Private International Law Issues Research Articles

The Mixed Arbitral Tribunals in the Peace Treaties of 1919–1922

This article describes the competence, the organization and the legal nature of the Mixed Arbitral Tribunal which were created by the Versailles Peace Treaty and other peace treaties after the First World War. It specifically analyses the case-law of these tribunals regarding issues of private international law. The article is a draft of a chapter to be published in an upcoming book on the Versailles Peace Treaty.

Aspectos transfronterizos de la gestación por sustitución

This article deals with the topic of substitue gestation and addresses some of the complex problems that arise from it, especially when the substitute gestation is a cross-border one. It approaches the diversity of the phenomenon and contextualizes it. Moreover, it analyzes some other issues of Private International Law of Parentage and then it focuses on the legal status of children who are born following international surrogacy arrangements vis-à-vis their intended parents. Finally, looking forward, the article highlights the need for an international instrument on cross-border surrogacy.

De toepassing van Nederlandse caoos op buitenlandse chauffeurs in het goederenvervoer over de weg - Op de viersprong van transportrecht, arbeidsrecht, vrij verkeer en IPR (The Application of the Dutch Collective Agreements to the Employment Contracts of Foreign Truck Drivers Active in the Transport of Goods by Road in the Netherlands On the Intersection between Transport Regulation, Labour Law, Free

Dutch transport companies make use of foreign truck drivers for their transport services through different employment modalities, such as use of temporary agency work, subcontracting and intra-concern transfers. The report, commissioned by the social partners in the road transport sector and finished in December 2008, examines the effect of these employment modalities on the application and enforcement of the Dutch collective agreements for the transport by road sector. In doing so, it describes the interaction between the rules on transport (national and European), free movement of services, EU choice of law and national collective agreements. Though the rules have changed since the report was published, the problems with regard to the interaction of these legal areas are still highly topical. Therefore, on request, the report is made publicly accessible in March 2017. Part 1 describes the legal framework of transport of goods by road. This overview is meant both to identify possible connecting factors for the regulation of employment and to test the legality of the employment modalities used in practice. Part 2 focuses on issues of private international law. It discusses the law applying to the contract, the application of overriding mandatory provisions and the status of collective agreements in private international law. Part 3 explores how applicable Dutch collective agreement provisions can be enforced, within the framework of European law.

The EU Succession Regulation and third country courts

The European Union Succession Regulation (Regulation (EU) No. 650/2012) (hereafter Succession Regulation) provides a comprehensive treatment of the diverse private international law issues concerning succession, encompassing within the same instrument rules on jurisdiction, applicable law and the recognition and enforcement of decisions and authentic instruments in succession matters. At the same time, each of these sets of rules coexisting within the Regulation bears its own regime in terms of spatial applicability. As concerns the rules on jurisdiction, these tend to regulate comprehensively all succession disputes, including those more closely connected to a third country, by providing for subsidiary jurisdiction rules and for a rule on forum necessitatis. Still, the rules contained in the Regulation as concerns choice of forum, as well as lis alibi pendens and related actions, are conceived from a purely inter partes perspective. This causes on the one hand the impossibility of re-establishing Gleichlauf where the deceased made a professio iuris in favour of the law of a third country, and, on the other hand, does not ensure a satisfactory coordination with parallel proceedings pending before third country courts. The subsidiary jurisdiction rules may in turn cause an excessive enlargement of the scope of the jurisdiction of Member States’ courts, and could also hinder the unity of the succession. The latter concern is likely to arise also in respect of the mechanism embodied in Article 12(1) of the Regulation, which achieves a rather incomplete coordination with the jurisdiction exercised by third country courts. Some suggestions will be submitted for amendments to be made to the Succession Regulation in order to overcome these shortcomings.

CONTRACTUAL NETWORKS IN EUROPEAN PRIVATE INTERNATIONAL LAW

AbstractThis article examines private international law issues raised by transnational contractual networks. The focus is on choice-of-law questions that arise in the context of 1) relations between network members who are contractually bound to one another, 2) relations between network members not connected directly by bonds of contract, and 3) relations between the network and the outsiders. The aim is to assess whether, and to what extent, European private international law is capable of dealing with some of the key challenges posed by contemporary economic and social activity.

From question of fact to question of law to question of private international law: the question whether a person is male, female, or … ?

