covers the questions relating to contractual regulations in the matter. In that light, as for the clauses regulating the exercise of parental authority or of an analogous authority over the children, the questions of their admissibility and of the scope of the parties’ freedom in shaping their content should be characterised – under the Hague Convention of 1996 on Parental Responsibility – as covered by the law determined in 30 As for the prerequisites for application of the Hague Convention of 1996 on Parental Responsibility in terms of conflicts with other conventions – see Article 52 of the Convention. 31 In this case the applicable law is the law of the state of the child's habitual residence at the time when the agreement or unilateral act takes effect. 32 In this case the applicable law is, in principle, lex fori (Article 15(1)). Exceptionally, the law of another state with which the situation has a substantial connection may be applied or taken into consideration (Article 15(2)). 33 See explanation of the criteria of delimitation between the scopes of the conflict rules of Articles 16(2) and 15 of the Convention: P. LAGARDE, Explanatory Report on the 1996 HCCH Child Protection Convention, The Hague 1998, no. 103; Practical Handbook on the Operation of the 1996 Hague Child Protection Convention, The Hague 2014, p. 95. 34 See remarks on this temporal criterion – P. LAGARDE (note 33), no. 104.

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Paulina Twardoch the conflict rule of Article 17, that is by the law applicable to the exercise of parental responsibility. It is worth mentioning that, as is appears, there is no one universal formula conclusive as to which elements of a regime of parental authority or of a similar authority relative to children are part of the essence of this authority and thus fall within the category of “the attribution or extinction of parental responsibility”, and which ones only constitute the conditions (or modus) of exercising this authority and as such belong to the scope of the conflict rule of Article 17. This problem should be resolved case-by-case, by examining the specificity of particular figures provided for in particular legal systems.35 A Polish court ruling on divorce is obliged to adjudicate ex officio, in the divorce judgement, on parental authority over a common minor child of the spouses, on contacts between the parents and the child, as well as on the amount of the costs of the maintenance and of the upbringing of the child that each of the spouses is to bear. Such obligation of the court follows from the rule of Article 58 §1 sentence 1 of the Polish Family and Guardianship Code, which – since it is a procedural rule and as such is covered by the lex fori processualis – is also to be applied by the Polish court in cross-border cases. The same reasoning underlies the application of the rule of Article 58 §1 sentence 2 of the same Code insofar as the latter obliges the court to take into account a written settlement of the spouses on the manner of exercising parental authority and on maintaining contacts with the child after divorce. Nonetheless, the substance of the adjudication on the abovementioned questions should be based on the (substantive36) law applicable to them37, which, unless a bilateral convention takes precedence,38 is the law identified pursuant to the Hague Convention of 1996 on Parental Responsibility or – as regards the maintenance of the child – the law identified pursuant to the Hague Protocol of 2007. Thus, if the spouses have regulated, in their (pre)marital agreement, the exercise of parental authority and/or the maintaining of contacts with the child and/or the maintenance of the child after divorce, and if such contractual regulations are admissible under the law relevant to them, then it may be necessary to carry out the adaptation of the rules belonging to different legal systems, i.e. on the one hand, the procedural rules of Article 58 of the Polish Family and Guardianship Code (Polish law being lex fori processualis) and, on the other hand, the substantive rules of the foreign law, determined as applicable – respectively – by the Hague Convention of 1996 on Parental Responsibility or by the Hague Protocol of 2007. 35 See remarks on the distinction between the existence and the conditions of application of a measure of protection in the context of Article 15 – P. LAGARDE (note 33), no. 91. 36 As opposed to the procedural one. 37 In that vein M. PAZDAN, Prawo prywatne międzynarodowe, Warszawa 2017, p. 307. An analogous composite approach is justified as regards the adjudication (to be made ex officio within the divorce judgement) provided for in Article 58 §2 of the Polish Family and Guardianship Code, that is the adjudication on the manner in which the spouses who are both to continue to occupy the same dwelling after divorce should use this dwelling during that period. 38 See Article 52 of the Hague Convention of 1996 on Parental Responsibility.

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Composite Marriage Contracts in Polish Private International Law D.

Clauses as to Dissolution of Marriage by Divorce

As for the (pre)marital agreement clauses that either exclude the right of a spouse to seek legal separation or divorce or that introduce, limit or extend the grounds for the exercise of this right/limit or extend prerequisites for legal separation or divorce, their admissibility or enforceability is discussed in the doctrine of different jurisdictions. Among Spanish authors, most agree on the inadmissibility of the premarital or marital agreement clauses by way of which the parties would introduce (specific) grounds for separation or divorce.39 In reference to Portuguese law, R. Lobo Xavier points out that: “exclusion of any legal cause for divorce is not permitted through contract”.40 As for Romanian law, in the opinion of M. Avram and C.M. Nicolescu, the question of the admissibility of the clauses excluding or restricting – as far as the grounds of divorce are concerned – the possibility of divorce remains open.41 Regarding the USA, L.J. Ravdin argues that in the states that have eliminated divorce based on fault entirely, there should be no problem with a contractual provision that waives in advance any fault ground for divorce. Even in some fault states, courts may enforce a provision that waives fault.42 It is worth adding that, according to the explicit rule of Section 10(b)(3) of the UPMAA, a premarital agreement or marital agreement term that purports to modify the grounds for a court-decreed separation or marital dissolution is not enforceable. In my opinion, under the Polish PIL Act, the issue of the admissibility of the clauses limiting, eliminating, introducing or extending grounds for (seeking) divorce/limiting or extending substantive prerequisites for divorce is covered by the law applicable to divorce, as determined by the provision of Article 54(1-3). An analogous approach should be adopted in regard to the similar clauses as to (seeking) legal separation – the question of their admissibility should be assigned to the scope of application of the law relevant to the legal separation (identified on the basis of the provision of Article 54(1-3) in conjunction with the provision of Article 54(4) of the Polish PIL Act). It is worth noting here once again that Poland does not participate in the enhanced cooperation implemented through the Rome III Regulation. Within the enhanced cooperation, it seems that the latter act does cover the issue of the admissibility of such clauses. 39

See F.J. COLAO MARÍN (note 29), p. 160. See also M. FIGUEROA TORRES (note 29),

p. 218. R. LOBO XAVIER, Autonomy and Private Ordering in Portuguese Family Law, in F. SWENNEN (ed), Contractualisation of Family Law – Global Perspectives, Heidelberg/ New York/ Dordrecht/ London 2015, p. 261. 41 M. AVRAM/ C.M. NICOLESCU, Perspective roumaine sur la contractualisation du droit de la famille, in F. SWENNEN (ed), Contractualisation of Family Law – Global Perspectives, Heidelberg/ New York/ Dordrecht/ London 2015, pp. 284-285. 42 See L. RAVDIN (note 25), p. 163. On contractual limitation of grounds for divorce – see also Massar v. Massar, 652 A.2d 219 (N. J. Super. App.Div. 1995). About this case – see B.R. TURNER/ L.W. MORGAN, Attacking and Defending Marital Agreements, USA 2012, p. 377. 40

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Paulina Twardoch There is also another kind of premarital or marital agreement clause, the admissibility of which is debated in the legal doctrine of different jurisdictions: the clauses providing for compensation to be allocated to a spouse merely by reason of the fact that the other spouse (against the will of the first one) brought before the court the unilateral demand for divorce or legal separation, or the clauses providing for compensation to be allocated to a spouse based merely on the divorce or legal separation. Under Spanish law, for example, there is no unanimity among authors in this regard.43 Regarding the Portuguese legal system, as R. Lobo Xavier points out: “[s]ome doctrine (…) considers as valid the contractual clause inserted, for example, in the ante-nuptial agreement, which establishes a patrimonial penalty in the event of a spouse requiring a divorce”.44 It is also worth noting that the UPMAA addresses explicitly the issue of the enforceability of the premarital or marital agreement provision that “penalizes a party for initiating a legal proceeding leading to a court-decreed separation or marital dissolution”. According to the rule of Section 10(b)(4) of the UPMAA, such a term is unenforceable. When characterising the clauses providing for compensation to be allocated to a spouse only by reason of the unilateral demand for divorce brought before the court by the other spouse or the clauses providing for compensation to be allocated to a spouse based merely on the divorce, one must attach importance to the fact that the approach adopted in a particular legal system in regard to the contractual freedom to introduce such clauses is very closely related to the concept of divorce adopted in that legal system. It is also worth paying attention in this context to the characterisation given to compensation provided for by law for the damage resulting simply from the divorce, such as dommages-intérêts provided for in Article 266 of the FCC. According to such French authors as H. Gaudemet-Tallon or J. Casey,45 the dommages-intérêts regulated in Article 266 of the FCC are governed by the law applicable to divorce.46 Previously Y. Loussouarn et P. Bourel, 43 See: M. FIGUEROA TORRES (note 29), p. 220; V. GUILARTE GUTIÉRREZ, C. GUILARTE MARTÍN-CALERO, C. MARTÍNEZ ESCRIBANO, N. RAGA SASTRE (note 29), pp. 524-525. See also: C. MARTÍNEZ ESCRIBANO (note 29), pp. 91-97; F.J. COLAO MARÍN (note 29), pp. 166-177; L. ROZALÉN CREUS, Validez y eficacia de los pactos matrimoniales, Cizur Menor (Navarra) 2019, pp. 86, 126-128; I. ANTÓN JUÁREZ (note 10), pp. 122, 273274. 44 R. LOBO XAVIER (note 40), p. 261. 45 H. GAUDEMET-TALLON, Divorce, JurisClasseur de Droit International, 2017/54720, no. 102. J. CASEY, Divorces internationaux: la révolution Rome III ?, Gazette du Palais 2012/258-259, pp. 11 et seq. 46 Cf. A. DEVERS/ M. FARGE, Le nouveau droit international privé du divorce. À propos du règlement Rome III sur la loi applicable au divorce, La Semaine Juridique – Édition Générale, 2012/26, p. 1279, footnote 8; A. BOICHE, Application de la loi du divorce dans l’espace, in P.-J. CLAUX/ S. DAVID (eds), Droit et pratique du divorce 2018-2019, Paris 2017, no. 05.161; Cf. also E. FONGARO, Le règlement Rome III et les conséquences patrimoniales du divorce, La Semaine Juridique Notariale et Immobilière, 2012/25, pp. 7581.

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Composite Marriage Contracts in Polish Private International Law among others, argued in a similar vein, referring to “the dommages-intérêts allocated for the mere reason of divorce”.47 In the context of the Polish PIL Act of 1965 A. Mączyński advocated that the compensation claims to which a spouse may be entitled on account of divorce were covered by the law applicable to divorce.48 Similarly, in the context of the Polish PIL Act of 2011, A. Kozioł alleges that the obligation to compensate for the damage resulting from the dissolution of marriage by divorce belongs to the scope of application of the law applicable to divorce.49 In view of the above, it seems justified under the Polish PIL Act to deem the clauses considered here to fall within the scope of the law applicable to divorce. Thus, this law is relevant, in particular, to the following questions: - is contracting as to a compensation of the kind analysed here admissible? - is such a clause an admissible element of the marriage contract (or of the premarital or marital agreement) from the point of view of material rules?50 - what are the limits of the autonomy of the parties concerning the content of such clauses? – e.g. as to the amount of the compensation (in particular: may this amount be determined such that it increases with the duration of the marriage?) or as to the form of the compensation (in money or by transfer of rights)? An analogous reasoning is legitimate with respect to similar clauses concerning compensation to be allocated to a spouse only by reason of the unilateral demand for legal separation brought before the court by the other spouse or compensation to be allocated to a spouse based merely on the legal separation. It is worth noting that in the conflict rules concerning the dissolution of marriage by divorce, laid down in Article 54 of the Polish PIL Act, the Polish lawmaker adopted the moment of filing for divorce as the temporal point of reference for the purposes of searching for the applicable law. Accordingly, the provision states that the dissolution of marriage by divorce is governed: (1) by the national law of both spouses at the moment of seeking divorce, (2) in the absence of such law at that time – by the law of the state of domicile of both spouses at the moment of filing for divorce, (3) in the absence of such law too – by the law of the state of the last habitual residence of both spouses, provided that one of them still has his or her habitual residence there, (4) in the absence of the connections listed above – by Polish law. When applied to a clause of a marriage contract, that temporal point of reference may generate uncertainty as to the applicable law. This is because at the time of concluding such a contract the parties cannot be sure as to the circumstances relevant in the light of the above-mentioned connecting factors. This difficulty cannot be avoided by means of a choice of law, as the Polish PIL Act – unlike the Rome III Regulation – does not provide for parties’ autonomy in deterY. LOUSSOUARN/ P. BOUREL, Droit international privé, Paris 1978, p. 439. A. MĄCZYŃSKI, Rozwód w prawie prywatnym międzynarodowym, Warszawa 1983, p. 132. A. MĄCZYŃSKI refers in this regard to the French authors – H. BATIFFOL and P. LAGARDE. 49 A. KOZIOŁ, in M. PAZDAN (ed), Prawo Prywatne Międzynarodowe. Komentarz, Warszawa 2018, p. 502. 50 “Material” is construed here as opposed to “formal”. 47 48

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Paulina Twardoch mining the law applicable to divorce. Analogous observations may be formulated in the context of the conflict rules concerning legal separation (Article 54(1-3) in conjunction with Article 54(4) of the Polish PIL Act). E.

Clauses Regarding Alimony, Compensatory Allowance or Contribution to Marriage/Family Expenses

There are legislations under which the (future) spouses may, in their marriage contract (premarital or marital agreement), regulate the alimony provided for by law, as is the case in the Russian51 or Bulgarian52 legal systems, or even – as is the case under the American UPAA53 – waive entirely the right to alimony. The Hague Protocol of 2007 is silent on the question of whether it also covers agreements concerning maintenance obligations. Nevertheless the positive answer is justified, to the extent that – as stated in the Explanatory Report – such an agreement has as its object the modification or further specification of an obligation arising from a family relationship.54 German, Spanish and Polish authors, such as inter alia A. Dutta,55 B. Añoveros Terradas,56 I. Antón Juárez,57 M. Jagielska58 or N. Rycko,59 advocate in the same vein. As regards the waiver of the right to maintenance, it is clear from Article 8(4), which directly refers to such a waiver, that the scope of application of the Protocol embraces this issue as well. In view of the foregoing, one should consider that the Hague Protocol of 2007 also encompasses the marriage contract clauses (premarital or marital agreement clauses) whose essence consists in modifying or further specifying the regime, provided for by law, of alimony, or in waiving alimony.60 In particular, the

51 See commentary to Article 42 of the FCRF – W.E. BUTLER, Russian Family Law, UK 2015, p. 114. 52 See Article 38(1)(6) of the BFC. 53 In the light of the rule of Section 3(a)(4) of the UPAA, parties to a premarital agreement may contract with respect to “the modification or elimination of spousal support”. See also: B.R. TURNER/ L.W. MORGAN (note 42), pp. 381-382, L. RAVDIN (note 25), p. 119. 54 A. BONOMI, Explanatory Report on the 2007 HCCH Law Applicable to Maintenance Obligations Protocol, The Hague 2013, no. 32. 55 A. DUTTA (note 10), p. 196. 56 B. AÑOVEROS TERRADAS, Choice of Law in International Premarital Agreements. A Comparison Between the US and the European System (Part II), European Review of Private Law, 2020/1, p. 137. 57 I. ANTÓN JUÁREZ (note 10), pp. 211-212. 58 M. JAGIELSKA, in M. PAZDAN (ed.), System Prawa Prywatnego, vol 20C, Warszawa 2015, p. 640. 59 N. RYCKO, in J. POCZOBUT (ed.) Prawo Prywatne Międzynarodowe. Komentarz, Warszawa 2017, p. 937. 60 As the inadmissibility of waiver of a future right to maintenance is considered a rule of public policy in Polish law, a Polish court may, on the basis of the provision of

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Composite Marriage Contracts in Polish Private International Law following questions belong to the material scope of the Protocol: the issue of the admissibility of contracting as to such a regime (specifically in a given period of time, such as before marriage or after concluding a marriage, but before initiation of the divorce proceedings), the boundaries of parties’ freedom in shaping the content of the clauses here considered, and the question of whether a court may apply the rebus sic stantibus exception in regard to such a clause. A similar treatment should be adopted with respect to the marriage contract clauses (deemed admissible in particular under Spanish law61) by way of which the (future) spouses renounce the so-called compensatory allowance provided for by law in the event of divorce or legal separation (Span. la pensión compensatoria62), or determine the amount of such compensation.63 It is worth explaining here that the foregoing view derives from the assumption that the compensatory allowance itself, such as that provided for in Article 97 of the SCC or that of Article 270(2) of the FCC, although it has a hybrid nature (alimony and at the same time indemnifying64), should be classified at the conflict-of-laws level as belonging to the category of “maintenance obligations” embraced by the Hague Protocol of 2007.65 Likewise, as the Article 13 of the Hague Protocol of 2007, set aside the applicable law authorising such waiver. 61 See: V. GUILARTE GUTIÉRREZ/ C. GUILARTE MARTÍN-CALERO/ C. MARTÍNEZ ESCRIBANO/ N. RAGA SASTRE (note 29), pp. 528-530; M. FIGUEROA TORRES (note 29), pp. 223, 229; I. ANTÓN JUÁREZ (note 10), pp. 261-263; L. ROZALÉN CREUS (note 43), pp. 119-120. 62 Under French law the compensatory allowance, provided for in Article 270(2) of the FCC (Fr. la prestation compensatoire), may not be waived before initiation of the divorce proceedings, hence it may not be waived in the marriage contract (see: H. LETELLIER, France, in H. LETELLIER (ed), Les contrats nuptiaux. Accords financiers pour la vie commune et la séparation, Paris 2011, p. 19; S. HAMOU (note 10), pp. 44 et seq.; J. HAUSER/ S. SANA-CHAILLE DE NERE, in M. CRESP/ M. HO-DAC (eds), Droit de la famille. Droits français, européen, international et comparé, Bruxelles 2018, pp. 393-394, 396; M. REVILLARD (note 22), p. 317). 63 Characterisation in that vein is advocated by B. Añoveros Terradas (B. AÑOVEROS TERRADAS (note 10) Los pactos, p. 467). Similarly, in regard to an anticipated waiver of the compensatory allowance: I. ANTÓN JUÁREZ (note 10), p. 259. See also: CH. CHALAS, Règlement (CE) n°4/2009 sur les obligations alimentaires, Clunet, 2016/1, pp. 119 et seq. 64 See: B. AÑOVEROS TERRADAS (note 10) Los pactos, p. 456; J. FERRER-RIBA, Marital Agreements and Private Autonomy in Spain, in J.M. SCHERPE (ed), Marital Agreements and Private Autonomy in Comparative Perspective, Oxford/ Portland/ Oregon 2012), p. 357; E. FONGARO (note 46), pp. 75-81; idem, Effets en France d’une loi étrangère autorisant la renonciation à prestation compensatoire et ordre public international français, La Semaine Juridique – Edition Générale, 2015/40, p. 1729; J. HAUSER/ S. SANA-CHAILLE DE NERE (note 62), p. 356. 65 See B. AÑOVEROS TERRADAS (note 10) Los pactos, pp. 456-457. In favour of classifying the compensatory allowance as belonging to the conflict-of-laws category of “maintenance obligations” set forth in the Hague Protocol of 2007 – see also e.g.: E. FONGARO (note 46), pp. 75-81; idem (note 64), p. 1729; M. REVILLARD (note 22), p. 162; A.-L. CALVO CARAVACA/ J. CARRASCOSA GONZÁLEZ, in A.-L. CALVO CARAVACA/ J. CARRASCOSA GONZÁLEZ (eds), Derecho Internacional Privado, vol II, Granada 2018, pp. 287, 551. Attaching a decisive importance to the indemnifying element of the

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Paulina Twardoch obligation of a spouse to contribute to the marriage/family expenses, such as that imposed in Article 214 of the FCC (Fr. la contribution aux charges du mariage), that of Article 1318 of the SCC (Span. el levantamiento de las cargas del matrimonio), or that of Article 3.27 of the LCC, is covered by the material scope of the Protocol,66 the marriage contract clauses concerning such an obligation fall within this scope as well.67 It is worth adding here that the contribution to the marriage/ family expenses may be regulated in the marriage contract under inter alia French,68 Lithuanian,69 Russian70 or Spanish71 law. However, as regards the cases that have a relevant connection with Russia and Poland, rules of the bilateral Russian-Polish convention of 199672 may come into play, in particular: - the rules of Article 25, determining the law applicable to the personal and property relations between the spouses, as to the clauses on the contribution to the family expenses, and - the rules of Article 26, determining the law applicable to divorce, as to the clauses on alimony. compensatory allowance (which is not what I advocate) in the Polish private international law (as far as the Polish PIL Act is concerned) would lead to assigning the institution in question to the scope of application of the law relevant to divorce/legal separation (see supra: remarks on the characterisation of compensation, provided for by law, for damage resulting from divorce). 66 See: M.-L. NIBOYET AND G. DE GEOUFFRE DE LA PRADELLE, Droit international privé, Issy-les-Moulineaux 2017, pp. 59-60; B. AUDIT/ L. AVOUT, Droit international privé, Issy-les-Moulineaux 2018, p. 670; D. LOOSCHELDERS, in Münchener Kommentar zum BGB, beck-online, 2018, no. 32. In the context of the Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7/1, 10.1.2009 – see: H. PÉROZ/ E. FONGARO, Droit international privé patrimonial de la famille, Paris 2017, p. 137; J. CARRASCOSA GONZÁLEZ, in A.-L. CALVO CARAVACA/ J. CARRASCOSA GONZÁLEZ (eds), Derecho Internacional Privado, vol II, Granada 2018, p. 541; M. REVILLARD (note 22), pp. 376-377. See also: J. RODRÍGUEZ RODRIGO, Relaciones económicas de los matrimonios y las uniones registradas en España, antes y después de los reglamentos (UE) 2016/1103 y 2016/1104, Valencia 2019, p. 37 (the author excludes the contribution to the family expenses from the scope of application of the EU Regulation on Matrimonial Property Regimes and characterises this institution – in private international law – as maintenance). 67 This view converges with that presented by Ch. Chalas, according to which the Hague Protocol of 2007 encompasses the anticipated agreements concerning the contribution to the marriage expenses (see: CH. CHALAS (note 63), pp. 119 et seq.). 68 See: H. LETELLIER (note 62), pp. 8-9; S. PIEDELIÈVRE (note 15), pp. 88-90. 69 Article 3.104(4) of the LCC. 70 Article 42(1) of the FCRF. See also: W.E. BUTLER (note 51), p. 115. 71 See: V. GUILARTE GUTIÉRREZ/ C. GUILARTE MARTÍN-CALERO/ C. MARTÍNEZ ESCRIBANO/ N. RAGA SASTRE (note 29), pp. 512-513. 72 Convention between the Republic of Poland and the Russian Federation on Legal Aid and Legal Relationships in Civil and Criminal Matters, concluded in Warsaw on 16 September 1996.

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Composite Marriage Contracts in Polish Private International Law A different approach should be taken in relation to the annuity contract, life annuity contract or other similar agreements included in a marriage contract, but belonging to the sphere of the ordinary law of obligations. Thus, in this regard, under the present state of the law, the applicable law should be searched for by means of the Rome I Regulation.73 However, potential special rules, provided for by law in reference to the spouses and dictated by the specificity of marriage, appear to fall outside the scope of the Rome I Regulation, and should be assigned, within the enhanced cooperation, to the material scope of the EU Regulation on Matrimonial Property Regimes or, under the Polish PIL Act, to the scope of the conflict rules of Articles 51 and 52(1), concerning the spouses’ property relations (see supra: remarks on the gifts of existing property). F.

Clauses as to Assignment of Use of Dwelling in the Event of Divorce

Certain legislations provide for special family-law solutions, separate from the rules governing the liquidation of matrimonial property regime, as to the attribution – to a spouse and/or to the spouses’ children – of the use of the family/marital dwelling in the event of divorce or legal separation. Such rules are set out e.g. in Article 96 of the SCC or in Paragraph 1568a of the BGB. Spanish and German law are also examples of legal systems under which the (future) spouses may establish a contractual solution as to the question of the attribution, in the event of divorce or legal separation, of the use of the above-mentioned dwelling. A clause (agreement) of this kind may be inserted in the marriage contract.74 The characterisation, at the conflict-of-laws level, of the clauses, inserted in marriage contracts, regarding the assignment of the use of a dwelling in the event of divorce should be differentiated depending on the nature of the clause in question. Hence, if a given clause concerns a family-law figure (of the kind described in the previous paragraph) provided for by law, as is the case e.g. with a clause consisting in the renunciation, for the future, of the right, provided for by law in the event of divorce, to obtain/to demand attribution of the use of the family dwelling, then, depending on the nature, function and aim of the family-law figure that is to be modified or derogated from through the clause, the following possibilities of characterisation come into play. The clause may be considered to belong to the scope of the law applicable to the maintenance obligations between ex-spouses75, or to the scope of the law applicable to the maintenance obligations

A similar view: I. ANTÓN JUÁREZ (note 10), p. 271. As for Spain – see: C. MARTÍNEZ ESCRIBANO (note 29), pp. 108-109; V. GUILARTE GUTIÉRREZ/ C. GUILARTE MARTÍN-CALERO/ C. MARTÍNEZ ESCRIBANO/ N. RAGA SASTRE (note 29), pp. 527-528; I. ANTÓN JUÁREZ (note 10), pp. 266-267. As for Germany – see: A. DUTTA (note 10), p. 171. 75 See: A. DUTTA (note 10), p. 196. This author mentions, in an analogous context, the law applicable to maintenance as an alternative to the law applicable to the general effects of marriage (the remark was formulated before the revision of 2013 of the German private international law). See also the characterisation presented by A.-L. Calvo Caravaca and J. Carrascosa González concerning the attribution of the use of the family dwelling 73 74

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Paulina Twardoch with regard to the child, or to the scope of the law applicable to the measures for the protection of children,76 or to the scope of the law applicable to the property relations between the spouses (within the enhanced cooperation of the law applicable to the matrimonial property regime). As the attribution, provided for by law, of the use of the family/marital dwelling in the event of divorce or legal separation involves, depending on the legal system, the protection of different persons, in particular, one of the spouses and/or the children, it seems to be justified, at least in certain cases, to consider more than one applicable law as relevant to the question of the freedom of contracting as to such attribution, e.g. the law applicable to the measures for the protection of children and the law applicable to the property relations between the spouses, and to apply those laws cumulatively. Adaptation may then be needed to achieve a just outcome. Meanwhile, if in order to assign the use of a dwelling after divorce to one of them and/or to their children, the (future) spouses reach for a tool of ordinary contract law, such as a tenancy agreement, the clause in question, although inserted in the marriage contract, should be characterised – in the present state of the law – as falling within the Rome I Regulation. G.

Contractual Derogations from a Special Regime of Equalisation of Pension Rights

Under certain legal systems, there is a special (statutory) mechanism of division of pension rights in the event of divorce, separate from the mechanism of liquidation of the matrimonial property regime.77 The pension rights covered by such a special regime are treated distinctly – as regards the consequences of divorce – from other assets of the spouses. This is the case inter alia of the mechanism of equalisation of pension rights (Versorgungsausgleich) regulated in paragraph 1587 of the BGB and in the German Pension Equalisation Act (Gesetz über den Versorgungsausgleich). As A. Dutta explains, referring to the provisions of Paragraph 2(1) and (2) of the latter act, the scope of application of this mechanism covers: “any public or private right which (1) was established by work or capital, which (2) secures against the risks of retirement or disability, and which (3) grants an annuity”.78 provided for in former Article 96.3 of the SCC (A.-L. CALVO CARAVACA/ J. CARRASCOSA GONZÁLEZ (note 65), p. 289). Similarly: I. ANTÓN JUÁREZ (note 10), p. 266. 76 See the characterisation presented concerning the attribution provided for in Article 96.1 of the SCC – A.-L. CALVO CARAVACA/ J. CARRASCOSA GONZÁLEZ (note 65), p. 289. Similarly: I. ANTON JUAREZ (note 10), p. 266. 77 See: A. BUCHER, Divorce international et prévoyance professionnelle, in CH. FOUNTOULAKIS/ A. RUMO-JUNGO (eds), La famille dans les relations transfrontalières. Actualités en droit suisse et dans les rapports internationaux, Genève/ Zurich/ Bâle 2013, p. 99; B. CARDINAUX, Le partage des prétentions de prévoyance en cas de “divorce international”, in CH. FOUNTOULAKIS/ A. JUNGO (eds), Patrimoine de la famille: Entretien, régimes matrimoniaux, deuxième pilier et aspects fiscaux, Genève/ Zurich/ Bâle 2016, p. 100. 78 A. DUTTA (note 10), p. 163.

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Composite Marriage Contracts in Polish Private International Law German law is also an example of a legal system under which the spouses or future spouses may derogate from the rules constituting the special regime of equalisation of pension rights (paragraph 6 of the Pension Equalisation Act).79 An agreement in this regard may be contained in the marriage contract (understood in the broad sense of the term; Paragraph 1408(2) of the BGB). A short, non-exhaustive list of admissible solutions as to the content of such an agreement is set out in Paragraph 6 of the Pension Equalisation Act.80 Under the Polish PIL Act, a special mechanism of equalisation of pension rights in the event of divorce, such as the one described above, should be considered – in my opinion – as sui generis.81 The distinctiveness of such a regime weighs against placing it in the category of “matrimonial property regime”.82 Because of its specificity, one should also reject the inclusion of such a mechanism – at the conflict-of-laws level – within the other property relationships (distinct from the matrimonial property regime sensu stricto) embraced by the category of “property relations between the spouses” (in regard to which the applicable law is determined in Articles 51 and 52(1) of the Polish PIL Act). Analogously, the above-mentioned feature of the mechanism in question excludes assigning this mechanism to the scope of application of the EU Regulation on Matrimonial Property Regimes. It is also inadequate to classify it within the category of “maintenance obligations” set forth in the Hague Protocol of 200783 or within the ambit of the conflict rules determining the law applicable to divorce84 – those of the Polish PIL Act (Article 54) or those of the Rome III Regulation. Assuming that a special regime of equalisation of pension rights, such as that provided for in German law, should be considered under the Polish PIL Act to be sui generis, implies the necessity to establish – pursuant to the provision of 79 See: A. DUTTA (note 10), pp. 169-170; D. SCHWAB/ P. GOTTWALD/ S. LETTMAIER, Germany, Supplement 86 (2017), in W. PINTENS (ed), International Encyclopaedia for Family and Succession Law, Alphen aan den Rijn 2016, p. 67. 80 See: A. DUTTA (note 10), p. 170. 81 See remarks in the context of the Swiss private international law: A. BUCHER, Commentaire romand. Loi sur le droit international privé. Convention de Lugano, Bâle 2011, pp. 512-513; B. DUTOIT, Droit international privé suisse: commentaire de la loi fédérale du 18 décembre 1987, Bâle 2016, p. 246. 82 In that vein, in light of the Swiss private international law: A. BUCHER (note 81), p. 512; B. DUTOIT (note 81), p. 246. 83 See remarks of A. Bucher in the context of the Hague Convention on the Law Applicable to Maintenance Obligations of 1973 – A. BUCHER (note 81), p. 512. 84 However, according to the case law of the Swiss Federal Court, the division of occupational pension entitlements should be governed by the same law as the divorce itself. This concept has found legislative expression in the new conflict-of-laws regime of divorce and its effects. Thus, in light of the new conflict rule of Art. 63(2) of the Swiss Federal Act on Private International Law, the division of occupational pension entitlements, as an ancillary effect of divorce, is governed by Swiss law, which, pursuant to the conflict rule of Art. 61, is the law applicable to divorce itself. See: B. DUTOIT, Droit international privé suisse: commentaire de la loi fédérale du 18 décembre 1987, Bâle 2016, p. 248; see also Message concernant la révision du code civil suisse (Partage de la prévoyance professionnelle en cas de divorce) du 29 mai 2013 (FF 2013 4341), pp. 4378-4383.

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Paulina Twardoch Article 67, serving to fill the gaps in private international law – the law the most closely connected with the relationship in question. It is important to notice in this context that there is a significant connection between the question of special mechanism of division of pension rights in the event of divorce and the law (1) in virtue of which a given pension insurance institution was collecting contributions from the spouse-member of a pension scheme and (2) that entitles the spouse-member of a pension scheme to receive payment of pension benefits.85 This connection is strong enough to justify86 considering it as corresponding to the criterion set out in Article 67 of the Polish PIL Act (the criterion of the closest connection). Hence, the law described above, i.e. the so-called law of the pension insurance institution, should be deemed applicable with regard to a potential special regime of division of pension rights in the event of divorce. This law is also relevant to the question of exclusion or modification of rules of such a regime by agreement between the spouses or future spouses. In particular, the law of the pension insurance institution governs the issue of the admissibility of the above-mentioned contractual derogations and the scope of parties’ freedom in shaping the content of clauses establishing such derogations. As a side note, it is worth drawing attention to the fact that one may face difficulties arising at the intersection of two different legal systems: one being the law applicable to the question of a special regime of division of pension rights in the event of divorce and providing for such a special regime, and the other being the law applicable to the matrimonial property regime and including the division of (the same) pension rights within the mechanism of the liquidation of the matrimonial property regime. Problems of this kind may be overcome by means of adaptation.87 An analogous disharmony may appear between the law applicable to the question of a special regime of division of pension rights in the event of divorce and the law applicable to the maintenance obligations between ex-spouses, if the latter obliges the judge, who adjudicates on the compensatory allowance or alimony, to take into account, inter alia, the spouses’ respective situations in terms of

85 See A. BUCHER (note 81), pp. 513, 515; idem (note 77), p. 100; see also M. TRIGO TRINDADE, La nouvelle loi sur le libre passage (LFLP) et le divorce, en particulier le transfert d’une partie de la prestation de libre passage selon l’art. 22 LFLP Semaine judiciaire, 1995/25, p. 480. On that significant connection – see also: A. BONOMI, in A. BONOMI/ P. WAUTELET, Le droit européen des relations patrimoniales de couple. Commentaire des Règlements (UE) nos 2016/1103 et 2016/1104, Bruxelles 2021, p. 160. Cf.: A. KOZIOŁ (note 49), p. 505. 86 As A. BUCHER points out, every pension regime is characterised by unity (A. BUCHER (note 77), p. 104, idem (note 81), p. 516). Thus – as it follows from the considerations presented by this author – one should not differentiate the law applicable to such issues as the regime of contributions and benefits on the one hand and a potential special mechanism of division of pension rights on the other hand. For practical reasons it is undesirable to impose on a pension insurance institution a special mechanism of division of pension rights that is foreign to that institution (see A. BUCHER (note 81), pp. 513-516). 87 On how to carry out adaptation in such a situation – see the solution presented by A. BONOMI in: A. BONOMI (note 85), pp.163-164.

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Composite Marriage Contracts in Polish Private International Law the pension rights. Similarly, as in the previously mentioned case, the problems resulting therefrom may be resolved by means of adaptation88. H.

Clauses as to Succession

1.

Gifts of Future Property

Under certain legal systems, in particular French, Belgian or Spanish law, the marriage contract may encompass a so-called gift of future property (Fr. l’institution contractuelle),89 that is the disposition of the property that the donor (Fr. l’instituant) will leave upon his or her death. This gift falls within the material scope of the EU Succession Regulation. More specifically, it meets the definition of agreement as to succession laid down in Article 3(1)(b) of the Regulation90 and as such is covered by the provision of Article 25 of this Act.91 2.

Valkeniers Pact

Another figure worth attention is the so-called Valkeniers pact, admitted in Belgian law in 2003 by force of the provision of Article 1388(2) of the Former Belgian Civil Code (at present Article 2.3.2 of the BCC). The designation covers the marriage contract clauses by way of which one of the (future) spouses or both of them, at least one of whom has one or more descendants from a previous relationship (marriage or other) or adopted before the marriage, or descendants thereof, waive(s), to the extent determined, the rights to which the surviving spouse is entitled ex lege concerning the succession of the other spouse. The rationale of the provision admitting the Valkeniers pact is to protect the above-mentioned descendants from curtailment – due to application of the statutory rules on succession – of their succession rights in the face of the new union (in the context considered here – marriage) into which their ascendant entered. According to the doctrine, in the light of the provision referred to above, in particular the following clauses are admissible: See A. BONOMI (note 85), pp. 157-158, 164. See respectively: Articles 1082 and 1093 of the FCC, Article 4.233 and 4.237 of the BCC (Articles 1082 and 1093 of the Former Belgian Civil Code), and Article 1341(2) of the SCC. 90 By virtue of this definition, “agreement as to succession” means an agreement, including an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement. 91 See e.g.: A. BONOMI, in A. BONOMI/ P. WAUTELET, Le droit européen des successions. Commentaire du Règlement (UE) n° 650/2012 du 4 juillet 2012, Bruxelles 2016, pp. 155, 432. On the succession dimension of gifts of future property (institutions contractuelles) in the conflict-of-laws sphere – see also P. WAUTELET (note 23), pp. 145, 297. In the Polish doctrine: J. PAZDAN, Umowy dotyczące spadku w rozporządzeniu spadkowym Unii Europejskiej, Warszawa 2018, p. 212. 88 89

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total waiver, consisting in renouncement of all the succession rights granted to the surviving spouse in Article 4.17 et seq. of the BCC (Article 745bis et seq. of the Former Belgian Civil Code), with the exception of the rights resulting from mandatory rules; - waiver of the succession rights in regard to certain assets, e.g. the assets acquired before the marriage; - waiver of certain attributes of a succession right, such as waiver of the right to conversion of the usufruct accruing to the surviving spouse to the full ownership or to a lump sum or a life annuity.92 Since the definition of the agreement as to succession laid down in Article 3(1)(c) of the EU Succession Regulation encompasses not only “the positive agreements” (the agreements “with positive effect”/“the attribution agreements”), consisting in the attribution or extension of succession rights, but also “the negative agreements” (the agreements “with negative effect”), whose essence consists in the waiver or curtailment of succession rights,93 the Valkeniers clauses should be characterised as covered by this definition94 and, consequently, by the conflict rules of Article 25 of the EU Succession Regulation. 3.

Waiver of Right of Election

In the light of the foregoing remarks on “the negative agreements”, one should deem the notion of “agreement as to succession” in terms of the definition set out in Article 3(1)(c) of the EU Succession Regulation to also include the (pre)marital agreement clause consisting in the waiver of the right of election, e.g. as provided in New York legislation (according to the provision of Section 236(B)(3)(1) of the N.Y.DRL, the prenuptial or postnuptial agreement may include a waiver of any right to elect against the provisions of a will).95 See A. VAN HECKE, Les conventions relatives aux droits successoraux du conjoint survivant, in J.-L. RENCHON/ F. TAINMONT (eds), L’Autonomie de la volonté et les conventions entre époux ou cohabitants, Bruxelles 2015, pp. 121-142. 93 See A. BONOMI, Les pactes successoraux à l’épreuve du règlement européen sur les successions, Droit et Patrimoine, 2015/246, pp. 47-58; idem (note 91), pp. 152-153; J. RODRIGEZ RODRIGO, in A.-L. CALVO CARAVACA/ A. DAVI/ H.-P. MANSEL (eds), The EU Succession Regulation. A Commentary, Cambridge University Press 2016, p. 381; M. PAZDAN (note 37), p. 374. 94 The characterisation of the Valkeniers pact – for the purposes of private international law – as belonging to the succession sphere was also held by P. Wautelet – see: P. WAUTELET (note 23), p. 145. 95 I. Rodríguez-Uría Suàrez assigns the waiver of the right of election to the scope of application of the EU Succession Regulation by attaching importance to the similarity between the mechanisms of the right of election and of the reserved share of the estate, in particular as regards their function. She also draws attention to the list in Article 23.2 of the EU Succession Regulation, comprising in its point h), beside the reserved shares, “the claims which persons close to the deceased may have against the estate or the heirs”. I. RODRÍGUEZ-URÍA SUÁREZ, La ley aplicable a los pactos sucesorios, Santiago de Compostela 2014, pp. 124-125. 92

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Composite Marriage Contracts in Polish Private International Law 4.

Contracts to Make or Not to Make a Will

In certain common law legal systems, the (future) spouses are free to contract, in the (pre)marital agreement, as to making or not making a will. Such a solution was established expressly for example in Section 3(a)(5) of the UPAA and in Section 236(B)(3)(1) of the N.Y.DRL. Accordingly, by virtue of the above-mentioned provision of the UPAA, the premarital agreement may encompass provisions as to the making of a will. Under the N.Y.DRL, the prenuptial or postnuptial agreement may include a contract to make a testamentary provision of any kind. As by contract to make or not to make a will a party commits to a specific behaviour in the sphere of testation and as this contract itself does not bear a disposition of property upon death, its characterisation raises difficulties in the context of the EU Succession Regulation. C.F. Nordmeier,96 I. Rodríguez-Uría Suàrez97 or J. Pisuliński98 argue against classifying such contracts to the category of “agreement as to succession”, as defined in Article 3(1)(b) of this regulation (see its content in n 81). In the opinion of these authors, contracts to make or not to make a will do not meet the criteria of the definition referred to above, because, in particular, such contracts do not themselves create, modify or terminate rights to the future estate or estates. In contrast, according to A. Bonomi, the definition is broad enough to encompass the contracts in question.99 G. Nikolaidis100 and Ch. Zoumpoulis101 also classify these contracts as agreements as to succession under the EU Succession Regulation.102 This approach implies the characterisation of such contracts as belonging to the scope of application of the conflict rules of Article 25 of the EU Succession Regulation. Among Polish authors, M. Pazdan advocates for this concept, invoking the succession functions of contracts to make or not to make a will and a sufficient capacity of the definition established in Article 3(1)(b) of the EU Succession Regulation.103 I subscribe to that approach, C.F. NORDMEIER, Erbverträge und nachlassbezogene Rechtsgeschäfte in der EuErbVO – eine Begriffsklärung, Zeitschrift für Erbrecht und Vermögensnachfolge, 2013/3, pp. 123-124. 97 I. RODRÍGUEZ-URÍA SUÁREZ (note 95), pp. 121-123. This author considers assigning the contracts to make or not to make a will to the scope of application of the Rome I Regulation. According to her, the express exclusion of “obligations arising out of wills and succession” established in Article 1(2)(c) of this Regulation is not relevant in this regard. 98 J. PISULIŃSKI, Pojęcie umowy dziedziczenia w prawie prywatnym międzynarodowym oraz umowy dotyczącej spadku w rozporządzeniu spadkowym, in M. PAZDAN/ J. GÓRECKI (eds), Nowe europejskie prawo spadkowe, Warszawa 2015, p. 164. 99 A. BONOMI (note 91), pp. 156-157, 432. 100 G. NIKOLAIDIS, in H. PAMBOUKIS (ed), EU Succession Regulation No 650/2012, Athens 2017, p. 97. 101 CH. ZOUMPOULIS, in H. PAMBOUKIS (ed), EU Succession Regulation No 650/2012, Athens 2017, pp. 302-304. 102 See also: M. WELLER, in A.-L. CALVO CARAVACA/ A. DAVÍ/ H.-P. MANSEL (eds), The EU Succession Regulation. A Commentary, Cambridge University Press 2016, p. 117. 103 M. PAZDAN, in M. PAZDAN (ed), Prawo Prywatne Międzynarodowe. Komentarz, Warszawa 2018, p. 1207. In that vein, also: J. PAZDAN (note 91), p. 199. 96

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Paulina Twardoch also concerning those contracts to make or not to make a will that are established within a premarital or marital agreement, as the latter aspect does not impede such characterisation. It is worth adding that having regard to the principle of testamentary freedom, which is considered fundamental in Poland, a Polish court is likely to resort to the public policy exception, on the basis of the provision of Article 35 of the EU Succession Regulation, against the rule of the applicable law that authorises contracts to make or not to make a will.104 However, such recourse to the public policy exception may be deemed inconsistent with the spirit of the EU Succession Regulation and contrary to the effet utile of the latter.105

IV. Final Remarks Under Polish private international law, dealing with a composite marriage contract may prove to be difficult in practice. The choice in a given case of the segment-bysegment approach, consisting in searching for the applicable law separately for each of the segments of the contract, may give rise to difficulties due to, among others: - the plurality of the sources of private international law potentially coming into play in this regard, especially since an important portion of these sources is quite new in the Polish legal landscape and they continue to raise significant questions as to the material scope of these normative acts in their entirety or as to the scope of particular conflict rules contained within them; - the fact that the temporal criteria employed in certain of those conflict rules that may be relevant to (particular clauses of) a composite marriage contract, have been designed so as to be suitable in relation to family-law institutions that apply ex lege or by virtue of a court’s decision, whereas in the context of a marriage contract one deals with contractual solutions concerning those institutions; - possible disharmony between adjacent substantive rules belonging to different legal systems identified as applicable to different segments of the marriage contract in question. Opting in a given case for the closest connection approach, consisting in searching – on the basis of the provision of Article 67 of the Polish PIL Act – for the law the most closely connected to the composite marriage contract under assessment, entails the need to concretise this generic rule, which may also be a demanding operation. What is desirable in a future judicial practice in the area in question is the pursuit of just solutions that respect legitimate interests (expectations) of the M. PAZDAN (note 103), p. 1207; J. PAZDAN (note 91), p. 200. See the commentary on the provision of Article 35 of the EU Succession Regulation by A. Bonomi, who refers in his interpretation to the rationale of the provisions of Articles 25 and 27 of the EU Succession Regulation – A. BONOMI (note 91), pp. 601-602. 104 105

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THE HAGUE CONFERENCE AND THE PERSPECTIVES OF MONGOLIAN PRIVATE INTERNATIONAL LAW Tamir BOLDBAATAR* / Batzorig ENKHBOLD**

I. II.

III.

The Path to Legal Reform Current Shortcomings – Facts and Procedures A. Case One B. Case Two The Hague Conference and its Potential Impacts on Mongolia

I.

The Path to Legal Reform

In 1990, the Mongolian people abolished the existing totalitarian regime, rejected the planned economy, and began a comprehensive transition toward a new political system. Since then, Mongolia has experienced groundbreaking political and economic as well as social changes and, at the same time, made enormous progress in all of these areas. Furthermore, considering its new and open concept of foreign policy, Mongolia has become more active in the international arena by expanding its engagement with multilateral organizations. This new choice was made in order to develop the country into one that respects human rights, democratic values, the market economy, and the rule of law. From a narrow perspective, this led to a complete reform of the legislative system and structure. This reform did not take place all at the same time but rather was the result of a gradual, successful process. To ensure conformity with the newly adopted democratic Constitution of 1992 and to embrace new social relations, legislators passed various laws and regulations. The legal system of Mongolia, as a whole, is part of the Romano-Germanic law and its civil law tradition is based on the German model. In terms of institution building, the magnitude of the changes during the first decade of reform is reflected in the five hundred new laws adopted by the Parliament (State Great Khural) during this period. Until the early 2000’s, Mongolian legal reform occurred in the absence of a comprehensive program with a solid * Ph.D (NUM, Mongolia), LL.M (Mongolia, Japan), Senior Lecturer at the School of Law, National University of Mongolia. ** LL.M (ANU, College of Law), Treaty Law Expert, Counsellor at the Permanent Mission of Mongolia to the United Nations Office, World Trade Organization and other International Organizations at Geneva.

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Tamir Boldbaatar / Batzorig Enkhbold theoretical and methodological basis. In addition, there were some deficiencies in drafting legislation. In most cases, laws were drafted by non-professional organizations, a factor that affected their quality and impact. Not only were the adopted laws not well integrated but they were also based on different concepts. In addition, the central and local authorities, economic sectors, and all bodies relevant to those sectors, in order to provide legal protection for their institutional interests, simply copied one another’s laws. In some cases, regulations and rules were proclaimed to have force of law, while the administrative norms remained dominant.1 The fundamental reform of the Civil Code was made in 2002, however, no comprehensive changes were made in the PIL area at that time. Mongolia is a huge, landlocked country, sandwiched between its two powerful neighbors, Russia and China. Thus, the majority of civil, commercial and family cases involving foreign elements relate to Russian, Chinese, Japanese and Korean citizens and companies. There is a tendency for alternative dispute resolution mechanisms to become increasingly available. For example, the 2017 Law on Arbitration is based on the UNCITRAL Model Law on International Commercial Arbitration. The Mongolian International and National Arbitration Centre of the Mongolian National Chamber of Commerce and Industry (MNCCI), established in 1960, is the oldest arbitration mechanism in the country. Initially, the number of cases brought before it remained relatively low. However, they have multiplied as a result of the country’s mining boom.

II.

Current Shortcomings – Facts and Procedures

As mentioned, the Mongolian legislation lacks a comprehensive set of regulations when it comes to transactions involving foreign elements. Furthermore, the country’s rules on applicable law are not consolidated into a single autonomous code or statute. As of today, only a few important articles have been set forth in the 2002 Civil Code. Moreover, choice-of-law provisions in the area of family law are only included in the Family Act of 1999. There are no specific conflict of law rules for certain kinds of torts, such as unjust enrichment, products liability, environmental damage, infringement of intellectual property rights, etc. The new draft Family Law was submitted to Parliament in 2019. As compared to the existing Family Law, the new draft contains a comprehensive section on “Application of family law in family relations involving foreign nationals and stateless persons”, which separates conflict of law rules from the substantive ones. In addition, the draft Family Law has choice-of-law rules concerning the parentchild relationship, but there is still room for improvement with respect to determination of the law applicable with respect to divorce, adoption, matrimonial property and the marriage of a person who has several nationalities. The firmly established principle of nationality serves as a cornerstone of conflict of law rules in family matters. It is becoming increasingly common that spouses have diverse 1

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The Hague Conference and Mongolian PIL nationalities. Thus, the use of the domicile principle appears to be an alternative option to these situations. In practice, Mongolian judges are often reluctant to consider foreign elements in determining the PIL rule applicable to a given international situation. Moreover, Mongolian lawyers often do not take the relevant facts into account, and, at the same time, judges seem to lack the knowledge necessary to make the relevant determinations concerning jurisdiction and applicable law. Moreover, current legislation does not provide for a sufficient PIL technique, and some of the conflict rules contradict each other. Mongolian judges therefore sometimes find themselves in a situation where they cannot determine which law is most favorable to the weaker party. Although there is an increasing number of cases involving foreign elements, the system for determination of jurisdiction and the choice of law remains incomplete. We present two cases below for illustrative purposes. A.

Case One2

On April 12, 2012, the claimant, the Embassy of Bulgaria in Ulaanbaatar, Mongolia, concluded a 5-year tenancy contract (Tenancy Contract) with “Altain Khuder” LLC and its subsidiary “Altai Energy Resource” LLC. On October 5, 2016, the Ministry of Foreign Affairs of the Republic of Bulgaria decided not to extend the Tenancy Contract and subsequently issued a 6-month advance notification of termination to the tenant. The defendant argued that the Chargé d’affaires ad interim does not have the power to file a claim on behalf of the Ministry of Foreign Affairs of Bulgaria. The Embassy of Bulgaria, on the other hand, claimed that they have a right to bring this case before the court in accordance with the 1963 Vienna Convention on Consular Relations under its Article 5(a), which reads: “Consular functions consist in protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law.” The Land Agreement concluded on February 9, 1974, between the two Governments indicates that the premises in question are the property of the Government of Bulgaria. Article 190(1) of the 2002 Mongolian Civil Procedure Code provides that: “A Mongolian court shall have the exclusive jurisdiction in proceedings related to ownership, possession and usage of immovable property located on the territory of Mongolia.’’ The claimant therefore argued that there was no breach of the provisions of jurisdiction regarding the immovables. The claimant also pointed out that since Article 17(2) of the Tenancy Contract states that the property belongs to Bulgaria, Bulgarian law should apply to the dispute. Article 549(2) of the 2002 Civil Code of Mongolia states that, upon mutual consent, the parties can change their original choice of law regulating the contract, even after the contract had been signed. However, as stipulated by Article 549(3) that in case of applying the legislation of a state other than agreed in the contract, 2 Sukhbaatar District’s Civil case, first instance court decision, No181/2020/00009 (December 23, 2019).

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Tamir Boldbaatar / Batzorig Enkhbold then this attempt shall be void. Thus, the defendant maintained its position that Bulgarian law should apply. In so doing, the defendant further contested that the claim should be dismissed as the contract clearly states that the case shall be dealt in accordance with Bulgarian law and through an arbitration based in Hong Kong Arbitration. In spite of the defendant’s claim that the issues of jurisdiction and applicable laws were ignored during the proceedings, the motion was denied by the court. The court ruled in favor of the claimant, ordering “Altain Khuder” LLC and its subsidiary “Altai Energy Resource” LLC to vacate the Embassy’s premises. It also stated that, in accordance with Article 547.1.6 of the Civil Code of Mongolia, Mongolian law should apply to the matter. Obviously, the court disregarded the fact that the contract specifically included a clause designating Bulgarian law as the applicable law. When it comes to cases involving foreign elements, Article 541 of the Civil Code allows a judge to exercise ex officio his or her discretion to define the applicable law. Unfortunately, that expectation remains far to be realized. B.

Case Two3

Sergey Vladimirovich Danilov, husband of Tsybenova Nadezhda Egninovna, was a Buryat archeologist that frequently visited Mongolia. He bought an accident (life) insurance with “Bodi Daatgal”, a Mongolian insurance provider on September 30, 2013, which was valid for 365 days and for which he paid a $50 premium. He died on August 13, 2014, while on a business trip to Mongolia. Before his death, he was hospitalized at the Second State Hospital of Mongolia. Shortly after his passing, the hospital issued a certificate that clearly indicates that he died from a disease. Tsybenova Nadezhda Egninovna, the wife of the deceased, approached the “Bodi Daatgal” to claim compensation, stating that the cause of her husband’s death fell within the scope of the contract. During the court trial, however, the company refused to pay the compensation, on the grounds that the death was not accidental but rather from a chronic disease, and eventually requested that the case be dismissed. In its response to the court, the defendant made the following remarks: “Sergey Vladimirovich Danilov, who passed on August 13, 2014, did not die because of an accident. The test result shows that his death was originated from a serious alcohol poisoning and a chronic disease. It was well evidenced that he was hospitalized back in Buryatia from diabetes, angiostenosis, and the heart failure. Thus, this was no accidental death. As the doctors have diagnosed that his death came from a serious alcohol poisoning, no compensation will be made as requested. In other words, the deceased was responsible for establishing the situation he was in. So, it is only fitting that this claim should be dismissed”. 3 Supreme Court of Mongolia, Civil case decision, No 001/KhT2016/00960 (September 27, 2016).

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The Hague Conference and Mongolian PIL Both the court of first instance and the court of appeal decided that the insurance company should compensate the claimant. However, the Supreme Court ruled in favor of the defendant, determining that the death was not accidental. It then dismissed the previous decisions, and released the company from any liability to compensate. In this case, the courts did not consider the renvoi. Article 549.4 of the Mongolian Civil Code states that: If the parties did not designate a governing law as provided in Article 549.1 of this Law, then the law shall be the law of the state where the following parties have their place of residence or carry out their main business activities: […] 549.4.7. insurance contract - by the law of the insured; According to Mongolian conflict of law rules, Russian law applied, but Russian conflict rules designated Mongolian law as applicable. Article 1211(3) of the Russian Civil Code provides that:4 A party responsible for the performance under a contract of crucial significance for the content of the contract shall be a party which, in particular, is the following, except as otherwise ensuing from law, the terms or substance of the contract or the group of circumstances of the case in question: […] 12) an insurer - in an insurance policy; Therefore, as provided in Article 540.2 of the Civil Code of Mongolia, if the foreign laws stipulate the application of Mongolian law, the Mongolian legislation shall be applied. The Mongolian judicial practice is weak when focusing on legal landscapes of an international nature. Moreover, since foreign elements raise a series of PIL issues, each might well affect the ultimate outcome of the controversy. In addition, there are no judicial or academic interpretations of Articles 539-552 of the Mongolian Civil Code, which contain conflict of law rules. In the first such case, the court was not able to explain why it applied Mongolian law to the case. As mentioned above, most of our legal practitioners lack special knowledge and training in PIL. Therefore, in most cases involving foreign elements, judges apply national substantive law. There is also a great need for comprehensive PIL rules that judges can easily find and apply. Mongolian courts need to possess the ability to determine which laws are applicable, and according to which rules and under which conditions foreign judgments are to be recognized and enforced. Only then will they be able to finally recognize that national and international cases are different from each other and are governed by separate sets of rules. Additionally, a survey on “Application of International Treaties by Courts”,5 which was conducted by National Legal Institute of Mongolia, shows that only a https://www.wto.org/english/thewto_e/acc_e/rus_e/wtaccrus58_leg_360.pdf. https://nli.gov.mn/pdf/1.-Mongol-ulsiin-olon-ulsiin-gereeg-shuuhed-hereglehasuudal.pdf. Accessed 22 August 2022. 4 5

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Tamir Boldbaatar / Batzorig Enkhbold low percentage of courts apply international conventions. Only the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the Vienna Convention on the Law of Treaties (1969), the ILO’s Unemployment Provision Convention (1934), and the Convention on the Rights of the Child (1989) were mostly cited and applied by the Mongolian courts in the relevant the cases. As of today, Mongolia is a party to almost 200 multilateral legal instruments and has concluded over 2,000 bilateral agreements. Of those 200 treaties, 140 have officially been translated into the Mongolian language and published as special volumes by the Parliament Secretariat and the Ministry of Foreign Affairs of Mongolia. Despite these efforts, Mongolian lawyers and judges still prefer domestic laws even when they should apply international treaties.

III. The Hague Conference and its Potential Impacts on Mongolia Mongolia has been a member of the Hague Conference on Private International Law since July 1, 2021. However, the country was already a Contracting Party to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents, the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry adoption, and the Convention of 1 March 1954 on Civil Procedure. Therefore, Mongolia has been committed to private international law even before its full membership at the Hague Conference. The Hague Conference has served as a locomotive for the improvement of international legal relations. It stimulates simultaneous dialogues among different legal cultures. Therefore, with the aim of broadening its horizons in the field of private international law, Mongolia made a timely decision to join the Conference. Comprehensive research is of paramount importance for Mongolia’s active participation in cross-border matters. For example, the Hague Conference has been studying international surrogacy arrangements; the approaches taken by the states with respect to issues such as paternity disestablishment (considering DNA testing), assisted reproductive technologies and surrogacy arrangements vary depending on their cultural, political and social implications. As a result, to date, there is no international consensus on how to establish and contest legal parentage in these circumstances.6 Mongolia is also experiencing the same problem. Thus, as a member of the Hague Conference, Mongolia can greatly benefit from the organization’s assistance and expertise. This will help (i) to provide academic input for further legislative steps and (ii) to deepen lawyers’ expertise.

6

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https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy.

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The Hague Conference and Mongolian PIL The first child born in Mongolia through surrogacy was registered in 2003.7 Although this phenomenon is currently subject to no legal regulation, an attempt to draft the Law on the support for assisted reproduction was made in 2017.8 In 2018, the Minister of Health of Mongolia issued the following rules to deal with surrogacy. These are: – The Regulation on the use of donor’s sperm and the embryo transfer (Annex 1 of the Health Minister’s Order A/500 – December 7, 2018); – The Regulation on providing services to a surrogate mother (Annex 2 of the Health Minister’s Order A/500 – December 7, 2018); – The Regulation on the model contract of surrogacy (Annex 3 of the Health Minister’s Order A/500 – December 7, 2018); – The Regulation on creating the registration and data system of surrogacy (Annex 4 of the Health Minister’s Order A/501 – December 7, 2018). In general, states prefer to have their own comprehensive laws on private international law: for example, Switzerland,9 China10 and the Republic of Korea11 each have their own act on private international law. Article 1 of the 1955 Statute of the Hague Conference calls for the progressive unification of the rules of private international law. Obviously, unification of private international law is highly beneficial to the international legal community as a whole. The main premise of choice-of-law unification is the expectation that foreign judgments are more likely to be recognized at home if the foreign court has applied the same law as the courts of the forum State would have chosen.12 In that respect, the objective of Mongolia’s second phase of legal reform should be heavily concentrated on the above issues. The second stage of legal reform program is currently being drafted. In December 2021, the international conference titled “Mongolia: The Progress of Private Law Reform and its Challenges” was held in Ulaanbaatar, Mongolia.13 During the Conference, several presenters raised concerns about the current Mongolian private international law rules. Mr. Brody Warren, Attaché to the Secretary-General and Senior Legal Officer at the Permanent Bureau of the Hague Conference on Private International Law, delivered a presentation on “The Hague Conference on Private International Law: Related Issues for Mongolia”, exploring the possibilities for Mongolia to succeed in the field of private international law. Unification and codification of all aspects of private international law has not only been important for Mongolia, but is also of great significance for countries around the globe. Many scholars praise the Swiss Private International Law Act of http://mongolnews.mn/Архив/bxg. http://forum.parliament.mn/projects/415. 9 https://www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en. 10 https://www.wipo.int/edocs/lexdocs/laws/en/cn/cn173en.pdf. 11 https://law.go.kr/LSW/lsInfoP.do?lsiSeq=179501&viewCls=engLsInfoR&url Mode=engLsInfoR#0000. 12 The Influence of the Hague Conference on Private International Law, T.M.C. Asser Instituut, The Hague, Martinus Nijhoff Publishers, 1993, p.4. 13 https://mojha.gov.mn/newmojha/?p=6838. 7 8

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Tamir Boldbaatar / Batzorig Enkhbold 1987 as an attempt at a nearly perfect codification of private international law. For instance, according to Professor Thomas Kadner Graziano of the Law faculty of Geneva University, the Swiss experience of codifying the private international law can be of value to the EU. Prof. Kadner Graziano argues that, over the course of the past two decades, the EU has developed a number of private international law regulations that have resolved many uncertainties. However, the scope of application of each of those regulations is becoming more difficult to determine and they sometimes overlap; the same legal terms are used in different ways in different regulations, and complex questions regarding the interaction between rules on procedure and applicable law are also emerging. Therefore, the EU’s Private International Law system might be at risk of losing its coherence which explains the all-inclusive nature of the Swiss Federal Act on Private International Law.14 Mathias Reimann, Professor of Law at the University of Michigan, also praises the Swiss PIL Act for being subdivided in a logical fashion and addressing first jurisdiction, then choice of law, and finally recognition of judgments in the respective areas. Throughout the whole act, the terminology is uniform, and the rules are frequently cross-referenced.15 Numerous countries have been influenced by the Swiss PIL Act and have adopted their own. The Canadian province of Québec,16 for example, was influenced by the Swiss when they developed their Civil Code. In addition, the new Chinese Act on the Application of Laws over Foreign-Related Civil Relationships also followed the Swiss legislative model.17 Unification of private international law at the regional level is also underway. For example, the project “Asian Principles of Private International Law (APPIL)” finalized in 2017 was the first-ever attempt to harmonize the region’s private international rules. It consists of four parts, in the following order: (1) international jurisdiction, (2) choice of law, (3) recognition and enforcement of foreign judgements, and (4) judicial support of international commercial arbitrations. This initiative may serve as a model for national and regional legal instruments on private international law.18 It is worthwhile for Mongolia to learn from the best experiences of the foreign countries and the organizations. Since the cases involving foreign elements have mostly related to China, Japan and the South Korea, Mongolia should join the aforesaid harmonization effort in Asia and apply the APPIL to interpret and supplement the existing norms and eventually to enact its own separate statute. In particular, it would be advantageous to expand cooperation with international commercial arbitrations. 14 TH. KADNER GRAZIANO, Codifying European Private International Law: The Swiss Private International Law Act – A Model for a Comprehensive European Private International Law Regulation?, Journal of Private International Law, 2015, vol.11, no.3, p.586-606, available at https://archive-ouverte.unige.ch/unige:79172. 15 M. REIMANN, Conflict of Laws in Western Europe – A Guide through the Jungle (Transnational Publishers, 1995), p. 14. 16 https://www.legisquebec.gouv.qc.ca/en/document/cs/CCQ-1991. 17 https://ssl.editionsthemis.com/uploaded/revue/article/5973_45-3%20Huo.pdf. 18 http://www.ritsumei.ac.jp/acd/cg/law/lex/rlr37/004uematsumao.pdf.

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The Hague Conference and Mongolian PIL The Mongolian Parliament should concentrate on improving the draft PIL act, in particular, to include a method of determining the center of gravity of a legal relationship, the principle of the most significant relationship, and the principle of proximity. In addition, the internationally recognized principle of party autonomy that serves as the common core of many legal systems should be interpreted broadly in the Special Part of the draft law. Our current regulation allows the contractual parties to choose the applicable law mostly in commercial contracts and arbitration agreements. The said principles need to be applied to the provisions such as the law applicable to property relationships of spouses, divorce, inheritance, the rights in rem over movable property that takes place during transport, intellectual property rights, unjust enrichment, and the choice of applicable law by the parties after the occurrence of a tortious act. Furthermore, the General Part of the draft must provide clear definitions of legal terminology. The lack of precise definitions causes confusion in the determination of the law applicable to a given situation. For example, the notion of domicile, habitual residence of natural persons, and ordre public must be unambiguous. A rule of ordre public, and the renvoi should also be well determined. In our case, the 2002 Civil Procedure Code lacks a number of international procedural law rules such as lis pendens, antisuit injunctions, and the rules on prorogation. The broadening of the Special Part in the draft is equally important, especially in the applicable law issues concerning cross-border torts and intellectual property rights. Furthermore, the determination of the law applicable to corporations is also significant, as corporations play a pivotal role in economic integration. The applicable law on e-commerce should be addressed, as well. In summary, as foreign-related civil and commercial transactions are increasing, we must eliminate any potential ambiguities by enacting a comprehensive codification of PIL rules that includes all types of international aspects of civil procedure, applicable law, and recognition and enforcement of foreign judgments. The draft law should also contain explicit references to the relevant international conventions in order to enable our legal practitioners to familiarize themselves with matters such as jurisdiction and applicable law.

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COURT DECISIONS ________________

SAME-SEX PARENTHOOD IN A CROSS-BORDER LANDSCAPE IN PANCHAREVO Anna WYSOCKA-BAR* I. II.

III. IV.

Introduction Aspects of the Pancharevo Judgment A. Implications for the Nationality of the Child B. Implications for Constitutional Identity and Civil Status Registration C. Implications for Freedom of Movement within the EU EU Initiative on Recognition of Parenthood Conclusion

I.

Introduction

At the end of 2021 the Court of Justice of the European Union handed down an eagerly awaited judgment in the V.M.A. v Stolichna obshtina, rayon “Pancharevo” case (C 490/20).1 An opinion2 on this case was prepared by Advocate General Julienne Kokott. The case concerns the parenthood of same-sex parents in a crossborder context, in particular the doubt as to whether EU Member States are obliged by EU law to recognize same-sex parenthood as established by a birth certificate issued in the Member State where the child was born. The obvious tension is between those Member States that provide for same-sex marriages or registered partnerships and same-sex parenthood and those which are conservative in that respect and provide solely for parenthood of one mother and one father. The judgment, even though perceived as remarkable and deserving of positive acclaim,3 * Assistant Professor at the Center of Private International Law, Faculty of Law and Administration, Jagiellonian University in Kraków (Poland). 1 CJEU, 14 December 2020, C-490/20, V.M.A. v Stolichna obshtina, rayon “Pancharevo”, ECLI:EU:C:2021:1008 (“Judgment”). 2 Opinion of Advocate General Kokott delivered on 15 April 2021, Case C‑490/20, V.М.А. v Stolichna obshtina, rayon “Pancharevo” (Sofia municipality, Pancharevo district, Bulgaria), ECLI:EU:C:2021:296 (“Opinion”). 3 See, for example: J. MEEUSEN, Functional Recognition of Same-sex Parenthood for the Benefit of Mobile Union Citizens – Brief Comments on the CJEU’s Pancharevo Judgment, EAPIL Blog on 3 February 2022. Available at https://eapil.org/2022/02/03/

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Printed in Germany

Anna Wysocka-Bar seems still to leave certain questions relating to the recognition of same-sex parenthood within the European Union open. The facts of the case are as follows. V.M.A., who is an applicant in the proceedings before the Bulgarian authorities, is a Bulgarian national. She married another woman – K.D.K., who is a United Kingdom national – in Gibraltar in 2018. Since 2015 they have resided in Spain. In 2019 a girl – S.D.K.A. – was born in Spain as a result of sperm donation. The girl’s Spanish birth certificate designates V.M.A. as “Mother A” and K.D.K as “Mother” of the child. In 2020 V.M.A. applied to the competent Bulgarian authority, which is the Sofia municipality (Stolichna obshtina), to issue her with a birth certificate for her daughter, which is necessary, inter alia, in order for a Bulgarian identity document to be issued. Together with her application, V.M.A. submitted a legalized and certified translation into Bulgarian of the extract from the register of civil status of Barcelona (Spain) relating to the child’s birth certificate. The Sofia municipality then instructed V.M.A. to provide, within seven days, evidence of the child’s parentage with respect to her biological mother, arguing that the model birth certificate which forms part of the applicable national law has only one box for the “mother” and another box for the “father”, and that only one name may be entered in each box. In her reply, V.M.A. stated that she could not provide such information and additionally that, under Bulgarian law, she was not required to do so. As a result, by the decision of 5 March 2020, the application was rejected as there was no information concerning the child’s biological mother and because the registration of two female parents on a birth certificate is contrary to the public policy of Bulgaria, which does not authorize marriages between two persons of the same sex. The applicant in the main proceedings then brought an action against that refusal decision before the Administrative Court of the City of Sofia (Administrativen sad Sofia-grad). This court had doubts as to the implications of the situation in EU law, in particular as regards freedom of movement of EU citizens. Several questions were referred to the Court of Justice of the EU.4 The first one was aimed at clarifying whether in the case at hand the Bulgarian authorities functional-recognition-of-same-sex-parenthood-for-the-benefit-of-mobile-union-citizensbrief-comments-on-the-cjeus-pancharevo-judgment/ on 1.06.2022. In the Polish legal literature: P. MOSTOWIK, Swoboda przemieszczania się w Unii Europejskiej przez dziecko pod pieczą osób tej samej płci a krajowe reguły obywatelstwa i prawa rodzinnego na tle wyroku Trybunału Sprawiedliwości z 14.12.2021 r., C-490/20, V.M.A. przeciwko Stolichna obshtina, rayon “Pancharevo”, Europejski Przegląd Sądowy 2022/4, p. 28-42. 4 1. Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the [Charter] be interpreted as meaning that the Bulgarian administrative authorities to which an application for a document certifying the birth of a child of Bulgarian nationality in another Member State of the [European Union] was submitted, which had been certified by way of a Spanish birth certificate in which two persons of the female sex are registered as mothers without specifying whether one of them, and if so, which of them, is the child’s biological mother, are not permitted to refuse to issue a Bulgarian birth certificate on the grounds that the applicant refuses to state which of them is the child’s biological mother? 2. Must Article 4(2) TEU and Article 9 of the [Charter] be interpreted as meaning that respect for the national identity and constitutional identity of the Member States of the European Union means that those Member States have a broad discretion as regards the rules for establishing parentage? Specifically:

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Same-Sex Parenthood in the Cross-Border Landscape in Pancharevo are obliged by EU law, namely Articles 20 and 21 of the TFEU5 and Articles 7, 24 and 45 of the Charter,6 to issue a Bulgarian birth certificate. The fourth question, being a follow-up to the first, concerns a technical aspect, namely: if the first question is answered in the affirmative, does EU law oblige the Bulgarian authorities to derogate from the currently used model of birth certificate (where data regarding “a mother” and “a father” can be inserted). The second question is intended to establish an answer to the doubt as to how to strike a balance between the best interests of the child and the national and constitutional identity of the Member States, in particular when it comes to national rules on the establishment of parenthood which require information on biological parenthood and do not provide for parenthood of a same-sex couple. The third question concerns the implications of Brexit for the case. The questions were significantly rephrased by the Court of Justice and combined into a single one as follows: “By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether EU law obliges a Member State to issue a birth certificate, in order for an identity document to be obtained according to the legislation of that State, for a child, a national of that Member State, whose birth in another Member State is attested by a birth certificate that has been drawn up by the authorities of that other Member State in accordance with the national law of that other State, and which designates, as the mothers of that Must Article 4(2) TEU be interpreted as allowing Member States to request information on the biological parentage of the child? Must Article 4(2) TEU in conjunction with Article 7 and Article 24(2) of the Charter be interpreted as meaning that it is essential to strike a balance of interests between, on the one hand, the national identity and constitutional identity of a Member State and, on the other hand, the best interests of the child, having regard to the fact that, at the present time, there is neither a consensus as regards values nor, in legal terms, a consensus about the possibility of registering as parents on a birth certificate persons of the same sex without providing further details of whether one of them, and if so, which of them, is the child’s biological parent? If this question is answered in the affirmative, how could that balance of interests be achieved in concrete terms? 3. Is the answer to Question 1 affected by the legal consequences of [the Withdrawal Agreement] in that one of the mothers listed on the birth certificate issued in another Member State is a United Kingdom national whereas the other mother is a national of an EU Member State, having regard in particular to the fact that the refusal to issue a Bulgarian birth certificate for the child constitutes an obstacle to the issue of an identity document for the child by an EU Member State and, as a result, may impede the unlimited exercise of her rights as [a Union] citizen? 4. If the first question is answered in the affirmative: does EU law, in particular the principle of effectiveness, oblige the competent national authorities to derogate from the model birth certificate [which is one of the model civil status certificates] applicable [at a national level]?’ 5 Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012, p. 47390. 6 Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391-407.

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Anna Wysocka-Bar child, a national of the first of those Member States and her wife, without specifying which of the two women gave birth to that child. If the answer is in the affirmative, the referring court asks whether EU law requires such a certificate to state, in the same way as the certificate drawn up by the authorities of the Member State in which the child was born, the names of those two women in their capacity as mothers.”7 The Court of Justice answered the above question in the following manner. “Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.” Hence, first, the CJEU stated that in the circumstances of the Pancharevo case a new birth certificate does not have to be drawn up in Bulgaria. Secondly, the Bulgarian authorities are obliged by EU law to issue that child with an identity card or a passport (without requiring a birth certificate to be drawn up beforehand by its national authorities). Thirdly, EU law obliges Bulgaria, like any other Member State, to recognize the document from the Member State in which the child was born (in this case, Spain) that permits the child to exercise, with each of the two parents, the right to move and reside freely within the territory of the Member States. The answer was given on the assumption, following the referring court, that the child holds Bulgarian nationality. It is worth mentioning that a very similar preliminary question, this time originating from Poland, was referred to the Court of Justice in the Rzecznik Praw Obywatelskich case, C-2/21.8 In this case, two woman, one of Polish, the other of § 36 Judgment. Postanowienie Wojewódzkiego Sądu Administracyjnego w Krakowie z 9 grudnia 2020 r., sygnatura: III SA/Kr 1217/19 [order of the Reginal Administrative Court in Krakow of 9 December 2020, case number: III Sa/Kr 1217/19]. The case is mentioned in § 4 of the 7 8

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Same-Sex Parenthood in the Cross-Border Landscape in Pancharevo Irish, nationality, decided to have a common child taking advantage of the Spanish legislation on artificial reproductive techniques. As a result, a child was born in that country and, as in Pancharevo, the Spanish birth certificate records both women as parents. The parents wanted the Spanish birth certificate to be transcribed into the Polish civil status register, which is a prerequisite for applying for a Polish identity document. The administrative authorities refused, explaining that such transcription would be contrary to the public policy (ordre public) clause. In January 2021 the Rzecznik Praw Obywatelskich case was suspended until the Court of Justice of the EU hands down its judgment in the Pancharevo case.9 In June 2022 the Court of Justice of the EU ruled this case by reasoned order referring to Pancharevo on numerous occasions.10

II.

Aspects of the Pancharevo Judgment

A.

Implications for the Nationality of the Child

A preliminary aspect which is unclear in the Pancharevo case is whether the child is a Bulgarian national. On the one hand, the referring court, in formulating its preliminary questions, indicated that the child does hold Bulgarian nationality. On the other, as explained in the Opinion, the Bulgarian Government disputed at the hearing that the child is a Bulgarian national.11 For this reason, in the Opinion the Advocate General suggested that the case needed to be examined under two scenarios, assuming respectively that the child is or is not a Bulgarian national,12 which is also, to a much more limited extent, reflected in the judgment.13 The CJEU recalled that “it is for each Member State, having due regard to international law, to lay down the conditions for acquisition and loss of nationality (…)”14 and that the referring court alone has jurisdiction to clarify this matter.15 One of the existing modes of acquisition of nationality is based on a person’s descent

Opinion. See also: A. WYSOCKA-BAR, Polish Court Asks the CJEU to Rule on the Status of Children Born to Same-Sex Couples, EAPIL Blog on 16 December 2020. 9 Information posted on the official website of the referring court at https://bip.krakow.wsa.gov.pl/287/komunikat-w-sprawie-o-sygn-iii-sakr-121719.html. 10 CJEU, 24 June 2022, C-2/21, Rzecznik Praw Obywatelskich, ECLI:EU:C:2022:502 (“Order”). 11 § 33 Opinion. 12 § 36 Opinion. 13 § 67-68 Judgment - “if checks should reveal that S.D.K.A. did not have Bulgarian nationality”. 14 § 38 Judgment. 15 § 39 Judgment.

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Anna Wysocka-Bar from a national parent (ius sanguinis), even if the child is born abroad.16 This is the case in Bulgaria. Under Article 25(1) of the Bulgarian Constitution, a person is a Bulgarian national if, inter alia, at least one of the parents is a Bulgarian national.17 This is reiterated in Article 8 of the Law on Bulgarian nationality. It seems that a parentchild relationship must exist from the perspective of a given state in order for a child to acquire nationality by birth on the basis of the nationality of one of the parents. As it is exactly this relationship that is thrown into doubt in the Pancharevo case, the question as to the child’s nationality seems open. A doubt arises as to how to understand the notion of “the parent” for the purpose of applying the law on nationality. Two options seem appropriate: the first that it is directly the substantive law of the state in question that should decide, the second that the substantive law designated by the private international law rules of that state should prevail. Hence, under the first option, in the Pancharevo case the question of parenthood for the purpose of acquisition of nationality should be decided directly by Bulgarian law, which, as follows from the case, does not allow for a child to have two mothers without indicating which gave birth to the child. Or, under the second option, this question should be decided by the law applicable to parentage in accordance with Bulgarian private international law. Under Article 83 of the Bulgarian Private International Law Act, it is the national law of the child at the time of birth that governs the establishment of parentage.18 In this option, a “vicious circle” arises. In order to know whether a child is a national of a given state, the parent-child relationship must be established, and in order to establish a parent-child relationship, the nationality of the child must be determined in order to know which substantive law applies.19 In this option, even if one assumes that the child is a national of another state, in this case Spain, the place of birth based on the ius soli principle, and that Spanish law therefore applies to the establishment of parenthood, the Bulgarian authorities could still make use of the public policy (ordre public) clause. Another option that one might imagine is that of the parenthood established by a foreign birth certificate being recognized in Bulgaria for the purpose of the acquisition of nationality. None of the above is explained in the background to the Pancharevo case. Hence, it is hard to assess on what basis the referring court states, in contradiction to what the Bulgarian government argued during the hearing, that the child is a Bulgarian national.

16 See: L. VAN DER BAAREN, M. VINK, Modes of acquisition and loss of citizenship around the world. Comparative typology and main patterns in 2020, GLOBALCIT Working Paper EUI RSC 2021-90 available at: https://cadmus.eui.eu/handle/1814/73267. 17 § 15 Judgment. 18 V. STANCHEVA-MINCHEVA, Y. ZIDAROVA, Bulgaria in: J. BASEDOW, G. RUH ̈ L, F. FERRARI, P. DE MIGUEL ASENSIO (eds) Encyclopedia of Private International Law. National Reports, vol. 3, pp. 3020-3045. Edward Elgar, Cheltenham Glos (2017). 19 Compare P. FRANCESCAKIS, Les questions préalables de statut personnel dans le droit de la nationalité [in:] Festgabe für Alexander N. Makarov. Abhandlungen zum Internationalen Privatrecht, Berlin–Tübingen 1958, pp. 466-497.

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Same-Sex Parenthood in the Cross-Border Landscape in Pancharevo A preliminary question in the Rzecznik Praw Obywatelskich case also assumes that the child in question is a Polish national. This assumption is understandable in view of the facts of the case and the evolution of the jurisprudence of the Polish administrative courts. In this case, K.D., who has Polish nationality is the birth mother of the child.20 The evolution of the jurisprudence will be presented below. At first, when confronted with the situation of parenthood of same-sex couples, as established by a foreign judgment or a foreign birth certificate, when confirmation that a child is a Polish national on the grounds that one of the parents is a Polish national was applied for, the Polish administrative authorities refused. For example, two “twin” cases,21 which were commented on in the Polish literature,22 concern two brothers born in the US to a surrogate mother, who was married to a man and had agreed to deliver the children to two male spouses residing in Israel. Despite the fact that one of the men was Polish, the Polish administrative authorities refused to issue confirmation that the children also held Polish nationality. It should be explained that (similarly to Bulgaria, as presented in the facts of the Pancharevo case), Article 34(1) Constitution of the Republic of Poland23 provides that Polish nationality is acquired by birth to parents who are Polish nationals. Other methods of acquisition of nationality are regulated in the statute. Pursuant to Article 14(1) of the Law on Polish nationality,24 a minor acquires Polish nationality by birth, if at least one of the parents is a Polish national. First the administrative authorities of two instances and later the administrative courts of two instances stated that for the purpose of applying Article 14(1) of the Law on Polish Nationality, parenthood is established in accordance with Polish substantive

§ 16 of the Order. Wyrok Naczelnego Sądu Administracyjnego z 6 maja 2015 r., sygnatura: II OSK 2372/13 oraz wyrok Naczelnego Sądu administracyjnego z 6 maja 2015, sygnatura: II OSK 2419/13 [judgment of the Supreme Administrative Court of 6 May 2015, signature: II OSK 2372/13 and judgment of the Supreme Administrative Court of 6 May 2015, signature: 2419/13]. Judgments of administrative courts in Poland, published in Polish language only, are available in the public database at www.orzeczenia.nsa.gov.pl. 22 See M. PILICH, Mater semper certa est? Kilka uwag o skutkach zagranicznego macierzyństwa zastępczego z perspektywy stosowania klauzuli porządku publicznego, Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego 2018, pp. 7-35; A. WYSOCKA-BAR, Nabycie polskiego obywatelstwa a urodzenie przez matkę zastępczą. Uwagi na tle wyroków Naczelnego Sądu Administracyjnego z dnia 6 maja 2015 r.: II OSK 2372/13 oraz II OSK 2419/13, Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego 2018, pp. 38-54, P. MOSTOWIK, Problem obywatelstwa dziecka prawdopodobnie pochodzącego od obywatela polskiego niebędącego mężem surrogate mother. Uwagi aprobujące wyroki NSA z 6 maja 2015 r. (II OSK 2372/13 oraz II OSK 2419/13), Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego 2018, pp. 55-75. 23 Constitution of the Republic of Poland of 2 April 1997, Dz.U. 1997, nr 78, poz. 483. Available online on the website of the Sejm, the lower chamber of the Parliament at: https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm (accessed on 1 June 2022). 24 Ustawa z dnia 2 kwietnia 2009 r. o obywatelstwie polskim, Dz.U. 2022, poz. 465. 20 21

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Anna Wysocka-Bar family law, which in Article 619 Family and Guardianship Code25 provides that a mother is a woman who gave birth to the child and in Article 62 § 1 Family and Guardianship Code provides for the presumption of paternity of this woman’s husband. The presumption can be rebutted only in a court proceeding. It might be added in passing that these cases even reached the European Court of Human Rights, which did not, however, find violation by Poland of Article 8 (respect for private and family life) or Article 14 (discrimination on grounds of parents’ sexual orientation) of the European Convention on Human Rights.26 Later, a slightly different attitude was shown in a resolution of the Supreme Administrative Court of Poland of December 2019.27 The background to the case concerned a child whose foreign birth certificate indicated two women of Polish nationality as parents (which makes this case substantively different from the previous one): a biological mother and her partner in a de facto union. The parents applied for a transcription of the foreign birth certificate in order to apply subsequently for the child to be issued with a passport. The Supreme Administrative Court stated that it was not possible to transcribe into the domestic civil status register a foreign birth certificate indicating two persons of the same sex as parents (which will be discussed further below). At the same time, it underlined that a transcription of the birth certificate into the domestic civil status register should not be indispensable for the child to obtain a passport, as the child has, by operation of law, already acquired Polish nationality. In this respect – that no involvement of the civil status registry should be necessary for a child to obtain national identity documents – the resolution seems similar to the conclusion reached by the Court of Justice of the EU in Pancharevo.28 It must be emphasized, however, that the resolution of the Supreme Administrative Court of Poland does not make clear whether the conclusion that a child is a Polish national and therefore should be issued with a national identity document applies to any case where at least one of the parents indicated in a foreign birth certificate, irrespective of sex, is a Polish national or whether it is limited to cases where both women indicated on a foreign birth certificate are Polish nationals.

25

Ustawa z dnia 25 lutego 1964 r. Kodeks rodzinny i opiekuńczy, Dz.U. 2020, poz.

1359. ECHR, 16 November 2021, S.-H. v. Poland, App. nos. 56846/15 and 56849/15. Uchwała Naczelnego Sądu Administracyjnego z 2 grudnia 2019, sygnatura: II OPS 1/19 [resolution of the Supreme Administrative Court of 2 December 2019, signature: II OPS 1/19]. See also: P. MOSTOWIK, Resolving Administrative Cases Concerning Child Under the Foreign Custody of Same-Sex Persons Without Violating National Principles on Filiation as the Ratio Decidendi of the Supreme Administrative Court (NSA) Resolution of 2 December 2019, “Prawo w dzianiu. Sprawy cywilne” 2021/46, p. 185-203. Available online at: https://pwd.iws.gov.pl/wp-content/uploads/2021/09/P.-Mostowik.pdf (accessed: 1 June 2022). 28 Compare P. MOSTOWIK, Swoboda przemieszczania się w Unii Europejskiej przez dziecko pod pieczą osób tej samej płci a krajowe reguły obywatelstwa i prawa rodzinnego na tle wyroku Trybunału Sprawiedliwości z 14.12.2021 r., C-490/20, V.M.A. przeciwko Stolichna obshtina, rayon "Pancharevo", Europejski Przegląd Sądowy 2022, no 4, pp. 28-42. 26 27

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Same-Sex Parenthood in the Cross-Border Landscape in Pancharevo A further development can be traced in a judgment of the Supreme Administrative Court given in September 2020.29 The case concerned a child borne in the US by a surrogate mother. The foreign birth certificate indicates a Polish national as the father and a surrogate mother as the second parent. In this judgment the Supreme Administrative Court underlined that a foreign birth certificate is the only proof of an occurrence mentioned in it and that its probative force may not be questioned in the course of an administrative proceeding concerning acquisition of nationality. For a confirmation of Polish nationality to be issued, it is enough for the foreign birth certificate to indicate a Polish national as a parent. In the decision of the referring court in Rzecznik Praw Obywatelskich, the court underlines that the administrative authorities tend to disregard the abovementioned resolution and do not apply it in practice. In fact, the application in practice of the resolution would require a legislative intervention, which does not lie within the competence of the administrative courts. Their statements that a child “should” be provided with a national identity document might not necessarily be reflected in practice. As the above shows, the question of the nationality of children born to same-sex couples seems more complicated than the Pancharevo case might suggest at first sight. As underlined by the Court of Justice of the EU in Pancharevo, if a child is a Bulgarian national, then pursuant to Article 20(1) TFEU, she “enjoys a status of Union citizen”,30 and Article 4(3) of Directive 2004/38 “requires the Bulgarian authorities to issue an identity card or a passport to S.D.K.A. regardless of whether a new birth certificate is drawn up for that child”.31 A contrario, if it turns out that a child is not perceived by national authorities as a national of that state, the child does not enjoy the status of Union citizen, and the Member State is not obliged by EU law to issue an identity card or a passport. B.

Implications for Constitutional Identity and Civil Status Registration

The questions posed by the referring court in Pancharevo revolve around the doubts related to civil status registration, namely whether local authorities, because of EU law, are “not permitted to refuse to issue a Bulgarian birth certificate”32 and, if so, whether “EU law, in particular the principle of effectiveness, obliges the competent national authorities to derogate from the model birth certificate”.33 Similarly, the preliminary question from Poland in the Rzecznik Praw Obywatelskich case also concerns a doubt as to whether a transcription of a birth certificate might be refused. In both cases, however, it seems obvious that registration or transcription is not a goal in itself, but simply a prerequisite for a national identity document

A. WYSOCKA-BAR, Legal Status of a Child Born Through Surrogacy – Latest From Poland, EAPIL Blog on 23 September 2020. 30 § 40 Judgment. 31 § 45 Judgment. 32 § 32 Judgment, Question 1. 33 § 32 Judgment, Question 4. 29

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Anna Wysocka-Bar to be issued. Here again it must be underlined that EU law obliges a Member State to issue national identity documents to nationals of that Member State only. Using Poland as an example, it seems that transcription of a foreign birth certificate indicating two parents of the same sex is in the majority of cases impossible, no matter whether the parents are two females or two males. As mentioned above, the Supreme Administrative Court of Poland adopted a resolution in December 2019 in which it stated that it is not possible, due to the public policy (ordre public) clause, to transcribe a foreign birth certificate indicating two persons of the same sex as parents into the national civil status register. As explained above, the background of the case concerns a child whose birth certificate indicated two women of Polish nationality as parents. The parents applied for such transcription in order to apply subsequently for a passport to be issued for the child. They argued that the refusal of transcription infringed the child’s right to nationality and identity, and as a result might lead to infringement of the right to protection of health, the right to education, the right to personal security and the right to free movement and choice of place of residence. The Supreme Administrative Court stated that in accordance with the law on the civil status register, the transcription must be refused if contrary to the ordre public in Poland. The public policy clause protects the domestic legal order from being violated. Such a violation would result from the recognition of a birth certificate irreconcilable with fundamental principles of the Polish legal order. It was emphasized that pursuant to Article 18 of the Constitution of Poland marriage is understood as a union between a man and a woman; family, motherhood and parenthood are under the protection and guardianship of the State. In accordance with those principles and the whole system of family law, only one mother and one father may be treated as the parents of a child. Any other category of “parent” is unknown. Interestingly, the Court of Justice of the EU does not follow the direction indicated by the referring court and does not require Member States to draw up a new birth certificate or to transcribe the original birth certificate into the national civil status registry. It states that there is no need to require a birth certificate to be drawn up by the Bulgarian authorities. This attitude seems to be linked to the fact that the civil status registration system run by a given Member State is related to the existing family law concepts in place in that state. As underlined in the Opinion, there are “considerable differences that exist, to date, within the European Union in respect of the legal status of and the rights conferred on same-sex couples”, which additionally are covered by the exclusive competence of the Member States.34 As underlined by the Court of Justice of the EU in Pancharevo, “(…) Article 9 of the Charter provides that the right to marry and the right to found a family are to be guaranteed in accordance with the national laws governing the exercise of these rights”35 and that “as EU law currently stands, a person’s status, which is relevant to the rules on marriage and parenthood, is a matter that falls within the competence of the Member States and EU law does not detract from that competence. The Member States are thus free to decide whether or not to allow 34 35

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Same-Sex Parenthood in the Cross-Border Landscape in Pancharevo marriage and parenthood for persons of the same sex under their national law (…)”.36 Consequently Member States are not obliged to draw up or transcribe into their national civil status registers birth certificates indicating two persons of the same sex as parents. The Court of Justice of the EU does not mention an important aspect highlighted in the Opinion, namely that there is a Regulation 2016/1191,37 the aim of which is to provide for a system of exemption from legalization or similar formalities of certain documents, including birth certificates, which circulate within the EU. Its Article 2(4) provides that it does not apply to the recognition in a Member State of legal effects relating to the content of public documents. Additionally, Recital 18 of its preamble states that the regulation should not affect the recognition in one Member State of legal effects relating to the content of a public document issued in another Member State. Recital 18 underlines that the aim of the Regulation is not to change the substantive law of the Member States relating to, inter alia, birth, parenthood and nationality. At the same time, the Court of Justice of the EU underlined in Pancharevo that recognition of civil status documents, including birth certificates, issued in another Member State in accordance with its laws, is nevertheless required when such a document is used for the purpose of enjoyment of freedom of movement. It states that in order to exercise the right to move and reside freely within the territory of the Member State with each of the parents, the child “must have a document which mentions them as persons entitled to travel with that child. In the present case, the authorities of the host Member State are best placed to draw up such a document, which may consist in a birth certificate. The other Member States are obliged to recognise that document.” The question arises whether a birth certificate might serve as a document allowing for free movement across borders in the EU, if the child is not a Bulgarian national, and therefore, will not be granted in Bulgaria with travel documents. As stated in Articles 4(1) and 5(1) of the Directive 2004/38/EC38 referred to in Pancharevo, right of entry and right of exit is “without prejudice to the provisions on travel documents applicable to national border controls” and provides that EU citizens and their family members must travel with a valid identity card or a passport. At the same time, pursuant to Article 3(3) of the Directive 2004/38/EC Member States issue such documents only to their own nationals. However, if a child does not have travel documents, being covered by the right of free movement and residence may be proven “by other means” (Article § 52 Judgment. Regulation (EU) 2016/1191 of the European Parliament and of the Council on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012, OJ L 200, 26.7.2016, p. 1-136. See C. CAMPIGLIO, Circulation of public documents and recognition of civil status situations: lights and shadows, this Yearbook. 38 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance), OJ L 158, 30.4.2004, p. 77-123. 36 37

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Anna Wysocka-Bar 5(4) Directive 2004/38/EC). Hence, it seems that these “other means” should include the birth certificate. C.

Implications for Freedom of Movement within the EU

The Pancharevo case is an illustration of only one of the doubts that might arise when the existence of the parent-child relationship in the context of families created by same-sex couples is analysed, namely whether the parent-child relationship should be recognized for the purpose of obtaining national identity documents. In the Pancharevo case the Court of Justice has pronounced with respect to the need to treat a parent-child relationship established under the law of one Member State as such in another Member State for the purpose of permitting a child “to exercise without impediment with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU.” Additionally, this conclusion seems to be valid, irrespective the child’s nationality, as long as one of the parents, whose parenthood was legally established in one of the Member States, is an EU citizen.39 This is an important aspect, given that the nationality of the child in the Pancharevo case was questioned during the hearing. Referring on numerous occasions to the Coman case,40 at the same time it stated that “such an obligation does not require the Member State (…) to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate (…)”.41 The question that seems unanswered, but to which an answer will be sought sooner rather than later, is the delineation between those areas where recognition of the parent-child relationship as established in one of Member States is required by EU law and those where such recognition is not required by EU law. The question is to know which rights are included in the notion of “rights that a child derives from EU law” and which are not.42 One may ask, with respect to a hypothetical case in which the facts are similar to those in Pancharevo, the following questions. If the parents decide to divorce, will the parent-child relationship be recognized for the purpose of attributing rights of custody and rights of access to both or one of the parents? If the parents decide to separate, will the parent-child relationship be recognized for the purpose of granting maintenance for the child? If one of the parents dies, will the parent-child relationship be recognized for the purpose of inheritance laws? Will a judgment on parental responsibility, maintenance or inheritance given in one Member State be recognized and enforced in See §§ 67-68 Judgment. CJEU, 5 June 2018, C-673/16, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, ECLI:EU:C:2018:385. See P. KINSCH, European Courts and the obligation (partially) to recognise foreign same-sex marriages: on Orlandi and Coman, this Yearbook 2018/2019, p. 47-59. 39 40

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Same-Sex Parenthood in the Cross-Border Landscape in Pancharevo other Member States, without any possibility of recourse to the public policy (ordre public) clause on the grounds that same-sex parentage infringes the national and constitutional identity of a given Member State? The above questions are not directly answered in Pancharevo. However, it seems that some indications might be found in the judgment. While elaborating on “the right to move and reside freely within the territory of the Member States”, the Court of Justice of the EU makes reference to its previous jurisprudence. By referring to Grunkin and Paul43 it directly addresses the question of the child’s surname, stating that “Article 21 TFEU precludes the authorities of a Member State, in applying their national law, from refusing to recognise a child’s surname as determined and registered in a second Member State in which the child was born and has been resident since birth (…)”.44 Then, referring to Coman, the Court of Justice of the EU underlines that “the rights which nationals of Member States enjoy under Article 21(1) TFEU include the right to lead a normal family life, together with their family members, both in their host Member State and in the Member State of which they are nationals when they return to the territory of that Member State (…)”.45 Later, making reference to the Charter, it states that “the right to respect for family life, as stated in Article 7 of the Charter, must be read in conjunction with the obligation to take into consideration the child’s best interests, recognised in Article 24(2) of the Charter. Since Article 24 of the Charter, as the Explanations relating to the Charter of Fundamental Rights note, represents the integration into EU law of the principal rights of the child referred to in the Convention on the rights of the child, which has been ratified by all the Member States, it is necessary, when interpreting that article, to take due account of the provisions of that convention”.46 Taking the above into account, it seems that in order for the child to be able really to move and reside freely across the EU, the parent-child relationship should be recognized for many different purposes, including parental responsibility, maintenance and inheritance.