Some countries have introduced a third sex other than male and female as a status. This shows that the sex allocation and status registration is not only a question of fact but can also contain legal elements. This characterization leads to consequences for private international law (PIL) issues. The article analyses the consequences for a person that legally acquired a third sex status (X, or “other”, or “vacant field”) coming into contact with a legal system that is not aware of the third option, for example, in cases of marriage or parenthood. So, the question is whether the second legal system can “accept” the unknown legal status, as it does in other cases of unknown foreign status. The influence of the European Convention on Human Rights and of EU law on the one hand and public policy on the other hand can be relevant. In cases where acceptance is granted, the question arises how to treat said person under a national law that does not know the determined sex. Usually, recognized foreign legal phenomena unknown in the national system lead to an adaptation of the rules by the PIL means of transposition. This article proposes solutions that balance recognition rules, status law, and personal interests of the person involved.

Navigating sovereignty and transnational commercial law: the use of comity by Australian courts

Academically, the principle of comity is all but dead. Not only is there a distinct lack of literature regarding the principle, but in circumstances where it is addressed it is considered to be of negligible importance for the resolution of modern private international law disputes. However, a review of Australian case law demonstrates that there is a significant disjunct between the academic view of comity and its actual use in judicial practice. In the last 10 years, over 850 Australian court decisions have made reference to comity – many of which relate to the field of private international law. In this article, the authors review 77 Australian cases where comity played a definitive role in the resolution of private international law issues. These cases demonstrate that comity is a relevant, useful legal tool to guide the development and application of private international law rules – doing so in a manner that helpfully mediates between the political need to uphold the doctrine of sovereignty and the commercial and judicial need to permit law to act transnationally in order to accommodate international commerce. This is the purpose for which comity was created almost 400 years ago and the examined case law demonstrates that it continues to be effective in reflecting these interests in the law.

New Revolutionary European Regulation on Succession Matters; Key Issues and Doubts

European Regulation No. 650/2012 on succession matters begins to be applied. Across most of Europe, it is anticipated that new rules will make life easier. Its subject matter is concerned with the private international law issues which arise in the context of succession and wills. It contains uniform rules concerning jurisdiction, choice of law, and the international recognition and enforcement of judgments and related instruments in this field. As it can be best judged, in the nearest future the Regulation will cause some controversy. In this text the author tries to present the key issues of the Regulation and outlines the first doubts that may arise from the application of this act.

Tratamento de barriga de aluguel em Direito Comparado.

O progresso nas ciências da vida e medicina impulsionadas por avanços e descobertasda ciência moderna e tecnologia levou ao desenvolvimento de tecnologias de reprodução humana assistida como uma solução para o problema da infertilidade, a adoção substitui alternativa tradicional paternidade biológica. Neste contexto, menção especial dada disputas surrogacygerados a partir de um ponto de vista social, ético, legal e biomédica. O regulamento díspares desta prática para o direito nacional levou ao “turismo reprodutivo”, isto é, a transferência de casais de países onde a prática da barriga de aluguel é ilegal emoutros países onde a prática é legal, levando privadas internacionaisquestões de direito relativas ao reconhecimento da paternidade de crianças nascidas com o uso dessas técnicas.

Out of the Box? Domestic and Private International Law Aspects of Gender Registration

The legal regulation of gender identity seems to be in a state of flux. This paper compares the German and Dutch legal systems with regard to the registration of a person's sex, focusing on the possibility in both countries not to register a baby's sex until it can be clearly determined. In both systems, it has thus become possible that a person has no specified gender for a considerable period of time. These persons may encounter various kinds of legal problems, since the two jurisdictions have not been adapted to accommodate them. In addition, two potential problems regarding private international law issues are discussed.

Selected Issues of the Re-Codified Czech Private International Law: A Comparative Czech-Korean Perspective

Despite both regional and international attempts at harmonisation and unification of private international law, new national codifications are still being adopted. The article draws attention to some selected issues of the new Czech Private International Law Act that reflect modern trends in private international law, providing a comparative analysis of the respective rules in the codification of South Korea. Both countries, the Czech Republic and the Republic of Korea have modern private international law codifications: the current Korean Act on Private International Law was adopted and became effective in 2001, replacing its predecessor which had been adopted in 1962 and was considered outdated. The Czech Republic adopted its new Act on Private International Law in 2012, effective as of 2014.

Intervención pública y autonomía de la voluntad en la protección internacional de los incapaces

The legal protection of adults is a clear example of the coexistence of public and private law. If contacts with different countries exist in the sphere of a protection measure, private international law issues will arise; the concurrence of public and private interests will affect the solution to these questions. The Spanish law did not take this into account until the recent reform of art. 9.6 of the Civil Code.