III. EU Initiative on Recognition of Parenthood As a side note to Pancharevo, it may be recalled that some time ago the European Commission had already commenced an initiative on recognition of parenthood between Member States.47 As underlined by the Commission, the aim of the 43 CJEU, 14 October 2008, C-353/06, Stefan Grunkin and Dorothee Regina Paul ECLI:EU:C:2008:559.

§ 44 Judgment. § 47 Judgment. 46 § 63 Judgment. 44 45

Please note that works on a global, not only EU, instrument are also carried under auspices of Hague Conference on Private International Law within the Parentage / Surrogacy Project. Available at https://www.hcch.net/en/projects/legislative-projects/ parentage-surrogacy on 1.06.2022. 47

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Anna Wysocka-Bar initiative is “to ensure that parenthood, as established in one EU Member State, will be recognised across the EU so that children maintain their rights in crossborder situations, in particular when their families travel or move within the EU”.48 The outcome of the initiative is intended to be a draft regulation to be presented by the Commission by the third quarter of 2022. The initiative included public consultation, which seems to confirm that respondents are familiar with instances where parenthood was not recognised between Member States. The facts of the Pancharevo case might serve as an example. An Expert Group was set up to advise the Commission on the preparation of this new instrument. The Group met seven times between June 2021 and February 2022. The minutes of these meetings are publicly available and reveal certain aspects of the proposed instrument discussed by the experts. As revealed in the minutes, according to the Expert Group the proposed instrument should contain rules on direct, alternative jurisdiction based generally on the connecting factor of the habitual residence and nationality of the child, conflict of law rules of universal application based on the connecting factor of the habitual residence of the person giving birth to the child, and rules on recognition of judgments and authentic instruments49 (for example, birth certificates), and should introduce an optional certificate of parenthood. One of the topics discussed was also the territorial reach of the instrument, namely whether judgments and authentic instruments originating from third states should also be covered. It was also debated whether the new instrument should cover surrogacy, as it is “a controversial topic that raises ethical, societal and legal questions. Nevertheless, the sub-group recommended, on the basis of legal and policy arguments, that the recognition in another Member State of the parenthood of a child born out of surrogacy should be included in the scope of the Commission proposal so as not to discriminate against certain children because of the way they were conceived and born.” Also, the use of the notion of “parenthood” was debated.50 Looking at this initiative, with the Pancharevo case at the back of one’s mind, one should remember that the EU has competence to adopt measures concerning family law with cross-border implications, namely rules on jurisdiction, applicable law, recognition, and enforcement, pursuant to Article 81(3) TFEU, which requires unanimity among Member States of the EU. So far, regulations that 48 Available on the website of the European Commission at https://ec.europa.eu/ info/law/better-regulation/have-your-say/initiatives/12878-Cross-border-family-situationsrecognition-of-parenthood_en on 1.06.2022. 49 See: Minutes of the 7th Meeting: “The group reached no conclusion as to whether the proposal should provide for two different systems for authentic instruments, namely “recognition” and “acceptance” depending on whether the authentic instruments have constitutive effects or only evidentiary effects, or rather only one system of “acceptance” for all authentic instruments. It was considered however that the second option would make the rules easier to apply in practice.” 50 The term “parenthood” is used officially in the name of the initiative. As Minutes to the 1st Meeting show, it was discussed whether it should be replaced by the term “parentage”. Also another term, not so focused on the person of the parent, “filiation” is proposed. See: I. Pretelli, Filiation between Law, Language, and Society, published on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4101805 on 1.06.2022.

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Same-Sex Parenthood in the Cross-Border Landscape in Pancharevo were supposed to be adopted under Article 81(3) TFEU have not met this criterion. As recalled in the Opinion: “In the case of, for example, divorce, insurmountable conceptual differences were found during the drafting of a regulation on the law applicable to that institution, leading to the failure of the Commission’s legislative initiative”.51 These regulations became law only thanks to the enhanced cooperation mechanism, which by definition “binds only participating Member States” (Article 20(4) TEU). Hence, it is easy to imagine that certain Member States, for example Bulgaria and Poland, might oppose the adoption of the regulation on recognition of parenthood, raising similar arguments to those used by the administrative authorities in the Pancharevo and Rzecznik Praw Obywatelskich cases. If so, the adoption of the regulation under Article 81(3) TFEU will not be possible. The regulation might still be adopted under enhanced cooperation, most probably leaving opposing states outside of it. It seems that the planned regulation might not be the most suitable instrument “to ensure that parenthood, as established in one EU Member State, will be recognised across the EU”, as are the hopes for this initiative. It might be that it will be the jurisprudence of the Court of Justice of the EU that will continue as an instrument ensuring that parenthood is recognised across the EU, with the judgment in the Pancharevo case, followed by the order in Rzecznik Praw Obywatelskich case, as the beginning.

IV. Conclusion The Pancharevo case concerns recognition of the parenthood of same-sex parents in cross-border contexts; it aims to clarify the doubt as to whether EU Member States are obliged by EU law to recognize such parenthood as established by a birth certificate issued in a Member State where the child was born in the context of the application for a birth certificate, which is a prerequisite for national identity documents to be issued. The Court of Justice of the EU confirmed that parenthood must be recognized for the purpose of allowing the child to exercise the right to move and reside freely within the EU. At the same time, there are still some questions that remain open. Since the establishment of parenthood for the purpose of acquisition of nationality is part of the sovereignty of Member States, it may happen that a child is not perceived as a national of a given Member State, and consequently is not an EU citizen, and that the Member State concerned will not be obliged by EU law to provide this child with national identity documents. If so, the obligation of Member States to recognise parenthood as established in one of Member States in accordance with its laws, for the purpose of the exercise of the child’s right to move and reside freely, and not necessarily for “other” purposes, will most probably require in the very near future a clear delineation between these purposes. It seems that, in view of the references made by the Court of Justice of the EU in Pancharevo to the Coman case and the Charter, the 51

§ 75 Opinion.

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Anna Wysocka-Bar notion of “the right to move and reside freely within the European Union” should be interpreted in a broad sense as covering other aspects of family life, including for example parental responsibility, maintenance and inheritance. Given that the new EU initiative on recognition of parenthood may result in a new regulation being adopted within the enhanced cooperation mechanism, leaving conservative Member States such as Bulgaria and Poland outside of it, it may come about that it is for the jurisprudence of the Court of Justice of the EU, in cases such as Pancharevo or Rzecznik Praw Obywatelskich, to ensure that parenthood as established in one Member State is recognized across borders in the EU.

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INTERNATIONAL REMOVALS IN CONTEXTS OF VIOLENCE BETWEEN EUROPEAN ASYLUM LAW AND THE BEST INTERESTS OF THE CHILD THE CJEU CASE A. V. B., OF 2 AUGUST 2021 Carmen RUIZ SUTIL*

I. II.

V.

Introduction Presentation of the Case and its Decision A. The Family Situation B. The Legal Questions Referred to the CJEU The Dublin III System and the Perspective of Children in Situations of Gender Violence A. Mother’s and Child’s Asylum Claim Based on Gender Grounds B. Hierarchical Criteria in the Search for the State Responsible for Asylum – The Incorporation of Gender-Based/Domestic Violence International Child Abduction and European Asylum Law A. Redefining the Wrongfulness of International Child Abduction in the Face of Dublin III Mandatory Transfers B. The Principle of Consistency in the Interlocking Application of the International Child Abduction and Asylum Instruments Conclusions

I.

Introduction

III.

IV.

The relationship between private international law and international refugee law is growing significantly.1 An example of this is the unprecedented decision of judg* Assistant Professor of Private International Law at the University of Granada. This work forms part of the I+D+i Project of the Ministry of Science and Innovation: Gender violence and structural subordination: implementation of the principle of gender mainstreaming. PID2019-108526RB-I00/AEI/10.13039/501100011033. Heartfelt thanks to Houda Zekri for the English translation of the original text and to Ilaria Pretelli for her input in the final revision. Both collaborations have made it possible for this article to see the light of day. 1 See V. VAN DEN EECKHOUT, Private international law questions that arise in the relation between migration law (in the broad sense of the word) and family law: subjection of PIL to policies of migration law, Background paper, PILAGG-Presentation, 24 January 2013, http://ssrn.com/abstract=2203729 [accessed 2 April 2022]; A. FIORINI, The Protection of the Best Interests of Migrant Children – Private International Law Perspectives, in G. BIAGIONI & F. IPPOLITO (eds), Migrant Children in the XXI Century. Selected Issues of

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Printed in Germany

Carmen Ruiz Sutil ment 2 August 2021, A. v. B. of the CJEU,2 which raises the interconnection of two legal instruments of European Union law which have ostensibly different subjects and objectives. The preliminary rulings in that case concern the interpretation of the provisions on international child abduction and the transfer imposed by Regulation (EU) No 604/2013 of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection filed in one of the Member States by a third-country national or a stateless person3 (Regulation No 604/2013 or Dublin III). Most of the rules and mechanisms addressing the relationship of migrants with the State derive from “public law”, such as asylum or immigration laws. However, in the area of international private situations, in addition to the mechanisms and systems of private law, public law rules inevitably contribute to the regulation and solution of problems in this area, thereby showing the artificiality of the so-called “private-public divide”.4 These and other aspects blur the traditional division between the public and private spheres, as is the case with the rules of private international law involved in the regulation of asylum (Articles 12 to 16 of the 1951 Geneva Convention Relating to the Status of Refugees).5 This is also true in the case of certain provisions aimed at protecting refugee and internationally displaced children which need to be coordinated with those on international jurisdiction of Article 13.2 of Council Regulation No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility6 (Regulation No 2201/2003). This is the context of the case under consideration. With the aim of protecting a minor witnessing gender based domestic violence, a mother transferred her child from Sweden to Finland, in compliance with a decision issued pursuant to Regulation No 604/2013. The removal of the child leads the father to request his immediate return to the country of habitual residence (Sweden) on grounds of another EU instrument: Regulation No 2201/2003. The questions referred to the CJEU by the Finnish court conern the main instruments on international child Public and Private International Law, Series “La ricerca del diritto”, Editoriale Scientifica, 2016, p. 379-418, https://ssrn.com/abstract=2862361 on 1.3.2022. 2 ECLI:EU:C:2021:640 3 OJ L 180, 29.6.2013. This system was designed to respond to the phenomenon of asylum shopping (searching for the most advantageous Member State), with the aim of avoiding the abuse of these procedures through the simultaneous or successive filing of several applications by the same person in different Member States. It is also intended to prevent the phenomenon known as ‘refugees in orbit’, whereby Member States claim not to be responsible for analysing asylum applications. 4 M. REQUEJO ISIDRO, La protección del menor no acompañado solicitante de asilo: entre estado competente y estado responsable, Cuadernos de Derecho Transnacional, 2017/2, vol. 9, p. 482-505. 5 Done at Geneva on 28 July 1951. Also the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967. 6 OJ L 338, 23.12.2003.

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Child Removals, Gender Based Domestic Violence and EU Asylum Law abduction, such as Regulation No 2201/2003 and the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction7 (hereinafter referred to as 1980 Hague Convention), as well as the Dublin III Regulation. Given the limited scope of the analysis, we will focus in these pages on international transfer imposed by the application of European asylum law, taking into account the provisions on international child abduction. However, we note that it is difficult to carry out an adequate examination of the legislation bearing upon the case under consideration without taking into account gender transversality. The applicant’s request for asylum was motivated by the fact of being a victim of gender based domestic violence and a well-founded fear of returning to her country of nationality, Iran, because of the risk of attacks in the name of honour by her husband’s family. The international architecture of women’s human rights, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),8 imposes a binding obligation to adopt a gender perspective whenever this is needed in order to prevent or eradicate a discrimination. Not to comply eith the Convention would mean being in breach of international law on the matter. We will therefore focus in the following pages on the incorporation of gender mainstreaming as an analytical tool presented at the Fourth World Conference on Women in Beijing in 1995.9 We will also bear in mind Articles 60 and 61 of the 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence (known as the Istanbul Convention),10 which protect foreign victims who are persecuted for gender-based reasons and enshrine the principle of nonrefoulement. In the case of children who are victims of structural violence, even as eyewitnesses, we must be guided by Article 31 of the Istanbul Convention. If our examination of the regulations linked to the case shows up a lack of alignment between them, that negatively affects the child transferred and affected by gender based domestic violence, we must look at ways of resolving such conflicts. We will assess whether in Case C 262/21 PPU this combination of regulations has been taken into account.

7 Done on October 25, 1980, https://www.hcch.net/es/instruments/conventions/ specialised-sections/child-abduction. 8 Adopted by the United Nations and opened for signature and ratification or accession by the General Assembly in its Resolution 34/180 of 18 December 1979. 9 Done at Beijing, 4-15 September 1995, A/CONF.177/20/Rev.1. See https://www.un.org/womenwatch/daw/beijing/platform/. 10 Done at Istanbul, 11 May 2011. See https://www.coe.int/en/web/istanbulconvention/home.

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II.

Presentation of the Case and its Decision

A.

The Family Situation

The main dispute concerns a married couple of Iranian nationals who, after a period of legal residence in Finland, moved to live in Sweden. On 5 September 2019, while they were in the latter country, their child was born. Some time later there were episodes of violence by the father towards the mother, in the presence of the child, who was only a few months old, a fact that presented a real danger to his development and health, in addition to the possibility of being illicitly transferred to Iran by the father. In compliance with the European Parliament resolution of 11 November 2019 on protective measures for the minor,11 the Swedish authorities have taken over guardianship and foster care of the child, who was housed with his mother in a home for women in difficulty. The father was not considered a safe person for the child to be with, leading to his initially being allowed access to the child only by means of photos and video recordings. Subsequently, visits were arranged in the presence of a social worker, limited to very brief contacts in view of the young age of the child. As a result of the violence suffered and the initiation of the divorce, the mother filed an asylum application for herself and her son in Sweden in August 2020. This request was motivated by a well-founded fear of being threatened and attacked in the name of honour by the father’s family if she were to return to Iran.12 On 27 August 2020, Finland, her former country of residence, confirmed that it was reponsible for the examination of the international protection of the mother and the child in accordance with Article 12, paragaph 3, of Regulation No 604/2013. This competence criterion based on the expiration date of the residence permit granted to the mother by Finland (27 December 2021), a longer period than that granted by the Kingdom of Sweden (16 September 2020), together 11 European Parliament resolution of 26 November 2019 on children’s rights on the occasion of the 30th anniversary of the UN Convention on the Rights of the Child (2019/2876(RSP). 12 In a similar vein, the decision of the Croatian Constitutional Court U-III-557/2019 (610) of 11 September 2019 accepted a complaint by a rejected asylum-seeking woman from Iraq. In support of her request, the applicant had initially put forward only warfare in her home country, but at a later stage she explained that she was a victim of gender based domestic violence and that, if returned to Iraq, she risked further ill-treatment or death at the hands of her former husband or her brother, one of whom would necessarily be considered her guardian. Taking into consideration the circumstances of the case as a whole, including her high degree of traumatisation and vulnerability, the Constitutional Court accepted that the applicant had been too ashamed and too afraid to immediately rely on the issue of domestic violence in her initial asylum interview, because it had been conducted by two men. In the new proceedings, the Constitutional Court instructed the authorities to allow the applicant to prove her personal situation and individualised risk in line with up-to-date facts on the situation of women victims of domestic violence in Iraq and their ability to relocate elsewhere within the country, cited in AA.VV., Handbook on European law relating to asylum, borders and immigration, 2020, p. 295, in https://fra.europa.eu/en/publication/2020/ handbook-european-law-relating-asylum-borders-and-immigration-edition-2020.

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Child Removals, Gender Based Domestic Violence and EU Asylum Law with the corresponding assessment of the best interests of the child (Article 6(3) of Regulation No 604/2013), was decisive in the transfer decision. As there was no opposition from the applicant or from the Swedish authorities, as foreseen by the Dublin text, the change of country took place in November 2020. For his part, the father filed a claim to the Appeal Court of Helsinki (Finland) in December 2020 for the immediate return of his son to Sweden under Regulation No 2201/2003 and the 1980 Hague Convention. Further to dismissal of the claim and the subsequent appeal to the Helsinki Supreme Court, it was decided to stay the proceeding and to refer five questions to the CJEU for a preliminary ruling. B.

The Legal Questions Referred to the CJEU

The CJEU decision of 2 August 2021 refers primarily to the scope of application ratione materiae of Regulation No 2201/2003 in terms of analysing the constituent elements of wrongful removal or retention, in the light of the decision taken under Regulation No 604/2013 on the transfer of the minor and his mother to the country in charge of the asylum examination. We will now set out several observations regarding the five questions referred to the CJEU for a preliminary ruling. First of all, the transfer decision must not be taken in isolation but must be assessed in the context of the procedure of which it is part, since it cannot be dissociated from the application for international protection which is its immediate origin. The purpose of the asylum request is to guarantee the minor a permanent status that protects him from the danger to which he may be exposed. Consequently, this request constitutes a measure of protection of the minor, falling under “civil matters” in accordance with Article 1 of Regulation No 2201/2003, regardless of the provisions of Recital 10 of that text. Secondly, the assessment of the legality or otherwise of the transfer of the child on the basis of the definition provided by Article 2(11) of Regulation No 2201/2003 requires that, in compliance with an order issued by a national authority on the basis of the Dublin III Regulation, it is not deemed to be “unlawful”. If the transfer is lawful, the child cannot be returned. The importance of this aspect leads us to deal with it in more detail in section IV of this paper. Thirdly, given the statement that it is not a question of wrongful removal or retention of the child, it is superfluous to answer the remaining questions, which were raised conditionally. In any case, if it were a question of international abduction of the child and the return to the State of residence were ordered, the mother could object by invoking Articles 13(1)(b) or 20 of the 1980 Hague Convention. Despite being able to demonstrate a serious risk to the child if he were to be returned in view of the domestic violence witnessed, the authorities of the country of habitual residence could still order return by ensuring adequate arragnements to prevent the foreseeble risks, under the terms of Article 11(4) of Regulation No 2201/2003.13 Unfortunately, the CJEU did not resolve these disputes and missed 13 I. PRETELLI, Three Patterns, One Law: Plea for a Reinterpretation of The Hague Child Abduction Convention To Protect Children from Exposure to Sexism, Misogyny and Violence Against Women, in M. PFEIFFER, J. BRODEC, P. BRÍZA and M. ZAVADILOVÁ (eds),

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Carmen Ruiz Sutil the opportunity to ascertain what the safe return of the child would look like in contexts of gender-based violence.14 Finally, during the hearing the High Court confirmed the existence of the court decision that definitively granted the mother sole custody of the common child. This led to the closure of the debate before the Finnish court concerning the return of the child to Sweden.

III. The Dublin III System and the Perspective of Children in Situations of Gender Violence A.

Mother’s and Child’s Asylum Claim Based on Gender Grounds

Member States are constantly confronted with the emerging challenges of asylum law and gender, as women and girls, who are often victims of multiple forms of discrimination and gender-based violence, represent a high percentage of requests for international protection. However, gender-based persecution is not recognized independently, unlike the other five forms of persecution listed in the 1951 Geneva Convention. In the face of this extremely complex reality, Article 60(1) of the Istanbul Convention contributes to filling one of the major gaps in international law on migration and the protection of the rights of migrant victims by determining that “gender-based violence against women may be recognised as a form of persecution as defined by article 1.A (2) of the Geneva convention and as a form of serious harm giving rise to international protection”. The special difficulties faced by foreign women and their children who are victims of violence against women has led the Council of Europe, in drawing up Sustainable Development Goal 5 of the Gender Equality Strategy 2018-2023, to

Liber Amicorum Monika Pauknerová, Praha, 2021, p. 363-393, at p. 387 illustrates that the rule, elaborated in an attempt to make mutual trust (and perhaps an assumed “abstract interest of the child”) prevalent to the best interests of the child in danger, is particularly illsuited in cases of gender-based domestic violence because, on the one hand, it does not ensure any deterrence – it is unlikely for a mother not to violate statutory rights of the father if the child is in real danger – and, on the other, because it does not respect basic rights of the child, as the right to life, health and a sound development. As observeed by the author, ibidem, the Recast of Regulation 2201/2003, namely Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in parental responsibility issues, and on international child abduction, OJ L 178 of 2.7.2019, has introduced changes with the aim of making it possible for both Courts to ensure that the best interests of the child are pursued throughout the procedure. 14 On the subject, see C. RUIZ SUTIL, Implementation of the Istanbul Convention in the recast Brussels II bis Regulation and its impact on international child abduction, Cuadernos de derecho transnacional, 2018/2, vol. 10, p. 615-641.

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Child Removals, Gender Based Domestic Violence and EU Asylum Law conceive a Draft Recommendation dedicated to the protection of the human rights of migrant, refugee and asylum-seeking women and girls.15 As for the children of these victims of gender violence, the recommendations and decisions issued by the Committee on the Elimination of Discrimination against Women (CEDAW) stress that the extent of this violence is such as to have far-reaching effects on these minors, impacting their overall development and jeopardising their best interests. Likewise, the European Parliament resolution of 6 October 2021 on the impact of intimate partner violence and custody rights on women and children16 notes that children may suffer what is called ‘witnessed violence’, an essential factor in the determination of any measure of parental responsibility,17 including those falling within asylum claims18. Further, the ECHR holds that victims of domestic violence, together with their minor children, belong to the group of “vulnerable individuals” and are entitled to international protection by States.19 If we focus on the gender-based asylum claim in Case C 262/21 PPU, we find that it also includes the claim for the child on the grounds of overexposure to gender-based violence. Under Article 7(3) of Directive 2013/32/UE,20 it is possible to file a request for the child through a single adult representing him or her, who may be a parent or another relative.21 In this sense, Article 20(3) of Regulation No 604/2013 provides that the status of the minor accompanying the applicant and meeting the definition of family member shall be indissociable, provided that it is in the best interests of the child.22 Likewise, it follows from recitals 13, 15 and 16 of the aforementioned Dublin III text that the best interests of the child must be a primary consideration in joint asylum processing, as this aims to guarantee a permanent status children, that avoids the danger they may face if returned to the 15 GEC-MIG (2021) 3 rev 2 20. See https://www.coe.int/fr/web/genderequality/ migrant-and-refugee-women-and-girls. 16 P9_TA(2021)0406. See recitals I and N of the resolution. 17 C. RUIZ SUTIL, La movilidad intra-europea de las mujeres extranjeras irregulares víctimas de la violencia intrafamiliar: carencia de igualdad de género en la normativa de la Unión Europea, La Ley Unión Europea, 2020/83, p. 8. 18 Paragraphs 29 and 31 of the conclusions of Mr. Pilamäe in Case C-262/21 PPU state that the asylum application falls within the scope of Regulation No 2201/2003. And that the concept of “civil matters” must be understood as an autonomous term of Union law covering all claims, measures or decisions in matters of “parental resposibility”, including those aimed at protecting the child, as clarified by the Judgment of the CJEU in Case Gogova v Iliev (C-215/15), para 26, EU:C:2015:710. 19 Opuz v. Turkey, Application no. 33401/02, Council of Europe: European Court of Human Rights, 9 June 2009, para. 160, available at: https://www.refworld.org/cases, ECHR,4a2f84392.html [accessed 17 April 2022]. 20 Directive of the Parliament and of the Council of 26 June 2013 on common procedures for granting or withdrawing international protection (OJ L 180, 29.6.2013). 21 Judgment of the CJEU of 4 October 2018, Ahmedbekova (C-652/16), paras 53 to 55, EU:C:2018:801. 22 See judgment of the CJEU of 23 January 2019, M. A. and others (C-661/17), paras 87 to 90, EU:C:2019:53.

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Carmen Ruiz Sutil country where they may suffer persecution. Thus, the competence of the Member State responsible for the asylum application assessment will cover the joint request of the mother and child, which has been motivated by domestic violence. Therefore, despite the fact that the child’s perspective in situations of gender-based violence is not expressly incorporated in Regulation No 604/2013, we must allow greater flexibility in assessing the requirements for asylum requests in these situations. For instance, we could cease to require the father’s consent when initiating the procedure for international protection for the child when it is motivated by gender issues. Moreover, if it is a young child, as in the present Case C 221/PPU, this component becomes more relevant in the context of gender violence, requiring greater care and the efforts needed to ensure the emotional stability of the child. We must pay sufficient attention to situations of vulnerability related to these traumatic experiences. B.

Hierarchical Criteria in the Search for the State Responsible for Asylum – The Incorporation of Gender-Based/Domestic Violence

In the intra-European space, the Dublin Regulation23 has become a mechanism for monitoring, early warning and crisis management in connection with asylum applications. Its functions are basically to monitor the status of requests for international protection in the Member States and to establish a framework for structured and orderly action to identify problems arising from migratory pressure. To this end, Articles 7 et seq. of the Dublin text establish several graduated criteria that determine the country responsible for examining the asylum request. Without leaving it to the will or preferences of the persons concerned, priority is given hierarchically to: the family unit (Articles 8 to 11); possession of residence documents and visas (Article 12); irregular entry or residence (Article 13); entry with visa exemption (Article 14), and application at airports or transit zones (Article 15). As a subsidiary function, a closing clause is included in favour of the State where the application was submitted (Article 3(2)).24 However, the Dublin system has proved to be unworkable and ineffective,25 as it mainly favours the objectives of European integration and minimizes the rights of applicants. In fact, the hierarchy of criteria for assigning the State respon23 This Regulation originated in the 1997 Dublin Convention (OJ C 254 19.8.1997), which was replaced by Regulation (EC) No 343/2003 of the Council of the European Union, or Dublin II, as amended by the Dublin III Regulation. 24 The judgment of the CJEU of 6 June 2013, in Case C‑648/11, ECLI:EU:C: 2013:367, establishes an exception in this sense, altering the logic of the asylum system. Thus, when a minor who has no family applies for asylum in several States, the Member State responsible for examining the application is the one where the minor has lodged his or her asylum application. On this issue, see M. REQUEJO ISIDRO (note 4), p. 491. 25 Currently, due to the massive influx of forced migrants and the imbalances within the EU arising from the current asylum system, which places a burden on frontline Member States, there is a legislative proposal for reform to replace the current Dublin text with a new regulation on asylum and migration management. See https://www.consilium.europa.eu/ en/policies/eu-migration-policy/eu-asylum-reform/ [accessed 20 April 2022].

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Child Removals, Gender Based Domestic Violence and EU Asylum Law sible is reported as being misapplied.26 And the rules on the transfer of responsibility laid down by the Dublin III Regulation undermine the efficiency of asylum procedures. If we look at the cases of asylum requests filed by victims of gender violence, as opposed to what happens with unaccompanied minors,27 we can see that there is no criterion for establishing which State is responsible in such scenarios. An example of this is Case C 262/21 PPU, where the gender perspective has not been sufficiently included in the answers given to the preliminary ruling questions. This invisibility has been detected by the European Parliament’s Committee on Women’s Rights and Gender Equality,28 which has called on the Committee on Civil Liberties, Justice and Home Affairs to incorporate its suggestions based on the specific needs of women and girls throughout the complex asylum procedure. The growing number of asylum requests in the EU based on discrimination and violence against women raises the question whether the current criteria for assigning responsibility of the Member State are inadequate to address this problem. If they were to be corrected, we suggest including, for example, the place where the victim resides, leaving it to the wishes of the victim to decide. This would avoid re-victimization and the need to recount the situation experienced before other judicial or administrative officers, with a consequent saving of human and economic resources. At present, one way of altering the hierarchy of criteria for transmission of competence to the State responsible for examining asylum applications is via assessment of the best interests of the minor (Article 6(3) of Regulation No 604/2013). Also, for the European asylum framework, as established by CJEU doctrine,29 we should keep in mind Article 24(2) of the Charter of Fundamental Rights of the European Union and take account of the circumstances of the specific case, in particular the age of the minor, her physical and emotional development and the intensity of his emotional relationship with his parents. In the absence of gender mainstreaming being incorporated into Regulation No 604/2013 – i.e. an obligation established at international and European level to ensure the application of the best interests of the child and his or her special vulnerability in situations of gender or domestic violence –, we must assess the corrective factors in paragraphs (b) and (c) of Article 6(3) of the Dublin text. The victimization experience of minors in contexts of gender-based violence has a very special impact on the

See Report on the implementation of the Dublin III Regulation (2019/2206(INI)), 2.12.2020. Committee on Civil Liberties, Justice and Home Affairs. Rapporteur: Fabienne Keller, https://www.europarl.europa.eu/doceo/document/A-9-2020-0245_EN.html [accessed 2 April 2022]. 27 M. REQUEJO ISIDRO (note 4), p. 489-492. 28 See (2019/2206(INI)). 29 This follows from Article 8 and Recital 13, in addition to Article 6(3)(c), of the Dublin Regulation, which list certain elements to be taken into account when determining the best interests of the child: safety and security considerations, especially where there is a risk of the child becoming a victim of trafficking in human beings. 26

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Carmen Ruiz Sutil treatment provided by international protection, in addition to trying to overcome the problems caused by transfer to another State under the Dublin III system.30 We believe that ultimately, in determining which Member State is competent for the asylum request, it will be necessary to apply the gender approach to the criteria for assigning the country responsible, in order to provide adequate protection in accordance with the particular needs of people suffering from the scourge of domestic violence.

IV. International Child Abduction and European Asylum Law A.

Redefining the Wrongfulness of International Child Abduction in the Face of Dublin III Mandatory Transfers

One of the keys to understanding the answers given to the preliminary questions in Case C 262/21 PPU is determining the lawfulness of the transfer of the child. To do so, it is necessary to refer to the meaning of the term “wrongful removal” adopted in the 1980 Hague Convention and in Regulation No 2201/2003. Defining this concept does not depend exclusively on the purely material and objective finding that the child has been removed or retained outside the place of his or her habitual residence, without the consent of the holder or co-holder of the parental responsibility. In order to describe the case as “unlawful”, it is also necessary to know that the infringement of the right of custody is due to an act attributable to the parent responsible for the child’s removal, an act aimed at obtaining pratical or legal advantages to the detriment of the other parent. An examination of the CJEU judgments on the interpretation of Regulation No 2201/2003 leads to an identical concept of wrongful removal or retention.31 Case C 262/21 PPU concludes that the removal of the child is not the result of an act attributable to the parent responsible for the removal, but is the consequence of the effect of a specific regulation, Regulation No 604/2013, the application of which is imposed both on the Member States and on applicants for international protection. Therefore it cannot in itself constitute an infringement of the right of custody within the meaning of Article 2, point 11, of Regulation No 2201/2003. To arrive at this answer, we can use the analogy of the concept of force majeure in contracts. The unlawfulness of the removal of the child may derive from a factual situation that can be described as an “irresistible and external event”, beyond the mother’s will and beyond her control. The transfer obligation in the 30 The ECHR and CJEU have pronounced on this issue. See Mª.C. CHÉLIZ INGLÉS, El traslado de solicitantes de asilo a Estados miembros con condiciones menos favorables, in D. MARÍN CONSARNAU (coord.), Retos en inmigración , asilo y ciudadanía. Perspectiva Unión Europea, internacional, nacional y comparada, Marcial Pons, Madrid, 2021, p. 319328. 31 See, inter alia, Judgment of the CJEU of 8 June 2017, OL (C-111/17 PPU), para 63, EU:C:2017:436.

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Child Removals, Gender Based Domestic Violence and EU Asylum Law context of a decision arising from the application of the Dublin III Regulation results in the parent and her child having to travel to the State responsible for the asylum examination. These circumstances have nothing to do with the mother’s intention to leave Sweden. The abusive parent’s counter-argument is that the mother has violated his right to custody, as he never gave his consent to the child’s removal to Finland. Furthermore, the father insists that the mother used the asylum procedure for purposes other than those for which it was intended. However, this reasoning becomes weak in the absence of proof of such a subjective or intentional element. In fact, if the mother failed to comply with the provisions of the enforceable decision to transfer to the state responsible for asylum seekers in order for her behavior not to be considered unlawful, she would compromise the achievement of the objectives of Regulation No 2201/2003, in addition to the consequences of such disobedience. The conclusion would be different if, on the pretext of a request for international protection filed on her behalf and on behalf of the child, the mother had sought to create a de facto situation in order to deprive the father of his custody rights.32 This would be the case if the mother had fled with her child because of gender violence, seeking a safe haven and distance from her abuser, a controversial issue that is receiving the attention of the Hague Conference on Private International Law.33 In this respect, Article 13(1) (b) is certainly available, however, the extent to which the exception therein can be relied upon is controversial. Differrently from the past, there is an emerging trend which considers that the exception should be used as a ground for refusing return in cases of gender biases leading to violence against women in domestic contexts.34 32 See Judgment of the CJEU of 18 December 2014, McCarthy and Others (C-202/13, para 54, EU:C:2014:2450). In this connection, the Court has stated that proof of abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (judgments in Hungary v Slovakia, C‑364/10, EU:C:2012:630, para 58 and the case-law cited, and O. and B., EU:C:2014:135, para 58). 33 See the Good Practice Guide. Part IV. Art. 13.1) b of the 1980 Hague Convention, at https://www.hcch.net/es/publications-and-studies/details4/?pid=7059. On such guidance guiding and ‘soft law’ see, inter alia, G. MORENO CORDERO, El interés superior del menor y su retorno seguro en sustracciones intracomunitarias fundadas en la violencia de género: el grave riesgo en la guía de buenas prácticas, in A. Ortega Giménez (dir.) I. Lorente Martínez y L. S. Heredia Sánchez (coords.), Europa en un mundo cambiante: Estrategia Europa 2020 y sus retos sociales, Cizur Menor, 2021, p. 119-134. N. RUBAJA, La nueva “Guía de Buenas Prácticas” para la aplicación del art. 13.1.b) – “excepción de grave riesgo” - del Convenio de La Haya sobre los aspectos civiles de la sustracción internacional de menores, Práctica de las relaciones de familia y sucesorias a un lustro del Código Civil y Comercial Libro homenaje a la memoria de Nora Lloveras, Santa Fe, 2020. 34 I. PRETELLI, (note 13); M. REQUEJO ISIDRO, “Child Abduction and Domestic Violence in the EU, Anuario Español de Derecho Internacional Privado, 2006/6, p. 179194; N. BROWNE, Relevance and Fairness: Protecting the Rights of Domestic Violence Victims and Left-Behind Fathers under the Hague Convention on International Child Abduction, Duke L. J., 2011, p. 1193-1238; T. KRUGER and L. VAN WYNSBERGHE,

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Carmen Ruiz Sutil As a consequence of the rise in the number of forced migrations in the EU, it becomes necessary to redefine the concept of wrongfulness in international child abduction in contexts of requests for international protection, as the CJEU did in the decision of 2 August 2021. In summary, we consider that mutual trust among the EU Member States and a common asylum culture should lead to the traditional concepts of private international law being brought into line with these new migratory realities. A.

The Principle of Consistency in the Interlocking Application of the International Child Abduction and Asylum Instruments

The formulation of the principle of the consistency of the provisions of European Union law is regarded as the legislative embodiment of a principle that could be deduced from the case law and doctrine on European private international law, as stated by Professor SÁNCHEZ LORENZO.35 This principle essentially addresses the need for consistency among the rules and legal concepts contained in the different provisions of European law, both in their formulation and in their interpretation. The author makes clear that it is not a normative principle as such, but rather that coherence meets the need for a systematic interpretation of the different rules of private international law, so as to ensure the unity and maximum effectiveness of the entire legal system. Coherence between the rules of private international law and those of substantive law, such as those on asylum, is not easy to achieve, given the increasing complexity of EU Regulations. While conflict rules and international jurisdiction share certain common objectives, these are more distant in the case of the substantive rules of public law, as is true of asylum law, because of the dimension of legal certainty that surrounds it.36 If we look more closely at the coherence principle in the European instruments applicable in the C 262/21 PPU case, we are faced with a difficult task. On the one hand, the drafting of Regulations No 2201/2003 and No 604/2013 (Dublín III) unfolded in the context of negotiations and particular tensions arose at different times.37 On the other hand, and, above all, the two texts are different in nature. We also find that, unlike Regulation No 2201/2003, the Dublin Regulation makes mention of the coherence principle, in its Recital 10. This principle functions as a guide in the interpretation and application of the EU asylum acquis with the aim of

Vulnerability, domestic violence and child abduction, in C. Corso and P. Wautelet (dirs.), L’accès aux droits de la personne et de la famille en Europe, Brussels, 2022, p. 47-58. 35 On this subject see S. A. SÁNCHEZ LORENZO, Principio de coherencia en el Derecho internacional privado europeo, REDI, 2018/2, vol. 70, p. 17-47 36 A. SOLANES CORELLA, Protección y principio de non-refoulement en la Unión Europea, SCIO. Revista de Filosofía, 2020/19, p. 27-62. 37 J. BASEDOW, EU-Kollisionsrecht und Haager Konferenz: ein schwieriges Verhältnis, IPRax, 2017/2, vol. 37, p. 194-200, is right when he points out that it is the very nature of the rules to present themselves in an uncoordinated manner.

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Child Removals, Gender Based Domestic Violence and EU Asylum Law ensuring equal treatment for all applicants for, and beneficiaries of, international protection.38 From our point of view, the principle of coherence becomes the cornerstone when dealing with the answers to the questions referred to the CJEU for a preliminary ruling in Case C 262/21 PPU. In a European cross-border context, the dispersal of regulatory sources on international child abduction,39 in combination with international refugee law,40 results in a highly complex system, since the answers provided operate in very different universes. Incorporating the coherence principle thus requires a case-by-case analysis of the in order to ascertain the values and objectives pursued by the various provisions of European law that contain a relevant concept or solution. As can be seen from the solutions provided in the aforementioned CJEU decision in case C 262/21 PPU, we note that the consistency principle has functioned as a hinge between the interrelated legal instruments, despite the fact that it is not referred to in the interpretation of Article 2, point 11, of Regulation No 2201/2003 in relation to the transfer of the child and her mother to another Member State in accordance with the requirements of Regulation No 604/2013. From a more substantive perspective, if we look at conceptual coherence,41 the interpretative work to arrive at more harmonious interpretations of the legal concepts used in different European legal instruments is endeavouring. Despite the inevitable language problems42 and the differing legal traditions underlying each concept,43 the European legislator has been accepting conceptual consistency in the task of approximating the meanings of the terms included in the EU instruments.44 38 See Recital 29 of the Dublín III Regulation and the desirability of ensuring consistency in the texts of European asylum law. 39 In addition to the 1980 Hague Convention, one should take into account Council Regulation (EU) 2019/1111 of 25 June 2019 (note 13), which replaces Regulation No 2201/2003 as of August 2022. 40 The analysis of this issue in mmigration law is undertaken by P. JIMÉNEZ BLANCO, Movilidad transfronteriza de personas, vida familiar y Derecho internacional privado, Revista Electrónica de Estudios Internacionales, 2018/35, p. 1-49, DOI: 10.17103/ reei.35.06. 41 Concept devised by A.L. CALVO CARAVACA, El derecho internacional privado de la Unión Europea. Valores y principios regulativos, Revista Jurídica del Notariado, 2020/110, p. 11-40. 42 As highlighted by T. RAUSCHER, Von prosaischen Synonymen und anderen Schäden: zum Umgang mit der Rechtssprache im EuZPR/EuIPR, IPRax, 2011/1, vol. 32, p. 40-48. 43 There are concepts that may sound the same, but which reflect very disparate ideas, as graphically demonstrated by I. ISAILOVIC, Same Sex but Not the Same: Same-Sex Marriage in the United States and France and the Universalist Narrative, AJCL, 2018, 66/2, p. 267-315. 44 It should be noted that, according to Recital 10 of Regulation No 2201/2003, it can be understood that decisions relating to the right to asylum are excluded from the concept of civil matters covered by this text. The CJEU, for its part, has already stated that civil measures refer to all those concerning the protection of minors, including those subject to public law, as is the case in the Judgment of the CJEU of 21 October 2015, Gogova v Iliev

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Carmen Ruiz Sutil As we assess the particular circumstances of Case 262/21 PPU, it is of interest to see how the consistency principle works in terms of the concept of transfer as adopted by any given authority under Regulation No 604/2013. Although the same term is used, the meaning assigned to transfer may differ from one authority to the next, given that it originates in a different logic and serves a different function in each text,45 and should be interpreted in the light of the regulatory purposes in which it is embedded. Under the Brussels II bis Regulation system, a wrongful removal or a wrongful retention is one that occurs in breach of a custody right actually exercised, separately or jointly, or that would have been exercised in the absence of such a transfer. By contrast, the transfer decision taken under the Dublin III Regulation occurs when the allocation criteria of the Member State responsible for the examination of an asylum request are inspected. In the light of these elements, the Advocate General46 considers that in Case C-262/21 PPU the transfer decision must not be taken in isolation, but should rather be assessed in the context of the entire procedure of which it is part. It is therefore concluded that the transfer of the parent to a Member State other than that of his or her habitual residence is not unlawful where it is required by a decision arising from the application of the Dublin Regulation. Ultimately, the challenge remains of resolving possible discrepancies in the implementation of various international instruments concerning minors who witness domestic violence. To avoid the independent and unilateral application of each regulation, a balanced approach is needed in the conceptual interpretation of the terms used and, above all, we should draw on to the aforementioned principle of coherence and conceptual consistency. To this should be added that, when the issue involves domestic violence, the provisions of the Istanbul Convention, which insists on the application of the axis of coherence as a fundamental pillar for providing a comprehensive response to violence against women and their children, are fundamental. With the specific aim of making the human rights of victims a priority, the European Parliament Report of 23 February 2022 on the protection of the rights of the child in civil, adminsitrative and family law proceedings,47 holds that despite not being expressly mentioned, consistency should be sought in criminal, civil and administrative proceedings affecting a family and children, particularly in cases of gender based domestic violence. (C-215/15, ECLI:EU:C:2015:710. In any case, this interpretative question will be solved with the entry into force in August 2022 of Regulation No 2019/111, since its Recital 4 indicates that this regulation will apply to those measures of parental responsibility over the child, including those regarded by national law as measures of public law, such as those derived from international protection. 45 J.D. LÜTTRINGHAUS, “Übergreifende Begrifflichkeiten im europäischen Zivilverfahrens- und Kollisionsrecht: Grund und Grenzen der rechtsaktsübergreifenden Auslegung, dargestellt am Beispiel vertraglicher und außervertraglicher Schuldverhältnisse”, RabelsZ, 2013/1, vol. 77, p. 31-68. 46 See Opinion of Advocate General Priit Pikamäe, delivered on 14 July 2021, ECLI:EU:C:2021:592. 47 2021/2060(INI).

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Child Removals, Gender Based Domestic Violence and EU Asylum Law

V.

Conclusions

The hectic legislative activity of the EU in the field of international family law, together with the legislative inflation, characteristic of the European Asylum System, has led to unforeseen situations. These circumstances have led to solve Case C 262/21 PPU, by means of an integrated view of the various EU instruments, which ultimately lays the foundations for interrelated responses. The solutions put forward in this case suggest that it is necessary to merge instruments that concern the law of asylum and others that use techniques of private international law intended for dealing with cases of international child abduction. Beyond the difficulties mentioned above, we have tried to keep in mind the principle of coherence with a view to achieving better interaction of removal provisions in the different European instruments relating to the unlawfulness of international child abduction. In addition, we have stressed the need to implement gender mainstreaming in asylum requests involving children and mothers who are victims of gender violence. Case C 221/PPU offers both an example of how gender biases against women, and the violence that ensues, influence asylum requests and represent the background of illegal transfers of children from one State to another. In these pages we advocate the confluence of the perspective of children and gender mainstreaming in private international law issues especially and necessarily in connection with asylum law. This gender methodology makes it possible to identify, question and assess discrimination, inequality and exclusion of women, as well as to eradicate the various forms of persecution based on violence against women and affecting their children. Despite the difficulties arising from the confusion among international instruments relating to the transnational issues mentioned above, the central interest of the child in contexts of domestic violence must be identified in order to guide the actions of the authorities involved. Ultimately, future strategies derived from the implementation of international and European law and the domestic law of each State should be even more ambitious in order to eradicate domestic and gender-based violence, a scourge that is widespread throughout the EU and that affects women and children in particular.

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FORUM ________________

THE HAGUE CONVENTION ON THE PROTECTION OF ADULTS – PLEA FOR AND PRACTICE OF AN “ADULT” APPROACH Vito BUMBACA* I. 

Proposal  A.  Scope  B.  Preliminary Considerations 

II. 

Legal “Protective” Framework  A.  Rules and Principles – The Adult’s Interests as a Guiding Benchmark  B.  Excluded Matters – Focus on Abduction  Convention Practice and Guidance  A.  Switzerland  B.  France and Germany  C.  United Kingdom – Scotland and the “Replication” of England and Wales 

III. 

IV. 

V. 

Non-Conventional Cases  A.  United States and Canada (Ontario)  B.  Italy  Conclusions 

I.

Proposal

The Hague Convention 2000 on the International Protection of Adults (hereinafter “Hague Convention 2000”)1 shows great potential in upholding the interests of incapacitated persons (hereinafter “Adults”) across the globe.2 On many occasions (cf. A infra), this Convention would solve conflicts – of laws and jurisdictions – by also providing for predictable rules supporting the principle of autonomy.3 A clear example concerning autonomy is the mandate for incapacity in which a choice of Docteur en droit, Université de Genève. Convention of 13 January 2000 on the International Protection of Adults. 2 Convention preamble: “Considering the need to provide for the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests […]”. 3 Namely, Arts. 8(2)(d) and 15 of the Convention. * 1

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Vito Bumbaca law governing it can be selected (Art. 15),4 as well as a choice of forum (Art. 8). The Hague Convention 2000 promotes jurisdictional coordination such as the rules on transfer of jurisdiction.5 Importantly, it provides for an adult-centred approach to the protection of a vulnerable person’s interests. Strongly advocating for the special protection of adults in distress, in line with the UN Convention 2006 on the Rights of Persons with Disabilities (hereinafter “UNCRPD”), the Hague Convention 2000 sets out the rules identifying the international, including indirect, jurisdiction and applicable law, as well as implementing international cooperation among Contracting States, governing and ensuring cross-border protection. The innovation brought by this instrument, combined with the topicality of the issue at stake, which is a sensitive one, should persuade the highest number of states to ratify it in the interests of incapacitated adults and their families. It is indeed our task here to advocate for wider adherence to this Convention and recommend a comparative study to raise awareness on its practical operation and guidance. A.

Scope

The Hague Convention 2000 deals with vulnerable persons facing impairment and insufficiency of personal faculties.6 We provide here some hypothetical cases, conceived based on practice, that will support our study in articulating the material scope and exclusions of this Convention. Example I:7 A case with international ramifications between Switzerland (Contracting State) and the Czech Republic (Contracting State), concerning an adult habitually resident in Switzerland, who suffers from Alzheimer’s and should be granted protection through the appointment of a guardian entitled to perform acts on his/ her behalf in relation to his/ her personal and property rights, represents a scenario falling within the material scope of the Convention with respect to the determination of which jurisdiction is competent and which law should govern such guardianship. Example II:8 The case of an adult who is a Ukrainian citizen, currently habitually resident in Germany (Contracting State) and previ4 The law of the unilateral act or agreement at the time of its conclusion would in principle apply, save an express choice of law in favour of the law of the adult’s nationality, his or her former habitual residence, or the place where the property is located. The manner in which such powers are to be exercised is governed by the law of the place in which they are exercised (Art. 15.3). The law designated by these provisions can also be that of a nonContracting State (Art. 18). 5 Art. 8. 6 Convention preamble. 7 The scenario is similar to the facts of the Swiss case ATF 5A_68/2017, 21 June 2017. 8 This example was inspired by the following article: A. ISLAM, Untold Stories: A Study of Sudanese and Syrian Refugees in Estonia, International and Multidisciplinary Journal of Social Sciences, 9(1), 2020.

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The Hague Convention on the Protection of Adults ously habitually resident in Estonia (Contracting State), for whom a power of representation is granted, containing a choice of Estonian law governing it, and a choice of forum in favour of the jurisdiction of the Estonian courts, is a scenario matter of this Convention. Example III:9 An adult, previously habitually resident in Switzerland, but now having strong attachments to his native Spain (nonContracting State of nationality) where he is currently resident, and who was subject to protective measures under Swiss law, remains subject to the rules of this Convention from the Swiss viewpoint in that the Swiss Private International Law Act 1987 extends the applicability of the rules contained in this Convention to cross-border cases involving Switzerland and non-Contracting States. Example IV:10 A Swiss national with significant family and property ties established in the United States (non-Contracting home state), living in New York for over six months, represents a scenario that would, under a US perspective, be excluded from this Convention for the purposes of international jurisdiction and applicable law with respect to the determination of his/her incapacity; the US authorities would apply their domestic Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (hereinafter UAGPPJA). Example V:11 An adult, habitually resident in Scotland (Contracting State) and wrongfully removed to England (non-Contracting State), for which a request for return to Scotland is filed, is not a scenario governed by the Convention, return orders in relation to abduction falling in principle outside its material scope. Such case scenarios are clearly within the ambit of this article. Our inquiry will principally rely on the analysis of judgments arising from national courts in Contracting States such as Switzerland, France, Germany and Scotland, as well as nonContracting States, namely Italy, Canada (Ontario), and the United States. The example of England and Wales will show how the Convention may influence domestic laws, even in the absence of ratification. First, however, we will refer to the Convention’s legal framework in light of the UNCRPD fundamental principles, in particular Article 12.12 In fact, non-Conventional practices show that the absence 9

The scenario is similar to the facts of the Swiss case ATF, 5A_151/2017, 23 March

2017. 10 These are essentially the facts of the New York case In the Matter of J.D.S., NY Slip Op 20303 decided on October 1, 2020. 11 As in an increasing number of judgments, such as In the matter of PO [2013] EWCOP 3932 (cf. II B infra). 12 This provision locates the adult at the centre of the universal legal protective framework which is accorded to his/her rights, will and preferences, i.e. interests. On the relationship between “will and preferences” and “best interests”, see G. SZMUKLER, “Capacity”, “best interests”, “will and preferences” and the UN Convention on the Rights of Persons with Disabilities, World Psychiatry, Vol. 18, 2019, and P. SKOWRON, Giving

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Vito Bumbaca of ratification of the Hague Convention 2000 does not preclude the universal13 character and importance given to the protection of vulnerable persons. Still, its global ratification would indeed ensure a coordinated and harmonised set of conflict-of-law rules in this particular field, which would ultimately support the progress of cross-border relations involving Adults. With regard to aspects of international jurisdiction and applicable law, the Swiss legislative choice14 (cf. B infra) to apply the Convention’s legal framework in the same manner both for cases which do, and which do not, fall within the scope of application of the Convention, is warmly welcomed here. Interestingly, the courts in England and Wales have also relied on the rules of the Convention,15 even though they are not bound by it.16 B.

Preliminary Considerations

The Hague Convention 2000 is the only treaty concerning the private international law of adults. Ratification17 by only a small number of states should not be deemed synonymous with failure or lack of potential. Indeed, statistics show that the protection of adults is more important than ever in the face of large-scaled crossborder movements of people affected by incapacity.18 Nevertheless, the promotion of this instrument is often anchored to the mechanism of its “ratification”, which can also be considered a political or policy issue rather than one related to prac-

substance to the best interpretation of will and preferences, International Journal of Law and Psychiatry, 62, 2019. 13 The term universal here is intended to refer to the ratification of/accession to the UNCRPD by 184 Contracting States and the direct impact on the Hague Convention 2000. In this regard, see Joint Statement by the Special Rapporteur on the rights of persons with disabilities, Gerard Quinn, and the Independent Expert on the enjoyment of all human rights by older persons, Claudia Mahler: Toward Greater Coherence of International Law – Reflections on the Hague Convention (2000) on the International Protection of Adults, 8 July 2021. 14 This particularly refers to Art. 85(2) of the Swiss Federal Act on Private International Law of 18 December 1987. 15 In the matter of PO [2013] EWCOP 3932. 16 Declarations (Art. 55): “The United Kingdom declares, in accordance with Article 55, that the Convention shall extend to Scotland only, and that it may modify this declaration by submitting another declaration at any time”. 17 There are only 14 Contracting States to date. 18 15% of the World’s population experience some form of disability (source: Worldbank 2022). In 2020, an estimated 12 million people among displaced persons were affected by disability – the real number should be higher (GMDAC analysis based on UNCHR 2020 and WHO 2011, https://www.migrationdataportal.org/themes/disability-andhuman-mobility). In terms of costs, it has been stated that financial and emotional costs linked to legal uncertainty in cross-border proceedings involving vulnerable adults amount to €11 million per annum (European Added Value Assessment: C. SALM, Protection of Vulnerable Adults, European Parliamentary Research Services, EU publications, 2016, PE 581.388, 2016).

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The Hague Convention on the Protection of Adults tice.19 In this regard, we recall the late ratification of the 1996 Hague Convention by Italy and the Russian Federation, and the continued absence of its ratification by the United States. It is also a well-known fact that the People’s Republic of China rarely ratifies the Hague Conventions.20 Admittedly, the ratification of a Convention may take some time, but its absence does not entirely exclude the positive effects of the instrument itself as we will show here. In this article, the author wishes to elucidate the practical benefits arising from the implementation of the principles and rules enshrined in this Convention, notwithstanding its few ratifications. The Swiss legislator has decided, rightly in our view, to extend the applicability of the rules contained in this Convention to “non-Conventional cases” – those cases that fall outside the geographical scope of the Convention – involving Switzerland and a non-Contracting State.21 This practice should not be underestimated as it advocates de facto for greater harmonisation, in spite of the absence of ratification. While the domestic rules on recognition and enforcement of judgments emanating from non-Contracting States continue to apply,22 Convention’s rules on international jurisdiction and applicable law would be enforceable, from the Swiss perspective, as against both States that have and States that have not ratified this Convention (cf. A supra). Inherently, the practical operation of this instrument is deemed fundamental for both cases that do and that do not fall within the scope of application of the Convention and that are the subject of this study. A few words should be added about the role of the European Union (EU) in endorsing harmonised conflict-of-law rules in this field. Since 2016, the European Institutions23 have been continuously working on, and advocating for, the possibility of adopting a EU Regulation in the field.24 Needless to say, such an instrument 19 R. FRIMSTON, The 2000 Adult Protection Convention – sleeping beauty or too complex to implement?, in: T. JOHN et al., The Elgar Companion to the Hague Conference on Private International Law, 2020, p. 226. 20 In the field of family law, China has ratified only the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (https://www.hcch.net/en/states/hcch-members/details1/?sid=30). 21 ATF, 5A_151/2017. 22 In some circumstances, non-Contracting States have relied on the provisions of the Convention, notwithstanding the absence of ratification, given its applicability in the requesting state concerned (i.e. Switzerland). This was the case of the “Tribunale di Varese”, 10 February 2012, No. 7030, based on the principle of “cortesia internazionale” (i.e. comity). 23 These naturally comprise the EU Commission, Parliament and Council, but also the European Law Institute, which has carried out extensive work on this issue (i.e. European Law Institute, Council Decision CD 2020/2 on the ELI Project on Protection of Adults in International Situations, 2020). 24 Resolution (2015/2085(INL)) “Protection of vulnerable adults”, 1 June 2017: “Notes that the proposal for a regulation which is the subject of the recommendations set out in the Annex would not replace the Hague Convention; it would support the Convention and encourage Member States to ratify and implement it; […] Notes that the protection of vulnerable adults, including those with disabilities, requires a comprehensive set of specific and targeted actions […]”.

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Vito Bumbaca would not only be beneficial for its 27 Member States but also for the Hague Convention 2000 and the non-EU Contracting States. An example is the coordination between the rules of the Hague Convention 199625 on the Protection of Children and the Brussels IIA Regulation26 on Parental Responsibility, currently Brussels IIter. In light of the interplay of the latter instruments, some of the advantages would be the following: (i) the direct applicability of specific harmonised rules on international jurisdiction in the 27 Member States,27 through the Regulation, may convince states to ratify the Convention in order to adopt uniform rules on applicable law;28 (ii) the inter-institutional coordination between the HccH and the EU, through the endorsement of harmonised rules, would converge towards a wider promotion of the Convention’s protective legal framework in other (intra-)regional dimensions; (iii) the dictum of the Court of Justice of the European Union (CJEU) on the interpretation of the Regulation would also be useful for the Convention rules, ensuring better analogy;29 (iv) the Regulation can be reviewed (i.e. Recast) and any further innovation will also indirectly support the progress of the Convention, which by contrast hardly provides for amendments; (v) the material scope of the Regulation may be extended to return orders pertaining to abduction, which are excluded by the Convention. We note that the work of the EU in this field is not the subject-matter of this article, per se. However, its intersection with, and any proposal for, future coordination are strictly related to our inquiry. The progressive international unification of the protection of adults is definitely dependent on any regionally harmonised legal framework and vice versa. The EU could be the only direct example of such a harmonisation, through adoption of a Regulation that would be directly applicable in national legal orders without an internal transposition act. Elsewhere, we can immediately refer to the United States in relation to the UAGPPJA, which is indeed a uniform instrument applicable to internal US as well as international cases – albeit differing slightly from the Hague Convention 2000 in both rules and connecting factors,30 and requiring transposition into state law. Ultimately, the 25 Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. 26 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, replaced by the Brussels II-ter Regulation, entered into force on 1st August 2022. 27 This is nevertheless subject to specific rules (i.e. opt-outs, enhanced cooperation). 28 As for the Brussels IIA Regulation (and II-ter), a potential Regulation on the Protection of Adults would most likely not provide rules on applicable law. 29 See V. BUMBACA, La notion de résidence habituelle dans les relations familiales transnationales. Quel avenir ?, in FamPra.ch 1/2022, p. 19, fn. 76. 30 This Act applies in 49 of the 50 US States. It adopts the concept of home state as a principal connecting factor in determining original jurisdiction over guardianship and protective proceedings for six months after the adult’s relocation – according to the rule on continuing jurisdiction. In the absence of a home state, or in the presence of a more appropriate forum, significant connection may apply – this is subject to coordination between the authorities of the two states concerned.

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The Hague Convention on the Protection of Adults successful implementation, and ratification, of this Convention would also be achieved more efficiently through advocacy at the regional level representing closer legal cultures and similar cross-border movements. All this leads to the importance of assessing regional practices in light of the principles arising from this Convention.

II. Legal “Protective” Framework This part focuses on the interplay between the rules endorsed through the Hague Convention 2000 and the UNCRPD principles guiding them. We find it useful to discuss the natural link between the Convention and the universal character of the protection of adults. We will also consider the absence, in the Convention, of a chapter dealing with abduction, which is increasingly present in practice. A.

Rules and Principles – The Adult’s Interests as a Guiding Benchmark

A combined reading of the Convention’s preamble, as well as its Articles 1 and 3, together with the UNCRPD’s preamble, and its Articles 1 and 12, may lead to a short but concrete interpretation of vulnerability: any person who cannot protect his/her own interests31 as a consequence of his/her disability32 and deserves special assistance.33 The latter interpretation, which coincides with our own, serves as point of departure in this study advocating for the protection of adults, as well as for the understanding of the reasons for the existence of the Hague Convention 2000. Accordingly, the adult should be subject to adequate measures of protection in both his/her country of origin, that is specifically the state of nationality, and of

Hague Convention 2000, art. 1: “This Convention applies to the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests”. 32 UNCRPD’s preamble: “disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others […]”. 33 UNCRPD’s preamble: “to promote and protect the human rights of all persons with disabilities, including those who require more intensive support”. Art. 12: “States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests”. 31

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Vito Bumbaca habitual residence/current presence,34 which requires cross-border co-operation. This is precisely the main objective followed by both the Hague Convention and the UNCRPD, in order to coordinate and ensure protection transnationally.35 The Hague Convention 2000 is primarily founded on the principle of personal proximity with the habitual residence.36 In our view, personal proximity means the adult’s own closeness to the jurisdiction and/or law of the state of his/her habitual residence, not essentially, or only, geographically but in terms of familiarity with the adult’s life situation.37 The authorities in the Contracting State of the adult’s habitual residence in principle retain jurisdiction (Art. 5)38 and apply their own law – lex fori – (Art. 13) to the protection of his/her person or properties.39 One main exception40 is the transfer to a better placed court under Art. 8, a rule that is of greater importance in adapting international jurisdiction to the adult’s own interests. Naturally, pursuant to Art. 8(2)(d), the right to conclude a choice of forum is conferred on the adult, in line with the principles of party autonomy41 and full empowerment in accordance with Arts. 3, 6 and 19 UNCRPD. The same derogation concerns the tracing of a substantial connection under Art. 13(2) in the adult’s best interests,42 and the professio juris governing the mandate for incapacity for the purpose of Art. 15(2). It is therefore clear that the best interests determination, as with instruments covering matters of children, plays a pivotal role under this Convention as a general principle43 as well as for both assessing and derogating from habitual residence. On the basis of Art. 7(1), the authorities of the Contracting State of the adult’s nationality are also entitled to advise the 34 Art. 6 of the Hague Convention 2000 clarifies that in the absence of habitual residence, the adult’s physical presence establishes jurisdiction of necessity (i.e. OLG Koblenz, 14 February 2017 – 13 UF 32/17). 35 R. FRIMSTON, et al., The International Protection of Adults, 2015, Foreword, p. vii. 36

R. FRIMSTON, et al., The International Protection of Adults, 2015.

See, also: J. LONG, Rethinking Vulnerable Adults’ Protection in the Light of the 2000 Hague Convention, Int J Law Policy Family, Vol. 27, 2013, p. 5. 38 The principle of perpetuatio fori does not apply between Contracting States (Art. 5.2). 39 Art. 3 provides a non-exhaustive list of measures contemplated by this instrument and subject to the jurisdiction of the competent authorities under its Chapter II. 40 Other exceptions are crystallised in Art. 9 concerning in rem jurisdiction over the adult’s property rights and interests, and Art. 10-11 concerning urgent, provisional, jurisdiction. In both situations, the authorities in the Contracting State of the adult’s habitual residence remain concurrently responsible for his/her protection (P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, pp. 63-64). 41 European Law Institute, Council Decision CD 2020/2 of 20 February 2020 on the ELI Project on “Protection of Adults in International Situations, p. 34. Party autonomy is, however, currently limited by Art. 8(3). 42 P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 70: “This paragraph constitutes an exception clause based not on the principle of proximity, but on the best interests of the adult”. 43 Hague Convention 2000, preamble: “Affirming that the interests of the adult […] are to be primary considerations”. 37

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The Hague Convention on the Protection of Adults authorities of his/her habitual residence about the protective measures to adopt. This coordination is named concurrent jurisdiction as opposed to subsidiary jurisdiction under which the authorities of the adult’s habitual residence are only informing those of the adult’s nationality according to Art. 7(2). Such coordination is the result of the above-mentioned transnational protection, guiding this instrument. Art. 7 is once again founded on the principle of the adult’s interests, which would render the courts of the state of nationality more appropriate.44 A few words on the other more “procedural rules” concerning Chapter III on applicable law: Art. 14 clarifies that the conditions of implementation of a measure, taken in one Contracting State A but implemented in another Contracting State B, will be governed by the law of that other Contracting State B. Emeritus Professor Lagarde gives the concrete example of the adult’s guardian/curator appointed in country A of former habitual residence, who must exercise guardianship/curatorship in another country B – regardless of whether this is the country of new habitual residence or that of the location of the relevant property. The law of country B subjects the sale of the property to authorisation by a guardianship judge, which is a “condition of implementation”.45 Art. 16 adds a limit to the designation of the power of representation (under Art. 15), in that it may be withdrawn by the authorities that are competent under chapter II. In this specific case, we reiterate the importance of the adult’s interests: if the power of representation is exercised without taking due account of such interests (meaning not ensuring the protection of his/her person or properties), it would justify the withdrawal.46 Art. 17 determines the extent of the liability that may be allocated to a third party while concluding transactions with the adult’s representative. The nature of these transactions can be wide-ranging and varied, often directly or indirectly affecting the adult’s health (Art. 25 UNCRPD) – typically medical interventions (treatments, surgery) and healthcare decisions47 – or patrimonial acts or those affecting property (i.e. remittance of funds or of life insurances48), for example.49 Art. 20 deals with the mandatory provisions, or overriding rules, applicable under the law of the state in which the adult is to be protected. Such mandatory provisions would practically 44 P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 11. 45 P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 71. 46 G.P. ROMANO, La Convention de La Haye du 13 janvier 2000 sur la protection de l'adulte – Eventuelle initiative législative de l'Union européenne en droit international privé de la protection de l’adulte, Lausanne: Parlement européen, Direction générale des politiques internes, Département Thématique C, Droits des citoyens et affaires constitutionnelles, 2009, p. 180. 47 S.E. ROLLAND/ A.R. KEENE, Interpreting the 2000 Hague Convention on the International Protection of Adults Consistently with the 2007 UN Convention on the Rights of Persons with Disabilities, Study for UN Special Rapporteur on the Rights of Persons with Disabilities, 2021. 48 Cour d’appel de Rennes, 15 octobre 2013, 13/02113. 49 P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 76.

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Vito Bumbaca apply in medical situations.50 Ultimately, we note that the “renvoi” is excluded from this Convention (Art. 19). Aspects related to the recognition and enforcement (indirect jurisdiction) are dealt with in Chapter IV of the Convention. Any measure taken under this Convention is recognised (Art. 22.1) and enforced (Art. 27) in all Contracting States. This is a common principle arising from the ratification of the Hague Conventions and, more importantly, from the principle of reciprocity. The quasiautomatic recognition51 and enforcement52 of the Hague Convention allows a smooth and effective protection of people, and particularly vulnerable persons, in the worldwide setting. The free transnational circulation of judgments, founded on mutual trust between Contracting States, facilitates the cross-border mobility of people and families, as well as of capital, in that their personal and property rights will be predictably enforceable (Art. 25.2) in case of relocation. We stress this point, as the ultimate purpose of a multilateral instrument is to develop and reinforce mutual trust, with direct effects on people and their interests: 53 a principle that not even a liberal choice such as that made by the Swiss legislator, under Art. 85(2) of the SPILA, to extend the Hague Convention 2000 to non-Contracting States, can ensure without ratification by the co-interested country. In fact, quasiautomatic recognition would only apply between Contracting States.54 With regard to enforcement, an important clarification should be mentioned here in that cooperation, once again in the name of mutual trust, is fundamental in order to ensure transnational protection of adults, ultimately in the spirit of the UNCRPD (Arts. 13, 32-33). As an example on the importance of promoting co-operation, it may be that a measure of supervision55 taken under the law of Contracting State A would possibly not be implemented under the law of Contracting State B, so that it is recommended that the authorities in both Contracting States communicate with

Cf., Re AA [2012] EWHC 4378 (COP). P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 79: “the Convention avoided subordinating recognition to the production of a written document, dated and signed by the authority of origin. As a result, a telefax or an e-mail, for example, may serve as proof of the measure with a view to its recognition”. 52 “Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure” (Art. 25.2). 53 G.P. ROMANO, Droit international dit “privé” et droit international dit “public”: éléments d’une théorie unitaire et humanisée du droit international, J.D.I., 2022, pp.1, 44 and 92: “Pourquoi un État reconnaît-il la décision d’un autre? On invoque la « confiance mutuelle » […] Plus le droit international privé se veut du droit « privé », plus il se doit d’être aussi ‘international’, que sa ‘reprivatisation’ passe par sa ‘ré-internationalisation’, que l’international est ici consubstantiel au privé, au service du ‘privé’”; and J. M. SCOTT QC, A question of trust? Recognition and enforcement of judgments, NiPR, 2015, p. 27. 54 We recall Art. 85(4), which allows the recognition of measures issued or recognised in a non-Contracting State that is also the adult’s habitual residence. See judgment No. 9.2013.69 of the Ticino Court of Appeal (“Tribunale d’Appello del Canton Ticino”), 16 May 2013. 55 This can be the supervision performed by a local authority over the guardian. 50 51

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The Hague Convention on the Protection of Adults each other in order to modify the said measure, where necessary, to take into account the adult’s life situation. The international co-operation between authorities is effectively achieved by the Hague Conventions, which generally provide an entire chapter on the subject. Chapter V of the Hague Convention 2000 contains such rules. The principal actor is the Central Authority (Art. 28) established in each Contracting State. Central Authorities are assigned a general mission of co-operation and information (Art. 29). Practically, among the tasks allocated to them (Arts. 30 et seq.),56 they are in charge of the communication,57 applied extensively in any of the situations covered in the Convention, and of the assistance in discovering the adult’s whereabouts. Art. 3258 carries a particular degree of importance. In a Swiss-English case,59 two brothers from Angola had been separated for years. One of them, a Swiss national and resident, filed an assessment request before ISS Switzerland pertaining to the whereabouts and care situation of his other brother, who had been placed under institutional care in England. ISSs Switzerland and UK cooperated60 in order to perform the evaluation of the adult’s interests (i.e. effective care, health, state of mind).61 Art. 31 deals with mediation, in particular between the adult and those taking care of him/her, or between the guardian and other persons involved in the adult’s life situation.62 56 Art. 33 governs the procedure on cross-border placement (or transborder placement). This is the only example in which an obligation for consultation applies. Art. 34 indicates a mutual duty to notify and inform in case of a serious danger affecting the adult – notification should also concern the authorities of a non-Contracting State B in which the adult is habitually resident or present at the time of the measure to be taken (or already taken) by the authorities of Contracting State A. Art. 36 deals with costs, which are borne by Central and more generally administrative Authorities implementing Chapter V (i.e. “fixed costs of the functioning of the authorities, the costs of correspondence and transmissions, of seeking out diverse information and of locating an adult, of the organisation of mediation or settlement agreements, as well as the costs of implementation of the measures taken in another State”) – costs of proceedings, more generally those supported by courts and lawyers, are excluded from this provision. See also P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 84. 57 Including by electronic means. 58 Art. 35 complements this provision in that any information that would put the adult in danger should not be reported. 59 This is a case in which the author of this study was involved at the International Social Service (ISS), a network of NGOs, whose General secretariat is based in Geneva, with 140 antennas across the globe. 60 Art. 85(2) SPILA provides for direct effective implementation of the Convention in the Swiss legal order, that is why such provisions would still apply from the Swiss court viewpoint, even though England and Wales are not a Contracting State (F. GUILLAUME, Commentaire des dispositions des Conventions de La Haye sur la protection des adultes et des enfants et de l’article 85 LDIP, in: A. LEUBA, et al., Commentaire du Droit de la Famille, Protection de l’Adulte, 2013). 61 S. PANNAIKADAVIL-THOMAS/ V. BUMBACA, The role of international social services in private international law, in this Yearbook, 19, 2018, p. 531. 62 P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 84.

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Vito Bumbaca Some additional issues concerning recognition and enforcement are rather technical. Art. 23 states that the adult who is currently habitually resident in Contracting State A, or more commonly his/her guardian, may submit a request for recognition of a measure63 before the authorities of Contracting State B in order to expeditiously acknowledge or prevent the (non-)recognition of that measure. The authorities of the “requested” Contracting State B dealing with the recognition and enforcement (Arts. 27 et seq.) are bound by the findings of fact already established by the authorities of Contracting State A, on the basis of Art. 24;64 and by the merits pursuant to Art. 26. Reference to the adult’s “best interests” as a ground of refusal (Art. 22.2)65 has been avoided66 – the reason is perhaps similar to Art. 21 (public policy), which provides that consideration should not be given to such interests.67 The main conclusion seems to be that there is no “public international law instrument” in which such a principle is enshrined and would apply to adults’ protection.68 We disagree entirely with this.69 There is no need to compare the tenor of the “child’s best interests” to the adult’s interests;70 the Convention simply, and pragmatically,

63 The measure could be one of those falling under the “emergency’ jurisdiction of Art. 10, dealing with a medical intervention (i.e. premature birth) or temporary guardianship; and not a ruling over the mandate for incapacity (P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 81). 64 A judgment issued by the authorities of Contracting State A, according to one of the grounds of jurisdiction under Chapter II, namely the adult’s habitual residence, cannot be reviewed by the authorities of Contracting State B to the extent of the habitual residence assessment. 65 However, it is specified that in the scenario contemplated under Art. 22(2)(d) concerning a measure taken in Contracting State A that is not compatible with a measure later adopted in non-Contracting State B, which is notably the adult’s habitual residence, preference will be given to the second one based on, inter alia, the better position of Contracting State B to perform the adult’s interests’ assessment (P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 81). 66 This is contained in Art. 23(2)(d) of the Hague Convention 1996. 67 A contrario, see Art. 22 of the Hague Convention 1996. 68 P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 78. See, in particular, Art. 3 of the UN Convention 1989 on the Rights of the Child. 69 We recall that neither the explanatory report to the Convention nor the EU study assessment appear to take a direct position on this issue. See P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, § 92, 114, 125; and C. SALM, Protection of Vulnerable Adults, European Parliamentary Research Services, EU publications, 2016, p. 126. 70 J. LONG, Rethinking Vulnerable Adults’ Protection in the Light of the 2000 Hague Convention, Int J Law Policy Family, Vol. 27, 2013, p. 59: “In England and Wales, the Mental Capacity Act of 2005 authorises substitute decision making in the “best interests” of the person lacking capacity. The same Act, similarly to the approach with regard to the “best interests of the child”, lists the factors to be (and not to be) taken into consideration for the specific assessment of the best interest of the incapable person”.

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The Hague Convention on the Protection of Adults acknowledges that in each situation involving the protection of adults, their own interests should be of primary consideration.71 B.

Excluded Matters – Focus on Abduction

The Hague Convention 2000, Art. 4, sets out exhaustively the matters that are excluded from its material scope.72 There is no trace of the wrongful removal or retention of adults, therefore we can conclude that this issue was not contemplated during the drafting works of this Convention.73 Regrettably, lis pendens is also not endorsed in this Convention.74 The international civil abduction of adults is a reality75, which deserves equal protection as that of the international civil abduction of children. We may simply refer to children over 16, already falling outside the ambit of the Hague Convention 1980 on Child Civil Abduction,76 who may encounter disability and incapacity. Without a doubt, an international instrument governing this issue such as the Hague Convention 1980 should be put into place.77 In the meantime, the Hague Convention 2000 deals with the overall protection of adults. In our view, 71 Preamble. See also European Law Institute, Council Decision CD 2020/2 on the ELI Project on Protection of Adults in International Situations, 2020, p. 34: “Providing the adult concerned with the right to make choices relevant to his or her interests translates the principle according to which people with disabilities ought to be empowered to enjoy their rights on an equal basis with others. This is a key objective of the UNCRPD and the main focus of the European Disability Strategy 2010-2020, adopted by the European Commission (COM(2010) 636 final)”. See also Principle 8 of the Council of Europe Committee of Ministers, Recommendation No. R (99) 4: “In establishing or implementing a measure of protection for an incapable adult the interests and welfare of that person should be the paramount consideration”. 72 I.e. maintenance obligations; the formation, annulment and dissolution of marriage or any similar relationship, as well as legal separation; property regimes in respect of marriage or any similar relationship; trusts or succession; social security; public measures of a general nature in matters of health; measures taken in respect of a person as a result of penal offences committed by that person; decisions on the right of asylum and on immigration; measures directed solely to public safety. 73 The “Lagarde report” does not refer to any discussion on this issue. 74 P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 55; and P.R. BEAUMONT/ P.E. MCELEAVY, Private International Law A. E. Anton, 3rd (Scottish Universities Law Institute, 2011) p. 878. 75 A.D. WARD, et al., Safeguarding vulnerable adults in Scotland (Good Practice across the Counselling Professions 002), 2018; P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 57, in which it is mentioned that an adult may be removed without consent. See also Law Offices of Benjamin Pavone, PC v. Willis, No. D075817, (Cal. Ct. App. Nov. 18, 2021). 76 Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, art. 4: “The Convention shall cease to apply when the child attains the age of 16 years”. 77 P.R. BEAUMONT/ P.E. MCELEAVY, Private International Law A. E. Anton, 3rd (Scottish Universities Law Institute, 2011) p. 882.

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Vito Bumbaca the adult’s prompt return to his/her habitual residence prior to the wrongful removal or retention, and likewise any measures securing the return issued by the courts of the so called “refugee state”, would fall under the non-exhaustive78 list of measures indicated in Art. 3 of this Convention. Perhaps, despite the absence of any procedure in this sense, which should be set out in one specific instrument, or in a chapter/provision of this Convention,79 measures directed to ensure effective return orders would fall under the category of “protective measures”80 potentially adopted by virtue of general or emergency jurisdiction. This, however, remains an open debate and certainly deserves further research. The following list of judgments highlights the increasing number of cases pertaining to the abduction of adults and enriches any discussions on the applicability of the Hague Convention 200081 on this issue. Case 1: This case82 involved a British-Saudi vulnerable83 daughter, Amina, born in Wales, where she lived until the age of 17. She later relocated with her father to Saudi Arabia. Amina suffered ill-treatment by her father and requested, inter alia, a return order before the courts of England and Wales. The High Court of England and Wales retained “protective jurisdiction”84 by virtue of the daughter’s nationality. The Court held that recourse to the jurisdiction of nationality should be made only in very exceptional circumstances.

78 P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 46, § 18. 79 By analogy, art. 7 of the Hague Convention 1996. 80 Swiss Federal Act (RS 211.222.32) on International Child Abduction and the Hague Conventions on the Protection of Children and Adults of 21 December 2007, art. 6. Mental Capacity Act 2005 (England and Wales), Sec. 1(5) and Schedule 3, § 7(1)(d). 81 JO v. GO & Ors [2013] EWHC 3932 (COP). This case relates to a British incapacitated woman, aged 88. Two of her children were appointed as carers in England where she lived. A third child removed her to Scotland. Interim guardianship was endorsed in Scotland. The Court of Protection of England and Wales was seised for the woman’s return: “In the background to the issues I have to determine stands the 2000 Hague Convention on the International Protection of Adults”. 82 Al-Jeffery v. Al-Jeffery [2016] EWHC 2151 (Fam). 83 “English law has referred to a vulnerable adult as a person who even if not incapacitated by mental disorder, is, or is reasonably believed to be, either: (i) under constraint; or (ii) subject to coercion or undue influence” (Re SA (Vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam), § 77, reiterated in the case under analysis (§ 38)). 84 § 39: “The court exercises a “protective jurisdiction” in relation to vulnerable adults, just as it does in relation to wards of court. Munby J elaborated and made good that proposition by reference to a series of authorities which he then cited at paras. 38 to 43. These authorities and others cited in them leave me in no doubt that if the facts alleged by Amina are true, and assuming they were all taking place here, the court has ample inherent jurisdiction and power to make protective orders for her protection, exercising a parens patriae jurisdiction indistinguishable from that in relation to children”.

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The Hague Convention on the Protection of Adults The conclusion of the High Court shows the current need for uniform rules85 governing international adult abduction. Recourse should be made to an approach similar to the one under the Hague Conventions 1980 and 1996. Such an approach would have potentially determined Amina’s return to England and Wales pursuant to her habitual residence at the time of the wrongful act,86 irrespective of the time of the “protective” proceedings. Furthermore, the adult’s multiple citizenships, as in the present case, may raise conflicting justice and judgments.87 Case 2: The following case88 concerned a British woman, aged 89, who lived in California. She had appointed her niece, a UK resident, as agent. The woman was removed to England and Wales by her niece. The Public Guardian of Santa Clara was made temporary conservator over the woman’s estate. A return order was rendered by the US state courts in California. An application for recognition and enforcement of that order was filed before the courts of England and Wales. The High Court of England and Wales carefully assessed the woman’s long-term best interests. The Court retained the woman’s views before the degeneration of her state of mind, according to which she had directed – in an Advance Health Care Directive – her wish to live in California, the place of her habitual residence prior to the removal. The reasoning of the High Court assimilates wrongful removal under the Hague Convention 1980 to the abduction of adults.89 It favours the use of, or derogation from, habitual residence founded on the adult’s best interests.90 It actually referred to the Hague Convention 2000 to the extent of the recognition and enforcement of the protective measures taken in a non-Contracting State.91 85 Ibid. § 58: “There are no conventions in operation between Wales and England, or Britain and Saudi Arabia. There is no reciprocity. The courts of Saudi Arabia would not even recognise the basis upon which I claim and assert jurisdiction, namely the British nationality of Amina, since the State of Saudi Arabia does not recognise dual nationality and, therefore, her British nationality”. 86 On the identification of such “wrongful act”, see V. BUMBACA, Remarks on the judgment of the US Supreme Court – Monasky v. Taglieri, IPRax, 2021, Vol. 41, No. 2, p. 192. 87 Ibid. § 45: “It [nationality] is inconsistent with and potentially disruptive of the modern trend towards habitual residence as the principal basis of jurisdiction; it may encourage conflicting orders in competing jurisdictions”. 88 Re MN (Recognition and Enforcement of Foreign Protective Measures) [2010] EWHC 1926. 89 Ibid. § 22. 90 Ibid. § 28 et seq., and especially § 36. 91 Ibid. § 12. This analysis was made within the framework of Schedule 3, Sec. 63, of the Mental Capacity Act 2005, which constitutes the rules governing the international protection of adults in England and Wales, but also between England and Wales, Scotland and Northern Ireland, and gives effect to the same provisions contained in the Hague

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Vito Bumbaca Case 3: This next case92 involved a man, aged 60, suffering from dementia who lived in Spain with his second wife. He later travelled to England with the two children of his first marriage, without his wife’s consent. His children filed before the courts of England and Wales for, inter alia, welfare orders and a non-return order to Spain. The Court of Protection of England and Wales stated that the adult was habitually resident in Spain prior to the wrongful act. Importantly, the Court assessed, among other elements,93 his choice to live in Spain when he had capacity. However, the Court concluded that protective coordination between the Spanish authorities and the English authorities should justly be performed in view of the adult’s situation. The Court of Protection evaluated habitual residence, as adopted by the Mental Capacity Act 2005, based on the main treaties (i.e. Hague Conventions 1996 and 2000, Brussels IIA Regulation).94 This methodology leads to an already established uniformity, at the international and national levels, with reference to the principle of prompt return to the State of habitual residence in matters of adults’ abduction. It further states the increasing evidence that carers, including family-related persons, may act against the adult’s own interests, with transnational effects on his/her life – a situation that deserves coordination across borders.95

III. Convention Practice and Guidance This part classifies and scrutinizes case law per national legal order implementing directly the Hague Convention 2000 through ratification. The example of England and Wales, which decided to replicate in its domestic law the bulk of the Convention rules, is cited here as potential guidance for non-Contracting States. Reference is specifically made to Switzerland, France, Germany and Scotland. Following a few introductory comparative aspects of the legislation of these countries, case law will duly be mentioned.

Convention 2000, which is applicable to Scotland only – and therefore inapplicable in this case. 92 Re QD (Jurisdiction: Habitual Residence) [2019] EWCOP 56. 93 Ibid. § 28. 94 Ibid. § 10. 95 Ibid. § 29: “Although TD and BS may have believed that they were acting in QD's best interests, in fact the impact on QD of his deracination from Spain has not been beneficial to him, as Dr. N has observed [...] I accept Mr McKendrick's concluding submission that it is for the Spanish administrative or judicial authorities to determine the next step, which may of course be to confer jurisdiction on the English courts to make the relevant decision(s)”.

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The Hague Convention on the Protection of Adults A.

Switzerland

Switzerland ratified the Hague Convention 2000 in 2009.96 The Convention has been applicable in Switzerland since 1 July 2009.97 More specifically, the Convention has been made applicable in Switzerland through Art. 85 SPILA whose modification came into force in 2009. In addition, the Swiss legislator has endorsed a “law of application” – loi d’application98 – which established the Central Authority99 and the Cantonal Authorities (cf. II A supra). The nature and emphasis of the protective measures governed by this Convention largely depend on the law applicable to each specific measure. The Swiss Civil Code, Arts. 360 et seq., determine these measures100 under Swiss law.101 The following case law should be used as guidance in the application of the Hague Convention 2000 in Switzerland. Case 1: This case102 involved a Swiss adult who lived in Switzerland. Due to professional and financial troubles triggered by his mental disorder, the adult travelled to the Czech Republic. He visited his daughters in Switzerland regularly. During one such journey to Switzerland, the local authorities implemented a guardianship measure. The adult challenged the Swiss jurisdiction. The Swiss Federal Court held that, pursuant to Article 5(1) of the Convention, Switzerland was the adult’s actual centre of life/focus of his social relationships. Case 2: The following case103 concerned an adult Swiss national, born in 1986, who was incapable of caring for herself. A typical Swiss protective measure – “curatelle de portée Générale” – was implemented. The mother, resident in France, filed a request to remove the guardianship and to obtain the transfer of her daughter to another institution in France; the request was rejected. The daughter spent a weekend in France at her mother’s residence, after which she did not return to Switzerland. The Swiss local authority issued a return order. The Court (“Tribunal Cantonal du Valais”) concluded that the daughter’s centre of gravity was settled at the time of the proceedings in France according to Art. 5(2) of the Convention, in absence of perpetuatio fori between Contracting States. The Court RS 0.211.232.1. Art. 50 of the Hague Convention 2000. 98 RS 211.222.32 (LF-EEA). 99 Office fédéral de la justice Aart. 1, LF-EEA). 100 I.e. “curatelle d’accompagnement” (Art. 393 SCC). 101 For a more detailed analysis, see F. GUILLAUME, Commentaire des dispositions des Conventions de La Haye sur la protection des adultes et des enfants et de l'article 85 LDIP, in: A. LEUBA, et al., Commentaire du Droit de la Famille, Protection de l’Adulte, 2013, p. 1188. 102 ATF 5A_68/2017 [21 June 2017]. 103 Tribunal Cantonal du Valais, Cour civile II, 7 September 2017, C1 17 8. 96 97

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Vito Bumbaca clarified that, under Swiss law, the freedom of domicile is a right provided for in the Swiss Constitution (Art. 24.1), and an adult cannot be subject to a forced placement unless in specific circumstances only (Arts. 426 et seq. SCC).104 Case 3: This next case105 concerned the request of a child and the Swiss local authority, inter alia, to have the father, suffering from dementia, declared incompetent. The adult was born in 1920 and was initially habitually resident in Switzerland. During the proceedings, he moved to Spain106 where he became a domiciliary. The Swiss Federal Court held that international jurisdiction was still frozen in Switzerland based on the perpetuatio fori applicable between Contracting and non-Contracting States to the Convention, as in the present case. Case 4: This last case107 was about an adult who was born in 1946 and domiciled in Italy since his retirement. He had previously worked and lived in Switzerland. Upon the request of his children, the Swiss local authorities had frozen some movables present in the Swiss territory, namely bank accounts. This was an urgent, provisional measure under Art. 10 of the Convention taken while the “protective” proceeding was ongoing in Italy.108 Following the adoption of a guardianship measure by the Italian local authorities,109 the Swiss local authorities provided for its recognition and enforcement.110 The adult’s children objected to the procedure. The Court of Neuchâtel confirmed that not all the provisions of the Hague Convention 2000 are applicable erga omnes in cases involving Switzerland and non-Contracting States, as in this case, simply based on the renvoi made by Art. 85(2) of the SPILA. However, “emergency jurisdiction” can, indeed, be exercised in the present scenario, according to Art. 10 of the Convention, and it will cease as soon as the measures taken in the non-Contracting State, which is also the adult’s habitual residence, are recognised in Switzerland according to the SPILA, Arts. 85(4) and 25 et seq.111 See also ATF 5A_374/2018 [25 June 2018]. ATF 5A_151/2017 [23 March 2017]. 106 Spain is not a Contracting State (https://www.hcch.net/en/instruments/ conventions/status-table/?cid=71). 107 Tribunal Cantonal de Neuchâtel, CMPEA.2015.52, 21 November 2015. 108 Italy is not a Contracting State. 109 “Curatelle de représentation et de gestion, avec privation de l'exercice des droits civils” pursuant to Arts. 394 and 395 SCC. 110 By virtue of Art. 1 of the Convention between Switzerland and Italy on the Recognition and Enforcement of Judgments of 3 January 1933. 111 Tribunal Cantonal de Neuchâtel, CMPEA.2015.52, 21 November 2015: “La CLaH 2000 n'est pas applicable lorsqu'il s'agit de reconnaître une mesure émanant d'un Etat non contractant.” The above-mentioned Convention 1933 remains applicable. 104 105

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The Hague Convention on the Protection of Adults

B.

France and Germany

France and Germany have both ratified the Hague Convention 2000, respectively in 2008112 and 2007.113 The Convention entered into force in 2009 in both countries. In Germany, the act implementing the Convention established the Central Authority.114 The relevant protective measures are governed respectively by the French and German Civil Codes.115 Hereafter we provide some judgments concerning the implementation of the Hague Convention 2000 in France and Germany. Case 1: In this case,116 a French-Australian woman living in Australia and suffering from Alzheimer’s concluded a Power of Attorney in favour of her former husband and her child, both appointed as guardians. In their capacity as guardians, they submitted a request before the French local authorities for remittance of some life insurance funds located in France. These were needed for the care of the woman’s mental deterioration. The court accepted jurisdiction but dismissed the request on the basis that a protective measure would first need to be adopted under French law to access the funds. On the woman’s appeal, the Cour d’Appel de Rennes confirmed the French international jurisdiction and stated that if the French authorities were to determine the applicable law, they should apply Australian law for the administration, conservation and disposal of the properties located in France. According to the Court, the Australian protective measures were sufficient to produce effects in the French legal order, regardless of the exequatur, by virtue of the Convention and of Art. 509 of the French Code of Civil Procedure. The Court reversed the first instance judgment rejecting the request, which was incompatible with the Convention aims for it was contrary to the measures taken in Australia, the place of the adult’s habitual residence.

112 Loi 2008-737 du 28 juillet 2008 autorisant la ratification de la convention de La Haye du 13 janvier 2000 sur la protection internationale des adultes. Loi 2007-308 du 5 mars 2007 portant réforme de la protection juridique des majeurs et liens vers les décrets d’application (domestic reforms in relation to the protection of adults), dont le Décr. n° 2008-1547 du 30 déc. 2008. 113 Protection of Adults Convention Implementation Act of 17 March 2007 (Federal Law Gazette I, p. 314), last amended by Article 4 of the Act of 17 July 2017 (Federal Law Gazette I, p. 2426). 114 Bundesamt für Justiz (art. 1). Ministère de la Justice in France directly through Art. 28 of the Convention. 115 Code Civil, Arts. 440 et seq.; BGB, § 3. 116 Cour d’appel de Rennes, 15 octobre 2013, 13/02113.

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Vito Bumbaca Case 2: This next case117 concerned an adult, then habitually resident in France, although previously habitually resident in Switzerland, who had concluded a mandate for incapacity (Art. 15.2 of the Convention) in favour of one of her sons while electing Swiss law as the governing law. At the time when the son tried to implement the mandate in France, the French courts assessed its validity by virtue of specific conditions provided under French law – France was both the place where the mandate was to be exercised and the place of the adult’s habitual residence at the time of the proceedings. The French Cour de Cassation rejected applicability of French law of the place where the mandate was to be exercised, which was also the adult’s habitual residence, in that the validity of the mandate relies on the law applicable under Art. 15 of the Convention, i.e. the law chosen by the adult, that is Swiss law in the case at hand. That said, the Court added and concluded that, for the purposes of Art. 16 of the Convention, the authorities of the place in which the mandate is exercised, which is also the adult’s habitual residence, have the power withdraw, replace or suspend the mandate if it is not exercised in the adult’s interests. Case 3: In this case,118 a woman, born in 1929, who initially lived in Germany, and subsequently in Austria, was assigned supervision (guardianship) under German law for reasons of dementia. Her brother was appointed as caregiver and her assets in Germany were placed under supervision. Once she acquired habitual residence in Austria, removal of guardianship was sought by the local authorities in Germany. The woman’s daughter, who was later appointed as caregiver by the same authorities, opposed the removal. The Cottbus Regional Court held that as soon as a change in the adult’s habitual residence occurs, the jurisdiction of the courts of the place of the former habitual residence should cease (Art. 5.2 of the Convention), even though the former habitual residence is also the adult’s place of nationality. The Court maintained that, pursuant to Art. 12 of the Convention, the measures previously endorsed under German law should continue to apply until the authorities in Austria change, remove or revoke them. As there was inactivity by the courts in Austria, the German District Court (“Bad Liebenwerda”) should judge if and how to inform them about the woman’s need for protection based on the change of jurisdiction. Case 4: In this last case119 an adult was placed under guardianship for the purposes of Austrian law and was represented by a trustee for a real estate transaction in Germany. Subject to specific conditions 117 Arrêt n°101 du 27 janvier 2021 (19-15.059) – Cour de cassation – Première chambre civile – ECLI:FR:CCAS:2021:C100101. 118 LG Cottbus, 9 May 2018 - 7 T 28/17. 119 OLG Zweibrücken, 9 November 2015 - 3 W 54/15.

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The Hague Convention on the Protection of Adults raised by the local authorities in Germany and requesting further evidence on the material scope of the guardianship itself,120 the guardian filed against such conditions before the courts therein. The Zweibrücken High Regional Court stated that the approval requirements of guardianship, as well as its procedure of implementation, in this case, are governed by German law by virtue of Art. 14 of the Convention. C.

United Kingdom – Scotland and the “Replication” of England and Wales

The United Kingdom was the very first Contracting State to ratify the Hague Convention 2000, which it did, however, only on behalf of Scotland pursuant to Art. 55 of the Convention. England and Wales, being non-Contracting States, have no reciprocal obligations,121 but have replicated the provisions of this Convention in the Mental Capacity Act 2005, effective 2007.122 The Convention was ratified on behalf of Scotland on 5 November 2003 and entered into force in 2009, even though most of its provisions were already in place under Scottish law.123 The measures falling under the material scope of this Convention can be found in their respective domestic legislations.124 Case 1: In this case,125 the respondent, a French woman, subject to welfare protection in France, was in Scotland for a short visit. While 120 Ibid. § 9: “Mit Zwischenverfügung vom 30. April 2015 hat das Grundbuchamt dem verfahrensbevollmächtigten Notar aufgegeben, den Nachweis zu führen, dass die Genehmigung des Bezirksgerichts von der Sachwalterin dem anderen Vertragsteil nach § 1829 BGB mitgeteilt worden sei. Zur Begründung ist ausgeführt, dass die dem Notar erteilte Vollmacht die hier vorgenommene Bevollmächtigung zur Kenntnisnahme und Bekanntgabe der Genehmigung nicht abdecke”. 121 I.e. while England and Wales have agreed, through the endorsement of the 2005 Act, to recognise Swiss jurisdiction over the existing enacted protection of an adult, British national, habitually resident in Switzerland (Art. 7.2 of the Convention), the Swiss authorities will not be obliged to do so with regard to a Swiss citizen habitually resident in England and Wales. 122 Schedule 3 of the 2005 Act designates the Lord Chancellor as the Central Authority for England and Wales. 123 Adults with Incapacity (Scotland) Act 2000, which aligned the Scottish Private International Law with the Convention prior to its ratification (see D. HILL, The Hague Convention on the International Protection of Adults, ICLQ, 2009, Vol. 58, No. 2, p. 469). The Central Authority for Scotland was appointed by the Scottish Ministers, implementing Art. 28 of the Convention (Schedule 3 of the 2000 Act). 124 Adult Support and Protection (Scotland) Act 2007. Of course, the international legal reference is Art. 3 of the Hague Convention 2000, which was adopted under the 2000 Scottish Act (schedule 3) and replicated under the 2005 Act of England and Wales (schedule 3). 125 A.F. v. M.S. (first respondent)+PGS (Second Respondent) [20 December 2011] Sheriffdom of Lothian & Borders At Selkirk, AW6/11.