News from the Hague Conference on Private International Law

This article highlights some of the recent notable developments at the Hague Conference on Private International Law. The Permanent Bureau of the Hague Conference on Private International Law is excited to report that after years of exploring various options to better meet the evolving needs of the Organisation, the office headquarters in The Hague relocated from the building located at Scheveningseweg 6 to space in the heart of the city’s International Zone and adjacent to the World Forum, at Churchillplein 6B. The move was made possible thanks to the generous support of the Netherlands Ministries of Foreign Affairs and Justice & Security; as well as the Municipality of The Hague. The Opening Ceremony took place on 3 September 2014 before ambassadors, other government officials, staff, family and friends of the Hague Conference. Throughout the past year, the Permanent Bureau has focused on the development of several possible new instruments, including finalisation of the Commentary for the Principles on the Choice of Law in International Contracts; as well as instruments related to the recognition and enforcement of foreign civil protection orders; voluntary agreements in cross-border family law disputes; private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements; and further work related to the recognition and enforcement of foreign judgments (the “Judgments Project”).

International Employment Law Mangled between European Fundamental Freedoms

In this article the author focuses on the Private International Law issues raised by the judgements of the Court of Justice in the cases Viking, Laval, Ruffert and C./Luxembourg. The approach is the following: the "country of origin" principle created an intense controversy when it was presented as part of the proposal of the European Commission for a Directive on Services in the internal market (COM(2004) final, 13.1.2004). In the final version of the Services Directive, the principle has disappeared. But the question arises whether the principle of origin has "resurrected" in the recent judgments of the Court? In her discussion of this issue and the impact of the liberalization of the provision of services in the EU, the author includes the Rome Convention, The Rome I Regulation and the Posting Directive.(English translation of the Original Dutch paper, published in Tijdschrift Recht en Arbeid 2009. The author is grateful to Ms. Emanuela Rotella for the English translation)

The Urgent Need for Harmonisation of the Application of Foreign Laws by National Authorities in Europe

Since the European Union was granted legislative competence to deal with private international law issues, several EU Regulations have been adopted that govern the scope of applicable law on several matters (contracts, maintenance, divorce...). The universal nature of these instruments can lead to the application of foreign laws. However, this matter has not been harmonised yet. This article argues that the current divergence in the way domestic systems apply foreign laws seriously undermines the efficacy of applicable law Regulations, such that there is an urgent need of harmonisation in this respect.

Family Law in the World Community

The second edition of this casebook has been updated and trimmed, although it retains a wide range of topics and materials. It covers a variety of private international law issues, including child abduction, child custody, adoption, child support enforcement, and recognition of marriages and divorces. The book also explores the impact of public international law on both domestic and international regulation of the family, using topics such as family violence and the rights of the child. Finally, the book uses comparative law materials to examine traditional family law topics, such as the regulation of marriage, the rights of same-sex couples, adoption, reproductive freedom, and more.

Some Reflections on the Requirements of Nationality and Domicile in the Danish Act on Registered Partnerships: An Example of a Danish Private International Law Provision in Family Matters

In 1989, Denmark became the first country in the World which established a registration scheme for same-sex couples providing most of the rights and duties granted to married couples, with a few exceptions. One of these differences between marriage and register partnership was that, in the case of the latter, at least one of the partners was required to be Danish citizen domiciled in Denmark. The main purposes behind these requirements were to prevent Denmark from becoming a gay heaven for couples from abroad and to avoid limping registrations. These requirements evolved and, in 1999, foreign couples were allowed to register as long as they both were domiciled in the country for at least two years before registering. Furthermore, nationality and domicile of some other countries have been considered on the same footing as the Danish ones: Iceland, Norway, Sweden, Finland, the Netherlands, Belgium and Spain. This complicated solution, which may be worded as a list system, is different from the general rules with regards to marriage and it no longer seems suitable for the purposes it was created for. The list system may be changed once same-sex marriage is approved in the coming months, although it is likely to remain for the purposes of recognition of foreign registered partnerships. It is, in any case, an example of a confusing approach by the Danish legislator, with a lack of tradition to legislate on private international law issues, in a sensitive matter.

10 Posted Workers in Europe from a Private International Law Perspective

AbstractCases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.

Posted Workers in Europe from a Private International Law Perspective

AbstractCases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.

Posted Workers in Europe from a Private International Law Perspective

Abstract Cases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.