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Vito Bumbaca there, she concluded a Power of Attorney in favour of her stepson and a third party. The applicant, her daughter, domiciled in Belgium, applied to the Scottish courts for the recognition and enforcement of the protective measures issued in France. Her mother appealed and asked for the substance of the measures to be reviewed under Scottish law. The Sheriffdom (District Court) recognised the French measures based on the finding of fact evaluated by the French courts (Art. 24 of the Convention); and excluded a review of the merits,126 in accordance with Art. 26 of the Convention. The Court revoked the Power of Attorney on the grounds that the woman’s habitual residence (Art. 5 of the Convention) was in France – at the time the welfare protection was ordered – concluding that it was inconsistent with that order. Case 2: The following case127 concerned a Scottish woman aged 36, who suffered from mental illness. Placement was complex in Scotland, so she was placed in a supported accommodation in England; her mother and stepfather removed her to Scotland. The English local authorities filed before the courts in England and Wales for the determination of substantive jurisdiction. The proceedings before the Scottish courts, as to the same matter, were stayed. The Court of Protection of England and Wales referred to the Hague Convention 2000, Art. 5, but also to the Hague Convention 1996, the Brussels IIA Regulation, and the Mental Capacity Act 2005 for issues of uniformity in the determination of habitual residence. The woman acquired a residence which had reached “effective stability” in England – as indicated by the same Court – and it was in her best interests to remain in the supported accommodation there.

IV. Non-Conventional Cases The purpose of analysing other legal orders in which the Hague Convention 2000 does not apply is that fragmentation may exist, not only to the extent of the circulation of judgments, but also to the diversified rules providing jurisdiction and applicable law, all affecting people’s international life as seen in parts II and III. We have chosen to share some legislative and practical analysis of the United States, Ontario province and Italy.

126 “The Respondents submission in so far as it is directed towards the principle of minimum intervention is in fact an attempt to reopen the merits. By reference to the translations of the Orders themselves which are produced, it was said that the French court has in effect also made findings of fact which are binding”. 127 An English Local Authority v. SW and Another [2014] EWCOP 43.

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The Hague Convention on the Protection of Adults A.

United States and Canada (Ontario)

The 49 US states have enacted the UAGPPJA via a state statute, such as the Mental Hygiene Law 2014 in the State of New York128 or the 2018 North Carolina General Statutes Chapter 35B.129 The UAGPPJA is a Uniform Law applying to both intraUS and overseas adult protection proceedings (§103). It concerns the uniform protection of the adult’s person and property, through guardianship and conservatorship (§102). Thus, its material scope aligns with the Hague Convention 2000. The main connecting factor utilised in this Act for the determination of protective jurisdiction is the adult’s home state,130 which relies on his/her physical presence during six consecutive months before the date of the filing of a guardianship petition. This rule should also serve to indicate the substantive law (§102). In Canada, conflict-of-law rules differ among the 13 provinces and territories.131 For example, although at the federal level and in the majority of the provinces in Canada, including Ontario, the legal system is based on the common law tradition, in Quebec, private law is based on a civil law tradition. Federal legislation should be referred to for general provisions governing the protection of adults.132 The Substitute Decisions Act (SDA) 1992 (amended 2021) sets out the principal rules on incapacity and guardianship in Ontario.133 The following case law should illustrate the preceding rules on adult protection.

128 New York enacted the UAGPPJA through Article 83 of the Mental Hygiene Law 2014 (as amended 2021). 129 https://law.justia.com/codes/north-carolina/2018/chapter-35b/article-3/section35b-31/ (NC Gen Stat § 35B-31 (2018)). 130 For a practical operation of this concept see Law Offices of Benjamin Pavone, PC v. Willis, No. D075817, (Cal. Ct. App. Nov. 18, 2021): In a case involving an ongoing parallel guardianship proceeding before the courts in Indiana and California, the Indiana Superior Court stated that, by virtue of the UAGPPJA, Indiana was the adult’s home state given her six-month residence at the time of the guardianship petition. However, the same Court concluded that the courts in California were more appropriate to decide issues concerning the Adult’s care and well-being (“Teresa has had minimal contact with Indiana and substantial history as a resident of California and [Teresa's] real property which is in her trust is all located in California as are her family doctors and personal records and history.”). 131 They have adopted different statutory provisions. 132 An example is the Canadian Charter of Rights and Freedoms – Constitution Act 1982, namely Arts. 7 and 15. See also the landmark case E (Mrs) v. Eve, [1986] 2 S.C.R. 388. 133 https://www.canlii.org/en/on/laws/stat/so-1992-c-30/latest/so-1992-c-30.html. See also Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship, 2017: “Most of the remedies available under the SDA to access rights or resolve disputes require application to the Superior Court of Justice, a costly, complicated and intimidating process that is practically inaccessible to many individuals directly affected and their families”.

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Vito Bumbaca Case 1: This case134 concerned a respondent, a 35-year-old woman, who was involved in a parallel guardianship proceeding before the courts of New York and North Carolina. She had significant connections with the courts in North Carolina, which was seised first. The New York Surrogate’s Court affirmed the importance of a Uniform Law resolving guardianship jurisdiction over adults: “providing a more streamlined and predictable process, saving state funds and conserving judicial resources, and reducing the possibility for abuse and expense of the alleged incapacitated person and that person's family and caretakers”. However, the Court upheld the lower court’s holding that no case law providing unified weighing factors existed for the transfer of jurisdiction to a more appropriate court.135 It declined and transferred jurisdiction to the courts of North Carolina in respect of the daughter’s wish to live in North Carolina. In particular, the Court found no abuse by her mother, with whom she lived, and assessed the woman’s attachments with both states and the expeditiousness in tackling the proceeding. The authorities of North Carolina were more appropriate from the NY Court’s viewpoint. Case 2: In this case136 Father Michele Perrella, a retired Roman Catholic priest, died in Canada, Ontario. He was placed in a long-term care facility and under the supervision of caregivers and caretakers (subsection 3 SDA) in accordance with a Power of Attorney (subsection 7 SDA) governed by Canadian law. An Italian lawyer, Ms Cariello, had previously been appointed in Italy as an interim guardian, upon request of Father Perrella’s family. She contested jurisdiction before the Superior Court of Justice of Ontario. The case reached the higher instances. The Ontario Supreme Court clarified that the Hague Convention 2000, which is not applicable between Canada and Italy, would have ensured effective recognition of the Italian order between Contracting States (Arts. 3 and 22 of the Convention). The Court maintained that Father Perrella was domiciled and ordinarily resident in Italy at the time prior to his incapacity; and that the Power of Attorney should be set aside because he lacked capacity at the time of its conclusion.

Matter of J.D.S. NY Slip Op 20303 Decided on October 1, 2020, (70 Misc. 3d 556 (N.Y. Surr. Ct. 2020). 135 The Hague Convention 2000 is clearer on this point and sets out uniform guiding connecting factors shaped in the adult’s interests. See P. LAGARDE, Explanatory Report on the Hague Convention 2000, HccH publications, 1999, p. 60, commentary on Art. 8(2) of the Convention. 136 Cariello v. Father Michele Perrella, 2013 ONSC 7605. 134

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The Hague Convention on the Protection of Adults B.

Italy

Italy signed the Hague Convention 2000 in 2008 but has not ratified it. It is therefore neither enforceable in Italy nor in proceedings involving Italy and any Contracting States. The principal effect is certainly that the recognition of orders emanating from the Italian authorities will be subject to the domestic private international law rules, i.e. not under the quasi-automatic and more expeditious process provided under the Convention. The absence of Italian ratification137 does not seem to reflect a realistic quantification138 of the importance of efficiently and rapidly assisting the personal and financial needs of the foreign community residing in Italy and the Italian nationals living abroad.139 That said, the Italian Private International Law (IPIL)140 provides private international law rules on “protective” jurisdiction and applicable law with respect to incapacitated adults. The Italian Civil Code governs the protective measures under Italian law.141 The following are judgments illustrating an analysis of the Italian practice in the above-mentioned domestic legal framework. Case 1: In this case142 a woman of Macedonian nationality and a resident of Italy who was unable to protect her personal and property interests, was placed under trusteeship (“amministrazione di sostegno”). The Italian Court of Belluno (“Tribunale di Belluno”, Region DDL – Ratifica ed esecuzione della convenzione sulla protezione internazionale degli adulti, fatta all’Aja il 13 gennaio 2000, examined in its final version in 2014, still not approved by the Italian Parliament: “[...] il presente disegno di legge dispone la sostituzione dell’articolo 43 della legge n. 218 del 1995, prevedendo l’estensione erga omnes – e, quindi, anche nei confronti degli Stati non contraenti – del criterio dell’abituale residenza dell’incapace. La legge applicabile sarà individuata, pertanto, alla stregua di tale criterio, fatte salve le eccezioni previste dalla stessa Convenzione”. 138 Disegno di Legge N. 2797: “L’applicazione del presente provvedimento non implica maggiori oneri a carico del bilancio dello Stato. Il provvedimento infatti non prevede nuove attività rispetto a quelle già correntemente svolte dalle competenti amministrazioni, né derivano maggiori spese o minori entrate a carico della finanza pubblica dalle disposizioni della Convenzione in oggetto”. 139 P. FRANZINA, La disciplina internazionalprivatistica italiana della protezione degli adulti alla luce di una recente pronuncia, Cuadernos de Derecho Transnacional, Vol. 12, Nº 1, 2020, p. 219, 221: “In un paese in cui risiedono 5.255.503 stranieri, pari a circa l’8,7% della popolazione, le esigenze che l’istituto dell’amministrazione di sostegno è inteso a soddisfare sono verosimilmente destinate ad insorgere con una frequenza non irrilevante anche in relazione a persone straniere. La cittadinanza straniera del beneficiario, del resto, non è l’unico fattore capace di connotare in senso internazionale la protezione di un adulto […] Basti pensare che l’Anagrafe degli Italiani residenti all’estero, stando a dati riferiti al 2017, conta ben 5.114.469 iscritti, e che il valore complessivo dei beni detenuti all’estero da contribuenti italiani, quale risulta dalle dichiarazioni ricevute dall’amministrazione finanziaria nello stesso 2017, ammonta a 217,7 miliardi di Euro”. 140 Legge 31 maggio 1995 n. 218. 141 In particular art. 404-405 (“Amministratore di sostegno”) in respect of specific amendments applied to the Code (“modifiche introdotte dalla legge 9 gennaio 2004 n. 6”). 142 Tribunale di Belluno, decreto 1° agosto 2019, No. 22734. 137

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Vito Bumbaca of Veneto) relied on Art. 44 of the IPIL to exercise international “emergency” jurisdiction143 for the adoption of provisional, urgent measures, for which the adult’s physical presence in Italian territory is sufficient. The Court determined that Italian law was applicable by virtue of Art. 43 IPIL pursuant to the situation of urgency, which justifies the endorsement of protective measures under Italian law, notwithstanding the adult’s foreign nationality.144 The Court stated that to uphold the measure as permanent (“in via definitive”), i.e. under “general jurisdiction” pursuant to Art. 9 IPIL,145 the adult should be resident in Italy and the law of Macedonia should apply on the basis of the aforementioned Art. 43. In the latter case, the “renvoi” would be taken into account according to Art. 13 IPIL,146 which would result in the determination by this Court that Italian law was the “most closely connected” under the meaning of Art. 3 of the Macedonian conflict-of-law rules.147 Case 2: This case148 involved a woman of Polish149 origin having established residency in Italy. She suffered from a mental illness due to a road accident, which rendered her incapacitated, and was placed in a multidisciplinary medical care rehabilitation facility. Her cohabitee, an Italian national, asked for the provisional appointment of an “amministratore di sostegno provvisorio”150 as defined under Italian law. The woman’s mother contested the appointment. During the proceedings, the adult was discharged from the medical care facility and returned to Poland together with her mother, notwithstanding the cohabitees’s opposition. The Italian Court of Lodi (“Tribunale Ordinario di Lodi”, Region of Lombardia) recalled Arts. 9 and 44 of IPIL, and declined jurisdiction based on the absence of the adult’s residence in Italy – at the time of the course of the proceedings.151 143

A provision that is very similar to art. 10 of the Hague Convention 2000

(cf. II A). 144 A criterion that should be replaced by the Italian amendment No. 2797 supra, in line with the Hague Convention 2000. 145 Art. 3 complements this provision. For a detailed analysis see P. FRANZINA, La disciplina internazionalprivatistica italiana della protezione degli adulti alla luce di una recente pronuncia, Cuadernos de Derecho Transnacional, Vol. 12, Nº 1, 2020, p. 219, 228. 146 Reversely excluded under Art. 19 of the Convention. 147 Art. 3, “Exception Clause”: “The law referred to in the provisions of this Act shall not apply in exceptional cases whenever it is evident from all circumstances of the case that the relationship is in no significant connection with that law but is manifestly more closely connected with some other law”. 148 Trib. Lodi, 18 ottobre 2008. 149 As indicative information, like Italy, Poland signed in 2008 but did not ratify this Convention. 150 Art. 404 Italian Civil Code. 151 This situation perhaps is differently tackled by the Hague Convention 2000, art. 5(1), under which the adult’s habitual residence, primary and sufficient connecting factor,

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The Hague Convention on the Protection of Adults The Court ultimately refused to take urgent measures. The Hague Convention 2000 was cited by this Court in relation to the importance of establishing co-operation among Contracting States, in particular with the state of the adult’s nationality.

V.

Conclusions

The protection of incapacitated adults as described in this study and arising from the combined reading of the Hague Convention 2000 with the UNCRPD holds universal importance given the increasing cross-border family ramifications involving disabled persons. The determination of the adult’s best interests should guide the exercise of protective jurisdiction and the applicable law in both Conventional and non-Conventional cases. Accordingly, administrative and judicial authorities should assess the adult’s life situation when issuing protective measures. The Hague Convention 2000, in line with the UNCRPD, has conceived an adult-centred approach in that its provisions focus on, and give practical effect to, the principle of “adult’s interests”. Clear examples are namely: (i) the possibility of a derogation from the rule on habitual residence, for the purposes of both jurisdiction and applicable law, if the adult’s best interests so require; and (ii) the adult’s party autonomy in settling a choice of forum and choice of applicable law. The Convention also sets out specific rules on international co-operation between authorities in order to coordinate the effective protection of the adult’s well-being and interests – a fundamental principle under the UNCRPD. All this, in addition to the quasi-automatic recognition and enforcement of judgments in respect of the mutual trust among Contracting States, argues for ratification of the Convention at the global level, particularly in order to facilitate the enjoyment of such an adult’s personal and property rights across borders. Abduction of vulnerable adults, particularly by members of their families, is a growing and important issue, which is not fully covered by this Convention. The Convention’s non-exhaustive list of protective measures may cover return orders, notwithstanding the fact that they largely depend on domestic laws. The Convention’s protective legal framework already provides some rules that would hamper, but would not alone prevent, wrongful relocation and retention by crystallising jurisdiction and applicable law at the adult’s habitual residence, and would possishould be determined at the time of the commencement of the proceedings. This point in time is the result of the analogy made with the Hague Convention 1996 practice, and the Brussels IIA Regulation (art. 8), extended to the practice arising from the protection of adults (see also JO v. GO & Ors, 2013, EWHC 3932). In addition, according to the Convention, art. 8, a coordinated transfer of jurisdiction may take place in the adult’s best interests (cf. II A). No distinction shall be made under the Convention between “giurisdizione volontaria e contenziosa” as it is fully articulated under Italian law (P. FRANZINA, La disciplina internazionalprivatistica italiana della protezione degli adulti alla luce di una recente pronuncia, Cuadernos de Derecho Transnacional, Vol. 12, Nº 1, 2020, p. 219, 228).

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Vito Bumbaca bly freeze their determination through party autonomy. Transfer of jurisdiction towards a more appropriate court would also support the adult’s return to his/her home prior to abduction, and it is generally a mechanism that advocates for transnational cooperation in line with the UNCRPD. Ultimately, practice shows that the Convention seems to be well implemented among Contracting States and has also influenced the domestic legislation of non-Contracting States. Some national legal orders have opted to extend the applicability of Convention rules to non-Conventional cases, which determines the greater harmonisation wished for and supported by this study. A further and regular assessment of regional practices in this crucial field and the endorsement of specific, uniform, rules at the regional level would increasingly support the ratification of the Hague Convention, as a global instrument, and the importance of an inter-institutional (e.g. EU-HccH) and coordinated protective action as promoted by the UN Convention.

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THE PROFESSIO IURIS IN SWISS PRIVATE INTERNATIONAL LAW Olivier GAILLARD*

I. II.

III.

IV.

V.

Introduction From the Origins of the Professio Iuris to the Current Legal Framework A. Creation of a New Legal Institution in the 19th Century B. Developments of the Professio Iuris in the Swiss PILA C. Current Reform of the Swiss PILA 1. The Influence of Swiss Private International Law on Other Legal Systems 2. The 2020 PILA Draft Law Objectives and Limits of the Professio Iuris A. Distinctive Features of the Professio Iuris B. Conflict-of-Law Objectives of the Professio Iuris 1. The Concretisation of the Principle of Proximity 2. Other Advantages in the Settlement of a Cross-Border Succession C. Absence of Substantive Objectives Critical Analysis of the Implementation of the Professio Iuris in Swiss Private International Law A. Evolution of the Objectives B. Changes Made in the 2020 PILA Draft Law 1. Swiss Citizens with Multiple Nationalities 2. Nationality at the Time of Choice C. Scope of the Lex Electa D. Interpretation of an Implied Professio Iuris E. Limits to the Professio Iuris 1. Fraus Legis 2. Abuse of Right 3. Public Policy Exception Conclusion

* Ph. D. (University of Geneva), LL.M. (Harvard), Legal Advisor for Swiss law at the Swiss Institute of Comparative Law, Judge in the Canton of Vaud, Lawyer admitted to practice in Switzerland and the State of New York. This contribution summarises some of the ideas expounded by the author in his doctoral thesis “La professio juris en droit international privé suisse – Contexte, fondements et limites de l’élection de la loi successorale” (Geneva 2022).

Yearbook of Private International Law, Volume 23 (2021/2022), pp. 393-437 © Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law

Printed in Germany

Olivier Gaillard

I.

Introduction

Usually characterised by the conservatism and stability of its provisions, Swiss inheritance law is currently undergoing a period of overhaul, with a double reform of the material provisions of the Civil Code and a global revision of its conflict-oflaw rules in this area. In addition to the Swiss reforms, at the international level, a unification of the conflict rules in succession law in the European Union recently took place. At the heart of this tumult, the professio iuris, i.e., the possibility for the de cuius to choose, within a predetermined framework, the law applicable to her own succession,1 undeniably plays a central role. Being more than one hundred years old in Swiss law, the professio iuris has gradually spread to several national laws, and then to international instruments, whereas it had long been neglected on the grounds that it was incompatible with the multitude of mandatory rules that characterises this legal field. We will first present the evolution of this legal institution, from its creation at the end of the 19th century by the Swiss Parliament to solve problems of intercantonal estates, to its introduction in European law, which in turn is now influencing the current reform of the Swiss conflict rules (II.). Secondly, we will define the conceptual foundations and objectives of this mechanism, in order to identify the numerous advantages it offers in the settlement of cross-border successions. On the other hand, we will exclude any substantive justification for the admission of this institution in a given legal system. On the contrary, the disruption that the professio iuris creates in the balance struck among the material interests to a succession is an undesirable consequence that must be strictly supervised (III). Finally, we will apply the analytical grid thus established to the implementation of the professio iuris in Swiss law, in order to assess the appropriateness of its current modalities and their planned evolution under the current reform (IV.).

II.

From the Origins of the Professio Iuris to the Current Legal Framework

The notion of professio iuris is a protean concept, which covers an entire spectrum of mechanisms with various implications for cross-border estates. In this section, we will present the three successive stages of the evolution of the choice-of-law clause in inheritance matters in Swiss private international law. The origins of the professio iuris in Switzerland dates back to the second half of the 19th century, when the turmoil resulting from the coexistence of cantonal civil codes and the specificities of the Swiss political system compelled the federal parliament to shape a legal institution unheard of in succession matters (A.). 1

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In this article, feminine pronouns are used to represent both genders.

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The Professio Iuris in Swiss Private International Law The function of this newly created professio iuris evolved rather quickly from domestic cases to transnational estates. This shift highlighted the need to set limits, which were introduced during the codification of the Swiss Federal Act on Private International Law (hereinafter: PILA), in order to prevent misuses of this mechanism, such as the choice of a foreign law to deprive an heir of her Swiss statutory entitlement (B.). However, these restrictions are on the verge of being repealed under the current reform of the PILA, in order that the Swiss conflict-of-law rules in inheritance matters may be better coordinated with the Regulation (EU) No 650/2012 (C.).2 A.

Creation of a New Legal Institution in the 19th Century

The rise of Switzerland as a federal state began with the adoption of the Constitution of 12 September 1848,3 which guaranteed the freedom of movement of Swiss nationals (Art. 41).4 Since then, the number of Swiss citizens established outside their canton of origin5 had constantly increased, thereby multiplying the instances of intercantonal conflict of laws, since civil legislation had not yet been unified at the federal level and that each canton maintained its own civil code. Similarly, the conflict-of-law rules differed from canton to canton. The diversity of the solutions adopted for the connecting factor to determine the law applicable to a succession (lex successionis or hereditatis) was striking: in addition to the canton of origin of the de cuius and that of her domicile, the canton of origin of her parents was also sometimes considered.6 In addition, the existence of an agreement7 among certain cantons in favour of the application of the law of the canton of origin introduced another source of complexity that cast a shadow over the Swiss federal structure. Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201/107, 27.7.2012 (hereinafter: European Regulation on Succession). 3 FF 1849 I 1 et seq. 4 At first limited to Christians, the freedom of movement was extended to all Swiss citizens in 1866. For further details, see C. ESCHER, Das schweizerische interkantonale Privatrecht auf Grund des Bundesgesetzes betreffend die zivilrechtlichen Verhältnisse der Niedergelassenen und Aufenthalter (vom 25. Juni 1891), Zürich 1895, p. 9. 5 The canton of origin must be distinguished from the place of birth or the place of domicile. Currently, a child acquires the “cantonal citizenship” of the parent whose surname she uses or, if only one parent has Swiss nationality, of the latter. See Art. 2 of the Federal Act on Swiss Citizenship of 20 June 2014. 6 For the list of the various connecting factors, see P. DE PREUX, La professio juris (Étude de l’article 22 LRDC), Lausanne 1981, p. 16 et seq. 7 Konkordat betreffend die Testierungsfähigkeit und Erbrechtsverhältnisse der Niedergelassenen of 15 July 1822, RO 1822 II 59. See the Federal Council report of 8 June 1891, FF 1891 III 462-492, p. 477; P. DE PREUX (note 6), p. 15; C. ESCHER (note 4), p. 5 et seq. 2

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Olivier Gaillard As a result of the confusion created by to the lack of legal certainty concerning the determination of the law applicable to succession to the estates of Swiss citizens established outside their canton of origin, the Swiss Federal Assembly (Bundesversammlung; Assemblée fédérale), i.e., the legislative power, deemed it imperative to create a new federal law dedicated to the intercantonal conflict of laws. The development of this piece of legislation turned out to be as tortuous as the problems it was designed to solve, the main obstacle being the choice of the connecting factor in inheritance matters. Several draft laws, submitted by the Federal Council (Bundesrat; Conseil fédéral), i.e. the executive power, were successively rejected by the Parliament. Although the first draft law of 1862 was dismissed on constitutional grounds,8 the following drafts of 1876 and 1887 were turned down because they used the last domicile of the deceased as the connecting factor for determining the lex hereditatis, in order to promote a better social integration of the person living in a different canton than that of her origin.9 Both houses of the Parliament, namely the National Council (Nationalrat; Conseil national) and the Council of States (Ständerat; Conseil des États), successively deemed the application of the law of the last domicile (lex domicilii) justified only when the deceased was permanently established in this canton, otherwise the application of the law of the canton of origin would be better suited, as it would more accurately reflect the deceased’s ties with this canton and her close relatives, who may have resided there.10 In spite of this difference of opinion, however, both the Federal Assembly and the Federal Council agreed that the improvement in legal certainty resulting from the creation of intercantonal conflict-of-law rules should clearly prevail over the choice of the adequate connecting factor.11 It was in this climate of palpable tension that an obscure proposal made by a commission of the Council of States in 186312 resurfaced as a deus ex machina to resolve the dilemma in the form of a compromise between the two factors. Thus, a Federal Law on Intercantonal Private Law Relationships could finally, after several decades of debate, be adopted by the Federal Assembly on June 25, 1891.13 According to Article 22.1, the law applicable to the succession was the law of the last domicile of the deceased. However, the de cuius could choose as the law to govern her succession the law of her canton of 8 The Federal Assembly considered by a slim majority that Art. 41 of the 1848 Constitution was not sufficient to create a federal competence for intercantonal civil matters. The Parliament waited for the adoption of a new federal Constitution in 1874 to resume the development of the new law. See the Federal Council Dispatch of 25 October 1876, FF 1976 IV 61-74, p. 61 et seq; P. DE PREUX (note 6), p. 25; C. ESCHER (note 4), p. 24 et seq. 9 Federal Council Dispatch of 28 May 1887, FF 1887 II 630-652, p. 630 and 642; P. DE PREUX (note 6), p. 33. 10 P. DE PREUX (note 6), p. 26 et seq. and 45. 11 Federal Council Dispatch of 1887 (note 9), p. 632. 12 See art. 18 of the Proposal of 12 January 1863 of the Commission of the Council of States, FF 1863 I 154-158, p. 157; Federal Council Report of 8 June 1891, FF 1891 III 462-492, p. 476 et seq. 13 Federal Act of 25 June 1891 on the Civil Law Status of Immigrants and Temporary Residents, FF 1891 IV 69 et seq.

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The Professio Iuris in Swiss Private International Law origin (Art. 22.2). By analogy, foreigners who died with their last domicile in Switzerland could also designate the law of their national State (Art. 32).14 This new prerogative of the de cuius was named “professio iuris” by Friedrich MEILI (1848-1914), professor at the University of Zurich,15 in reference to a medieval legal institution whose roots date back to Antiquity.16 Since then, Swiss law has been unanimously recognised as the starting point of the unstoppable expansion of choice-of-law clauses in inheritance matters, introduced over 120 years later in European Union law.17 B.

Developments of the Professio Iuris in the Swiss PILA

Less than twenty years after its creation, the primary function of the professio iuris changed drastically, as the Swiss Civil Code entered into force in 1912, unifying succession rules in Switzerland except for the forced share of the siblings of the deceased and their descendants, which continued to vary by canton.18 Since then, the choice-of-law clause was almost exclusively used in international cases to designate the foreign national law of the de cuius (lex patriae). The 1891 Act, P. DE PREUX (note 6), p. 28 et seq. J.M. FONTANELLAS MORELL, La professio iuris sucesoria, Madrid 2010, p. 110 et seq.; B. DAUMILLER, Die Rechtswahl im italienischen internationalen Erbrecht, Frankfurt am Main 2003, p. 39; K.P. HOTZ, Die Rechtswahl im Erbrecht im interkantonalen und internationalen Verhältnis, Zürich 1969, p. 87. 16 Notwithstanding their common name, the two mechanisms diverged as the medieval version primarily allowed a person to proclaim her origins and not to choose among several factors. However, the controversies about the scope of this legal institution and its evolution are numerous. For further details see J.M. FONTANELLAS MORELL (note 15), p. 27 et seq.; L. ABADIE, Essai sur l’introduction de la “professio juris” en droit international privé successoral français, Pau 2007, p. 14 et seq.; K. DREHER, Die Rechtswahl im internationalen Erbrecht, Frankfurt am Main 1999, p. 10 et seq.; P. KEMP, Grenzen der Rechtswahl im internationalen Ehegüter- und Erbrecht, Köln 1999, p. 11 et seq. 17 See I. RODRÍGUEZ-URÍA SUÁREZ, La ley aplicable a los pactos sucesorios, Santiago de Compostela 2014, p. 197 et seq.; J.M. FONTANELLAS MORELL (note 15), pp. 148, 206 and 303 (“[F]ue en Suiza donde la profesión de ley adquirió carte de naturaleza e inició la trayectoria que la ha conducido a su actual protagonismo.”); A. BONOMI/ J. BERTHOLET, La professio juris en droit international privé suisse et comparé, in F. BIANCHI (ed.), Mélanges publiés par l’Association des notaires vaudois à l’occasion de son centenaire, Genève/Zurich/Bâle 2005, pp. 355-380, 357 (“création de la pratique conflictuelle suisse”); P. LALIVE, Un anachronisme en droit international privé ? (L’ATF Hirsch c. Cohen Revisited), in A. HÉRITIER LACHAT/ L. HIRSCH (eds), De lege ferenda, Genève 2004, pp. 443-446, 443 (“singularité suisse”); G. KÜHNE, Testierfreiheit und Rechtswahl im internationalen Erbrecht, JuristenZeitung, 1973, pp. 403-407, 404; A.E. VON OVERBECK, La professio juris comme moyen de rapprocher les principes du domicile et de la nationalité en droit international privé, in Liber Amicorum Baron Louis Fredericq, Gent 1966, p. 1085 et seq. 18 This specificity was abandoned in 1988. See P. BREITSCHMID/ Ü. CIBIK, Rechtswahl oder Rechtsmissbrauch – Gestaltungsoption oder “Inländerbenachteiligung”?, F. LORANDI/ D. STAEHELIN (eds), Innovatives Recht, Zürich 2011, pp. 457-469, 467. 14 15

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Olivier Gaillard which had been designed from an intercantonal perspective, proved to be incomplete and unsuitable for the settlement of estates that involved several States.19 The unforeseen consequences of the application of a foreign succession law, whose underlying policies could differ diametrically from those of Swiss law, were highlighted in the famous 1976 decision of the Swiss Supreme Court (Bundesgericht; Tribunal fédéral) Hirsch v. Cohen (hereinafter: the Hirsch decision).20 Born in 1886 in Germany, Mr. Cohen fled from the Nazis in 1936 to England, where he lived for 17 years and acquired British nationality. He then moved to Switzerland, his “last homeland” according to his own words, to spend the last twenty years of his life. In his will, he chose English law to govern his succession and bequeathed his whole estate to his second wife, thereby completely depriving his only daughter from a previous marriage, Mrs. Evelyn Hirsch-Leapman, of the share that she would have been entitled to receive under Swiss law. The Supreme Court considered that such a use of the professio iuris was not abusive, nor did it violate the Swiss public policy. The Swiss PILA entered into force in 1989 with a new set of rules for the settlement of international estates and the disputes relating thereto, which are still in effect at the time of writing. Whenever a person dies with her last domicile in Switzerland, Swiss authorities have the jurisdiction to rule on the succession as a whole (Art. 86.1), that is to say, on all the property forming part of the estate, irrespective of the nature or the location of the assets (unitary system), the only exception being when exclusive jurisdiction is claimed by a State where immovable property is located (Art. 86.2). As for the applicable law, the Swiss authorities apply Swiss law (Art. 90.1), which demonstrates the importance of the correlation between forum and jus (Gleichlauf). This principle is nonetheless tempered by the opportunity for a foreigner to submit her estate, by will or contract of succession (Erbvertrag; pacte successoral), to the law of one of her States of citizenship, which is a direct transposition from the 1891 Act.21 However, in view of the risks resulting from the application of a foreign lex hereditatis, as illustrated in the Hirsch decision, the Federal Assembly added two important restrictions to this professio iuris, in order to prevent misuse of this legal institution: the testatrix must still possess the nationality in question at the time of her death and she must not have Swiss citizenship, either at the time of the designation or subsequently (Art. 90.2).22 This provision and its evolution de lege ferenda will be the focus of our critical analysis. 19 See Federal Council Dispatch of 10 November 1982 on the Private International Law Act, FF 1983 I 255-501, p. 256 et seq. and F. KNOEPFLER/ P. SCHWEIZER/ S. OTHENINGIRARD, Droit international privé suisse, 3rd ed., Berne 2005, § 96. 20 ATF 102 II 136 (17 August 1976). 21 See Federal Council Dispatch of 1982 (note 19), p. 374 et seq.; P. LALIVE (note 17), p. 443; H. HAUSHEER, Die privatrechtliche Rechtsprechung des Bundesgerichts im Jahre 1976 – Familienrecht, Revue de la Société des juristes bernois, 1978, pp. 169-195, 193 et seq. 22 See the Final Report of the Experts’ Commission: F. VISCHER/ W. BAECHLER et al., Bundesgesetz über das internationale Privatrecht (IPR-Gesetz) – Schlussbericht der Expertenkommission zum Gesetzesentwurf, Zürich 1979, p. 184 et seq.

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The Professio Iuris in Swiss Private International Law In the PILA, the inheritance conflict rules have been expanded to include subsidiary jurisdiction provisions regarding the de cuius who died with her last domicile abroad, in case the foreign authorities do not deal with the estate (Arts. 87.1 and 88). New prerogatives in favour of the de cuius, including additional types of professiones juris, have also been introduced, specifically in favour of Swiss citizens domiciled abroad, who may choose, in a will or a contract of succession, to submit their entire estate or the portion thereof located in Switzerland23 to Swiss jurisdiction (professio fori; Art. 87.2). In this case, the authorities of the canton of origin will automatically settle the succession according to Swiss law,24 unless the testatrix expressly provided for the application of the substantive law of the State of her last domicile (Art. 91.2). This last mechanism is often referred to as a “counter-professio iuris” as it enables the de cuius to set aside the objectively applicable Swiss law.25 Conversely, a Swiss citizen domiciled abroad may designate Swiss law in a new kind of professio iuris,26 which will ipso facto trigger the jurisdiction of the authorities of the canton of origin over the entire estate or the portion thereof located in Switzerland (Art. 87.2).27 In both instances, the competence of the Swiss authorities is exclusive if it covers the estate as a whole,28 that is to say that no foreign decision may be recog23 Other forms of dépeçage are prohibited. See R. KÜNZLE, in M. MÜLLER-CHEN/ C. WIDMER LÜCHINGER (eds), Zürcher Kommentar zum IPRG, Kommentar zum Bundesgesetz über das Internationale Privatrecht (IPRG) vom 18. Dezember 1987, 3rd ed., Zürich 2018, § 24 ad IRPG 87; A. BUCHER, in A. BUCHER (ed.), Loi sur le droit international privé – Convention de Lugano, Basel 2011, §14 ad LDIP 87 and § 7 ad LDIP 91; A. BONOMI/ J. BERTHOLET (note 17), p. 363. Contra: A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD, in P. GROLIMUND/ L.D. LOACKER/ A.K. SCHNYDER (eds), Internationales Privatrecht, Basler Kommentar, 4th ed., Basel 2020, § 11 et seq. ad IPRG 87. 24 A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 10 ad IPRG 87; R. KÜNZLE (note 23), § 20 ad IPRG 87; A. BONOMI/ J. BERTHOLET (note 17), p. 361. 25 See R. KÜNZLE (note 23), § 18 ad IPRG 91 (“abweichende Rechtswahl”). However, this provision does not allow the de cuius to choose the law of another State whose nationality she possesses in addition to Swiss citizenship. 26 A. BUCHER (note 23), § 1 ad LDIP 91. 27 This mechanism is referred to as an indirect choice of forum (indirekte Zuständigkeitswahl). See F. GUILLAUME, L’extension de la portée de l’élection du droit de la matière – Quel avenir pour la professio juris?, successio, 2019, p. 224-237, 232; A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 10 ad IPRG 87. 28 The exclusive jurisdiction claimed by a state where immovable property is located is reserved (Art. 86.2). See Swiss Supreme Court Decision of 2 February 2022 (5A_653/2020, § 2.1) and Decision of 28 October 2002 (5P.274/2002, § 4.1); R. KÜNZLE (note 23), § 11 ad IPRG 87; A. BONOMI, Le Règlement européen sur les successions et son impact pour la Suisse, in P.-H. STEINAUER/ M. MOOSER/ A. EIGENMANN (eds), Journée de droit successoral 2015, Berne 2015, p. 63-113, 102 et seq.; A. BUCHER (note 23), § 12 ad LDIP 87. More sceptical: C. WIDMER LÜCHINGER, Zur Revision der Art. 86 ff. IPRG: Auswirkungen auf die Nachlassplanung, in P. FRÉSARD/ J. MORGER (eds), Aktuelle Fragen des internationalen Erbrechts: Beiträge des Weiterbildungsseminars der Stiftung Schweizerisches Notariat vom 9. September 2019 in Zürich, Zürich 2020, pp. 1-48, 44.

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Olivier Gaillard nized in Switzerland, even if it was rendered by a State whose acts are in principle recognized under Art. 96 PILA.29 C.

Current Reform of the Swiss PILA

1.

The Influence of Swiss Private International Law on Other Legal Systems

By allowing the de cuius to choose the law applicable to her own succession as early as 1891 and by refining this mechanism in 1989, Swiss law played a pioneering role in the admission of the professio iuris into modern private international law and has had a concrete influence on several other legal systems.30 At the turn of the 20th century, the Swiss delegates31 to The Hague Conferences relentlessly sought to introduce a choice-of-law clause, on the model of the Swiss professio iuris, in a convention on the law applicable to cross-border successions. These proposals were consistently rejected on the grounds that such a mechanism would be inappropriate in the context of succession law, which is characterised by a high density of mandatory rules.32 After several decades of fierce opposition, the possibility of giving a role to the will of the deceased as to the applicable law gradually spread in the resolutions of several international law bodies, such as the International Union of Notaries33

See B. DUTOIT/ A. BONOMI, Droit international privé suisse, 6th ed., Bâle 2022, § 10 ad LDIP 87; A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 8 ad IPRG 96; R. KÜNZLE (note 23), § 20 ad IPRG 96 N 20. More sceptical: G.-P. ROMANO, L’élection de for par le de cujus, successio, 2019, pp. 207-223, 210 and 218. Contra: A. BUCHER (note 23), § 11 et seq. ad LDIP 96. 30 Earlier examples of choice-of-law clauses may be found in some South American Civil Codes of the 19th century (e.g. Art. 463 et seq. of the Bolivian Civil Code of 1831, Art. 692 et seq. of the Peruvian Civil Code of 1851, and Art. 797 et seq. of the Guatemalan Civil Code of 1877). However, theses occurrences were later dropped without having had any visible influence on other legal systems. For further details, see B. DAUMILLER (note 15), p. 11 et seq.; H. VALLADÃO, Le droit international privé des états américains, Collected Courses of The Hague Academy of International Law, 133/1971, p. 14 et seq. For a global overview of national examples of professiones iuris, see O. GAILLARD (note *), § 225 et seq.; A. BONOMI, Successions internationales: conflits de lois et de juridictions, Collected Courses of The Hague Academy of International Law, 350/2010, p. 198 et seq.; J.M. FONTANELLAS MORELL (note 15), p. 99 et seq. and 137 et seq.; K. DREHER (note 16), p. 19 et seq.; P. DE CESARI, Autonomia della volontà e legge regolatrice delle successioni, Padova 2001, p. 65 et seq. 31 One of them was the above-mentioned Professor MEILI, who gave the professio iuris its name. 32 J.M. FONTANELLAS, MORELL (note 15), p. 110 et seq.; B. DAUMILLER (note 15), p. 39; A.E. VON OVERBECK, The Hague Conference and Swiss Private International Law, Netherlands International Law Review, 1993, pp. 95 and 105. 33 This idea first appeared during the 7th Congress of this organisation in 1963 and was then concretely introduced in a resolution in 1967. See J.M. FONTANELLAS MORELL (note 15), p. 115 et seq.; B. DAUMILLER (note 15), p. 41; P. DE CESARI (note 30), p. 69 et 29

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The Professio Iuris in Swiss Private International Law and the Institute of International Law,34 both in the 1960s. A first glimpse of this newly admitted flexibility regarding the determination of the applicable law in inheritance matters appeared in the Hague Convention of 2 October 1973 Concerning the International Administration of the Estates of Deceased Persons, which established an international certificate designating the persons entitled to administer the movable estate of a deceased person (Art. 1). According to this Convention, a contracting State may allow the de cuius to make a choice between the law of her habitual residence and her lex patriae to govern the said certificate (Art. 4).35 Although limited in scope, this initial acknowledgment of party autonomy in an inheritance context undoubtedly paved the way for a greater and more direct influence of the deceased’s will on the determination of the lex successionis.36 Thus, after nearly a century of unsuccessful attempts, The Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons was concluded on 1st August 1989. The provision governing the determination of the objective law is known for its convoluted nature, combining several connecting factors with different escape clauses. In a nutshell, the law of the State of habitual residence governs the whole estate, if the deceased was also a national of that State or if she had been a resident there for a period of no less than five years immediately preceding her death. In other cases, the estate is governed by the law of the State of which the deceased was a national at the time of her death (Art. 3).37 seq.; A.E. VON OVERBECK (note 17), p. 1092; G. KÜHNE, Die Parteiautonomie im internationalen Erbrecht, Bielefeld 1973, p. 84 et seq.; K.P. HOTZ (note 15), p. 89 et seq. 34 See the resolutions of 1967 and 1987 in Yearbook of the Institute of International Law, 52 I 654, 52 II 521 and 62 II 292. For further details, see J.M. FONTANELLAS MORELL (note 15), p. 117 et seq.; L. ABADIE (note 16), p. 212 et seq. and 263; A.E. VON OVERBECK, L’irrésistible extension de l’autonomie en droit international privé, Nouveaux itinéraires en droit, Bruxelles 1993, p. 619-636, 630; S. LINDE-RUDOLF, Probleme einer Parteiautonomie im deutschen internationalen Erbrecht unter Heranziehung des schweizerischen und österreichischen Rechts, Rheinfelden 1988, p. 60; E. JAYME, Institut de droit international – 63. Sitzung in Kairo, Praxis des Internationalen Privat- und Verfahrensrechts, 1988, p. 350 et seq.; A.N. MAKAROV, Institut de droit international, RabelsZ, 33/1969, p. 319 et seq. 35 See H. BATIFFOL, La douzième session de la conférence de La Haye de droit international privé, Rev. crit. dr. int. pr., 1973, p. 247 et seq.; P. LALIVE, L’administration internationale des successions, Annuaire suisse de droit international, 28/1972, p. 64. 36 See A. BONOMI (note 30), p. 200 et seq.; J.M. FONTANELLAS MORELL (note 15), p. 129; L. ABADIE (note 16), p. 9; C. HERWEG, Die Vereinheitlichung des internationalen Erbrechts im europäischen Binnenmarkt, Baden-Baden 2004, p. 147 et seq.; E. CALÒ, Sulla “professio iuris” nel testamento, Notariato, 2003, p. 526 et seq.; B. DAUMILLER (note 15), p. 29 et seq.; P. DE CESARI (note 30), p. 91 et seq. 37 For further details on the application of this provision, see E.F. SCOLES, The Hague Convention on Succession, Am. J. Comp. L., 42/1994, p. 93; J. SCHOENBLUM, Choice of Law and Succession to Wealth: A Critical Analysis of the Ramifications of the Hague Convention on Succession to Decedents’ Estates, Va. J. Int’l L., 32/1991-1992, p. 94 and 108 et seq.; D.W.M. WATERS, Convention sur la loi applicable aux successions à cause de mort – Rapport explicatif, in Actes et documents de la Seizième session (1988), Tome II, Successions – loi applicable, La Haye 1988, § 51 et seq. In principle, the Convention refers to the substantive law of each State (Art. 17). A renvoi is only considered in limited cases

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Olivier Gaillard In addition to these objective factors, the most significant feature of the Convention is the admission of a relatively liberal professio iuris.38 The de cuius may designate the law of a particular State to govern the succession to the whole of her estate, provided that at the time of the designation or of her death she was a national of that State or had her habitual residence there (Art. 5).39 The designated law can be that of a non-contracting State (erga omnes application; Art. 2).40 The introduction of this clause was considered a key milestone in the international expansion of the professio iuris,41 as well as the “fulfilment of old Swiss wishes”42 considering the direct influence of the Swiss version of this mechanism.43 Alongside the professio iuris, the Convention introduced another form of choice of law. The de cuius may designate the law of one or more States to govern the succession to particular assets in her estate (Art. 6). There is no limit to the laws that can be chosen, but such designation is without prejudice to the application of the mandatory rules of the lex successionis determined according to Article 3 or 5 of the Convention.44 Although the introduction of the hitherto almost unknown professio iuris met with little opposition,45 the Convention did not enter into force because of an

(Art. 4). See F. BOULANGER, Codifications nationales et convention de La Haye du 1er août 1989 l’improbable unification du droit international des successions, in Le droit international privé: esprit et méthodes, Paris 2005, pp. 155-167, 160 et seq. 38 J.M. FONTANELLAS MORELL (note 15), p. 238; J. PIRRUNG, Die Haager Konferenz für IPR und ihr Übereinkommen vom 1. August 1989 über das auf die Rechtsnachfolge von Todes wegen anzuwendende Recht, in Mélanges Fritz Sturm, Liège 1999, p. 1624; P. LAGARDE, La nouvelle Convention de La Haye sur la loi applicable aux successions, Rev. crit. dr. int. pr., 1989, p. 26; A.E. VON OVERBECK, La Convention du premier août 1989 sur la loi applicable aux successions pour cause de mort, Annuaire suisse de droit international, 46/1989, p. 146. 39 T. BRANDI, Das Haager Abkommen von 1989 über das auf die Erbfolge anzuwendende Recht, Berlin 1996, p. 292 et seq.; D.W.M. WATERS (note 37), § 61. 40 The erga omnes character also applies to the objective designation of the lex successionis. 41 I. RODRÍGUEZ-URÍA SUÁREZ (note 17), p. 198; CH. KOHLER, L’autonomie de la volonté en droit international privé: un principe universel entre libéralisme et étatisme, Collected Courses of The Hague Academy of International Law, 359/2013, p. 461; J.M. FONTANELLAS MORELL (note 15), p. 129; L. ABADIE (note 16), p. 9; A. BONOMI/ J. BERTHOLET (note 17), p. 357; B. DAUMILLER (note 15), p. 30; P. DE CESARI (note 30), p. 91 et seq. 42 A.E. VON OVERBECK (note 32), p. 105. This author also points out that the Convention was concluded the same day as the Swiss National Day. 43 See A. BONOMI/ J. BERTHOLET (note 17), p. 376. 44 See A. BONOMI (note 30), p. 201; J. SCHOENBLUM (note 37), p. 126; N. WATTÉ, L’autonomie de la volonté dans les conventions de La Haye, Revue belge de droit international, 1991, p. 430; H. LI, Some Recent Developments in the Conflict of Laws of Succession, Collected Courses of The Hague Academy of International Law, 224/1990, p. 78 et seq. 45 See J.M. FONTANELLAS MORELL (note 15), p. 128; H. LI (note 44), p. 82.

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The Professio Iuris in Swiss Private International Law insufficient number of ratifications.46 Despite this relative failure, the 1989 Hague Convention has had a direct influence on the inheritance conflict rules of several States, which adopted a similar objective rule and a version of the professio iuris, such as Burkina Faso47 and the former systems of the Netherlands48 and Finland.49 The most striking consequence of the 1989 Hague Convention is unquestionably the fact that it served as a legal reference and a basis for reflection during the drafting of the European Regulation on successions adopted in 2012 and applicable to the succession of persons who died on or after 17 August 2015 (Art. 83.1).50 This Regulation seeks to promote the free movement of persons and the organisation in advance by citizens of their succession in the context of the European Union.51 It is part of a more general trend towards the unification of the European rules of conflict.52 This ground-breaking text brought together under the same 46 Although three ratifications were required for the Convention to enter into force (Art. 28.1), only the Netherlands ratified it in 1996. Switzerland signed the Convention, but did not ratify it. On this topic, see A.E. VON OVERBECK (note 32), p. 94. 47 Although the professio iuris in Burkinabe law is clearly inspired by the Hague Convention, its scope has been reduced, since the connecting factors are only considered tempore mortis (Art. 1044 of the Family Code of 16 November 1989). See A. BOYE, Le statut personnel dans le droit international privé des pays africains au sud du Sahara – Conceptions et solutions des conflits de lois – Le poids de la tradition négro-africaine personnaliste, Collected Courses of The Hague Academy of International Law, 238/1993, p. 358 et seq. 48 Dutch private international law incorporated the entire Convention text “by anticipation”, with the addition of specific Dutch rules. For further details, see M. CHARISIUS, Das niederländische International Privatrecht, Frankfurt am Main 2001, p. 247 et seq.; CH. ROODT, Party Autonomy in International Law of Successions: A Starting Point for a Global Consensus?, Tydskrif vir die Suid-Afrikaanse Reg, 2/2009, p. 245 et seq. 49 See A. BONOMI, in A. BONOMI/ P. WAUTELET (eds), Le droit européen des successions – Commentaire du Règlement n° 650/2012 du 4 juillet 2012, 2nd ed., Bruxelles 2016, § 5 ad Art. 22; CH. ROODT (note 48), p. 261. The former Finnish version of the professio iuris was characterised by the wide range of eligible laws, including the law of a previous domicile or the law applicable to the marital property regime (Chap. 26[6] Finnish Code of Inheritance, as amended in 2001). See S. ÁLVAREZ GONZÁLEZ, La professio iuris y la sucesión internacional en una futura reglamentación comunitaria, in P. GARCÍA RUBIO (ed.), Estudios jurídicos en memoria del Profesor José Manuel Lete del Río, Pamplona 2009, pp. 17-49, 29; E. VASSILAKAKIS, La professio juris dans les successions internationales, in Le droit international privé: esprit et méthodes, Paris 2005, pp. 803-816, 809. 50 For further details on the direct influence of the different Hague Conventions on the developments of European private international law in inheritance matters, see A. BONOMI, Conférence de La Haye et Union européenne – Synergies dans le domaine du droit des successions, in A Commitment to Private International, Cambridge/Anvers/ Portland 2013, p. 69-76, 69 et seq. 51 See ex multis N. WILLIMANN/ G. FOTIOU, Die europäische Erbrechtsverordnung aus Sicht der Schweiz, L’expert-comptable, 5/2015 p. 336. 52 E.g. see Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 343/10, 29.12.2010 and Regulation (EU) No 2016/1103 of 24 June 2016 implementing

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Olivier Gaillard aegis States whose conflict-of-law provisions in matters of succession were deemed irreconcilable.53 The Regulation incorporated several key ideas of Swiss law and of the 1989 Hague Convention, such as the use of a territorial criterion as the primary connecting factor, the principle of the unity of succession, the favour of the Gleichlauf and, finally, the adoption of the professio iuris.54 The habitual residence at the time of death is used as the connecting factor for the general jurisdiction of Member States (Art. 4)55 and for the determination of the objectively applicable law (Art. 21.1).56 In addition, the admission of the professio iuris has been enshrined in the Regulation, allowing the de cuius to choose as the law to govern her succession as a whole the law of the State whose nationality she possesses at the time of making the choice or at the time of death (Art. 22.1). The objectively and subjectively applicable laws may be that of a third State (erga omnes application; Art. 20). The introduction of party autonomy in inheritance matters, already contemplated in the first preliminary discussions,57 was an absolute novelty for many Member States, which had previously rejected such a mechanism in their national system.58 Some argue that the possibility for the de cuius to select one of her leges patriae was a concession made to the States that had adopted the nationality as the

enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183/1, 8.7.2016. 53 A. BONOMI (note 28), p. 66 et seq. For further details on the drafting process, see ex multis A. BONOMI (note 49), § 4 et seq. ad Introduction; S. ÁLVAREZ GONZÁLEZ (note 49), p. 33 et seq. 54 See Federal Council Dispatch of 13 March 2020 on the Modification of the Private International Law Act (Successions), FF 2020 3215-3256, p. 3220; A. BONOMI (note 49), § 34 et seq. ad Introduction. 55 The Regulation provides for several exceptions to this principle, including the possibility for the parties concerned to conclude a choice-of-court agreement (Art. 5 et seq.) or subsidiary jurisdictions when the habitual residence of the de cuius at the time of death is not located in a Member State (Art. 10). 56 An escape clause exists where “by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable” (Art. 21.2). 57 I. RODRÍGUEZ-URÍA SUÁREZ (note 17), p. 215 et seq.; S. ÁLVAREZ GONZÁLEZ (note 49), p. 33 et seq.; DEUTSCHES NOTARINSTITUT, Étude de droit comparé sur les règles de conflits de juridictions et de conflits de lois relatives aux testaments et successions dans les États membres de l’Union Européenne, in Les successions internationales dans l'UE, Würzburg 2004, p. 1-330, 69 et seq. and 102 et seq. 58 See A. BONOMI (note 49), § 6 ad Art. 22; Idem (note 30), p. 210; A. BORRÁS/ J.D. GONZÁLEZ CAMPOS, La loi nationale à l’heure de la réforme du droit international privé espagnol, in Le droit international privé: esprit et méthodes, Paris 2005, pp. 137-153, 152. See also the conclusions of the Advocate General Manuel CAMPOS SÁNCHEZ-BORDONA presented to the European Court of Justice on 26 March 2020 in the case E. E. (C-80/19; ECLI:EU:C:2020:230).

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The Professio Iuris in Swiss Private International Law objective connecting factor in their own conflict-of-law rules in the field of inheritance.59 Considering the successive steps of the worldwide evolution of the professio iuris, it is certainly not an overstatement to argue that the legal landscape of conflict of laws in matters of cross-border estates would have been quite different, if the Swiss Federal Assembly had not encountered so many difficulties in determining the appropriate connecting factor for intercantonal successions at the end of the 19th century. Currently, we are witnessing a phenomenon of reverse influence, as the European Regulation exercises in turn a direct and significant influence on the development of the professio iuris in Swiss private international law. 2.

The 2020 PILA Draft Law

The Swiss Parliament saw the implementation of the European Regulation as an opportunity to harmonise the Swiss inheritance conflict-of-law rules with many of the neighbouring States in this highly sensitive field of law, in order to reduce the occurrence of conflicts of jurisdiction and discrepancies in the applicable law.60 Aware of the benefits of integrating Switzerland into this common legal area, the Federal Council nevertheless from the outset ruled out the possibility of concluding an international convention with the European Union. Instead, the path of a unilateral and partial adaptation of the PILA rules was favoured.61 The European Regulation thus acted as both the catalyst and the guiding principle of the reform, especially as regards the professio iuris. The new PILA

59 M. PFEIFFER, Legal certainty and predictability in international succession law, in J. Priv. Int. Law, 2016, p. 578. For instance, the connecting factor of nationality has proven to be of the utmost importance for emigration States such as Greece, where it was sometimes seen as the “emigrants’ umbilical cord” (“ομφάλιος λώρος των ξενιτεμένων”) with the homeland. See Α. ΓΡΑΜΜΑΤΙΚΑΚΗ-ΑΛΕΞΙΟΥ/ Ζ. ΠΑΠΑΣΙΩΠΗ-ΠΑΣΙΑ/ Ε. ΒΑΣΙΛΑΚΑΚΗΣ [A. GRAMMATIKAKI-ALEXIOU/ Z. PAPASSIOPI-PASSIA/ E. VASSILAKAKIS], Ιδιωτικό διεθνές δίκαιο [Private International Law], Athens/Thessaloniki 2012, p. 35; O. GAILLARD, Les relations entre la Grèce et la Suisse en matière successorale: la Convention d'établissement et de protection juridique du 1er décembre 1927, RSDIE, 2016, p. 59; CH. KOHLER, Der Einfluss der Globalisierung auf die Wahl der Anknüpfungsmomente im Internationalen Familienrecht, in R. FREITAG/ S. LEIBLE/ H. SIPPEL/ U. WANITZEK (eds), Internationales Familienrecht für das 21. Jahrhundert, München 2006, pp. 9-27, 11 et seq. 60 See Motion 14.4285 filed by MP Luc RECORDON on 12 December 2014; Federal Council Dispatch 2020 (note 54), p. 3223; B. GRAHAM-SIEGENTHALER/ PH. EBERHARD, Entwicklungen und Tendenzen im Internationalen Erbrecht und die damit verbundenen Neuerungen im IPRG: Ein Überblick über die IPRG-Revision des 6. Kapitels, RSDIE, 2020, p. 374. 61 Explanatory Report of the Federal Office for Justice of January 2018, pp. 2 and 7; D. GIRSBERGER/ D. TRÜTEN, Entwicklungen im schweizerischen internationalen Privatrecht, Revue suisse de jurisprudence, 2018, p 109.

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Olivier Gaillard Draft Law was published on 13 March 2020 (hereinafter: DPILA)62 and is still under review at the time of writing.63 In contrast to the European Regulation, the draft law does not adopt the last habitual residence as the principal connecting factor, but keeps that of the last domicile as being more stable and consistent with other provisions of the PILA in related areas such as marital property regimes (Art. 52 et seq.).64 In order to respect the aforementioned principle of the Gleichlauf, the same factor continues to objectively determine the lex successionis.65 However, several changes have been made to the systematic structure of the provisions regarding applicable law. One of the most salient modifications is the creation of a general choice-of-law clause that is applicable regardless of the deceased’s last domicile (DPILA 91.1).66 What is striking is that this new version of the professio iuris specifically removes the two restrictions that had been imposed when the PILA was enacted. Thus, a multinational Swiss citizen may choose the law of another of her States of origin to govern her succession. Similarly, the subsequent acquisition of Swiss nationality does not affect the validity of a professio iuris. Furthermore, the choice of a national law does not lapse if, at the time of her death, the deceased no longer possesses such citizenship. On the contrary, a person may select the law of the nationality that she either possessed at the time of choice (tempore designationis or electionis) or at her death (tempore mortis). In the following sections, we will assess the appropriateness of these changes in the light of the objectives of the professio iuris, especially with regard to the de cuius domiciled in Switzerland who possesses at least one foreign nationality. The legal tools available to Swiss citizens domiciled abroad have been maintained and refined. For example, when designating the jurisdiction of Swiss authorities, the de cuius may decide to limit her professio fori not only to the entire portion of the estate located in Switzerland, as is currently allowed, but also to certain assets situated there, such as immovable property (DPILA 87.2).67 Moreover, the above-mentioned “counter-professio iuris” in favour of the substantive law of the State of the last domicile has been replaced by an opt-out system (DPILA 91.2), allowing the ordinary application of Swiss substantive law to be set aside in favour of the law designated by the conflict-of-law provisions of the State of the last domicile (DPILA 90.2).68 Similarly, a Swiss citizen domiciled abroad submitFF 2020 3257-3262. The National Council approved the draft law with minor changes to the German version of the text on 15 June 2021 (BO CN 2021 1336 et seq.). The Council of States has not yet taken a decision. 64 Explanatory Report (note 61), p. 11. 65 Thus, Art. 90.1 of the current PILA has remained unchanged; see Explanatory Report (note 61), p. 16. 66 Federal Council Dispatch of 2020 (note 54), p. 3236. 67 See Federal Council Dispatch of 2020 (note 54), p. 3230; B. DUTOIT/ A. BONOMI (note 29), § 10 ad LDIP 87. 68 See Federal Council Dispatch of 2020 (note 54), p. 3238; Explanatory Report (note 61), p. 22. However, in the event that the rule of conflict of the State of the last 62 63

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The Professio Iuris in Swiss Private International Law ting her succession or a portion thereof to Swiss law may specify that her professio iuris should not result in creating a forum in Switzerland (DPILA 87.2).69 Finally, the draft law includes new ways for the de cuius to exercise a greater influence, in terms of conflict of laws, on the settlement of her cross-border estate. First, a person may, by will or contract of succession, set aside Swiss jurisdiction for her entire succession or a portion thereof in favour of the authorities of one of the States of which she is a national,70 to the extent that such authorities deal with the estate (DPILA 88b.1).71 This new prerogative stems from a “bilateralisation” of the professio fori that can be used by Swiss citizens domiciled abroad under the current PILA (Art. 87.2).72 Since it derives from a purely domestic rule of conflict, it can only produce negative effects on the jurisdiction of Swiss authorities, to the exclusion of foreign authorities who remain free to ignore such choice of jurisdiction completely.73 Second, the draft law devises a completely new system for the identification of the law specifically applicable to the substantive validity of wills and contracts of succession,74 their construction, their effects, and their revocability or dissoludomicile refers back to Swiss private international law, the substantive succession rules of the foreign State of the last domicile will apply. For further details on this mechanism, which aims to avoid a “renvoi ad infinitum”, see B. DUTOIT/ A. BONOMI (note 29), § 6 et seq. ad LDIP 91; A. BONOMI, La révision du chapitre 6 LDIP: le droit applicable à la succession à défaut de choix et aux dispositions pour cause de mort, successio, 2019, p. 240 et seq. 69 See Explanatory Report (note 61), p. 15 et seq.; F. GUILLAUME (note 27), p. 233; P. PICHT/ G. STUDEN, Die Schweiz will ihre Rechtsregeln für grenzüberschreitende Erbfälle reformieren – Anpassung an die EU-Rechtslage, successio, 2016, p. 321. 70 Like with the new Art. 91.1, the de cuius must have the relevant nationality at the time of the designation or at her death. Moreover, a Swiss citizen may use this professio fori as long as she possesses at least one foreign nationality. See Federal Council Dispatch of 2020 (note 54), p. 3232 et seq.; G.-P. ROMANO (note 29), p. 218. 71 The testatrix may also designate the authorities of the State where immovable property is situated to deal with the said property (DPILA 88b.2). For further details on this mechanism, see G.-P. ROMANO (note 29), p. 207 et seq. 72 Federal Council Dispatch of 2020 (note 54), p. 3231 et seq.; Explanatory Report (note 61), p. 12 et seq.; B. DUTOIT/ A. BONOMI (note 29), § 18 et seq. ad LDIP 87. Such bilateralisation is already recommended de lege lata by several authors. See A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 17 ad IPRG 87 (under certain conditions); R. KÜNZLE (note 23), § 30 ad IPRG 87; J. KREN KOSTKIEWICZ, Schweizerisches Internationales Privatrecht, 2nd ed., Bern 2018, § 1740; G.-P. ROMANO, Remarks on the Impact of the Regulation No 650/2012 on the Swiss-EU Successions, in this Yearbook, 17/2015-2016, p. 269. Contra: A. BONOMI, Die geplante Revision des schweizerischen Internationalen Erbrechts: Erweiterte Gestaltungsmöglichkeiten und Koordination mit der Europäischen Erbrechtsverordnung, RSDIE, 2018, p. 162; A. BUCHER (note 23), § 3 ad LDIP 86. 73 See Federal Council Dispatch of 2020 (note 54), p. 3232; G.-P. ROMANO (note 29), p. 222. 74 The scope of the substantive validity includes inter alia the admissibility of the will or the contract of succession and the capacity of the person making the disposition of

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Olivier Gaillard tion, which is largely inspired by the European Regulation on succession (Art. 24 to 26). In this scheme, the objectively applicable law is that of the testatrix’ domicile at the time of drafting each of these documents. However, the draft law offers her two possibilities to set aside the objective law: either by a professio iuris in the same or in an earlier document, or by a newly designed choice of law in favour of one of her leges patriae (tempore designationis or tempore mortis), the effects of which are strictly limited to the above-mentioned elements of substantive validity of a will or a contract of succession, without affecting the lex successionis (DPILA 94 and 95).

III. Objectives and Limits of the Professio Iuris In this chapter, we will discuss the conceptual basis for the admissibility of the professio iuris in a given legal system. After defining the main distinctive features of this legal institution (A.), we will highlight its conflict-of-law objectives in the settlement of cross-border successions (B.). Finally, we will present and reject the theories that justify the adoption of a choice-of-law clause with substantive goals, such as the extension of the testamentary freedom of the de cuius (C.). In so doing, we will establish an evaluation grid that will allow us to assess, in the following section, the relevance of the modalities of the Swiss professio iuris de lege lata and its scheduled developments. A.

Distinctive Features of the Professio Iuris

The autonomy granted to the de cuius by the professio iuris is of a conflict-of-law nature. It means that a testatrix may displace the objectively or normally applicable law in its entirety, including its mandatory rules.75 In return, the counterparts of property upon death to make such a disposition (DPILA 95b.1). The disposable part (verfügbarer Teil; quotité disponible) is excluded expressis verbis from the scope of the substantive validity and thus remains governed by the law applicable to the succession according to DPILA 90 and 91. 75 A. BUCHER (note 23), § 16 ad LDIP 13-19; CH. KOHLER (note 41), p. 315; K. SIEHR, Rechtsangleichung im IPR durch nationale Kodifikationen, in W.A. STOFFEL/ P. VOLKEN (eds), Conflits et harmonisation, Fribourg 1990, pp. 205-243, 230 et seq. M. LEHMANN suggests describing such provisions as “relatively mandatory rules” (M. LEHMANN, Liberating the Individual from Battles between States: Justifying Party Autonomy in Conflict of Laws, Vand. J. Transnat’l L., 41/2008, p. 419 et seq.). On the other hand, NIBOYET, a fierce critic of party autonomy even in the field of contracts, speaks of a “hypertrophy of the will”, leading to an undesirable “degradation” of the mandatory rules (J.-P. NIBOYET, La théorie de l’autonomie de la volonté, Collected Courses of The Hague Academy of International Law, 16/1927, p. 13 et seq., 25 et seq. and 51 et seq.). See also J.N. SCHLOTTER, Erbrechtliche Probleme in der Société Privée Européenne – IPRHarmonisierung im einheitlichen Europäischen Rechtsraum, Frankfurt am Main 2002, p. 292.

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The Professio Iuris in Swiss Private International Law these rules in the chosen law (lex electa) become applicable.76 The concept of “autonomy” here takes on its full etymological meaning, that is to say the possibility to give oneself (αυτός) a law (νόμος). On the other hand, substantive autonomy only allows the de cuius to define the content of her last wishes within the strict framework of the mandatory rules of the law applicable to the succession, especially those regarding testamentary freedom and statutory shares. Some systems expressly provide for the direct incorporation, in the form of an expedient tool, of the substantive content of a given legal order, without modifying the lex successionis and its mandatory rules.77 The aforementioned Article 6 of the 1989 Hague Convention is an example of such a provision.78 In this sense, such rules are mere references to the material law and thus are not tantamount to a professio iuris stricto sensu.79 Secondly, the professio iuris is a unilateral prerogative of the de cuius, which is consistent with the systematics of the law of succession, especially as regards wills. The testatrix alone decides whether or not to make a choice of law. On the other hand, the consequences of this choice impact people, primarily the heirs, that have precisely no say in this process, except in multilateral legal instruments such as contracts of succession.80 This feature fundamentally distinguishes 76 J.M. FONTANELLAS MORELL (note 15), p. 196; B. DAUMILLER (note 15), p. 3; K. DREHER (note 16), p. 4; P. DE CESARI (note 30), p. 8; N. WATTÉ (note 44), p. 414; S. LINDE-RUDOLF (note 34), p. 15 et seq.; G. KÜHNE (note 33), p. 21; A. CURTI GIALDINO, La volonté des parties en droit international privé, Collected Courses of The Hague Academy of International Law, 137/1972, p. 762 et seq. 77 See J. KREN KOSTKIEWICZ (note 72), § 2233; S. LEIBLE, Parteiautonomie im IPR – Allgemeines Anknüpfungsprinzip oder Verlegenheitslösung?, in H.-P. MANSEL/ T. PFEIFFER/ H. KRONKE et al. (eds), Festschrift für Erik Jayme, München 2004, pp. 485503, 486; L.N. FRANKEL, Ratification of The Hague Conference on the Law Applicable to the Estates of Deceased Persons: Toward Uniformity in United States Estate Planning, N.Y.L. Sch. J. Int’l & Comp. L., 12/1990, p. 189 et seq.; D.W.M. WATERS (note 37), § 69 et seq. 78 See A. BONOMI (note 30), p. 201 and 206; J.M. FONTANELLAS MORELL (note 15), p. 164; B. DAUMILLER (note 15), p. 25. See also Art. 68 of the Romanian International Private Law Act of 22 September 1992, as well as Art. 6 and 15 of the Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition. 79 According to J.M. FONTANELLAS MORELL (note 15; p. 234 et seq.), such provisions should not even be considered as conflict-of-law rules stricto sensu. Nonetheless, several authors use the expression of professio iuris to describe these mechanisms. See e.g. A. BONOMI/ J. BERTHOLET (note 17), p. 378 et seq; M. GORÉ, “De la mode”… dans les successions internationales: contre les prétentions de la professio juris, in L’internationalisation du droit, Paris 1994, pp. 193-201, 194. 80 See R. SÜẞ, Das Internationale Pflichtteilsrecht, in J. MAYER/ R. SÜẞ/ M. TANCK et al. (eds), Handbuch Pflichtteilsrecht, 4th ed., Bonn 2017, p. 869-1014, § 26; L. ABADIE (note 16), p. 3; M.-E. MATHIEU, L’electio juris en droit international privé – Aperçu de droit comparé, Paris 1998, p. 8. For a few examples of mechanisms that consider the will of the heirs in the determination of the applicable law, see Art. 1 of the Nordic Convention of 19 November 1934 Regarding Inheritance and the Settlement of the Devolution of Property (in its former version before 1st September 2015) and the former Art. 46.3 of the Italian International Private Law Act n° 218/1995. For further details, see C. AZCÁRRAGA

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Olivier Gaillard the professio iuris in inheritance matters from choices of law in other legal fields, such as contracts or marital property regimes, which are agreements of the parties on the applicable law (pactum de lege utenda).81 Thirdly, the professio iuris is a legal act that must comply with the formal requirements for dispositions of property upon death (will or inheritance contract).82 However, it should be noted that, in practice, formal requirements rarely lead to the invalidity of a choice of law, given the widespread diffusion of the principle of the favor (validitatis) testamenti, materialised in Art. 1.1 of the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. Finally, the professio iuris is subject to limits of different natures. The conflict-of-law autonomy of the de cuius is not absolute in inheritance matters.83 It is widely recognised that the principle of proximity84 is an inherent limitation on choice-of-law clauses.85 The legislative power delimits, in an abstract and aprioristic manner, the range of eligible laws that may embody a “sufficient proximity” to the deceased and the estate.86 This means that the will of the de cuius per se may MONZONÍS, Sucesiones internacionales – Determinación de la norma aplicable, Valencia 2008, p. 67 et seq.; B. DAUMILLER (note 15), 193 et seq.; K. DREHER (note 16), p. 223 et seq.; P. DE CESARI (note 30), p. 219 et seq.; A. PHILIP, The Scandinavian Conventions on Private International Law, Collected Courses of The Hague Academy of International Law, 96/1959, p. 306 et seq. 81 See J. KREN KOSTKIEWICZ (note 72), § 720 and 2234; I. RODRÍGUEZ-URÍA SUÁREZ (note 17), p. 195 et seq.; J.M. FONTANELLAS MORELL (note 15), p. 206 et seq. and 218; V. BRULHART, Le choix de la loi applicable – questions choisies (avec une ébauche de réglementation de l’electio juris et quelques réflexions sur le rattachement des contrats d’assurance), Berne 2004, p. 360 et seq. 82 See J.M. FONTANELLAS MORELL (note 15), p. 218; L. ABADIE (note 16), p. 496 et seq.; G. KÜHNE (note 33), p. 108. Contra: see the more liberal approach of H. DÖLLE, Die Rechtswahl im internationalen Erbrecht, RabelsZ, 30/1966, p. 236 et seq. 83 On the other hand, party autonomy is often absolute in contract law, as most systems allow the parties to freely choose the applicable law irrespective of its connection with the contract. See ex multis P. DE VAREILLES-SOMMIÈRES, Autonomie et ordre public dans les Principes de La Haye sur le choix de la loi applicable aux contrats commerciaux internationaux, Clunet, 2016, p. 418 et seq. 84 On this principle, see P. LAGARDE, Le principe de proximité dans le droit international privé contemporain: cours général de droit international privé, Collected Courses of The Hague Academy of International Law, 196/1986, p. 9 et seq.; C. KESSEDJIAN, Le principe de proximité vingt ans après, in Le droit international privé: esprit et méthodes, Paris 2005, pp. 507-521, 507. 85 To our knowledge, no legal system has adopted a professio iuris without limitation as to the eligible laws (freie Rechtswahl). In favour of such a mechanism: K. DREHER (note 16), passim, in particular p. 54 et seq. and 130; H. DÖLLE (note 82), p. 234. 86 On the concept of sufficient proximity, see T. BALLARINO/ G.-P. ROMANO, Le principe de proximité chez Paul Lagarde – Quelques précisions et développements récents, in Le droit international privé: esprit et méthodes, Paris 2005, pp. 37-54, 44 and 51; T.M. DE BOER, Party autonomy and its limitations in the Rome II Regulation, in this Yearbook, 9/2007, p. 42 et seq.; A.E. VON OVERBECK (note 17), p. 1087.

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The Professio Iuris in Swiss Private International Law not create such a proximity.87 In addition, the scope of the professio iuris or some of its material effects may be limited, either by rules specifically incorporated in the choice-of-law clause or by general provisions of private international law, such as the reservation of public policy. B.

Conflict-of-Law Objectives of the Professio Iuris

1.

The Concretisation of the Principle of Proximity

In inheritance matters, civil law systems have historically struggled to select the connecting factor that reflects the closest connection between a person’s succession and a State,88 or, to express it in classical Savignyan terms, to find the “seat” (“Sitz”) of a succession according to its “inherent nature” (“eigenthümliche Natur”).89 Nationality, on the one hand, and a territorial factor (domicile or habitual residence), on the other, have alternately been favoured to designate the “proper law”,90 i.e., the one that best embodies the principle of proximity or one of its components, notably the cultural identity of the deceased.91 While the former factor has been largely predominant since the second half of the 19th century in European unitary legal systems, with the notable exception of Switzerland, a paradigm shift has gradually taken place in favour of the habitual residence in several Hague Conventions and, more recently, in the European Regulation on Successions.92 See J.M. FONTANELLAS MORELL (note 15), p. 199 et seq. and 203 et seq. J. KREN KOSTKIEWICZ (note 72), § 730; T. MARZAL YETANO, The Constitutionalisation of Party Autonomy in European Family Law, Journal of Private International Law, 6/2010, p. 155 (“longstanding and frustrating deadlock between different legal traditions over the most appropriate connecting factor”). 89 F.K. VON SAVIGNY, System des heutigen römischen Rechts, Vol. VIII, Berlin 1849, p. 108 et seq. See also P. GROLIMUND, “Materialisierung von Kollisionsrecht”, in P. GROLIMUND/ A. KOLLER/ L.D. LOACKER et al. (eds), Festschrift für Anton K. Schnyder, Zürich 2018, pp. 145-155, 147; C. KESSEDJIAN (note 84), p. 509 et seq.; P. LAGARDE (note 84), p. 38 and 59. 90 On this expression, which differs from the “proper [substantive] result”, see S.C. SYMEONIDES, Codifying Choice of Law Around the World – An International Comparative Analysis, Oxford 2014, p. 246 et seq. 91 On the notion of cultural identity and the evolution of its protection in private international law, see E. JAYME, Identité culturelle et intégration: le droit international privé postmoderne – Cours général de droit international privé, in Collected Courses of The Hague Academy of International Law, 251/1995, p. 9 et seq.; D. HENRICH, Parteiautonomie, Privatautonomie und kulturelle Identität, in H.-P. MANSEL/ T. PFEIFFER/ H. KRONKE et al. (eds), Festschrift für Erik Jayme, München 2004, pp. 321-329, 321 et seq. 92 See D. HENRICH, Abschied vom Staatsangehörigkeitsprinzip?, in G. HOHLOCH/ R. FRANK/ P. SCHLECHTRIEM (eds), Festschrift für Hans Stoll, Tübingen 2001, pp. 437-449, 437 et seq. The major shift towards the lex domicilii occurred with the Hague Convention of 15 June 1955 Relating to the Settlement of the Conflicts Between the Law of Nationality and the Law of Domicile (not yet in force) and the Hague Convention of 24 October 1956 on the Law Applicable to Maintenance Obligations Towards Children. However, the connecting factor of the nationality remains significant in several States, e.g. in systems of 87 88

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Olivier Gaillard Nationality is characterised by its stability throughout the life of the de cuius and the relative ease with which it can be ascertained, even years after her death.93 It is also less likely to be manipulated in order to influence indirectly the applicable law.94 A close connection between nationality and cultural identity can also be highlighted, specifically in a legal area as deeply rooted in a country’s culture and traditions as succession law.95 However, the systematic and in abstracto presumption of such a connection could be criticised as being a manifestation of legal reductionism, as state borders do not necessarily correspond to the boundaries of cultural groups present in the country, especially with some religious minorities.96 Moreover, nationality is not sufficient to determine the applicable law in the presence of a plurilegislative State, such as the United States, the United Kingdom, Spain, or several States of Islamic tradition.97 Finally, this connecting factor loses part of its effectiveness when the deceased possessed more than one nationality98 or, a fortiori, when she was a refugee or stateless.99

Islamic tradition or in Japan, where the principle of the lex patriae (本国法主義honkokuhou shugi) was kept when the Japanese Private International Law Act (法の適用に関する通則法 hou no tekiyou ni kansuru tsuusokuhou; literally the Act on General Rules for Application of Laws) was entirely revised in 2006. See 松岡 博 [MATSUOKA, Hiroshi], 国際関係私法入門 [Introduction to Private International Law], 4th ed., Japan 2019, p. 242 et seq. 93 J. KREN KOSTKIEWICZ (note 72), § 733 et seq.; A. BONOMI (note 30), p. 185; D. LEHMANN, Aktuelle Entwicklungen im Europäischen Internationalen Erb- und Erbverfahrensrecht, in W. RECHBERGER (ed.), Winfried-Kralik-Symposion 2006, Wien 2007, p. 117, 6 et seq. (“Blick in den Pass”); H. GAUDEMET-TALLON, Nationalité, statut personnel et droits de l’homme, in H.-P. MANSEL/ T. PFEIFFER/ H. KRONKE et al. (eds), Festschrift für Erik Jayme, München 2004, pp. 205-221, 207 et seq. 94 I. RODRÍGUEZ-URÍA SUÁREZ (note 17), p. 217; R. VANDER ELST, La loi nationale dans les Conventions de La Haye, Revue belge de droit international, 1991, p. 404 et seq. 95 E. JAYME, Zugehörigkeit und kulturelle Identität – Die Sicht des Internationalen Privatrechts, Göttingen 2012, pp. 10 and 24 et seq. 96 A. BÜCHLER, Islamic Law in Europe? Legal Pluralism and its Limits in European Family Laws, United Kingdom 2011, p. 32 et seq. and 131; D. HENRICH (note 91), pp. 323 and 328 et seq.; E. JAYME (note 91), p. 171 et seq. 97 P. QUINZÁ REDONDO, Regulation (EU) 650/2012 and Territorial Conflicts of Laws in Spain, in J.M. SCHERPE/ E. BERGELLI (eds), The Interaction between Family Law, Succession Law, and Private International Law, Cambridge/Anvers/Chicago 2021, pp. 212230, 216 et seq.; O. GAILLARD, Les droits des successions musulmans et leur application par le juge suisse, in F. BERNARD/ E. MCGREGOR/ D. VALLÉE-GRISEL (eds), Études en l’honneur de Tristan Zimmermann, Genève 2017, pp. 73-92, 76; A. BONOMI (note 49), § 3 and 9 ad Art. 36 to 38. 98 J. KREN KOSTKIEWICZ (note 72), § 736; B. JUD, Die kollisionsrechtliche Anknüpfungsverlegenheit im Erbrecht – Rechtswahl als Ausweg?, in W.H. RECHBERGER (ed.), Winfried-Kralik-Symposion 2006, Wien 2007, pp. 19-35, 27. 99 In the latter cases, nationality is frequently replaced by the State of domicile. See Art. 12.1 of the 1951 Refugee Convention and Art. 12.1 of the 1954 Convention relating to the Status of Stateless Persons; J. KREN KOSTKIEWICZ (note 72), § 702 et seq. and 736.

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The Professio Iuris in Swiss Private International Law On the other hand, territorial connecting factors such as the domicile and the habitual residence consider the actual centre of life of the de cuius, which includes her social, family and professional relationships.100 In addition, the majority of her assets is frequently located in the State where she lives.101 In most cases, the application of the lex domicilii allows the competent authorities to apply their own law (Gleichlauf) to the settlement of the successions of all the inhabitants of the same country, thus promoting integration and equality.102 This aspect notwithstanding, territorial criteria do not systematically embody the principle of proximity, even less from the perspective of cultural identity. This is the case when the de cuius change her domicile shortly before her death or if she does so for professional reasons with the intention of returning, in the more or less long term, to her country of origin.103 Unlike the factor of nationality, domicile or habitual residence are protean concepts, the definition of which is likely to vary from State to State.104 They also lack stability105 and are more susceptible to fraudulent manipulations to influence indirectly the applicable law.106 Finally, the systematic application by the authorities of their own law, in addition to being detrimental in terms of international uniformity of the applicable law,107 may be seen as akin to an inward-looking attitude (Heimwärtsstreben), sometimes ironically referred to as “lex forism”.108 The hesitations as to which connecting factor is more appropriate in inheritance matters can thus be explained by the complementarity of the pros and cons 100 See G.A. CAPAUL, Zum Anknüpfungszeitpunkt im internationalen Erbrecht, in P. GROLIMUND/ A. KOLLER/ L.D. LOACKER et al. (eds), Festschrift für Anton K. Schnyder, Zürich 2018, p. 49-62, 61 (“Umweltrecht”); CH. KOHLER (note 59), p. 13 (“Schwerpunkt der Lebensverhältnisse”). 101 See A. BONOMI (note 49), §4 ad Art. 4 and § 8 ad Art. 21; T. PFEIFFER (note 59), p. 571 et seq. 102 See P. GROLIMUND (note 89), p. 148; J. KREN KOSTKIEWICZ (note 72), § 737; S.C. SYMEONIDES (note 90), p. 329 et seq. 103 J.M. FONTANELLAS MORELL (note 15), p. 205 et seq.; B. JUD (note 98), p. 23 et seq. and 34 et seq. 104 R. VANDER ELST (note 94), p. 405 et seq. In particular, the notion of domicile differs between civil law and common law jurisdictions. See ex multis R. SÜẞ, Länderübersicht, in J. MAYER/ R. SÜẞ/ M. TANCK et al. (eds), Handbuch Pflichtteilsrecht, 4th ed., Bonn 2017, pp. 1015-1175, § 566; A. Briggs, Private international law in English courts, Oxford 2014, § 9.238 et seq. 105 G.A. CAPAUL (note 100), p. 51 et seq.; A. BONOMI (note 30), p. 182 et seq. 106 A. BONOMI (note 30), p. 194; C.S. BRUCH, The Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons: Do Quasi-Community Property and Mandatory Survivorship Laws Need Protection?, Law Contemp. Probl., 56/1993, p. 315. 107 P. CARLIER, L’utilisation de la lex fori dans la résolution des conflits de lois, Lille 2008, § 958; P. GANAGÉ, Les limites à l’application de la loi du for dans le droit international privé contemporain, in Mélanges offerts à Albert Chavanne, Paris 1990, pp. 2-10, 11. 108 See H. KRONKE, Most Significant Relationship, Governmental Interests, Cultural Identity, Integration: “Rules” at Will and the Case for Principles of Conflict of Laws, in H.-P. MANSEL/ T. PFEIFFER/ H. KRONKE et al. (eds), Festschrift für Erik Jayme, München 2004, pp. 461-470, 470; S.C. SYMEONIDES (note 90), p. 340 (“parochialism”).

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Olivier Gaillard of each criterion109 and the difficulty of integrating into the rigidity of a classic conflict-of-law rule an adequate consideration of the specific circumstances of a case.110 In the absence of a “miracle” one-size-fits-all connecting factor,111 several solutions have been contemplated to ensure a more individualised identification of the principle of proximity. It is possible to introduce directly into the conflict-oflaw rule a temporal variable related to the duration of the domicile or habitual residence of the de cuius in a given State. This is the approach taken by the aforementioned Art. 3 of the 1989 Hague Convention, with a change in the connecting factor after the de cuius’ five-year residence in a State that is not her country of origin. This provision has been criticised as impractical, if not incomprehensible.112 Its application would require that the dies a quo of the new habitual residence be identified precisely years later. Moreover, it is imaginable that the shift in the connecting factor occurs without the de cuius being aware of it, even though it affects the law applicable to her succession and, potentially, the validity of her estate planning. Finally, the choice of a five-year period was made in abstracto and may not correspond to the de cuius’ concrete social integration in the State of her habitual residence.113 In this context, the professio iuris entrusts the person concerned with the task of determining for herself, within the predefined framework of the law, the legal system that best corresponds to her conception of proximity and cultural identity.114 In so doing, this legal institution combines a more individualised application of the conflict-of-law rules with an improvement in legal certainty, since the testatrix herself initiates the change in the connecting factor. It is thus a tool that accommodates both flexibility and legal certainty.115 In this sense, the professio 109 See T. MARZAL YETANO (note 88), p. 155 (“two equally significant connecting factors”); A. BONOMI (note 30), p. 187; B. DAUMILLER (note 15), p. 40; G. KÜHNE (note 33), p. 63 (“Argumentationsgleichgewicht”). 110 See T. BALLARINO/ G.-P. ROMANO (note 86), p. 41; T. PFEIFFER (note 59), p. 567; A. BUCHER (note 23), § 2 ad LDIP 13-19; CH. KOHLER (note 59), p. 14; H. LI (note 44), p. 90 et seq. 111 See P. GROLIMUND (note 89), p. 146; I. RODRÍGUEZ-URÍA SUÁREZ (note 17), p. 200 et seq.; P. CARLIER (note 107), § 846; A.-S. PAPEIL, Doit-on laisser la possibilité au futur de cujus de choisir la loi applicable à sa succession?, successio, 2007, p. 122, 112 See J. SCHOENBLUM (note 37), p. 84 et seq. and 124 (“too much emphasis was placed on compromises at the expense of a sound choice of law approach”); Y. LEQUETTE, De l’utilitarisme dans le droit international privé conventionnel de la famille, in L’internationalisation du droit, Paris 1994, pp. 245-263, 245 et seq. (“des règles dont la sophistication confine parfois à l’ésotérisme”). 113 See A. BONOMI (note 30), p. 188 et seq.; B. JUD (note 98), p. 35; T. BRANDI (note 39), p. 97. 114 See A. BONOMI (note 30), p. 214; J.M. FONTANELLAS MORELL (note 15), p. 251; S. ÁLVAREZ GONZÁLEZ (note 49), p. 19 et seq.; E. VASSILAKAKIS (note 49), p. 812; F. STURM, Die Parteiautonomie im schweizerischen IPR-Gesetz, in W.J. HABSCHEID/ H.-J. HOFFMANN-NOWOTNY/ W. LINDER et al. (eds), Freiheit und Zwang, Bern 1989, pp. 673-694, 657 et seq. 115 See T. PFEIFFER (note 59), p. 577; A. BÜCHLER (note 96), p. 38 et seq.; B. DAUMILLER (note 15), p. 47; G. KÜHNE (note 17), p. 407.

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The Professio Iuris in Swiss Private International Law iuris has been described as a loophole (“Verlegenheitslösung”)116 that transcends, as a compromise, the age-old conundrum between nationality and domicile or habitual residence.117 This specificity can also be of great help when drafting an international instrument, as it can be a means of reconciling the different legal traditions of future member States.118 Some authors have nonetheless criticised this approach as an “open admission of failure”119 of the legislative power or as a “stopgap solution”.120 We consider, on the contrary, that granting a conflict-of-law function to the de cuius is a sign of maturity of the legislator, who thus acknowledges the inherent limits of the objective determination of the lex hereditatis.121 2.

Other Advantages in the Settlement of a Cross-Border Succession

In addition to a better implementation of the principle of proximity, several features of the professio iuris can improve the settlement of a cross-border succession and thus reduce the likelihood of international disputes, which benefits all parties concerned. One of the primary objectives of private international law is to avoid discrepancies in the law applicable to a cross-border case. The search for this international decision harmony (Entscheidungsharmonie) presupposes the adoption of the same connecting factor(s) by all the States involved.122 If different connecting factors are used, the de cuius may be in a paradoxical situation, where she cannot know the law applicable to her own succession, including its mandatory rules, she must abide by in her estate planning, before an authority is effectively seised after her death.123 Moreover, heirs may be tempted to 116 See A. DAVÌ, L’autonomie de la volonté en droit international privé des successions dans la perspective d’une future règlementation européenne, in DEUTSCHES NOTARINSTITUT, Les successions internationales dans l’UE, Würzbourg 2004, pp. 387-410, 387 et seq.; K. DREHER (note 16), p. 67; G. KÜHNE (note 33), pp. 33 et 64 et seq. 117 See I. RODRÍGUEZ-URÍA SUÁREZ (note 17), p. 190 et seq.; A. BONOMI (note 30), p.198 et seq.; J.M. FONTANELLAS MORELL (note 15), p. 251; L. ABADIE (note 16), pp. 198 et seq. and 249 et seq.; B. DAUMILLER (note 15), p. 41; A.E. VON OVERBECK (note 17), p. 1092. 118 T. PFEIFFER (note 59), p. 567; G.-P. ROMANO, L’unilateralismo nel diritto internazionale privato moderno, Zurigo 2014, p. 703 et seq. 119 See M. LEHMANN (note 75), p. 394. 120 See K. SIEHR, Die Parteiautonomie im Internationalen Privatrecht, in P. FORTMOSER/ M. KELLER (eds), Festschrift für Max Keller, Zürich 1989, pp. 485-510, 498. 121 See also B. SCHINKELS, Das internationalprivatrechtliche Interesse – Gedanken zur Zweckmäßigkeit eines Begriffs, in H. KRONKE/ K. THORN (eds), Grenzen überwinden – Prinzipien bewahren, Bielefeld 2011, pp. 390-404, 395 et seq.; S. LEIBLE, Parteiautonomie im IPR – Allgemeines Anknüpfungsprinzip oder Verlegenheitslösung?, in H.-P. MANSEL/ T. PFEIFFER/ H. KRONKE et al. (eds), Festschrift für Erik Jayme, München 2004, pp. 485503, 488. 122 A. BUCHER (note 23), § 3 ad LDIP 13-19; B. DAUMILLER (note 15), p. 42. 123 G.-P. ROMANO, Successions internationales et (sémi-)loi fédérale sur le droit international privé: quelques défis, RSDIE, 2018, p. 204 et seq.

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Olivier Gaillard take advantage of this discrepancy to seise, shortly after the de cuius’ death, the court that would apply the substantive law that would be the most advantageous to them. This race to the forum may unduly favour one heir who is the quickest or has the most financial means.124 Conversely, if international harmony is achieved, the parties to a potential dispute know the connecting factor that will determine the applicable law, without first having to consider in concrete terms the authorities that might be seised. The resulting “dejudicialisation” undoubtedly create a more suitable environment for peaceful family discussions.125 Considering that the universal adoption of an international convention on the law applicable to successions seems unrealistic, as shown by the failure of the 1989 Hague Convention, the professio iuris may make it possible, depending on the circumstances, to establish uniformity as to the applicable connecting factor that would not be achieved spontaneously. For instance, if the de cuius’ country of origin applies the lex patriae, but the State of her domicile adopts the principle of the lex domicilii but admits the professio iuris, the testatrix can create uniformity by electing her national law, even if her State of origin does not recognise this legal institution.126 Nonetheless, as long as the regulation of the professio iuris is provided for in a purely national law, its harmonising function can only be limited, especially if some of the States involved ignore this legal institution or do not recognise its effects.127 Moreover, the risk of forum shopping does not disappear completely, even if the different competent States apply the same connecting factor. Several differences may still exist, for instance as regards the administration of the estate and the application of escape clauses or of the public policy clause.128 Finally, the onerous task of using the professio iuris wisely falls to the sole de cuius, who must be cautious not to disrupt a harmonious stituation that would have been achieved with the objectively applicable law.129

124 G.-P. ROMANO (note 29), p. 212 et seq.; A. SCHWARTZE, Internationales Forum Shopping mit Blick auf das günstigste Sachrecht, in H. KRONKE/ K. THORN (eds), Grenzen überwinden – Prinzipien bewahren, Bielefeld 2011, pp. 415-423, 415; P. LAGARDE, Développements futurs du droit international privé dans une Europe en voie d’unification: quelques conjectures, RabelsZ, 68/2004, p. 230 et seq. 125 G.-P. ROMANO, Souveraineté “mono-nationale”, relations humaines “transterritoriales” et “humanisation” du droit international privé: libres propos », in Le droit à l'épreuve des siècles et des frontières, Paris 2018, pp. 1415-1438, 1415 et seq.; Idem (note 123), p. 207 et seq.; G. KÜHNE (note 17), p. 407. 126 A. BONOMI (note 30), p. 211 et seq. For other examples, see J.M. FONTANELLAS MORELL (note 15), p. 258; B. DAUMILLER (note 15), p. 43. 127 S.C. SYMEONIDES (note 90), p. 341 et seq. For such examples, see A.-S. PAPEIL (note 111), p. 123; A. BONOMI, Autonomie des parties en droit patrimonial de la famille et intérêt des entrepreneurs: aspects de droit matériel et de droit international privé, RSDIE, 2004, p. 476 et seq.; B. DAUMILLER (note 15), p. 52. 128 See A. SCHWARTZE (note 124), p. 415 et seq. 129 G.-P. ROMANO (note 123), p. 205 et seq.; A. BONOMI (note 30), p. 213.

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The Professio Iuris in Swiss Private International Law It is important to note that even when international harmony is accomplished, only the relevant connecting factor is known, and not the substantive law that will actually be applied to the succession. This is especially true when the decisive moment for assessing the factor is the time of death, e.g. the last domicile of the deceased. In this case, the identification of the concretely applicable lex hereditatis is “floating”130 until the death of the de cuius, as she might have transferred her domicile several times in the meantime. In terms of predictability, which is an essential element for the de cuius to deal with her estate planning in compliance with the relevant mandatory rules, it is more efficient not to assess the connecting factor tempore mortis, but at the time of the choice of law.131 As a result, the professio iuris not only makes it possible to ascertain immediately the applicable law, but also makes it immune to any subsequent modification of the relevant criterion. The long-term validity of the succession planning is thus strengthened.132 However, it should be noted that the stability of such designations does not extend to the substantive provisions of the applicable law, which remain subject to fluctuation between the professio iuris and the time of death.133 Finally, the professio iuris also plays a role in achieving the internal decision harmony (innerer Entscheidungseinklang). The first case of internal harmony relates to the relationship between the succession and related matters, such as the division of the marital property of the deceased, which will determine which assets make up the estate. Many legal systems provide for a global settlement of these two areas, such that, for example, the matrimonial regime has a direct influence on the inheritance share of the surviving spouse.134 If the two legal areas are governed J. KREN KOSTKIEWICZ (note 72), § 758 (“in der Schwebe”). To our knowledge, the use of a connecting factor that occurred before the time of the designation may only be found in the above-mentioned former Finnish conflict-of-law rules (Chap. 26[6] Code of Inheritance, as amended in 2001), with the admission of the choice of the law of the State where the de cuius was previously domiciled; B. JUD (note 98), p. 26. 132 A. BONOMI (note 49), § 28 ad Art. 22; M. GORÉ, La professio juris, Defrénois, 2012, p. 763; J.M. FONTANELLAS MORELL (note 15), pp. 239, 266, 289 and 304; L. ABADIE (note 16), p. 132 et seq.; B. DAUMILLER (note 15), p. 89 et seq. 133 P. DE VAREILLES-SOMMIÈRES (note 83), p. 436 et seq.; J.M. FONTANELLAS MORELL (note 15), p. 266 et seq.; L. ABADIE (note 16), p. 139 et seq. For further details on the impossibility for the de cuius to use a stabilisation clause (Stabilisierungsklausel or Arretierungsklausel), which are used particularly in investment contracts, see I. SCHWANDER, Rechtswahl im Spannungsfeld zwischen Kollisionsrecht und Sachrecht, in A. BÜCHLER/ M. MÜLLER-CHEN (eds), Private Law: national – global – comparative, Bern 2011, pp. 1581-1591, 1585 et seq.; V. BRULHART (note 81), p. 256 et seq.; K.P. HOTZ (note 15), p. 124. 134 For a commonly cited example, see § 1371.1 of the German Civil Code (Bürgerliches Gesetzbuch). The qualification of this provision was controversial until a 2018 ruling by the European Court of Justice; see CJEU, 1 March 2018, Mahnkopf, ECLI:EU:C:2018:138; R. MAGNUS, A German Perspective on the Impact of EU Private International Law on National Succession Law, in J.M. SCHERPE/ E. BERGELLI (eds), The Interaction between Family Law, Succession Law, and Private International Law – Adapting to Change, Cambridge/Anvers/ Chicago 2021, pp. 181-192, 182 et seq. 130 131

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Olivier Gaillard by different laws, there is a risk that each system loses the internal consistency of its provisions, which may result in an excess (Normenhäufung) or a lack of protection (Normenmangel or Normenlücke) for the surviving spouse.135 Similarly, a discrepancy between the law applicable to the trust and the lex hereditatis may cause disputes as to their interaction with each other, particularly as regards the abatement of the trust’s assets to protect indefeasible shares of the spouse or other relatives of the deceased (art. 15.1.c of the 1985 Hague Trust Convention).136 In such cases, the professio iuris may, depending on the circumstances, help to avoid any difficulties with the coordination between the settlement of the succession and the related areas by ensuring that they are all subject, as far as possible, to the law of the same State.137 The second category of internal harmony relates to the interaction of the various succession issues, such as the formal requirements of testamentary dispositions, the legal capacity to make them, their substantive validity, the conservatory measures or the administration of the estate. The law applicable to these questions is sometimes governed by a specific connecting factor (Sondernanknüpfung) which differs from that which determines the lex hereditatis. In such cases, there is a risk that coordination or coherence problems arise. We will see in our analysis of Swiss private international law that the impact of the professio iuris on this matter is more ambiguous. C.

Absence of Substantive Objectives

The admission of the institution of the professio iuris relies on many theoretical foundations and practical advantages of a conflict-of-law nature, which are virtually uncontested.138 The implication of substantive elements, however, is more controversial. Several authors consider that the conflict-of-law autonomy conferred by the professio iuris is an “extension” of the testamentary freedom that the testatrix enjoys on the substantive level.139 To justify this standpoint, some draw a parallel J. KREN KOSTKIEWICZ (note 72), § 822 et seq.; R. SÜẞ (note 80), § 174 et seq. and § 249 et seq.; A. BONOMI, Autonomie des parties en droit patrimonial de la famille et intérêt des entrepreneurs: aspects de droit matériel et de droit international privé, RSDIE, 2004, p. 465 et seq. 136 On this question, see ex multis R. CINCELLI, Der Common Law Trust: Grundlagen, rechtsvergleichende Entwicklung und Rezeptionsmöglichkeiten aus Sicht der Schweiz, Zürich 2017, § 777 et seq. 137 See A. BONOMI (note 49), § 38 ad Art. 22; CH. KOHLER (note 41), p. 443; J.M. FONTANELLAS MORELL (note 15), p. 260 et seq.; L. ABADIE (note 16), p. 190 et seq. 138 To use the expression of J.M. FONTANELLAS MORELL (note 15, pp. 272 and 301), the professio iuris is “irreproachable” (“intachable”) from a conflict-of-law point of view. 139 T. PFEIFFER (note 59), p. 577; E. VASSILAKAKIS (note 49), p. 812; O. HARTENSTEIN, Die Privatautonomie im Internationalen Privatrecht als Störung des europäischen Entscheidungseinklang, Tübingen 2000 p. 14; K. DREHER (note 16), p. 34 et seq.; M.-E. MATHIEU (note 80), p. 241. J.M. FONTANELLAS MORELL (note 15) goes even further by saying that the substantive testamentary freedom is the “ultimate foundation” 135

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The Professio Iuris in Swiss Private International Law with the choice of law in contract law,140 where the connection between substantive and conflict-of-law freedom is widely recognised.141 In our opinion, there are several arguments against making a direct analogy between succession law and contract law.142 First, contrary to the professio iuris, choice-of-law clauses in a contract are, by nature, multilateral. Moreover, their effects can be limited or even dismissed whenever they implicate a third party.143 Second, the multiplicity and nature of the mandatory rules, as well as their homogeneity worldwide, differ diametrically between these two legal areas.144 In addition, a logical argument, in the form of a circular reasoning, counters the theory of conflict-of-law autonomy being an emanation of testamentary freedom, since it is the former which determines the lex hereditatis, the provisions of which determine in turn the scope of the latter.145 Finally, there are many instances in positive law that corroborate the independence of these two elements. While state succession laws in the United States are characterised by a very high degree of testamentary freedom, in particular with respect to the descendants of the deceased,146 the few state conflict systems that have adopted a professio iuris did so (“fundamento último”) of the professio iuris. See also CH. ROODT (note 48), p. 261 (“Substantive law is the real sponsor of the evolution of party autonomy in conflict of laws.”); H. LI (note 44), p. 89 et seq. (“[W]ithout the power of choosing the law applicable to his succession in private international law, his liberty of testament under the substantive law of succession cannot be exercised to the full extent.”). 140 See F. STURM, Parteiautonomie als bestimmender Faktor im internationalen Familien- und Erbrecht, in D. BICKEL/ W. HADDING/ V. JAHNKE et al. (eds), Recht und Rechtserkenntnis, Köln/Berlin/Bonn/München 1985, p. 637-658, 653 and 658; K.P. HOTZ (note 15), p. 107; A.E. VON OVERBECK (note 17), p. 1096; H. DÖLLE (note 82), p. 221 et seq. 141 See J. KREN KOSTKIEWICZ (note 72), § 2232 (“Spiegelbild der materiellen Privatautonomie”); C.I. NAGY, What Functions May Party Autonomy Have in International Family and Succession Law? An EU Perspective, Nederlands Internationaal Privaatrecht, 4/2012, p. 578 (“projection of the autonomy enjoyed under substantive law”); J. BASEDOW, Theorie der Rechtswahl oder Parteiautonomie als Grundlage der Internationalen Privatrechts, RabelsZ, 75/2011, p. 58 et seq.; H. MUIR WATT, “Party Autonomy” in international contracts: from the makings of a myth to the requirements of global governance, Eur. Rev. Contract Law, 2010, p. 257 (“mirror image”). 142 See also B. JUD (note 98), p. 29; J.N. SCHLOTTER (note 75), p. 294; D. EINSELE, Rechtswahlfreiheit im Internationalen Privatrecht, RabelsZ, 60/1996, p. 421 et seq.; T. BRANDI (note 39), p. 264. 143 See A. BONOMI (note 30), p. 217; M. LEHMANN (note 75), p. 423; J. BASEDOW, Das Internationale Privatrecht in der Zeit der Globalisierung, in G. HOHLOCH/ R. FRANK/ P. SCHLECHTRIEM (eds), Festschrift für Hans Stoll, Tübingen 2001, pp. 405-416, 413; D. EINSELE (note 142), p. 446. For concrete examples in Swiss law, see PILA 57.1 (marital property regime) and PILA 116.3 (contract law). 144 C.I. NAGY (note 141), p. 578 et seq.; G.A.L DROZ, Regards sur le droit international privé comparé, Collected Courses of The Hague Academy of International Law, 229/1991, p. 253; G. KÜHNE (note 17), p. 406; K.P. HOTZ (note 15), p. 101. 145 See B. JUD (note 98), p. 28; B. DAUMILLER (note 15), p. 50; M. GORÉ (note 79), p. 195 et seq.; CH. KOHLER (note 41), 458. 146 Louisiana state law is a notable exception, with the existence of a forced share (legitime) in favour of the descendants of the first degree who, at the time of the death of the

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Olivier Gaillard in a very restrictive manner.147 On the other end of the spectrum, Swiss law provides for numerous restrictions on substantive testamentary freedom, in particular with regard to the share to which the descendants are entitled, even if this protection will be reduced as of 1st January 2023 pursuant to the current reform.148 However, as we have shown above, this country was at the origin of the very principle of the professio iuris. Given that the professio iuris cannot be construed as a conflict-of-law projection of substantive testamentary freedom,149 we must ask whether the admission of this institution can, conversely, be motivated to achieve a material purpose. The structure of a choice-of-law clause that is available to one party only is indeed a mechanism often used to favour the weaker party (favor debilis) in a legal relationship by letting her choose the substantive law that she deems most advantageous for her.150 Consequently, several authors consider that the admission of the professio iuris in a given legal system is mainly intended to grant the de cuius a wider testamentary freedom than that which she enjoys under the objectively applicable law.151 Therefore, a choice-of-law clause would “reflect a societal substantive choice in favour of testamentary freedom at the expense of other substantive succession policies, such as protecting heirs.”152 We are, however, of the opinion that such a material-oriented approach to the professio iuris would amount to justifying “reverse discrimination” against the

decedent, are no older than twenty-three years of age, or those who suffer from mental incapacity or physical infirmity. See Art. XII §5(B) of the Louisiana Constitution and Art. 1493 et seq. of the Louisiana Civil Code. For further details, see O. GAILLARD, La protection de la réserve héréditaire des descendants à l’aune de l’ordre public, in P. PICHONNAZ (ed.), Le législateur, son juge et la mise en œuvre du droit, Genève/Zurich/Bâle 2014, pp. 281309, 299; L. WOLFF, Pflichtteilsrecht – Forced Heirship – Family Provision. Österreich – Louisiana – Schweiz – England und Wales, Frankfurt am Main 2011, p. 103 et seq. and 118 et seq. 147 For example, in the State of New York, only local law is eligible and only for immovables situated in this State. See § 3-5.1(h) New York Estates, Powers and Trusts Law (NYEPTL); O. GAILLARD (note *), § 241 and 609; R. SÜẞ (note 104), § 611; J.M. FONTANELLAS MORELL (note 15), p. 149 et seq.; B. DAUMILLER (note 15), p. 15 et seq. 148 RO 2021 312 et seq. 149 See also L. ABADIE (note 16), p. 55 et seq.; J.N. SCHLOTTER (note 75), p. 292 et seq.; P. KEMP (note 16), p. 40 et seq. 150 See for example PILA 135.1 (product liability), 138 (nuisances) and 139.1 (infringment of personality rights by the media). 151 S. ÁLVAREZ GONZÁLEZ, Las legítimas en el reglamento sobre sucesiones y testamentos, Anuario Español de Derecho Internacional Privado, 2011, p. 380 et seq.; A. BUCHER (note 23), § 6 ad LDIP 90; J.M. FONTANELLAS MORELL (note 15), p. 296; E. VASSILAKAKIS (note 49), p. 813; J.D. GONZÁLEZ CAMPOS, Diversification, spécialisation, flexibilisation et matérialisation des règles de droit international privé, Collected Courses of The Hague Academy of International Law, 287/2000, p. 257 et seq. and 316 et seq.; P. DE CESARI (note 30), p. 115; P. DE PREUX (note 6), p. 58 et seq.; K.P. HOTZ (note 15), p. 63 et seq. 152 S.C. SYMEONIDES (note 90), p. 272.

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The Professio Iuris in Swiss Private International Law deceased possessing only the nationality of the forum.153 In a purely domestic succession, the de cuius is indeed necessarily subject to the straitjacket of the mandatory rules of the objectively applicable law, whereas in international estates she is able to set it aside freely. If a legislator considers its own succession rules to be too rigid, or even obsolete, it should first act on the substantive provisions and not on the conflict-of-law rules.154 Moreover, it would not be appropriate to describe the de cuius as the weaker party,155 since the balance of decisional power as to the distribution of her assets upon death irretrievably tilts in her favour, to the exclusion of her heirs or creditors. Finally, mechanisms other than the limited conflictof-law autonomy conferred by the professio iuris would be better suited for an extension of the material testamentary freedom, such as a choice-of-law clause with no restriction as to the eligible laws, or alternative connecting factors that would enable the judge to determine in hindsight which succession law would best ensure the effectiveness of the testamentary provisions of the de cuius. Consequently, we are of the opinion that the foundations and objectives of the professio iuris are only to be found at the conflict-of-law level.156 However, this conclusion does not mean that this mechanism has no material implication. On the contrary, by granting a unilateral conflict-of-law prerogative to the de cuius, the legislator disturbs the balance struck, in each legal order involved, among the material interests relating to a succession, which are, by definition, opposed to each other. For some authors, this disruption is the consequence of the “conceptual inconsistency” of a choice-of-law clause in a succession context.157 This phenomenon is exacerbated by the fact that, in the vast majority of cases, the testatrix who uses the professio iuris is, as a rule, oblivious to the conflict-of-law objectives of this mechanism, but wishes to avoid the mandatory rules of the otherwise governing law in order to achieve more efficiently her wishes as to the distribution of her estate.158 In this context, the protection of the statutory shares and the implementation of limits to mitigate the undesirable material consequences of the professio iuris have been the bone of contention for its acceptance and the formulation of its modalities.159 153 See P. BREITSCHMID/ Ü. CIBIK (note 18), p. 463 (“Inländerdiskriminierung”); A. BÜCHLER (note 96), p. 27; D. HENRICH (note 91), p. 328 et seq. 154 See also J.N. SCHLOTTER (note 75), p. 293. 155 For such a contention, see J.M. FONTANELLAS MORELL (note 15), p. 282; H. HANISCH, Professio iuris, réserve légale und Pflichtteil, in B. DUTOIT/ J. HOFSTETTER/ P. PIOTET (eds), Mélanges Guy Flattet, Lausanne 1985, pp. 473-489, 480. 156 See also P. BREITSCHMID/ Ü. CIBIK (note 18), p. 466; B. DAUMILLER (note 15), p. 50; G. KÜHNE, Die Parteiautonomie zwischen kollisionsrechtlicher und materiellrechtlicher Gerechtigkeit, in H. KRÜGER/ H.-P. MANSEL (eds), Liber amicorum Gerhard Kegel, München 2002, pp. 65-82, 71 and 81 et seq.; C.S. BRUCH (note 106), pp. 316 and 321. 157 C.I. NAGY (note 141), p. 580. See also G.A. CAPAUL (note 100), p. 62; M. GORÉ (note 79), p. 197 et seq. 158 A. BUCHER (note 23), § 6 LDIP 90; S. ÁLVAREZ GONZÁLEZ (note 49), p. 23; T. BALLARINO/ G.-P. ROMANO (note 86), p. 44; J. SCHOENBLUM (note 37), p. 126. 159 A. BONOMI (note 49), § 15 ad Art. 22 (“principal défaut”); A. BONOMI/ J. BERTHOLET (note 17), p. 369 (“inconvénient essentiel”); E. VASSILAKAKIS (note 49),

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IV. Critical Analysis of the Implementation of the Professio Iuris in Swiss Private International Law In this chapter, we will apply the previously defined analytical grid to assess the relevance of some specific elements of the implementation of the professio iuris in Swiss private international law and of their proposed development. After describing the evolution of the objectives pursued by Swiss law throughout the different reforms (A.), we will analyse the changes made by the draft law of 2020 (B.), as well as the scope of the lex electa (C.). We will then address two controversial aspects, namely the interpretation of the de cuius’ manifestation of will (D.), especially in the context of the implicit professio iuris, and the implementation of limits to this mechanism (E.).160 A.

Evolution of the Objectives

Although the objectives underlying the professio iuris have evolved over the course of several reforms, they have always been exclusively of a conflict-of-law nature. The adoption of the professio iuris by the Swiss Parliament at the end of the 19th century because of the authorities’ inability to identify the most appropriate connecting factor for intercantonal estates is a perfect illustration of what we have described as a Verlegenheitslösung, a conciliatory loophole that allows for a more individualised concretisation of the principle of proximity. When the professio iuris lost its original vocation and began to be applicable exclusively to international estates, the dangers of an abusive use of this mechanism to enjoy greater testamentary freedom than that offered by the objectively applicable Swiss law became the main concern of the legislator, in particular after the Hirsch decision.161 When the current PILA was being codified, the leitmotiv was unquestionably to limit the disruptive consequences of the professio iuris on the balance struck in the Swiss Civil Code among the material interests to a succession. Despite the addition of two restrictions, the Federal Council recognised,

p. 812 et seq.; A. DAVÌ (note 116), p. 475. For example, the risks faced by the heirs with a statutory entitlement were one of the main arguments against the introduction of the professio iuris in Japanese private international law during the reform in 2006. See 小出 邦夫 [KOIDE, Kunio], 逐条解説 法の適用に関する通則法 [Commentary by article – Act on General Rules for Application of Laws], Japan 2015, p. 351. 160 For other aspects of the professio iuris, especially its relationship to some bilateral Conventions concluded by Switzerland, see O. GAILLARD (note *), § 1161 et seq.; Idem (note 59), p. 53 et seq. 161 Final Report of the Experts’ Commission (note 22), p. 185.

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The Professio Iuris in Swiss Private International Law with a certain fatalism, that undesirable uses of the professio iuris could not be completely prevented.162 Finally, in the third and, for the time being, last stage of the development of the professio iuris in Swiss law, the approximation with the European Regulation aims to improve the international harmony of decisions.163 The objective is to avoid a choice validly made in a Member State of the European Union not being admitted in Switzerland, which would lead to a discrepancy in the applicable law and, consequently, an increase in forum shopping cases. This approach implies the recognition that national conflict-of-law rules, whose binding force is confined to the territory of the State which has enacted them, cannot claim to regulate a multiterritorial succession on their own. With this coordination with the European Regulation, Swiss PILA seeks to transcend its “mono-national” origin,164 in order to grant the de cuius a true “international subjective right” to choose the law applicable to her succession.165 This alignment with the European Regulation as regards the professio iuris is all the more important as coordination is only partially achieved at the jurisdictional level, due to the very broad scope of the European subsidiary jurisdiction rules (see in particular Art. 10).166 The foregoing notwithstanding, the coordination of the Swiss conflict rules with the EU Regulation seems somewhat fragile, as it is a purely unilateral process undertaken by Switzerland, which is still considered a third State in terms of this Regulation. No supranational authority, on the model of the European Court of Justice, exists to guarantee a uniform interpretation of these rules.167 Moreover, the main connecting factor of the two systems, namely domicile for Switzerland and habitual residence for the European Union, are certainly similar, but nonetheless remain formally different.168 For these reasons, it is important not to set the Federal Council Dispatch of 1982 (note 19), 375 et seq. Federal Council Dispatch of 2020 (note 54), p. 3216 et seq.; C. WIDMER LÜCHINGER (note 28), p. 3 et seq.; F. GUILLAUME (note 27), p. 224 et seq. and 234. 164 For a discussion of this expression, see G.-P. ROMANO, Droit international dit “privé” et droit international dit “public”: éléments d’une théorie unitaire et humanisée du droit international, Clunet, 2022, p. 8 et seq. and 56 et seq.; Idem (note 123), p. 199 et seq. See also M. HIRSCHBOEK, Conceptualizing the Relationship between International Human Rights Law and Private International Law, Harv. Int’l L.J., 60/2019, p. 184 et seq.; S.C. SYMEONIDES (note 90), p. 2 et seq. (“[P]rivate international law is essentially national law”); A. MILLS, Rediscovering the Public Dimension of Private International Law, HagueYIL, 24/2011, p. 15 (“an awkward self-consciousness about not « really » being international law”); I. SCHWANDER, Methodische Defizite des IPR-Kollisionsrechts – wie weiter?, in I. MEIER/ K. SIEHR (eds), Rechtskollisionen, Zürich 1995, pp. 389-405, 396 et seq. 165 G.-P. ROMANO (note 29), p. 210 and 222; Idem (note 123), p. 205. 166 Federal Council Dispatch of 2020 (note 54), p. 3220 et seq.; F. GUILLAUME (note 27), p. 225. See also the exclusive jurisdiction of the Swiss authorities created by the abovementioned PILA 87.2. 167 R. DUMMERMUTH, Die Revision des internationalen Erbrechts: Bestandesaufnahme und Postulat, successio, 2021, p. 80 et seq. 168 A. BONOMI/ A. ÖZTÜRK, Auswirkungen der Europäischen Erbrechtsverordnung auf die Schweiz unter besonderer Berücksichtigung deutsch-schweizerischer Erbfälle, 162 163

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Changes Made in the 2020 PILA Draft Law

1.

Swiss Citizens with Multiple Nationalities

A person with several foreign nationalities may freely select in her professio iuris the law of one of her national States, irrespective of any further considerations regarding proximity. This solution, which is an exception to the general system (Art. 23.2),170 removes the necessity to individually assess which of these nationalities is to be regarded as the predominant one (effective nationality doctrine), which may prove to be a source of legal uncertainty.171 The legislator has thus rightly abandoned the search for the greatest proximity in order to promote the predictability of the law of succession.172 This is also the approach adopted by the European Regulation (Article 22.1), so that international harmony is ensured, at least with Member States. The foregoing notwithstanding, there is one hypothesis of multiple nationalities that is regulated in a distinct manner, namely that of a multinational person who possesses Swiss nationality at her death, whether by birth or by naturalisation. De lege lata, this person cannot validly make a professio iuris (PILA 90.2). In our opinion, this differentiated treatment is a case of “reverse discrimination”, since Swiss citizens are deprived of the conflict-of-law autonomy that Swiss law grants to all other persons domiciled in Switzerland.173 This restriction was imposed during the codification of the Swiss PILA, allegedly for the sake of equality with exclusively Swiss citizens.174 This distinction, however, seems to rely on a reductionist legal fiction that a Swiss citizen who wishes to submit her succession to the Zeitschrift für vergleichende Rechtswissenschaft, 2015, p. 23 et seq.; C. GRUN MEYER/ T. SPRECHER, Aspekte der neuen EU-Erbrechtsverordnung und ihres Bezugs zur Schweiz, Revue suisse du notariat et du registre foncier, 2015, p. 152 et seq. For examples of differing qualifications: K.M. WEISS/ M. BIGLER, Die EU-Erbrechtsverordnung: neue Herausforderungen für die internationale Nachlassplanung aus Schweizer Sicht, successio, 2014, p. 180 et seq. 169 See also C. WIDMER LÜCHINGER (note 28), p. 4. 170 A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 13 ad IPRG 90. 171 A.K. SCHNYDER/ G.A. CAPAUL, Rechtswahl im Anwendungsbereich von schweizerischem IPR-Gesetz und Europäischer Erbrechtsverordnung, in PH. FRÉSARD/ J. MORGER (eds), Aktuelle Fragen des internationalen Erbrechts, Zürich 2020, pp. 49-93, 75; J. HEINIG, Rechtswahlen in Verfügungen von Todes wegen nach der EUErbrechtsverordnung, Rheinische Notar-Zeitschrift, 2014, § 31; E. JAYME (note 91), p. 178 et seq. 172 A. BONOMI (note 49), § 21 and 24 ad Art. 22. 173 See B. DUTOIT/ A. BONOMI (note 29), § 7 et seq. ad LDIP 90; P. BREITSCHMID/ Ü. CIBIK (note 18), p. 457 et seq. 174 Federal Council Dispatch of 1982 (note 19), p. 376; Final Report of the Experts’ Commission (note 22), p. 185.

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The Professio Iuris in Swiss Private International Law law of one of her foreign national States would do so only to abusively deprive her heirs of their Swiss entitled share. The removal of this restriction in the 2020 PILA Draft Law (Art. 91.1) is therefore justified, since it arbitrarily excludes an entire category of persons regardless of the concrete circumstances. The EU Regulation does not provide for any similar restriction, which could be contrary to Art. 18 TFEU.175 Thus, a citizen with both Greek and German nationalities can submit her succession to German law, even if she has her habitual residence in Greece. In addition to improving international harmony with the Member States, the suppression of the restriction ensures greater stability in estate planning, since the professio iuris will no longer lapse in the event of a subsequent acquisition of Swiss nationality. Finally, a dual national Swiss citizen may well consider that she has closer ties with her other State of origin. 2.

Nationality at the Time of Choice

The second modification affects the critical moment for assessing the connecting factor of nationality. By requiring that the de cuius be, at the time of her death, a citizen of the State whose law was selected,176 the Swiss legislator confirmed the key role of the principle of proximity. The fact that the testatrix maintained a professio iuris in favour of the law of a State of which she was no longer a citizen at the time of her death was per se regarded as a risk of misuse of this legal institution.177 De lege lata, the professio iuris does not ensure the predictability of the actually applicable law, which remains subject to fluctuations in the nationality of the deceased between the drafting of her testamentary provisions and her death.178 Accordingly, the 2020 draft law alternatively provides for two relevant moments for the assessment of nationality (DPILA 91.1), namely the time of the professio iuris or the time of death, in the same way as does the EU Regulation. The continued validity of the choice of the law of a State of which the testatrix is no longer a citizen at her death is an important departure from the proximity principle. That said, the benefits in terms of predictability are tremendous, since the lex hereditatis is immune to any possible changes of nationality.179 Moreover, the 175 J. MEEUSEN, Le droit international privé et le principe de non-discrimination, Collected Courses of The Hague Academy of International Law, 353/2012, p. 60 et seq.; C.I. NAGY (note 141), p. 576 et seq.; T. MARZAL YETANO (note 88), p. 156; CH. KOHLER (note 59), p. 16 et seq. For a more nuanced opinion: A. BONOMI (note 49), § 11 ad Art. 21. 176 Conversely, under the 1891 Act, it was generally accepted that the relevant moment was that of the drafting of the testamentary dispositions; Federal Council Dispatch of 1982 (note 19), p. 376; G.A. CAPAUL (note 100), p. 54. 177 The same concern prompted the drafters of the 1989 Hague Convention, which was otherwise very liberal as regards the eligible laws, to allow States to make a reservation that they would not recognise the connecting factors tempore designationis (Art. 24.1.c); M. GORÉ (note 79), p. 194. 178 J. KREN KOSTKIEWICZ (note 72), § 758. 179 Federal Council Dispatch of 2020 (note 54), p. 3237; C. WIDMER LÜCHINGER (note 28), p 13.

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Scope of the Lex Electa

With a professio iuris, the choice of law is limited to the substantive provisions of the lex patriae, to the exclusion of its conflict rules. In other words, there may be no renvoi to another legal system (PILA 14 a contrario; Sachnormverweisung).182 This solution is adopted both in the 1989 Hague Convention (Art. 17 and 4 a contrario) and in the European Regulation (Art. 34.2). Some minority authors, however, propose a more flexible approach, allowing the de cuius to include the conflict rules of the lex electa.183 This point of view, however, does not seem to meet the objectives of concretising the principle of proximity. It is indeed possible that the conflict rules of the lex electa designate a law that has no concrete relationship to the succession, or even that these rules refer to Swiss law, which the de cuius precisely sought to avoid.184 Moreover, this approach would add a complicating factor, since the judge would need to determine the scope of the professio iuris each time. Finally, there is a risk of thereby importing a scission of the estate, which is undesirable in the Swiss system.185 The law designated by the professio iuris may not be set aside by an escape clause based on proximity (PILA 15.2) or even by an agreement of the heirs. On this subject, the Swiss Supreme Court recently issued a decision in which it 180 In the most obvious cases of fraud, the general abuse of right clause is likely to come into play, as will be shown below (IV.E.2). 181 A.K. SCHNYDER/ G.A. CAPAUL (note 171), p. 62 et seq.; R. KÜNZLE (note 23), § 25 ad Vorbemerkungen zu Art. 86-96; A. BONOMI (note 49), § 30 ad Art. 22 and § 24 ad Art. 24. Contra: J.M. FONTANELLAS MORELL (note 15), p. 236 et seq. The validity of a “floating choice of law” (“dynamischer Rechtswahl”), i.e., the choice of the law of the State of which the de cuius will be a citizen at her death without naming it expressly, is contested. See M. BROSCH, Rechtswahl und Gerichtsstandsvereinbarung im internationalen Familienund Erbrecht der EU, Tübingen 2019, p. 125 et seq.; G.A. CAPAUL (note 100), p. 55 et seq.; J. HEINIG (note 171), p. 204. 182 This has been confirmed in two recent decisions of the Swiss Supreme Court of 20 December 2019 (5A_208/2019, § 5.2) and 23 February 2009 (5A_437/2008); B. DUTOIT/ A. BONOMI (note 29), § 16 ad LDIP 90; O. GAILLARD, Le droit applicable à une action en nullité d’un testament en cas de professio juris, in Pratique juridique actuelle, 2020, p. 810 et seq. 183 A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 15 ad IPRG 90; R. KÜNZLE (note 23), § 30 ad IRPG 90; A. BUCHER (note 23), § 4 ad LIDP 90. 184 See also R. SÜẞ, Grenzüberschreitende Erbfälle in der Praxis, in W.H. RECHBERGER (ed.), Winfried-Kralik-Symposion 2006, Wien 2007, pp. 37-62, 47. 185 A. BONOMI (note 49), § 17 ad Art. 23 and § 26 ad Art. 34; R. SÜẞ (note 80), § 72 et seq.

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The Professio Iuris in Swiss Private International Law required the application of the chosen German law to an action to invalidate a will, even though the parties as well as the cantonal courts had all exclusively applied Swiss law.186 The professio iuris made by a person with at least one foreign nationality who is domiciled in Switzerland must cover the entirety of the succession.187 The only exception is if the foreign State where real estate is situated claims exclusive jurisdiction (PILA 86.2). This situation is thus different from a professio fori or iuris of a Swiss citizen domiciled abroad (PILA 87.2 and 91.2). This approach is coherent with the principle of unity of the succession, which is central in Swiss law. The European Regulation adopted the same solution (Art. 22.1). The influence of the professio iuris on the internal harmony of decisions is ambiguous. In Swiss law, the professio iuris automatically generates a split between the material elements, which are submitted to the lex electa, and the procedural elements, which remain governed by Swiss law. This “functional or material scission”, which is regulated at PILA 92, creates numerous insoluble difficulties of delimitation between the two laws, which is counterproductive in terms of legal certainty.188 In particular, the precise determination of the scope of the powers of Common Law personal representatives on the assets is widely controversial, including throughout the current reform.189 On the other hand, the professio iuris makes it possible to harmonise the law applicable to the substantial validity of a contract of succession, which is objectively determined at the time of its conclusion, with the lex hereditatis, if such contract contains the choice-of-law clause (PILA 95.2). The 2020 Draft Law goes even further since a professio iuris made before the contract of succession would also be taken into account (DPILA 95.2), which is beneficial in terms of internal

Decision of 20 December 2019 (5A_208/2019). See our commentary of this decision: O. GAILLARD (note 182), p. 808 et seq. See also F. GUILLAUME, Le choix de la loi applicable à la succession, in A. BONOMI/ D. PIOTET/ PH. FRÉSARD (eds), Droit successoral international, Zurich 2019, p. 53-96, 67. Contra: R. KÜNZLE (note 23), § 19 ad IPRG 90. 187 Whereas the situation under the current PILA 90.2 is somewhat controversial, the 2020 Draft law indicates it expressly (DPILA 91.3). For further details, see O. GAILLARD (note *), § 896 et seq.; B. DUTOIT/ A. BONOMI (note 29), § 18 ad LDIP 90. 188 See the decisions of the Swiss Supreme Court of 18 March 2013 (5A_763/2012, § 2) and of 18 December 2012 (5A_434/2012, § 3.1); J. KREN KOSTKIEWICZ (note 72), § 1776; R. KÜNZLE (note 23), § 6 ad IPRG 92. 189 ATF 145 III 205, § 4.4.3; Federal Council Dispatch of 2020 (note 54), p. 3239 et seq.; B. DUTOIT/ A. BONOMI (note 29), § 6 et seq. ad LDIP 92; B. GRAHAM-SIEGENTHALER/ PH. EBERHARD (note 60), p. 382 et seq.; A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEEGOOD (note 23), § 28 ad IPRG 92; R. KÜNZLE (note 23), § 27 ad IPRG 92; T. MAYER, Erbbescheinigungen bei letztwilligen Verfügungen zugunsten eines Trusts, successio, 2015, p. 315 et seq. For further details, see O. GAILLARD (note *), § 912 et seq. The European Regulation tries to avoid delimitation problems to the extent possible, by granting a very broad scope to the lex hereditatis (Art. 23). See A. BONOMI (note 49), § 47 ad Art. 22 and § 12 and 29 ad Art. 23. 186

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Olivier Gaillard harmony of decisions.190 This solution avoids many uncertainties regarding the exact delimitation between the two aspects, in particular as to the protection of the entitled share of an heir who renounced it in the aforementioned contract. The foregoing notwithstanding, there is a clear tendency on the part of the legislator to multiply the number of laws applicable to different aspects of a succession by means of specific connecting factors.191 According to the Draft Law, it will thus be possible for the parties to a contract of succession to make a choice of law that applies only to such agreement (statutenspaltende Teilrechtswahl; DPILA 95.4). Although this new prerogative of the parties certainly increases the international harmony with the European Regulation (Art. 25.3), it disrupts the internal harmony and thus reintroduces delimitation uncertainties. It will also add a factor of complexity, since the judge will need to determine whether a choice-of-law clause covers the entire succession or merely matters relating to the contract of succession. This solution can be explained for agreements as to succession, since the acceptance of these legal instruments varies greatly worldwide.192 On the other hand, the application of this system to the material validity of wills, the admission of which is almost universal, is difficult to justify other than by the wish to adopt the same solution as under the European Regulation (Art. 24.2).193 D.

Interpretation of an Implied Professio Iuris

The field of interpretation of wills in Swiss law is generally not subject to spectacular developments in case law.194 That said, the position of the Swiss Supreme Court on the admission and modalities of an implied professio iuris has evolved dramatically. Initially extremely restrictive, its decisions have gradually become more flexible, to the point of being, in our opinion, too permissive in its latest judgments. Soon after the entry into force of the 1891 Act, numerous controversies arose as to the requirement of an express choice-of-law clause. As early as 1899, the Supreme Court indicated that the de cuius’ intention to choose the law of her canton of origin was required to appear expressis verbis in the will.195 This decision was confirmed several times over several decades.196

Federal Council Dispatch of 2020 (note 54), p. 3246; A.K. SCHNYDER/ G.A. CAPAUL (note 171), p. 82. 191 M. GORÉ (note 132), p. 762 (“inflation des lois successorales”). 192 A. BONOMI (note 49), § 3 et seq., 10 and 20 ad Art. 25; I. RODRÍGUEZ-URÍA SUÁREZ (note 17), p. 27. 193 The opportunity of the limited choice-of-law clause of Art. 24.2 of the European Regulation is controversial. See B. DUTOIT/ A. BONOMI (note 29), § 5 ad LDIP 94; A. BONOMI (note 49), § 44 and 48 ad Art. 24; J. HEINIG (note 171), p. 208 et seq. 194 See e.g. A. LEUBA, L’interprétation des testaments, Semaine judiciaire, 2004 II, p. 44 (“ronronnement tranquille”). 195 See ATF 25 I 49. 196 See ATF 30 I 313 (1904); ATF 40 II 15 (1914); K.P. HOTZ (note 15), p. 51 et seq. 190

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The Professio Iuris in Swiss Private International Law However, more than 80 years after its initial decision, the Supreme Court abandoned this requirement, considering that it was sufficient if “unambiguous indications” of choice of law were visible in the text of the will.197 In our opinion, this change was justified, as this requirement was detrimental in terms of legal certainty, given the absence of a unanimously recognised definition of what actually constitute an express clause.198 Despite this flexibility, the Supreme Court was very restrictive with regard to the admission of an implied professio iuris. For example, a 1985 case concerned a de cuius of Brazilian nationality, domiciled in Switzerland, who was officially separated from his wife by a Brazilian desquite.199 In his will, he expressly stated that his ex-wife should not be entitled to part of his estate because his “marriage to her [had] been terminated by a separation decree pursuant to the laws of Brazil”. Despite this reference, the court refused to find an implicit professio iuris in favour of Brazilian law, on the grounds that it was not clear from the will that the testator realised that he could choose between different applicable laws. Therefore, Swiss law was applied to the settlement of the estate.200 The major shift occurred in 1998 with the first actual admission of an implied professio iuris.201 A German de cuius, domiciled in the Italian-speaking part of Switzerland, had appointed a non-related person as the sole heir, thus excluding her only daughter. The Swiss Supreme Court found that there were “sufficient indications” of a choice of German inheritance law in the text of the will. Consequently, it admitted the use of extrinsic evidence, i.e., elements outside the “four corners” of the will, to clarify and confirm said indications.202 In this decision, which is still today the leading case on the topic,203 the Supreme Court placed an undue significance on certain facts. In particular, it accepted as indications for a professio iuris the fact that the will had been drawn up in Germany by a German notary and that all the parties concerned were German nationals.204 In our opinion, such elements can at most demonstrate a certain conATF 109 II 403, § 2b (“indizi sufficienti”). In particular, it was controversial whether the reference to legal provisions of a specific law should be considered an express selection of the said law. See P. GUTZWILLER, Zur Form der erbrechtlichen professio iuris (Art. 22 Abs. 2 NAG), in Schweizerische Juristen-Zeitung, 1974, p. 357 et seq. 199 ATF 111 II 16. 200 However, the Supreme Court considered that the Brazilian desquite decree should be treated as a divorce. Thus, the separated wife was not a legal heir, regardless of the applicable law (§ 4c and 4e). 201 ATF 125 III 35. 202 This is an application of a specific rule of interpretation of testamentary dispositions called Andeutungsregel. On this rule, see ex multis O. GAILLARD (note *), § 1082; A. LEUBA (note 194), p. 30 et seq.; P. GUTZWILLER (note 198), p. 362 et seq. 203 This decision was confirmed in an unpublished judgment of the Supreme Court of 26 June 2002 (5P.198/2002). 204 For further details, especially for the critical analysis of the Supreme Court’s understanding of the expression “Alleinerbin” (sole heir), see O. GAILLARD (note *), § 1125 et seq. 197 198

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Olivier Gaillard nection of the de cuius with her home state, which is not the relevant factor. The choice of a notary public from one’s home country can be explained by many practical reasons that are not related to the application of the substantive law of that State (e.g., common language, acquaintance with a specific notary public, real estate in the State of origin, etc.). Moreover, the reference to the German nationality of the testatrix is a tautological argument, since there can be no choice of law if the de cuius does not have a foreign nationality. We can also note that the testamentary provisions were not fully valid under either legal system involved. Therefore, the argument of substantial conformity is not relevant. Indeed, the testatrix wished to exclude her daughter completely from her estate, whereas the latter benefited from a certain protection in both laws. Admittedly, German law provided for less protection, i.e., an inheritance reserve of half of the estate (§ 2303.1 BGB), as opposed to three quarters under Swiss law at that time (Art. 471.1 Swiss Civil Code).205 In this sense, it could be argued that German law was closer to the testatrix’ wish to give as little as possible to her daughter. However, such an extensive interpretation of the professio iuris would lead to a distortion of its structure and objectives, and turn it into a rule with alternative connecting factors aiming at granting the de cuius the greatest possible testamentary freedom. In our opinion, the only relevant yardstick should be the evidence of the de cuius’ real will to apply her national law, which was precisely not the case since her testamentary dispositions did not abide by the mandatory rules of German law. E.

Limits to the Professio Iuris

With the repeal of several restrictions on the exercise of professio iuris in the 2020 PILA Draft Law, the role of certain general provisions of private international law is gaining renewed importance. In this section, we will discuss three mechanisms that could reduce, at different stages of the process, the misuse of this legal institution or limit its shocking material consequences. Their intervention in this context has, however, been widely controversial for decades, in particular since the Hirsch decision. 1.

Fraus Legis

In the context of private international law, the concept of fraus legis describes the fraudulent manipulation of a connecting factor in order to obtain a certain substantive result.206 With the Swiss professio iuris, the relevant factor is nationality. The generally strict rules for acquiring a nationality seem prima facie to exclude such

205 As mentioned above, the entitled share of the descendants will be reduced to one half of the inheritance share as of January 1, 2023; RO 2021 312 et seq. 206 For further details, see G.A. LANG, La fraude à la loi en droit international privé suisse, Lausanne 1984, p. 89 et seq.

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The Professio Iuris in Swiss Private International Law manipulation of this connecting factor, which is one of its main advantages.207 That being said, the Swiss Supreme Court has repeatedly recognised this possibility, for example in the Hirsch decision,208 but also in a more recent judgment, where a person had been naturalised Israeli in order to take advantage of a longer time limit for a paternity action.209 In order to demonstrate the fraudulent acquisition of a nationality, it is necessary to rely on a body of corroborating evidence. The temporal proximity of the acquisition of the new nationality with the professio iuris, or even with the death of the testatrix, is one of them, especially if the de cuius does not have a close connection with this State. The fact that the testator uses the professio iuris to make testamentary provisions which specifically would have been impossible under the objectively applicable Swiss law is an additional indication of fraudulent action. If the judge comes to the conclusion that a nationality was fraudulently acquired, the “tainted”210 connecting factor must be ignored and the law that the de cuius sought to set aside applies.211 2.

Abuse of Right

Swiss law prohibits the manifest abuse of a right (Art. 2.2 Swiss Civil Code), when its use would lead, in a specific case, to great injustice.212 This correcting device must be applied with the utmost restraint, in order to avoid creating too much legal

207 R. SÜẞ (note 80), § 142 et seq. and 328; A. BONOMI (note 30), p. 182 et seq.; M. RÜTTEN, Gesetzesumgehung im internationalen Privatrecht, Zürich 2003 p. 163 et seq. Under PILA 90.2 in its current version, the abandonment of Swiss nationality, in order to have access to the professio iuris should also be mentioned. See also P. BREITSCHMID/ Ü. CIBIK (note 18), p. 463. 208 ATF 102 II 136, § 3b. See also B. DUTOIT/ A. BONOMI (note 29), § 20 ad LDIP 90. 209 ATF 130 III 723. However, the Supreme Court did not conclude to a fraus legis in this case. For a critical analysis of this decision: A. BUCHER, Jurisprudence suisse en matière de droit international privé de la famille, RSDIE, p. 383. Other cases of a fraudulent acquisition of a nationality may be found worldwide. For example, the famous 19th century French case of the Princess of Bauffremont (Cass. Civ. of 18 March 1878) or, in Spain, more recent cases regarding the fraudulent acquisition of the “regional citizenship” (vecindad civil; Art. 14 of the Spanish Civil Code), as the decision of the Tribunal Supremo of 5 April 1994. See R. DURÁN RIVACOBA/ P. RODRÍGUEZ MATEOS, Conflicto interno e internacional en materia hereditaria, Espagne 2012, p. 49 et seq., 58 et seq. and 69 et seq. 210 See A. BUCHER (note 23), § 33 ad LDIP 13-19. 211 ATF 142 II 206, § 2.3; ATF 134 I 65, § 5.1; Y. LEUPIN, La prise en compte de la masse successorale étrangère en droit successoral suisse, Genève 2010, p. 161; M. RÜTTEN (note 207), p. 6 et seq. and 102 et seq.; S. OTHENIN-GIRARD, La réserve d’ordre public en droit international privé suisse, Zurich 1999, § 88. 212 ATF 140 III 583, § 3.2.4; ATF 134 III 52, § 2.1; CH. CHAPPUIS, in P. PICHONNAZ/ B. FOËX (eds), Commentaire romand, Code civil I, Bâle 2010, § 27 ad CC 2.

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Olivier Gaillard uncertainty.213 Several hypotheses of abuse of rights are likely to apply to the professio iuris. The first category consists of the de cuius setting herself in contradiction to her own previous conduct (“venire contra factum proprium”). This is the case, for example, when the de cuius creates, by her behaviour, legitimate expectations in an heir as regards the share of the estate that she would receive, but then, in a second step, intentionally214 frustrates this expectation by making a professio iuris in favour of a law that allows her to completely exclude such heir from her estate.215 The heir’s expectations are likely to be based on the fact that she made a significant contribution to the creation or growth of the deceased’s assets, for example by managing the family business,216 or on a contract of succession, according to which she should receive a certain portion of the estate.217 The second category is the use of a legal institution contrary to its objectives (Institutsmissbrauch).218 In the context of the professio iuris, this would mean that a de cuius submits her succession to the law of the State of one of her nationalities not to benefit from the conflict-of-law advantages of this mechanism, but, rather, to have greater testamentary freedom, in particular to be able to deprive her presumptive heirs of their entitled share as determined by the objectively applicable law. The Swiss Supreme Court expressly rejected this approach in the Hirsch decision, as it held that it was perfectly admissible for a testator to make a professio iuris exclusively in order to enjoy greater substantive freedom.219 However, we consider that there are cases where an abuse of right should be admitted. In the area of succession law, characterised by its mandatory rules, it is essential that a mechanism that allows the circumvention of these rules be used only to achieve the goals for which it was introduced into a legal system. In particular, the choice of the law of a national State with which the de cuius has no conATF 137 III 433, § 4.4; ATF 131 III 222, § 4.2; A. BONOMI (note 49), § 81 ad Art. 22; CH. CHAPPUIS (note 212), § 25, 39 and 61 ad CC 2; P. BREITSCHMID/ Ü. CIBIK (note 18), p. 460. 214 The necessity of a fraudulent intent is controversial. See CH. CHAPPUIS (note 212), § 28 ad CC 2; C.E. DUBLER, Les clauses d’exception en droit international privé, Genève 1983, p. 155. 215 B. DAUMILLER (note 15), p. 56; H. HANISCH (note 155), p. 482 et seq. More sceptical: P. BREITSCHMID/ Ü. CIBIK (note 18), p. 464; S. OTHENIN-GIRARD (note 211), § 962. 216 B. DUTOIT/ A. BONOMI (note 29), § 20 ad LDIP 90; A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 21 ad IPRG 90; R. KÜNZLE (note 23), § 27 ad IPRG 90. The Swiss Supreme Court also admitted, in the Hirsch decision, the principle of the admission of an abuse of a right in such a case; ATF 102 II 136, § 3c. 217 Y. LEUPIN (note 211), p. 168 et seq. For further details: O. GAILLARD (note *), § 1341 et seq. 218 CH. CHAPPUIS (note 212), § 32 ad CC 2 (“détournement de finalité”). This category of abuse of rights has been applied by the Swiss Supreme Court on several occasions. See ex multis ATF 140 III 583, § 3.3.2; ATF 137 III 547, § 2.3; ATF 81 II 422. 219 This approach has been approved by several authors. See A.-S. PAPEIL (note 111), p. 122; E. VASSILAKAKIS (note 49), p. 814; S. OTHENIN-GIRARD (note 211), § 957. 213

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The Professio Iuris in Swiss Private International Law nection is suspicious, especially if she specifically makes testamentary provisions which would not have been valid under Swiss law.220 In this respect, it is not sufficient that the State involved does not correspond to the effective nationality of the deceased, since this is not required, but it is necessary that the deceased clearly have no significant relationship with that State, for example if she acquired such nationality jure sanguinis without ever visiting such State. The modification made by DPILA 91.1 as to the decisive moment for assessing nationality is, in our opinion, a temporal change and not a qualitative one. It will therefore still be necessary that the testatrix have a sufficiently significant connection with her State of origin at the time of the choice. If, in a specific case, the abusive nature of a right is recognised, the professio iuris must be set aside altogether (“fraus omnia corrumpit”) and the objectively designated Swiss law should apply.221 3.

Public Policy Exception

The public policy reservation (PILA 17) comes into play at the last stage of the conflict-of-law process. It may exclude the concrete substantive result obtained on application of the foreign lex hereditatis, if it is incompatible with fundamental legal values of Swiss law.222 The intervention of public policy also depends on the connection of the situation with Switzerland (Binnenbeziehung).223 We have selected two hypotheses where this clause is likely to correct the outcome of a case. The first category concerns laws that incorporate inheritance discriminations. We can take the example of a legal order of Islamic tradition. While the study of these complex and fascinating systems is beyond the scope of our contribution,224 we can highlight the fact that these inheritance laws provide for differentiated treatments based on so-called suspect criteria. The discrimination most commented upon is that concerning women, who in principle receive half the share that a man of the same degree of kinship would have received.225 Religious affilia220 A. BUCHER (note 23), § 8 ad LDIP 90. Contra: B. DUTOIT/ A. BONOMI (note 29), § 20 ad LDIP 90; R. SÜẞ (note 80), § 338; K. DREHER (note 16), p. 55 et seq. 221 More sceptical about this consequence of the abuse of right: A. BONOMI/ J. BERTHOLET (note 17), p. 369. 222 ATF 143 III 51, § 3.3.2; ATF 142 III 180, § 3.2; ATF 102 Ia 574, §. 7d; S. OTHENIN-GIRARD (note 211), § 13 and 215. To express the difficulties of circumscribing the concept of public policy, some Swiss authors used the metaphor of a chameleon. See B. DUTOIT, L’ordre public: caméléon du droit international privé?, in B. DUTOIT/ J. HOFSTETTER/ P. PIOTET (eds), Mélanges Guy Flattet, Lausanne 1985, pp. 455-472. 223 ATF 126 III 327, § 4c; F. KOEPFLER/ P. SCHWEIZER/ S. OTHENIN-GIRARD (note 19), § 366. 224 For further details, see O. GAILLARD, Droit des successions égyptien et ordre public suisse, Pratique juridique actuelle, 2017, p. 796 et seq.; Idem (note 97), p. 73 et seq. 225 This differentiated treatment relies directly on two verses of the Qur’an. Discriminations can also be indirect, in that a man related to the de cuius through a woman inherits a smaller share of the estate. See H. KHAN, The Islamic Law of Inheritance, Pakistan 2014, p. 86 et seq.; H. SIAHPOOSH, Das Familien- und Erbrecht im Iran, Frankfurt am Main 2006, p.

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Olivier Gaillard tion is also a criterion for discrimination, as non-Muslim family members are generally excluded from the estate of a Muslim, even if they are the closest relatives.226 Similarly, an apostate is also discriminated against, although his exact inheritance position varies according to the legal system. As a general rule, the apostate does not inherit from anyone.227 Finally, a child born out of wedlock is, in principle, excluded from his father’s estate.228 In Shi’a systems, however, such a child is considered a “nullius filius” and, consequently, does not inherit from either parent.229 Such discriminatory treatments infringe many of the fundamental rights provided for in the Swiss Constitution as well as in international instruments.230 It is thus widely accepted that their violation is likely to trigger the intervention of the public order clause of PILA 17.231 In a recent decision, the Swiss Supreme Court strictly refused to recognise an Egyptian certification of succession, even though the connection between the case and Switzerland was extremely tenuous, on the grounds that the surviving wife had been excluded from her Muslim husband’s estate because of her Christian religion.232 Similarly, the European Court of Human Rights has repeatedly condemned inheritance discriminations against children born out of wedlock since the 1979 Marckx v. Belgium decision.233 193 et seq.; S.A. ALDEEB ABU-SAHLIEH, La Suisse face à l’inégalité entre homme et femme en droit musulman, in Rapports suisses présentés au XVème Congrès international de droit comparé, Zurich 1998, pp. 9-54, 48. 226 For further details: see H.-G. EBERT, Islamisches Familien- und Erbrecht der arabischen Länder, Berlin 2020, p. 155 et seq.; S. ALDEEB/ A. BONOMI, Le droit musulman de la famille et des successions à l’épreuve des ordres juridiques occidentaux, Zurich 1999 p. 311 et seq. 227 H. KHAN (note 225), p. 51 et seq.; S.A. ALDEEB ABU-SAHLIEH, Unification des droits arabes et ses contraintes, in W.A. STOFFEL/ P. VOLKEN (eds), Conflits et harmonisation, Fribourg 1990, pp. 177-204, p. 199 et seq. 228 O. GAILLARD (note 97), p. 84; A.K. PATTAR, Islamisch inspiriertes Erbrecht und deutscher Ordre public, Berlin 2007, p, 110 et seq. 229 See art. 884 of the Iranian Civil Code (with exceptions); H. KHAN (note 225), p. 50 et seq.; H. SIAHPOOSH (note 225), p. 179; S.A. ALDEEB ABU-SAHLIEH (note 225), p. 48. 230 See ex multis Art. 8.2, 8.3, 10, 11, 13 and 15 of the Swiss Constitution; Art. 8, 9, 12 and 14 ECHR; Arts. 2, 3, 18 and 26 of the International Covenant on Civil and Political Rights; Convention of 18 December 1979 on the Elimination of All Forms of Discrimination Against Women; Arts. 2, 3 and 9 of the Convention of 20 November 1989 on the Rights of the Child; Art. 9 of the European Convention of 15 October 1975 on the Legal Status of Children Born Out of Wedlock; Art. 12.3 of the European Convention of 24 April 1967 on the Adoption of Children. 231 See ex multis F. GUILLAUME (note 186), p. 65; A. BÜCHLER (note 96), p. 91; A. BUCHER (note 23), § 18 ad LDIP 90; Y. LEUPIN (note 211) p. 380; S.A. ALDEEB/ BONOMI (note 226), p. 344 et seq.; S. OTHENIN-GIRARD (note 211), § 948 et seq. 232 ATF 143 III 51. For a more detailed analysis of this decision, see O. GAILLARD (note 224) p. 796 et seq. 233 ECHR, 13 June 1979, Marckx v. Belgium, App. No 6833/74. The last decision on this topic was a 2013 decision against France: ECHR, 7 February 2013, Fabris v. France, App. No 16574/08. We may note that Swiss law also contained a discriminating provision

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The Professio Iuris in Swiss Private International Law In order to maintain the coherence of the foreign lex hereditatis, the intervention of public policy should be limited to setting aside the discriminatory norm, without modifying the foreign law more than necessary. Thus, a woman’s share would be equivalent to that of a male heir of the same degree of kinship and the rights of children born out of wedlock would be calculated as if their parents had been married at their birth.234 The second hypothesis of intervention of the public policy clause is the choice of a law providing for much broader testamentary freedom than Swiss law allows. This problem is particularly striking in the case of the deceased’s descendants, who cannot benefit from other protections, such as those resulting from the settlement of the marital property regime between spouses. We have seen that the Swiss Supreme Court decided in the Hirsch case that total disinheritance of a child is compatible with Swiss public policy. To counter this solution during the drafting of the Swiss PILA, the Experts’ Commission proposed to add to the 1978 Preliminary Draft Law a specification that a professio iuris could not affect the “legitimate expectations” of the surviving spouse and of the descendants (“ihre berecthigten Erwartungen”).235 This proposition was, however, widely criticised as being too vague, as it was impossible to know what exactly was protected. For this reason, the proposal was abandoned,236 which should not, in our opinion, be construed as a confirmation of the Hirsch solution.237 The Hirsch decision can be criticised in many respects.238 First, it should be noted that the Swiss Supreme Court refused to apply the system of family provisions of the chosen English law that allow an intervention of the judge when certain persons do not receive “a reasonable financial provision”.239 In so doing, the Court granted absolute testamentary freedom to the deceased, whereas both legal systems involved provided for certain restrictions.240 In addition, the Court rejected against children born out of wedlock, which was repealed in 1978. Such discrimination was also declared unconstitutional by the Supreme Court of Japan (最高裁判所 saikousaibansho) on 4 September 2013; O. GAILLARD, Le droit des successions japonais, successio, 2014, p. 332 et seq. 234 ATF 129 III 250, § 4.3; A. BONOMI (note 49), § 8 ad Art. 35; O. GAILLARD (note 146), p. 396 et seq. Contra: Y. LEUPIN (note 211), p. 380. This author suggests that Swiss law should be directly applicable. 235 Final Report of the Experts’ Commission (note 22), p. 184 et seq. 236 Federal Council Dispatch of 1982 (note 19), p. 377. 237 See also A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 20 ad IPRG 90; A. BUCHER (note 23), § 8 ad LDIP 90; P. LALIVE (note 17), p. 444. Contra: B. DUTOIT/ A. BONOMI (note 29), § 20 ad LDIP 90 (“un aval implicite par le législateur de la LDIP”). 238 For more details, see O. GAILLARD (note *), § 1461 et seq.; Idem (note 146), p. 304 et seq. 239 See Sec. 1 Inheritance (Provision for Family and Dependants) Act 1975. 240 For a critical analysis of the Swiss Supreme Court’s decision not to apply the English system of protection on the ground that the de cuius was not domiciled in England or Wales (Sec. 1[1] Inheritance Act 1975), see A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 21 ad IPRG 90; P. LALIVE (note 17), p. 443 et seq.

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Olivier Gaillard the intervention of public policy on the grounds that this clause should not protect the entirety of the Swiss statutory shares and that it was too difficult to set a satisfying lower limit for the triggering of the public policy clause. In our opinion, the Court based its reasoning on practical grounds, without ever carrying out a detailed analysis of the role of the statutory share in Swiss inheritance law, in particular with regard to the descendants. The latter benefit from a very high protection of three quarters of their share and can only be deprived of this statutory entitlement under drastic conditions.241 Paradoxically, the current reforms affecting the substantive law of succession in Switzerland confirm the central role of the protection of the deceased’s descendants. Even if their statutory entitlement will be reduced to half of their inheritance share as of 1 January 2023, other protections in their favour will be maintained or even added. On this occasion, the Federal Council confirmed in 2020 that the principle that a part of the estate should imperatively go to the close relatives of the deceased is “an idea that is well anchored in the general legal sensibility”.242 As a solution, the intervention of public policy could be conditioned on the analysis of several elements, paradoxically inspired by the English system of family provisions, such as the financial resources and needs of the applicant and of the other beneficiaries of the estate, or the size and nature of the net estate of the deceased (Section 3[1] Inheritance Act 1975). The judge could, thus, by means of these elements, define what is objectively necessary for the reasonable maintenance of the disinherited heir, while taking into account the particularities of the case and finding a balance between the strict minimum for the heir’s subsistence and overabundance.243 The reference to financial criteria in an ad hoc flexible substantive rule makes it possible to safeguard the core protection of the descendants, while preserving as much as possible the lex electa, by limiting the intervention of the public policy exception to what is necessary, based on the specific circumstances of the case.

241 Only provisions in favour of the other parent, from whom they may inherit in the future, or a disinheritance, the conditions of which are extremely restrictive, allow the de cuius to deprive descendants of their statutory share. See Art. 261.1, 473 and 477 et seq of the Swiss Civil Code. For a more detailed analysis, see O. GAILLARD (note*), § 1484 et seq. 242 Federal Council Dispatch of 28 August 2018 on the Reform of the Civil Code (Succession Law), FF 2018 5865-5948, 5881. 243 See Re Conventry [1980] Ch. 461; Re Debenham [1986] 1 FLR 404. Some Swiss authors use the subsistence level (“existenzielle Notlage”) as the trigger for the intervention of the public policy clause. See A.K. SCHNYDER/ M. LIATOWITSCH/ A. DORJEE-GOOD (note 23), § 21 ad IPRG 90; P. BREITSCHMID, Der (erbrechtliche) ordre public – Variabilität von Variablen oder fremdstaatliches Littering im heimatlichen Gärtchen? Was ist “öffentliche Ordnung”?, in PH. FRÉSARD/ J. MORGER (eds), Aktuelle Fragen des internationalen Erbrechts, Zürich 2020, pp. 95-116, 108; R. KÜNZLE (note 23), § 27 ad IPRG 90.

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V.

Conclusion

The professio iuris could be described by an oxymoron: an avant-garde anachronism. While this institution was created in the peculiar political and legal context of Switzerland in the second half of the 19th century, its unstoppable expansion into other national legal systems and then into international instruments is now undeniable, to the point where it has become an essential mechanism of European succession law. Currently, the coordination with the European Regulation has been, by a phenomenon of reverse influence, both the trigger for, and the focus of, the Swiss 2020 Draft Law. We have demonstrated that the foundations of the professio iuris are exclusively of a conflict-of-law nature. Its advantages in the settlement of a cross-border succession are numerous. The specific circumstances of a particular case may be taken into account in the determination of the principles of proximity and cultural identity. Moreover, this process improves legal certainty in several respects: by facilitating the achievement of international and internal harmony, and by improving the predictability of the applicable law, even if the burden of properly using this mechanism rests entirely on the de cuius. Our analysis of Swiss law and its current reform has allowed us to approve the repeal of the restrictions imposed during the codification of the PILA in the 1980s. By coordinating with the European Regulation, the 2020 Draft Law can transcend its purely national origin and grant the deceased a true international subjective right to choose the law applicable to her succession. Other elements, however, appear to be less advantageous, such as the creation of a functional scission under Art. 92, the multiplication of specific factors relating to the substantive validity of contracts of succession or wills, or the overly liberal approach to the admission of an implied professio iuris. Finally, the reasoned application of certain general limits of private international law, such as fraus legis, abuse of right and public policy, makes it possible to prevent this mechanism from causing an excessive disruption to the balance struck among the substantive interests of the parties. This global analysis of the professio iuris allows us to propose a coherent approach to this legal institution, confirming its role as a valuable instrument for the planning of cross-border estates.

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RECENT DEVELOPMENTS IN INTERNATIONAL MEDIATION Corinne MAMMINO*

I. II.

IV.

Introduction An Overview of the Practice of International Mediation A. Why Choose Mediation? The Advantages of International Mediation B. Current Challenges in the Field of International Commercial Mediation 1. The Respect of the Mediation Clause 2. The Enforcement of Mediated Settlement Agreements Commercial Mediation in the International Context A. The European Directive on Mediation 1. The Advancements – The Creation of a New Legal Framework 2. Weaknesses to Be Resolved B. The Singapore Convention 1. The Advancements 2. Weaknesses to Be Resolved Conclusion

I.

Introduction

III.

“Alternative Dispute Resolution (ADR) methods” is a generic term covering a broad range of private dispute resolution processes that have been developed as alternatives to litigation before domestic courts.1 ADR methods are a wide spectrum of non-judicial means of settling disputes, based on an agreement of the parties, to the exclusion of judicial means. Unlike arbitration, they do not result in a decision comparable to a state judgment, but rather an agreement between the parties which, in principle, is not enforceable. Among the ADR methods, mediation is of paramount importance. Mediation can be defined as a variation of conciliation whereby the attempts to solve the dispute are made by a third party, the mediator, who assists the parties in their negotiations to settle the dispute.2 Like arbitration, mediation is often carried out under the supervision of a specialized institution, and is subject to a specific set of PhD Candidate at the University of Lausanne. K.P. BERGER, Private Dispute Resolution in International Business, Alphen aan den Rijn 2015, p. 44. 2 INTERNATIONAL TRADE CENTER, Arbitration and Alternative Dispute Resolution, Geneva 2001, p. 41. * 1

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Printed in Germany

Corinne Mammino rules.3 For instance, in Switzerland, one should mention the “Swiss Rules of Mediation” of the Swiss Chambers’ Arbitration Institution (SCAI), reissued in 2019, the Mediation Rules of the Court of Arbitration for Sport (CAS) as well as the Mediation Rules of the World Intellectual Property Organization (WIPO). The concept behind mediation is not new and has a long history. As stated by RAU/SHERMAN/PEPPET, “mediation probably predates the formal creation and enforcement of law, for humans in the social state seem to have a natural instinct to seek the guidance of others in settling differences between individuals. Indeed, formal legal structures may have developed out of informal attempts by family members, neighbors and friends to mediate between disputing individuals”.4 At the international level, several texts encourage the use of mediation. The Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters in the European Union, is one of the most relevant.5 As emphasized in recital 19, “mediation should not be considered as a secondary solution to court proceedings, on the grounds that compliance with the agreements reached in mediation would depend on the goodwill of the parties. Member States should therefore ensure that parties to a written mediated agreement can have its content enforced”. It is also worth noting the UNCITRAL Model Law on International Commercial Mediation, which, in 2018, replaced the 2002 Model Law on International Commercial Conciliation, as well as the Singapore Convention on Mediated International Settlement Agreements, adopted by the United Nations General Assembly on December 20, 2018, which entered into force on September 12, 2020. Applicable in the commercial field, the Singapore Convention provides a set of uniform rules whose main purpose is to facilitate the right of parties to invoke mediated settlement agreements as well as to facilitate the enforcement of such agreements.

II.

An Overview of the Practice of International Mediation

Like arbitration and other ADR methods, mediation is a voluntary and consensual process.6 This means that, on the one hand, parties have significant control over the See the “ICC Mediation Rules” which entered into force on 1 January 2014. A. RAU/ E. SHERMAN/ S. PEPPET et al., Processes of Dispute Resolution, New York 2002, p. 327 et seq. 5 OJEC No. L 136 of 24 May 2008. 6 D. PRUITT/ S. KIM, Social conflict: Escalation, Stalemate, and Settlement, New York/ London 2004, p. 198. 3 4

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Recent Developments in International Mediation mediation process; on the other hand, they can also walk away anytime they choose. As mentioned, in mediation, the attempts to solve the dispute are made by a third party, the mediator. The mere fact that a third party intervenes in the negotiation process may profoundly alter the interaction between the parties by changing the relational possibilities.7 This is particularly important since mediators usually intervene in an already escalated dispute, where the parties find it increasingly difficult to communicate or deal with each other in a productive manner. In this sense, mediation has been rightly characterized as “a by-product of failure – the inability of disputants to work out their own differences”.8 It is important to emphasize that the mediator has no decision-making power, his or her role is limited to facilitating the negotiation between the parties; this is one of the most important characteristics of the mediation process that differentiate it from the litigation or arbitration process.9 Since the parties do not transfer decision-making power to the mediator, they retain responsibility for, and control over, the resolution of the dispute, which means that the success of mediation relies heavily on their own responsibility.10 A.

Why Choose Mediation? The Advantages of International Mediation

One of the most important reasons for parties to choose mediation in lieu of international commercial arbitration, across all sectors, is the saving of time and costs, including “reputational” cost.11 The concept of mediation has evolved from the Chinese Confucian philosophy, which has always been in favor of allowing a party to work towards the preservation of its relationship with the other side.12 Thus, another important motivating factor for choosing mediation is the opportunity to preserve an existing business relationship.13 One of the core features of mediation is the possibility of pursuing interestbased negotiation. Commercial mediation allows parties to share information about their needs and interests and build trust one another,14 to go beyond a binary winIbidem. N. ROGERS, Student’s Guide to Mediation and the Law, New York 1993, p. 8. 9 H.J. BROWN/ A.L. MARRIOTT, ADR Principles and Practice, London 2011, Nos 8‑003 et seq. 10 M. PEL, Referral to Mediation: a Practical Guide for an Effective Mediation Proposal, The Hague 2011, p. 142 et seq. 11 P.D. CAMERON/ A. KOLO, Mediating International Energy Disputes, in C. TITI/ K.F. GÓMEZ (eds): Mediation in International Commercial and Investment Disputes, Oxford 2019, p. 239‑258, p. 240. 12 K.P. BERGER (note 1), p. 119. 13 E. SUSSMAN, Foreword in C. TITI/ K.F. GÓMEZ (eds): Mediation in International Commercial and Investment Disputes, Oxford 2019, p. V-X, p. V. 14 C. TITI, Mediation and the Settlement of International Investment Disputes: Between Utopia and Realism in C. TITI/ K.F. GÓMEZ (eds): Mediation in International Commercial and Investment Disputes, Oxford 2019, p. 21-38, p. 23. 7 8

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Corinne Mammino lose remedy,15 to convert a lose-lose situation into a win-win outcome by exploring underlying interests and creative solutions,16 and in general, to enable tailored solutions that are not available in an adjudicative process.17 Another traditional core feature of mediation is its confidentiality,18 since it can normally be conducted confidentially among a small number of participants behind closed doors.19 Confidentiality, however, has recently been subject to adjustments. Under the ICC mediation rules, for example, the simple fact that settlement proceedings are taking place, in certain circumstances, is no longer confidential in itself (Art. 9, Par. 1). In addition, the confidentiality feature of the process is challenged when one of the mediating parties is a state. Whereas mediation of a commercial dispute may not be a matter of public interest, this is not the case in investment mediation, where tension exists between the requirements of confidentiality, on the one hand, and transparency, on the other hand.20 Empirical studies have revealed the existence of other motivations that may lead parties to take the mediation route. They have indicated that parties might use mediation in cases involving a risk of loss as a result of litigation or arbitration proceedings, or if they have concerns about the neutrality of the venue.21 Moreover, some courts require parties to attempt mediation before starting the litigation process.22 It can be inferred from the latter observation that sometimes parties believe that matters that were non-arbitrable would nevertheless be settled by mediation. It is by no means clear, however, that an issue that is considered non-disposable and therefore non-arbitrable could in fact be resolved through mediation. This issue will be further studied and developed in jurisdictions that embrace the notion of non-disposable rights. Finally, it is impossible to disregard the role of cultural and human factors in choosing mediation. Considerations such as the willingness to meet and understand the other party while expressing emotions about what has occurred constitute the basis of mediation and, thus, the starting point for parties to deliberate about whether to take the mediation route.23 15 C.M. SUDBOROUGH, Mediating Sovereign Debt Disputes in C. TITI/ K.F. GÓMEZ (eds): Mediation in International Commercial and Investment Disputes, Oxford 2019, p. 223-238, p. 230‑231. 16 P.D. CAMERON/ A. KOLO (note 11), p. 245‑251. 17 E. SUSSMAN (note 13), p. VI. 18 It is however worth mentioning that, in some systems e.g. U.S. law, court procedings and filings are public. 19 P.D. CAMERON/ A. KOLO (note 11), p. 251. 20 C. BROWN/ P. WINCH, The Confidentiality and Transparency Debate in Commercial and Investment Mediation in C. TITI/ K.F. GÓMEZ (eds): Mediation in International Commercial and Investment Disputes, Oxford 2019, p. 321-341, p. 329. 21 S.I. STRONG, Realizing Rationality: An Empirical Assessment of International Commercial Mediation, Washington and Lee law review, 2016, p. 32. 22 Ibidem. 23 K. FACH GÓMEZ, The Role of Mediation in International Commercial Disputes in C. TITI/ K.F. GÓMEZ (eds): Mediation in International Commercial and Investment Disputes, Oxford 2019, p. 3-20, p. 10‑11.

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Recent Developments in International Mediation B.

Current Challenges in the Field of International Commercial Mediation

1.

The Respect of the Mediation Clause

The agreement to mediate is a contract or a contractual clause that obliges the parties to settle their dispute through mediation, before resorting to the domestic courts or an international arbitral tribunal. Like an arbitration clause, the agreement to mediate can be concluded prior to the dispute, e.g. as a mediation clause in a contract, or after the dispute has arisen.24 Parties to international contracts sometimes use “multi-tier” dispute resolution clauses, which provide for at least two consecutive stages of dispute resolution for all, or certain, disputes arising out of or in connection with the contract.25 The consequence of the breach of such an agreement has long been controversial. The question was not simply: “how should the law deal with the breach of the mediation clause?” but more profoundly: “should the law deal with the breach of the mediation clause?,” and if so, does such a breach entail an obligation to pay damages to the opposing party or does it result in the inadmissibility of the claim when brought before a judge or arbitrator? After having left the question open in several decisions, the Swiss Federal Supreme Court finally settled it in BGE 142 III 296, according to which the failure to comply with a mandatory precondition of conciliation or mediation is sanctioned by the suspension of the arbitration proceedings for the time necessary for the parties to implement this obligation or to bring the process to a conclusion, if they had already started it.26 The suspension does not exclude a contractual sanction, consisting in the payment of damages, even if it is often difficult to quantify them. The damages would be due solely because of the non-performance of the mediation clause. It is essential to identify a prejudice; in the case of the breach of the mediation clause, this prejudice is, necessarily, closely linked to the premature commencement of proceedings.27 Does it consist of the cost of the trial? This does not seem to be the case, since there is no evidence that the mediation phase would have been as successful as expected, nor that it would have led to an amicable resolution of the dispute. The breach of the clause is an opportunity to avoid a trial that the party

K.P. BERGER (note 1), p. 128. Some companies favor the use of such clauses in long-term contracts, where they already know, at the time of their conclusion, that a number of disputes over such a long period of time cannot be avoided. In so doing, they intend to save time and cost by creating a sequence of dispute resolution processes in the hope that only a small number of the most complex and contested disputes will reach the final stage, typically arbitration. 26 BGE 142 III 296, para. 2.4.4. 27 F. COLONNA D’ISTRIA, La sanction de l’inexécution de la clause de médiation: pour l’octroi de dommages-intérêts in F. OSMAN (ed): La médiation en matière civile et commerciale, Bruxelles 2012, para 11. 24 25

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Corinne Mammino being sued has missed in contravention of the mediation clause.28 Therefore, the damages should correspond to a fraction of the total cost of the proceedings.29 2.

The Enforcement of the Mediated Settlement Agreements

The international recognition and enforcement of arbitral awards under the New York Convention of 1958 has led to the predominance of international commercial arbitration over international conciliation or mediation.30 For decades, parties, practitioners and policymakers have believed arbitration to be the best, if not the only, realistic means of resolving cross-border business disputes. However, the international community has become somehow disenchanted with the costs, delays and procedural formality associated with contemporary arbitration and some individuals and institutions have begun to search for a better way of resolving crossborder commercial disputes. Of the various available options, mediation has established itself as a leading alternative to international commercial arbitration. Some authors stress that a mediated settlement agreement is likely to be complied with voluntarily:31 since the outcome is amicable and voluntary, with respect to financial disputes, enforcement in the proper sense is unnecessary.32 Nevertheless, the most frequently cited obstacle to the widespread use of mediation in commercial and investment disputes is the lack of an available enforcement mechanism similar to the New York Convention. The availability, or lack, of an enforcement mechanism for mediated settlement agreements is said to be an important motivating, or demotivating, factor for the parties considering mediation as a dispute resolution tool. In some jurisdictions, a settlement agreement may be directly enforced, for example, if the mediator and the parties sign the settlement agreement, or once the settlement agreement has been deposited or registered with the court. In other jurisdictions, however, settlement agreements resulting from mediation are not directly enforceable. In Europe, if the mediated settlement agreement is recorded in a notarial deed or other authentic document and is enforceable in the EU member state of origin, the settlement agreement can be enforced directly in the other member states of the EU based on Article 58 of the Brussels Ibis Regulation.33 If the settleIbidem. Ibidem. 30 A. LEOVEANU/ A. ERAC, ICC Mediation: Paving the Way Forward in C. TITI/ K.F. GÓMEZ (eds): Mediation in International Commercial and Investment Disputes, Oxford 2019, p. 81-100, p. 82. 31 E. SUSSMAN (note 13), p. V. 32 H. ABRAMSON, New Singapore Convention on Cross-Border Mediated Settlements: Key Choices in C. TITI/ K.F. GÓMEZ (eds): Mediation in International Commercial and Investment Disputes, Oxford 2019, p. 360‑388. 33 As stated in this provision, “an authentic instrument which is enforceable in the Member State of origin shall be enforceable in the other Member States without any declaration of enforceability being required. Enforcement of the authentic instrument may be refused only if such enforcement is manifestly contrary to public policy (ordre public) in the 28 29

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Recent Developments in International Mediation ment is recorded in a court judgment that is enforceable in the EU member state of origin, the settlement agreement can be enforced directly in the other member states of the EU based on Article 59 of Brussels Ibis Regulation.34 When the settlement agreement is not recorded in one of the aforementioned instruments, court assistance is usually required for the enforcement of the settlement agreement. Such proceedings, however, may consume time and resources. In addition, such proceedings may be frustrating for the party seeking the enforcement of the settlement agreement. This gap is supposed to be filled by the Singapore Convention on the Enforcement of International Mediated Settlement Agreements.35

III. Commercial Mediation in the International Context A.

The European Directive on Mediation

Why is the European Union interested in the controversial and politically risky process of mediation? One of the reasons is that mediation could be a useful tool to improve judicial cooperation within the European Union. Even though the evolution of the internal market, the fluidity of the markets and the movement of people allow the European Union to thrive, the differences among the judicial systems of the Member States often block the free circulation of decisions and, consequently, their execution36. Since the EU cannot force the coordination of the judicial systems of its Member States, alternative dispute resolution methods could very well be a tool for a progressive harmonization within the European Union.37 The first mention of mediation in the Union’s policies dates from an era when the EU was still called the European Community. Indeed, it was at the European Council in Vienna on December 3, 1998 that the political project of Community intervention in the field of mediation first appeared.38 Following the extension Member State addressed”. An equivalent of this provision appears in Article 57 of the Lugano Convention. 34 Based on this provision, a court settlement which is enforceable in the Member State of origin shall be enforced in the other Member States under the same conditions as authentic instruments. The same is true in the Lugano regime, see Art. 58 CL. 35 M. HAUSER, What Makes Parties Choose Commercial and Investment Mediation?, ICC Dispute Resolution Bulletin, 2020, p. 177. 36 C. DUBOST, Sur la genèse de la directive 2008/52/CE, sur certains aspects de la médiation en matière civile et commerciale, Revue des Affaires Européennes/ Law & European Affairs, 2013, p. 246. 37 Ibidem. 38 Plan d’action du Conseil et de la Commission concernant les modalités optimales de mise en oeuvre des dispositions du traité d’Amsterdam concernant l’établissement d’un Espace de liberté, sécurité et justice, JOCE of 23 janvier 1999, pt 2 of the Plan d’action, « Priorités et mesures ».

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Corinne Mammino of the then European Community's areas of activity to cover the field of judicial cooperation in civil matters, the adoption of Directive 2008/52 on 21 May 2008 constituted a recognition that mediation can deliver cost-effective and swift extrajudicial resolution of disputes in civil and commercial matters.39 The directive committed EU Member States to ensuring that their national laws featured a number of principles regarding mediation, at least in cross-border cases. The Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters entered into force on 12 June 2008. This directive follows the 2002 Green Paper on Alternative Dispute Resolution40 and the Code of Conduct for Mediators drafted in October 2004.41 The deadline for transposition by the Member States was 21 May 2011. The thirty recitals included in the preamble reveal several objectives: to help achieve the proper functioning of the internal market, to create a predictable legal framework, and to make cross-border mediation a solution in no way secondary to ordinary litigation. Insofar as the implementation of European Union law is subject to the principle of institutional and procedural autonomy of the Member States, the European Union only prescribes obligations of result and leaves to the Members States the imposition (if any) of means.42 The last ten points of the preamble concern five different areas in which Member States should have an obligation of means. These are the enforcement of the mediation agreement (Recitals 20 to 22 of the Preamble), confidentiality (Recital 23 of the Preamble), limitation periods (Recitals 24 of the Preamble), information (Recital 25 of the Preamble) and implementation (Recital 26 of the Preamble). 1.

The Advancements – The Creation of a New Legal Framework

Point 7 of the Preamble justifies the use of a directive based on the need to create a “framework legislation”. Litigants must be able to rely on a predictable legal framework, at least regarding the “essential aspects of civil procedure”. The purpose of the mandatory transposition of the Directive is to allow a uniform dissemination of the process of cross-border mediation, throughout the whole territory of the Member States of the European Union, without, however, involving a high degree of harmonization of the modalities.43

EUROPEAN PARLIAMENT, The Mediation Directive - European Implementation Assessment, available at https://www.europarl.europa.eu/RegData/etudes/IDAN/2016/593 789/EPRS_IDA(2016)593789_EN.pdf on 11.05.2022, p. 5. 40 Green paper on alternative dispute resolution in civil and commercial law, COM/2002/0196 final. 41 Available at https://steinberg-mediation-hannover.de/wp-content/uploads/ 2015/06/European_code_of_conduct_on_mediation_engl-deutsch.pdf on 11.05.2022. 42 J. VALLET-PAMART, La directive Médiation, avancées et limites d’un processus original qui fera l’objet d’une révision en 2016, Revue des Affaires Européennes/ Law & European Affairs, 2013, p. 265. 43 Ibidem. 39

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Recent Developments in International Mediation Point 28 of the Preamble notes that this framework legislation is best suited to achieve the objectives of the Union, in accordance with the principles of proportionality and subsidiarity enshrined in Articles 3 and 5 of the EC Treaty (now TFEU). Recital 15 of the Preamble further emphasizes the aim of ensuring “legal certainty,” and it has been recognized as a general principle of Union law since the Bosch judgment of 6 April 1962 of the Court of Justice.44 2.

Weaknesses to Be Resolved

a)

The Use of General Definitions

A major difficulty surrounds the analysis of Directive 2008/52/EC; as with many European regulations or recommendations on out-of-court dispute resolution methods, confusion prevails. The analysis of the Directive leads irrevocably to one conclusion: neither the purpose nor the meaning of mediation are, to date, clearly determined. Comprising only fourteen articles, the Directive requires Member States to encourage the training of mediators, to provide that the participation of the parties in mediation tolls any limitation period, and to invite judges to utilize courtordered mediation, whenever they deem it appropriate.45 However, the definition of mediation itself, in Article 3 of the Directive, is disappointing. It is true that the text states that there must be a “structured process”, as well as specifying that the characterization is independent of the way the mechanism “is named or referred to”. However, on the other hand, it also adds that the parties must have recourse to a “mediator”. It adds that this process “may be initiated by the parties, suggested or ordered by a court, or prescribed by the law of a Member State”. Article 3 continues: “It includes mediation conducted by a judge who is not responsible for any judicial proceedings relating to the dispute in question. It excludes attempts by the court or judge before whom a dispute is pending to resolve the dispute in the course of judicial proceedings relating to that dispute”. In other words, the judge seized of a cross-border dispute may order the commencement of mediation, whether mandatory or not, subject to the agreement of the parties, but may not himself mediate the dispute. This set of definitions and conditions results in an unclear definition of the concept of mediation, which is one of the most important limitations of the European directive in this field. b)

Lack of Proper Implementation

The purpose of the mandatory transposition of the Directive is to allow a uniform dissemination of the process of cross-border mediation, throughout the whole CJCE, 6 avril 1962, Kledingverkoopbedrijf de Geus en Uitdenbogerd v. R. Bosch GmbH, aff. C-13/61, Rec. p. 89. 45 J. VALLET-PAMART (note 42), p. 263. 44

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Corinne Mammino territory of the Member States of the European Union, without, however, involving a high degree of harmonization of the modalities. The results are disappointing: a study published in January 2014 in response to a request by the European Parliament46 found, disappointingly, that mediation was being used in fewer than 1% of cases throughout the EU. Implementation of the Mediation Directive has differed significantly among the Member States, depending on the prior existence of national mediation systems. Some Member States have opted for a relatively literal implementation of the provisions of the Directive, while others have chosen an in-depth revision of alternative ways to resolve disputes.47 The difficulties, which have emerged at the implementation stage largely reflect the differences in legal culture across the national legal systems. The Directive applies to civil and commercial matters, including family and labor disputes. However, some Member States have not included family and labor matters. Following a consultation in 2015, a “reboot” of the Directive was proposed by the Commission in its report of August 2016.48 While finding that the Directive had raised awareness of the advantages of mediation amongst national legislators, the Commission also identified areas for improvement, including how the use of mediation could best be promoted and encouraged across the EU. The Commission recommended that Member States be encouraged to increase their efforts to promote the use of mediation, in particular by increasing the number of cases in which courts invite parties to consider its use, and by promoting financial incentives which make it economically more attractive for parties to use mediation instead of judicial and arbitral proceedings.49 A Resolution was subsequently adopted by the European Parliament in September 2017.50 Although mandatory mediation was not mentioned, the Resolution proposed, among other things, that:  EU member states should step up their efforts to encourage the use of mediation in civil and commercial disputes, for example, through information campaigns about the procedure and its advantages, and to improve cooperation between legal professionals and an exchange of best practices. EUROPEAN PARLIAMENT/ DIRECTORATE-GENERAL FOR INTERNAL POLICIES OF THE UNION, “Rebooting” the Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU, Publications Office 2014. 47 Such as Italy, which uses Mediation for dispute resolution the most. 48 Report from the Commission to the European Parliament, the council and the European economic and social committee on the application of Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, COM/2016/0542 final. 49 Report from the Commission to the European Parliament, the council and the European economic and social committee on the application of Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, p. 12. 50 Résolution du Parlement européen du 12 mars 2019 sur le renforcement des capacités de l’Union en matière de prévention des conflits et de médiation (2018/2159(INI)), P8_TA(2019)0158. 46

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Recent Developments in International Mediation  The Commission should assess the need to develop EU-wide quality standards and consistency in the provision of mediation services, while taking into account the fundamental right of access to justice and differences in mediation cultures.  The European Parliament requests that the Commission undertake a detailed study of the obstacles to the free circulation of foreign mediation agreements across the EU, and on various options to promote the use of mediation as a sound, affordable and effective way to solve domestic and international conflicts. Despite this, a briefing published in 2018 at the request of JURI,51 the Legal Affairs Committee of the European Parliament, found that the Directive “remains very far from reaching its stated goals of encouraging the use of mediation”.52 B.

The Singapore Convention

The Singapore Convention, which became effective in September 2020, is part of a general trend towards mediation. Potentially quicker and cheaper than litigation, mediation is emerging as an attractive alternative for resolving cross-border disputes in international trade. As such, it is attracting particular attention in Asia,53 a region marked by the development of new routes of communication.54 This is not the first time that UNCITRAL has attempted to address the issue of mediation. A few years after its creation in 1966, the Commission initiated its first work on the subject,55 considering mediation as a means of facilitating trade and contributing to the harmony of international commercial relations. The UN Commission then produced a set of conciliation rules in 1980 and a model law on international commercial conciliation in 2002. Its work, however, did not have the desired effect. While international commercial mediation has experienced growth, it has not taken off to become a commonly used dispute resolution method in the field of international trade.56 In contrast, international commercial arbitration has developed considerably in most of the Member States of the United Nations. It is in light of this observation that UNCITRAL has relaunched its work on international commercial mediation. The idea submitted in 2014, which had Available at https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/608847/ IPOL_BRI(2018)608847_EN.pdf on 11.05.2022. 52 Ibidem, p. 1. 53 Starting with Singapore, which in 2014 inaugurated a mediation center (Singapore International Mediation Centre - SIMC) as well as a professional association (Singapore International Mediation Institute - SIMI) in charge of establishing standards, and adopted a law on mediation (Singapore Mediation Act) in 2017. 54 C. DEVAUX, Entrée en vigueur de la Convention de Singapour: de nouveaux horizons pour la médiation commerciale internationale, Journal du droit international 2020, p. 876. 55 As of its eleventh session in June 1978, see UNCITRAL, Report on the Work of its Eleventh Session, A/33/17. 56 S.I. STRONG (note 21), p. 1973. 51

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Corinne Mammino remained unexplored until then, was a bold one: in order to encourage the use of international commercial mediation, why not offer to the resulting agreements an enforcement regime comparable to that provided in the New York Convention for arbitral awards? As a result, the Singapore Convention is similar to the New York Convention albeit adapted to the specificities of mediation. With its sixteen articles, the text is concise and clear,57 with a resolutely modern approach. Through the Singapore Convention, UNCITRAL intends to remedy the current weaknesses of international commercial mediation by encouraging its use by economic operators. 1.

The Advancements

In general, the Singapore Convention focuses on the outcome of the mediation, i.e. the settlement agreement, rather than on the mediation process itself; it sets out the legal effect to be accorded such agreements in the State Parties. In addition, the preparatory work was also marked by a desire to facilitate the task of the parties wishing to avail themselves of a settlement agreement.58 This aspect appears to be crucial both to facilitate the circulation of these agreements (and thus to encourage recourse to mediation) and to preserve the characteristics of mediation. Therefore, the only formal conditions retained were those that would ensure the smooth running of the procedure before the competent authority. a)

The Definition of a Broad Scope of Application

As UNCITRAL wishes to develop international commercial mediation, the scope of the Singapore Convention has been broadly defined in order to cover all existing practices in the contracting States of the Convention.59 To that effect, rather than adopting a precise and circumscribed definition, Article 2.3 of the Convention simply sets out a series of characteristic elements that the mediation process must have in order to benefit from the Convention's regime. Thus, regardless of the terminology used to designate the process, or whether the mediation is mandatory or conventional, it must be a “process [...] whereby the parties seek to reach an amicable settlement of their dispute with the assistance of one or more third parties (‘the mediator’) who have no power to impose a solution on them”.60 57 For a comprehensive commentary of the Convention, see N.M. ALEXANDER/ S. CHONG, The Singapore Convention on Mediation : a Commentary, Alphen aan den Rijn 2019. 58 C. DEVAUX (note 54), p. 887. 59 UNCITRAL has always favored a broad definition of mediation in its instruments: as an example, such an approach was already reflected in the 2002 Model Law and is now reflected in the Singapore Convention. 60 This last criterion relating to the power of the third party makes it possible to distinguish arbitration from mediation. The definition adopted here is close to that enshrined in

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Recent Developments in International Mediation Such an approach is desirable, since it offers sufficient flexibility to cover most mediation techniques, from the most structured to the most informal.61 This a priori broad scope of application is subject to a twofold limitation. The Singapore Convention refers only to the use of mediation in the context of international commercial relations (Art. 1.1), which is in accordance with the general mission of UNCITRAL. To benefit from the new regime, mediation must, therefore, on the one hand, concern a commercial dispute, without the text specifying what is meant by this term, and on the other hand, the settlement agreement must have an international character, which will be assessed by reference to the parties’ place of business at the time of conclusion of the agreement. b)

A New Regime for the Circulation of Settlement Agreements

As already mentioned, the Singapore Convention establishes a mechanism for the circulation of settlement agreements, following the model of the New York Convention.62 While doing so, UNCITRAL has sought to respect the diversity of national laws. This is because the Singapore Convention is not intended to standardize the procedure applicable to settlement agreements, but simply to ensure their international effectiveness. The parties may first seek enforcement of their agreement directly in any other State party to the Convention (Art. 3.1). This is a new approach in international law. While the settlement agreement remains a contract, it is given preferential treatment, and now benefits from an international enforcement regime comparable to an arbitral award or a foreign judgment. We believe this special treatment is justified, because the settlement agreement has never been an ordinary contract: it aims to settle a dispute and thus has, beyond its conventional dimension, a jurisdictional dimension.63 However, the proposed regime could be perceived as taking the principle of contractual enforceability a little too far. Indeed, even if the parties consented to the settlement agreement, they may not have intended it to be subject to this degree of enforceability. In this light, States are given the option of making the application of the agreement conditional on the express acceptance of the parties, i.e., to incorporate an opt-in mechanism (Art. 8.1 b). Instead of seeking enforcement, should a dispute arise between the parties, the agreement also allows a party to rely on it in order to prove that the matter has already been resolved by the agreement (Art. 3.2). Again, this is a new approach. Settlement agreements are given authority in the State parties, even outside of any enforcement procedure. The mechanism is similar to a regime of recognition by the European Directive on mediation (Art. 3 (a), para 1), which nevertheless refers to a “structured process”. 61 C. DEVAUX (note 54), p. 879. 62 On the difficulty of finding a balance between this model and the specificities of mediation, see J.-M. JACQUET, Les nouveaux textes de la CNUDCI sur l’efficacité des accords en matière de médiation internationale, Travaux du Comité français de droit international privé, 2018. 63 C. DEVAUX (note 54), p. 886.

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Corinne Mammino incidental means, although it does not bear the name. The Singapore Convention extends the list of private acts that can be recognized abroad, perhaps at the risk of opening Pandora's Box with respect to other contracts, this point being reflected in the preparatory work for the Convention.64 2.

Weaknesses to be Resolved

While the Singapore Convention regime appears to be effective, it has some weaknesses, such as the defenses that may impede the circulation of settlement agreements, and the impact of this new regime on the evolution of mediation practices. a)

Uncertainty as to the Defenses Available

While the principle remains the international circulation of settlement agreements, there are several reasons why this circulation may not be possible. These reasons, particularly their number and interpretation, are critical to the success of the Singapore Convention regime. Interpreted too broadly, these reasons could undermine the effectiveness of the system. If read too narrowly, the regime would give legal effect to agreements that do not deserve it.65 In order to achieve a balance, Article 5 sets out an exhaustive list of grounds on which the competent authority may base a refusal of execution or recognition. The broadly worded grounds, which relate to both the settlement agreement and the mediation process, present a few overlaps and ambiguities, which may give rise to difficulties of interpretation. Article 5, paragraph 1, provides a good example of a broadly worded ground, filled with ambiguities. In addition to the grounds relating to the conflict of the subject of the claim with public policy and the impossibility of settling the dispute by mediation, Article 5, Paragraph 1, sets out several grounds relating to the intrinsic validity of the settlement agreement. Article 5.1.b.i refers to agreements that are “not binding, null and void, inoperative or incapable of being performed under the law to which [they are] subjected”, and states that they are deprived of the benefit of an agreement. The very general wording can cover all the circumstances, which may lead to the contract being questioned, including situations of fraud, error or violence. This general ground is then supplemented by several more specific grounds, which, however, lead to overlaps, inevitably calling for divergences in its application in the States parties. b) Uncertainty about the Future of International Commercial Mediation The entry into force of the Singapore Convention on September 12, 2020, is a step toward the widespread use of mediation in the international commercial context. If the Convention is successful, mediation practices could evolve and improve the quality of mediation processes. Furthermore, by introducing a system of circulation 64 On that occasion, the UNCITRAL Secretariat pointed out that the concept of recognition of a non-judicial or administrative act has existed since the 1923 Geneva Protocol on arbitration clauses. 65 C. DEVAUX (note 54), p. 888.

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Recent Developments in International Mediation of agreements, which implies a posteriori control, mediators could be encouraged to improve their practices. In other words, the convention is likely to initiate a movement towards the professionalization of mediators in the exercise of their function. However, these developments would not be without drawbacks. The main one is the risk of making the practice of mediation more rigid. At the level of mediators, an institutionalization of the practice would lead to an increase in the requirements concerning the quality of mediation, which in turn could undermine the mediators' freedom of action. Moreover, there is a risk that mediation processes will become formalized, thereby reducing the possibility of creative solutions. Finally, the conduct of the mediator could also become a source of litigation, and the question of his or her responsibility, the inevitable counterpart of a logic of professionalization, a key issue. At the level of the market, the intensification of the global competition among the actors and the consolidating of the mediation market around a few specialized centers would probably result, on the economic level, in an increase of the costs of mediation.

IV. Conclusion The development of alternative dispute resolution methods is a reality that can be seen throughout the world, on all continents, in national laws as well as in international instruments. In Europe, by limiting the scope of the directive to cross-border disputes, while also inserting in the preamble an option for integrating the “mediation regime” into domestic judicial systems, the EU seems to have found a good compromise between its desire for harmonization and respect for the national sovereignty of the Member States. It is indeed interesting to note that many States have finally - and logically - opted for a harmonization of their internal system with that of Directive 2008/52/EC. At present, mediation as regulated within Europe is still in its initial stages. Structuring a system that is not yet established, based on an undetermined policy, is undoubtedly a task that will require time and effort. Moreover, in the absence of an express provision in the founding treaties conferring on the Union the power to legislate in this area, the task was all the more complex. In this context, the Singapore Convention will facilitate international trade by enabling disputing parties to easily enforce and invoke settlement agreements across borders. Businesses will benefit from mediation as an additional dispute resolution option to litigation and arbitration in settling cross-border disputes. Signing the Convention is therefore a strong statement of a country’s commitment to trade, commerce and investment, and strengthens its position in the field of international trade law.

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Corinne Mammino Nonetheless, as of April 2022, although the Convention has 55 signatories, only nine of these States have ratified the Convention.66 An important element to take into consideration for this limited number of ratifications is the fact that the Singapore Convention is not the only international instrument in the field of mediation. For instance, the OHADA Uniform Act on Mediation, which went into effect on 15 March 2018 in the seventeen States of the OHADA area, provides a simplified procedure for the approval of mediation agreements. States and organizations that have already adopted other international instruments capable of achieving similar objectives will probably not ratify the Singapore Convention. In light of these considerations, it is safe to say that, notwithstanding the development of the practice of international commercial mediation over the past few decades, we are still far from replacing international arbitration by mediation.

66 The States having ratified the Convention are the following: Singapore, Fiji, Qatar, Saudi Arabia, Belarus, Ecuador, Honduras, Turkey and Georgia.

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